State of Tennessee v. Victor Dyson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 6, 2015

STATE OF TENNESSEE v. VICTOR DYSON

Appeal from the Criminal Court for Shelby County
No. 1302025 James C. Beasley, Jr., Judge

No. W2014-01818-CCA-R3-CD - Filed December 28, 2015

The Defendant-Appellant, Victor Dyson, was convicted by a Shelby County jury of two
counts of aggravated assault and one count of theft of property valued at less than five
hundred dollars. As a Range III, persistent offender, he was sentenced to fifteen years,
eleven months and twenty-nine days in the Tennessee Department of Correction. On
appeal, the Defendant-Appellant argues: (1) the trial court erred in admitting evidence of
prior bad acts in violation of Tennessee Rules of Evidence 403 and 404(b); (2) the trial
court erred in refusing to instruct the jury on the law of self-defense; (3) the trial court
erred by denying the Defendant-Appellant‟s motion for new trial based on insufficient
evidence; (4) the trial court erred in denying the Defendant-Appellant‟s motion for a
mistrial after the prosecutor referred to the trial court‟s refusal to instruct on self-defense;
and (5) the trial court committed cumulative errors which, taken together, denied the
Defendant-Appellant his constitutional right to a fair trial. Upon our review, we affirm
the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Stephen C. Bush, District Public Defender; John Zastrow and Nicholas James Cloud,
Assistant Public Defenders (at trial), and Phyllis L. Aluko, Assistant Public Defender (on
appeal), Memphis, Tennessee, for the Defendant-Appellant, Victor Dyson.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Josh Corman, Assistant District
Attorney General, for the Appellee, State of Tennessee.
 OPINION

The Defendant-Appellant was arrested after he was confronted by two Wal-Mart
employees for shoplifting and threatened them with a knife. The proof adduced at the
Defendant-Appellant‟s May 27, 2014 trial was as follows. On October 1, 2012, the day
of the offense, loss prevention officer Thomas Burcham received a phone call from a loss
prevention officer at a nearby Wal-Mart to be on the lookout for Victor Dyson, a known
shoplifter that had been seen in the area that day. A picture of the Defendant-Appellant
had been sent out the previous week from the Shelby County Alert Team. At
approximately 4:15 p.m., the officer observed the Defendant-Appellant acting
suspiciously in the menswear department and asked another officer, Daniel Gilmore, to
investigate while he surveilled from the camera room. This Wal-Mart had approximately
163 surveillance cameras that could all be monitored from a central location within the
store. Both officers maintained surveillance of the Defendant-Appellant as he selected
several jerseys and hats and placed them in his cart. The surveillance video, played for
the jury at trial, showed the Defendant-Appellant wheeling the cart into an aisle and
appearing a few moments later with a bag in his hand, and no cart.

At this point, one of the officers left the camera room and proceeded to the exit
while the other officer maintained surveillance on the Defendant-Appellant from the
floor. Once the Defendant-Appellant passed all points of sale, an officer approached him
and said, “[E]xcuse me.” The Defendant-Appellant immediately turned around and
attempted to go back into the store, where he was confronted by the other officer. In an
apparent attempt to flee, the Defendant-Appellant ran to his right and fell over a trashcan.
As the officer approached to detain him, the Defendant-Appellant pulled out a folding
knife and said, “I‟m fixing to cut you, I‟m fixing to cut you[.]” He then retrieved his bag
and fled the store. The officers were in plain clothes and unable to identify themselves as
loss prevention agents during the altercation.

Sergeant Myron Fair of the Memphis Police Department investigated the incident
and was given the Defendant-Appellant‟s name from the Wal-Mart loss prevention
agents. Both officers later identified the Defendant-Appellant from a photo lineup as the
man that had taken the merchandise and threatened them with the knife. The estimated
total value of the merchandise was three hundred and twenty dollars.

At the conclusion of the State‟s case, the Defendant-Appellant requested the trial
court to instruct the jury on the law of self-defense. The Defendant-Appellant argued the
issue was fairly raised by the State‟s evidence, which showed two plain-clothed
employees confront and put their hands on the Defendant-Appellant prior to him
threatening them with a knife. In denying the request, the trial court reasoned that there
was no evidence to substantiate the claim of self-defense and that the claim was not
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available to the Defendant-Appellant because he was engaged in unlawful activity at the
time.

After deliberations, the jury convicted the Defendant-Appellant as charged of two
counts of aggravated assault and one count of misdemeanor theft. He was sentenced as a
Range III, multiple offender to a total effective sentence of fifteen years, eleven months
and twenty-nine days in the Tennessee Department of Correction. Following the denial
of his motion for new trial, the Defendant-Appellant then filed a timely notice of appeal.

ANALYSIS

I. Admission of Prior Bad Acts. The Defendant-Appellant argues that the trial
court erred by allowing multiple references to the Defendant-Appellant as a known
shoplifter without having conducted a jury-out hearing as required by Tennessee Rule of
Evidence 404(b). The State responds that the trial court did indeed hold a pretrial hearing
as required by Rule 404(b), and accordingly any argument is waived for failure to include
a copy of the State‟s 404(b) motion and a transcript of the pretrial 404(b) hearing. The
State further argues any error attributable to the introduction of the statements was
harmless or otherwise cured by the trial court‟s prompt curative instruction. Because our
review of the record reveals that the trial court held a pretrial hearing as required by Rule
404(b), and because the Defendant-Appellant failed to include the transcript or the State‟s
motion in the record on appeal, we agree with the State.

“Rule 404 was patterned in great measure on State v. Parton, 694 S.W.2d 299
(Tenn. 1985), wherein our supreme court ruled that evidence of other crimes is generally
inadmissible.” State v. McCary, 119 S.W.3d 226, 243 (Tenn. Crim. App. 2003). Rule
404 “establish[es] that character evidence cannot be used to prove that a person has a
propensity to commit a crime.” Id. (citing Tenn. R. Evid. 404(b); State v. Adkisson, 899
S.W.2d 626, 645 (Tenn. Crim. App. 1994)). Trial courts have been encouraged to take a
“„restrictive approach‟ to 404(b) evidence because such proof „carries a significant
potential for unfairly influencing a jury.‟” State v. Jackson, 444 S.W.3d 554, 601 (Tenn.
2014) (quoting State v. Dotson, 254 S.W.3d 378, 387 (Tenn. 2008)). “„[T]he risk that a
jury will convict for crimes other than those charged–or that, uncertain of guilt, it will
convict anyway because a bad person deserves punishment-creates a prejudicial effect
that outweighs ordinary relevance.‟” Id. (quoting State v. Sexton, 368 S.W.3d 371, 403
(Tenn. 2012)). The more similar the conduct or act to the crime for which the defendant
is on trial, the greater the potential for a prejudicial result. McCary, 119 S.W.3d at 243
(citing State v. Bordis, 905 S.W.2d 214, 232 (Tenn. Crim. App. 1995)).

Because an erroneous admission of a prior bad act is evidentiary in nature, and not
constitutional, the error is subject to a non-constitutional harmless-error analysis. Under
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this analysis, we must determine whether the error “more probably than not affected the
judgment or would result in prejudice to the judicial process.” See Tenn. R. App. P.
36(b); State v. Rodriguez, 254 S.W.3d 361, 371-72 (Tenn. 2008) (citing State v. Ely, 48
S.W.3d 710, 725 (Tenn. 2001); State v. Harris, 989 S.W.2d 307 (Tenn. 1999)). In
conducting our review, we must consider the whole record and the properly admitted
evidence of the defendant‟s guilt. Rodriguez, 254 S.W.3d at 372. The greater the
amount of evidence of guilt, the heavier the burden on the defendant to demonstrate that a
non-constitutional error involving a substantial right more probably than not affected the
outcome of the trial. Id. The crucial consideration for this court is what impact the error
may reasonably be taken to have had on the jury‟s decision-making. Id. (citing Kotteakos
v. United States, 328 U.S. 750, 759 (1946); State v. Denton, 149 S.W.3d 1 (Tenn. 2004);
State v. Dooley, 29 S.W.3d 542, 555 (Tenn. Crim. App. 2000)). Where an error more
probably than not had a substantial and injurious impact on the jury‟s decision-making, it
is not harmless. Id. at 372.

In the Defendant-Appellant‟s reply brief, he concedes “[a]fter rereading portions
of the transcript of the motion for new trial . . . it is probable the trial court conducted a
pretrial hearing pursuant to a TRE 404(b) motion filed by the State of Tennessee prior to
trial.” He further indicates that he intended to file a motion to supplement the record with
a transcript from the 404(b) hearing as well as a copy of the State‟s motion. However,
neither the transcript nor the State‟s motion is included in the record on appeal.

Given the incomplete record, we agree with the State, and conclude that the
Defendant-Appellant waived this issue by failing to include a transcript of the pre-trial
404(b) hearing or a copy of the State‟s 404(b) motion. The appellant has a duty to
prepare a record that conveys “a fair, accurate and complete account of what transpired
with respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b).
“Where . . . the record is incomplete, and does not contain a transcript of the proceedings
relevant to an issue presented for review, or portions of the record upon which a party
relies, this Court is precluded from considering the issue.” State v. Roberts, 755 S.W.2d
833, 836 (Tenn. Crim. App. 1998) (citing State v. Groseclose, 615 S.W.2d 142, 147
(Tenn. 1981); State v. Jones, 623 S.W.2d 129, 131 (Tenn. Crim. App. 1981)). “In the
absence of an adequate record on appeal, we must presume that the trial court‟s ruling
was supported by the evidence.” State v. Bibbs, 806 S.W.2d 786, 790 (Tenn. Crim. App.
1991) (citing Smith v. State, 584 S.W.2d 811, 812 (Tenn. Crim. App. 1979); Vermilye v.
State, 584 S.W.2d 226, 230 (Tenn. Crim. App. 1979)).

Waiver notwithstanding, we have reviewed the record and are unable to say that
the trial court‟s error more probably than not had a substantial and injurious impact on
the jury‟s decision-making. During the course of the trial, there were three references to
the Defendant-Appellant as a suspected or known shoplifter. On two of those occasions,
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defense counsel timely objected and the trial court gave a corresponding curative
instruction. Additionally, both loss prevention agents testified consistently that they
observed the Defendant-Appellant place merchandise in a plastic bag and carry the bag
past all points of sale without paying for it. When they attempted to confront the
Defendant-Appellant, he pulled out a knife and threatened to “cut” or “stick” them. The
video recording of the incident, admitted into evidence, also corroborated their testimony.
Given the overwhelming evidence of the Defendant-Appellant‟s guilt, any error in this
case was harmless. Accordingly, Defendant-Appellant is not entitled to relief.

II. Self-defense Instruction. Next, the Defendant-Appellant challenges the trial
court‟s refusal to instruct the jury on the law of self-defense. He argues that the issue of
self-defense was fairly raised by the testimony of the loss prevention agents because they
were in plain clothes and did not identify themselves as Wal-Mart employees prior to the
confrontation. The Defendant-Appellant further argues that the trial court improperly
refused the instruction based on a finding that the Defendant-Appellant was engaged in
unlawful activity when he threatened the victims with the knife. He insists that the
question of whether a person was engaged in unlawful activity was for the jury because
he pleaded not guilty to the theft charge. The State responds the trial court properly
denied the Defendant-Appellant‟s request to instruct the jury on self-defense because the
issue was not fairly raised by the evidence and because the evidence tended to show that
the Defendant-Appellant was engaged in illegal conduct at the time. We agree with the
State.

A defendant has a “right to a correct and complete charge of the law, so that each
issue of fact raised by the evidence will be submitted to the jury on proper instructions.”
State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000) (citing State v. Teel, 793 S.W.2d
236, 249 (Tenn.1990)). “In determining whether a defense instruction is raised by the
evidence, the court must examine the evidence in the light most favorable to the
defendant to determine whether there is evidence that reasonable minds could accept as
to that defense.” State v. Sims, 45 S.W.3d 1, 9 (Tenn. 2001) (citing Johnson v. State, 531
S.W.2d 558, 559 (Tenn.1975); State v. Bult, 989 S.W.2d 730, 733 (Tenn. Crim. App.
1998)). The Tennessee Supreme Court has concluded that sufficient evidence to fairly
raise a general defense “is less than that required to establish a proposition by a
preponderance of the evidence.” State v. Hawkins, 406 S.W.3d 121, 129 (Tenn. 2013).

Because the propriety of jury instructions is a mixed question of law and fact, the
standard of review is de novo with no presumption of correctness. State v. Smiley, 38
S.W.3d 521, 524 (Tenn. 2001). The theory of self-defense, as proscribed in Tennessee
Code Annotated section 39-11-611(b)(2), is as follows:

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 [A] person who is not engaged in unlawful activity and is in a place where
the person has a right to be has no duty to retreat before threatening or
using force intended or likely to cause death or serious bodily injury, if:

(A) The person has a reasonable belief that there is an
imminent danger of death or serious bodily injury;

(B) The danger creating the belief of imminent death or
serious bodily injury is real, or honestly believed to be real at
the time; and

(C) The belief of danger is founded upon reasonable grounds.

T.C.A. § 39-11-611(b)(2)(2011).

In denying the Defendant-Appellant‟s request to instruct the jury on self-defense,
the trial court stated:

[A]t this point, taken in the light most favorable to the defense[,] I do not
find that there has been a basis for me to charge self-defense. That‟s my
ruling and I think under the law, the testimony that‟s before me is that [the
Defendant-Appellant] was engaged in the crime of shoplifting, that‟s the
proof that‟s been presented.

In review of this issue, we note that both loss prevention agents testified they did
not identify themselves because the Defendant-Appellant attempted to flee prior to them
having an opportunity to do so. Furthermore, the question of whether the Defendant-
Appellant was engaged in unlawful activity within the meaning of the self-defense statute
was properly within the province of the trial court. See Sims, 45 S.W.3d at 9 (noting that
“in determining whether a defense instruction is raised by the evidence, the court must
examine the evidence in the light most favorable to the defendant to determine whether
there is evidence that reasonable minds could accept as to that defense”). The Defendant-
Appellant rightfully concedes that the self-defense statute requires, as a prerequisite, that
the defendant not be engaged in unlawful activity. This determination necessarily
requires the trial court to evaluate any evidence that the defendant was engaged in
unlawful activity prior to deciding whether to instruct the jury on the law of self-defense.
See State v. Hawkins, 406 S.W.3d 121, 128 (Tenn. 2013) (“To prevail on a theory of self-
defense, a defendant must show that he or she was „not engaged in unlawful activity‟ and
was „in a place where the person had a right to be.‟”); State v. Zachary Carlisle, No.
W2012-00291-CCA-MR3C, 2013 WL 5561480, at *19 (Tenn. Crim. App. Oct. 7, 2013),
perm. app. denied (Tenn. Mar. 17, 2014) (concluding that the defendant was not entitled
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to a self-defense instruction because he was engaged in illegal activity, there a drug deal,
at the time he shot the victim).

In addition to finding that the Defendant-Appellant was engaged in unlawful
activity, the trial court also refused the instruction because the evidence presented did not
raise the issue. As the trial court explained:

In my opinion, there has to be some, even in the light most favorable to the
defendant, the law says I should charge self-defense, but there has to be
some indicia, there has to be something there that I can find even in the
light most favorable to the defense, that this issue of self-defense has been
raised. In my opinion, based upon the proof that I have heard, there has not
been anything other than [the defense‟s] argument that the loss prevention
people touched him first. There‟s nothing in the record before this jury that
would indicate [the Defendant-Appellant] was justified or was acting in
self-defense, and I think there has to be something there, something from
the proof, again, taken in the light most favorable to the defense, that would
be enough for me to charge under the circumstances.

Without the Defendant-Appellant‟s unlawful conduct, we agree with the trial
court, and conclude that the evidence did not fairly raise the issue of self-defense
sufficient to necessitate an instruction. The Defendant-Appellant relies on the fact that
the loss prevention agents did not wear uniforms or identify themselves before attempting
to restrain him. However, in our view, these circumstances do not evince actual
imminent danger to the Defendant-Appellant or his reasonable belief of danger at the
time he pulled the knife on the victims. To warrant a jury instruction on self-defense, the
defendant is required to submit evidence from which a jury could find either that the
defendant was in danger of serious injury or death, or was under the reasonable belief that
he was. See State v. Thacker, 164 S.W.3d 208, 245 (Tenn. 2005) (affirming trial court‟s
refusal to instruct the jury on self-defense because “[t]here is simply no objective basis
for us to find that the defendant reasonably believed that he was in imminent danger of
death or serious bodily injury); State v. Mario Johnson, No. W2013-01124-CCA-R3-CD,
2014 WL 1004516, at *4 (Tenn. Crim. App. Mar. 13, 2014), perm. app. denied (Tenn.
Aug. 29, 2014) (affirming trial court‟s refusal to instruct the jury on self-defense where
there was no objective basis to conclude that the defendant reasonably believed he was in
imminent danger of death or serious bodily injury under the facts of the case). Because
there was no evidence that the Defendant-Appellant was in imminent danger, or that he
had a reasonable belief that he was, the trial court properly denied his request to instruct
the jury on the law of self-defense. He is not entitled to relief.

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 III. Sufficiency of the Evidence. The Defendant-Appellant does not contest the
sufficiency of the evidence supporting the elements of aggravated assault or theft.
Rather, as related to the above issue, the Defendant-Appellant argues that the evidence is
insufficient to support his convictions of aggravated assault because the State failed to
disprove self-defense. The State argues that the issue of self-defense was not fairly raised
by the proof, the trial court did not instruct the jury on self-defense, and accordingly, the
State was not required to disprove self-defense. We agree with the State.

As explained in Section II, the evidence presented at trial did not fairly raise the
issue of self-defense so as to require a jury instruction. The State‟s duty to disprove self-
defense beyond a reasonable doubt is triggered only upon the introduction of proof
sufficient to warrant a jury instruction on self-defense. See State v. Bledsoe, 226 S.W.3d
349, 355 (Tenn. 2007); T.C.A. § 39-11-203(c), Sentencing Comm‟n Cmts. Accordingly,
we agree that the State was not required to disprove self-defense beyond a reasonable
doubt in order to convict the defendant of aggravated assault. Because the Defendant-
Appellant concedes the proof was sufficient in other respects, he is not entitled to relief
on this issue.

IV. Motion for Mistrial. The Defendant-Appellant contends that the trial court
erred in denying his motion for mistrial based on the prosecutor‟s closing argument.
Specifically, he challenges the following statement from the prosecutor‟s closing
argument, “There‟s no instructions [sic] on self-defense. Because there is no self-defense
in this case. This isn‟t a self-defense case.” The Defendant-Appellant argues the
statement amounted to the State facilitating a judicial comment on the weight of the
evidence. In other words, he claims the statement indicated to the jury that the judge did
not provide an instruction on self-defense because he did not believe the defense had
presented sufficient evidence. The State contends that the argument was a fair response
to the defense‟s assertion during voir dire and opening statements that this was a case
about self-defense, and the State would be required to prove beyond a reasonable doubt
that the defendant did not act in self-defense. The State further contends that even if the
comments were improper, they did not create a manifest necessity for the trial court to
declare a mistrial, and the trial court cured any prejudice by promptly interrupting the
State‟s closing argument and giving a curative instruction. We agree with the State.

The Tennessee Supreme Court has noted “[c]losing argument is a valuable
privilege that should not be unduly restricted.” State v. Stephenson, 195 S.W.3d 574, 603
(Tenn. 2006) (citing State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001)). The trial court has
substantial discretion in controlling the course of arguments and will not be reversed
unless there is an abuse of that discretion. Id. In addition, prosecutorial misconduct does
not constitute reversible error absent a showing that it has affected the outcome of the
trial to the prejudice of the defendant. Id. (citing Terry v. State, 46 S.W.3d 147, 156
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(Tenn. 2001)). However, an attorney‟s comments during closing argument “„must be
temperate, must be predicated on evidence introduced during the trial of the case, and
must be pertinent to the issues being tried.‟” State v. Gann, 251 S.W.3d 446, 459 (Tenn.
Crim. App. 2007) (quoting State v. Sutton, 562 S.W.2d 820, 823 (Tenn.1978)). In order
to be entitled to relief on appeal, the defendant must “show that the argument of the
prosecutor was so inflammatory or the conduct so improper that it affected the verdict to
his detriment.” State v. Farmer, 927 S.W.2d 582, 591 (Tenn. Crim. App. 1996).

This court must consider the following factors when determining whether the
argument of the prosecutor was so inflammatory or improper to negatively affect the
verdict: (1) the conduct complained of under the facts and circumstances of the case; (2)
any curative measures undertaken by the court or prosecutor; (3) the intent of the
prosecutor in making the challenged statements; (4) the cumulative effect of the improper
conduct and any other errors in the record; and (5) the relative strength or weakness of
the case. State v. Goltz, 111 S.W.3d 1, 5-6 (Tenn. Crim. App. 2003) (citing Judge v.
State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)).

When read in context, the State‟s closing argument as a whole is clearly refuting
defense counsel‟s assertion that the case was about self-defense, and that the State would
be required to disprove self-defense beyond a reasonable doubt.

Now, as the judge instructed you on, what I say is not evidence, what the
defense says is not evidence, what you heard on the witness stand is what‟s
evidence. And you started hearing in voir dire and you heard in opening
statement from the defense that this is a case about self-defense. Wrong.
This is not a self-defense case. You will notice in your instructions from
the judge nowhere in this packet do you get an instruction on self-defense.
We say things sometimes in opening statements that just aren‟t so and we
can‟t prove. There‟s no instructions [sic] on self-defense. Because there is
no self-defense in this case. This isn‟t a self-defense case.

Defense counsel objected immediately after this statement and moved for a
mistrial. The trial court denied the motion, determining that each side could argue
whether they thought the evidence supported a self-defense argument, but should refrain
from commenting on what the judge chose to charge. The prosecutor continued, “let me
say this, the reason you don‟t have anything about self-defense [in the jury instructions]
is because when someone is engaged in unlawful activity, it‟s not lawful self-defense.”
This comment prompted the trial court, sua sponte, to give a curative instruction,
reminding the jury they are to determine the outcome of the case based only on the law
provided to them by the trial court.

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 Applying the Judge factors, we conclude that the trial court did not abuse its
discretion by denying the Defendant-Appellant‟s motion for a mistrial. Viewing the
prosecutor‟s argument in light of the facts and circumstances of the case, we note that the
defense consistently relied on the theory of self-defense. Defense counsel‟s opening
statement began with the following remark, “[V]ery simply put, this is a case about self-
defense.” His cross-examination of the loss prevention agents focused on whether they
were wearing uniforms, badges, or identified themselves as Wal-Mart employees. The
defense maintained this theory in his closing argument, even after the trial court informed
the parties he would not instruct the jury on self-defense, arguing, “[the Defendant-
Appellant] was just trying to defend himself, not assault anybody.”

In our view, the comments about which the Defendant-Appellant complains
stemmed from the prosecutor‟s attempt to rebut the defense‟s persistent assertion that the
case was about self-defense and that the State was required to disprove self-defense
beyond a reasonable doubt. See Sutton, 562 S.W.2d at 823-24 (“Where the criminal
defendant raises an issue in his defense, he cannot complain of references to the issue by
the prosecution, or argument on that issue, so long as the argument is fairly warranted by
the facts and circumstances of the case.”).

As to the second Judge factor, the trial court promptly issued a curative instruction
in response to the prosecutor‟s argument that self-defense did not apply where the
defendant was engaged in unlawful activity. The trial court reminded the jury of their
duty to decide the case based on the law as instructed by the trial court. The court also
reminded the jury of their ability to disregard arguments of counsel if not supported by
the evidence. This instruction was further buttressed by the trial court‟s instruction that
arguments of counsel are not evidence. We presume the jury followed these curative
instructions. State v. Parker, 350 S.W.3d 883, 897 (Tenn. 2011) (citing State v. Kiser,
284 S.W.3d 227, 272 (Tenn. 2009)).

The third Judge factor involves examination of the prosecutor‟s intent. As
explained in the discussion of the first Judge factor, the record demonstrates the
prosecutor‟s intent in making the challenged comments was to respond to the defense‟s
assertion that the case was about self-defense. See Goltz, 111 S.W.3d at 6 (noting that
courts should consider the facts of each case as well as the arguments of defense counsel
in determining whether the statements are considered prosecutorial misconduct).

The fourth Judge factor requires an analysis of the cumulative effect of any
improper conduct or other errors. We have concluded that reference to the Defendant-
Appellant as a suspected or known shoplifter was harmless error; however, we afford it
little to no weight in this analysis. The fifth Judge factor requires the court to analyze the
strength of the State‟s case. As discussed previously, the evidence of the Defendant-
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Appellant‟s guilt was overwhelming. The State introduced testimony from the two loss
prevention agents and the video recording of the incident. Discerning no error in the
prosecutor‟s closing argument, we conclude that the trial court properly denied the
Defendant-Appellant‟s motion for mistrial.

V. Cumulative Error. The Defendant-Appellant argues that he is entitled to
relief based on the cumulative effect of the trial court‟s refusal to instruct the jury on self-
defense and the prosecutor‟s closing argument that the case was not about self-defense.
He further asserts that these errors were compounded by the references to the Defendant-
Appellant as a known shoplifter. In response, the State contends that the Defendant-
Appellant failed to establish any individual errors. Although it was error to refer to the
Defendant-Appellant as a suspected or known shoplifter, it was harmless in light of the
overwhelming evidence of his guilt. Because we discern no other errors, the Defendant-
Appellant is not entitled to relief on this issue. See State v. Hester, 324 S.W.3d 1, 76
(Tenn. 2010) (“To warrant assessment under the cumulative error doctrine, there must
have been more than one actual error committed in the trial proceedings.”).

CONCLUSION

Upon our review, we affirm the judgments of the trial court.

_________________________________
CAMILLE R. McMULLEN, JUDGE

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