State of Tennessee v. Lavelle Moore

06/29/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
February 7, 2017 Session

STATE OF TENNESSEE v. LAVELLE MOORE

Appeal from the Criminal Court for Shelby County
No. 13-06261 James M. Lammey, Judge
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No. W2016-00094-CCA-R3-CD
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A Shelby County jury convicted the defendant, Lavelle Moore, of six counts of theft of
property over $500 but less than $1000. The trial court merged the convictions into two
counts and imposed an effective sentence of twelve years. On appeal, the defendant
contends the evidence is insufficient to support his convictions; the trial court abused its
discretion by ruling the defendant could be impeached with his prior theft conviction; the
theft convictions violate double jeopardy; the trial court erred by ordering the defendant,
during deliberations, to stand before the jury and display his eyes; the trial court abused
its discretion by telling the jury to keep working after it reached an impasse; and the trial
court abused its discretion when imposing consecutive sentences. After a thorough
review of the record, we conclude the evidence was sufficient; the trial court properly
allowed the defendant to be impeached with his prior theft conviction; and the
convictions did not violate principles of double jeopardy. However, we also conclude the
trial court erred when allowing the jury to view the defendant’s eyes in close proximity
for the first time after the case had been submitted to the jury. This error was not
harmless. Accordingly, we reverse the judgments of the trial court and remand for a new
trial. Because we have remanded this matter for a new trial, the defendant’s final issues
concerning the trial court directing the jury to continue deliberations and sentencing are
pretermitted.

Tenn. R. App. R. 3 Appeal as of Right; Judgments of the Criminal Court Reversed
and Remanded

J. ROSS DYER, J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J.,
and CAMILLE R. MCMULLEN, J., joined.

Lance R. Chism, Memphis, Tennessee, for the appellant, Lavelle Moore.
Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Chris Lareau,
Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Facts and Procedural History

The record reflects a Shelby County grand jury indicted the defendant on
December 19, 2013, for theft of property over $500 – conduct involving merchandise.
His jury trial went forward May 12, 2015, and the parties presented the following
evidence:

Around 10:00 a.m. on March 10, 2012, the defendant entered a Best Buy store in
Shelby County, Tennessee. David Tolbert, a Best Buy employee, witnessed the
defendant walking around the store, holding a bag, and wearing black pants, a black shirt,
and a black hat. Video surveillance from the store shows the defendant walking through
the store holding a blue bag with an item in it. As the defendant exited the store, the
security alarm sounded. Store employees noted the defendant was carrying a bag
containing a laptop with a security device still attached. They asked the defendant to
produce a receipt for the laptop, and he refused.

Around 7:44 p.m. the same day, the defendant returned to Best Buy with another
man. The defendant wore the same black pants, black shirt, and back hat. Justin Jaynes,
a Best Buy employee, noticed the man with the defendant carrying a bag containing a
Toshiba laptop, and asked Patrick Hitt, a Best Buy employee working at the asset
protection desk, to check the man’s receipt before allowing him to leave the store. When
the men exited the store, Mr. Hitt complied and asked to see the receipt and the contents
of the bag. Matthew Salamon, another Best Buy employee, approached and witnessed
the defendant hand a receipt to Mr. Hitt, while his accomplice walked into the parking lot
with the bag, sounding the security alarm. Mr. Hitt told the defendant he needed to see
the contents of the bag, and the defendant grabbed the receipt from Mr. Hitt’s hand, said
“f**k you,” and walked into the parking lot.

Once in the parking lot, the defendant and his accomplice got into the same car,
and the defendant drove away. Mr. Salamon recorded the license plate number on the
vehicle and contacted Detective Raual Gonzales with the Shelby County Sheriff’s
Department. Detective Gonzales researched the tag numbers and determined the vehicle
was registered to the defendant. Mr. Salamon performed an inventory check after the

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store closed and noted two laptops were missing – a Samsung with an $873 value, and a
Toshiba with a $750 value.

A couple weeks after the theft, Detective Gonzales returned to Best Buy with a
photo lineup. Mr. Tolbert could not identify the defendant, but Mr. Salamon did. Mr.
Salamon testified he was able to identify the defendant in the lineup due to his eyes
because “[h]is eyes are very dark, and they just – they stand out to me.” Both Mr. Hitt
and Mr. Tolbert also acknowledged remembering the defendant due to his eyes.
According to Mr. Tolbert, “there was something strange about his eyes.” According to
Mr. Hitt, he remembered the shape of the defendant’s eyes and the way “he looked at me
directly in the eyes when he said, ‘F**k you,’ to me, and you know that was something
that I didn’t really forget.”

The State called Mr. Tolbert, Detective Gonzales, Mr. Jaynes, Mr. Hitt, and Mr.
Salamon to testify at trial. In addition, the State played store surveillance video from the
day in question, and Mr. Salamon identified the defendant in footage from both the
morning and evening thefts. The defendant did not present proof.

After closing arguments and being charged, the jury began to deliberate at 10:52
a.m. on May 14, 2015, and subsequently broke for lunch from 12:39 p.m. to 1:45 p.m. At
2:11 p.m., the jury sent a note to the trial court indicating they were deadlocked. The trial
court told the jury to continue to deliberate. Deliberations resumed, and at 2:29 p.m., the
trial court informed the parties that the jury “wants to take a look – close up look at the
defendant’s eyes.” The defendant objected, stating he had been in the court room for two
days, giving the jury ample opportunities to observe his eyes. The trial judge disagreed,
noting the defendant raised the defendant’s eyes on cross-examination and relied heavily
on the identification of the defendant only by his eyes in closing. The trial court found it
would “only be fair that [the jury] should be able to get a better look at his eyes,”
particularly due to the good lighting in Best Buy and the poor lighting in the courtroom.
The trial court then directed the defendant to stand close to the jury, in the light, and walk
in multiple directions. The jury resumed deliberations at 2:42 p.m. and returned a verdict
at 3:20 p.m., finding the defendant guilty of six counts of theft of property over $500 but
less than $1000.

The defendant’s sentencing hearing went forward September 23, 2015. The trial
court noted counts one through three and counts four through six were alternative factual
scenarios for the same theft, so counts two and three merged into count one and counts
five and six merged into count four. When considering the applicable enhancement
factors, the trial court found the defendant had a previous history of criminal convictions
and behavior in addition to that necessary to establish the appropriate range. Moreover,
the defendant was on probation at the time he committed the crimes at issue. The trial
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court, therefore, sentenced the defendant as a Range 3, persistent offender, to two
sentences of six years to be served at forty-five percent. After finding the defendant to be
a professional criminal who knowingly devoted his life to criminal acts as a major source
of livelihood, the trial court ordered the defendant to serve these sentences consecutively,
for a total effective sentence of twelve years.

The defendant filed a timely motion for new trial, arguing, in part: the trial court
erred when allowing the defendant to be impeached with a prior felony conviction for
theft over $1000; the trial court erred when responding to a jury question; the trial court
erred when allowing the jury to observe the defendant’s eyes after the close of proof and
while in the process of deliberating; and the trial court erred when sentencing the
defendant. The trial court denied the motion on November 23, 2015. The defendant filed
a motion for permission to file a late notice of appeal in this Court on January 14, 2016.
On January 20, 2016, this Court, pursuant to Tennessee Rule of Appellate Procedure 4(a),
found that the interest of justice required the waiver of the timely filing of the defendant’s
notice of appeal, so the defendant proceeding with filing his late notice on January 27,
2016.

Analysis

On appeal, the defendant argues: the evidence was insufficient to support his
convictions; the trial court abused its discretion by ruling he could be impeached with
his prior theft conviction; his convictions violate the double jeopardy clauses; the trial
court erred by not giving the expanded identity jury instruction; the trial court erred by
ordering the defendant to display his eyes to the jury during deliberations; the trial court
abused its discretion by telling the jury to keep working when it was clear the jury was
unable to reach a verdict; and the trial court abused its discretion when ordering
consecutive sentencing.

I. Sufficiency of Evidence

When the sufficiency of the evidence is challenged, the relevant question of the
reviewing court is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see
also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial
court or jury shall be set aside if the evidence is insufficient to support the findings by
the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185,
190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).
All questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
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S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by
the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476
(Tenn. 1973). Our Supreme Court has stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the
jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be
given to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (1963)). “A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of
fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245
S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978)). Moreover, the jury determines the weight to be given to circumstantial
evidence and the inferences to be drawn from this evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d
646, 662 (Tenn. 2006)). This Court, when considering the sufficiency of the evidence,
shall not reweigh the evidence or substitute its inferences for those drawn by the trier of
fact. Id.

Under Tennessee law, a person commits theft of property if, with intent to deprive
the owner of property, the person knowingly obtains or exercises control over the
property without the owner’s effective consent. Tenn. Code Ann. § 39-14-103(a). For
the purposes of Tennessee Code Annotated section 39-14-103, a person commits theft of
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merchandise if, with intent to deprive the merchant of the stated price of the merchandise,
the person knowingly conceals, removes, takes possession of, or causes the removal of
the merchandise. Tenn. Code Ann. § 39-14-103(a). “A person acts knowingly with
respect to a result of the person’s conduct when the person is aware that the conduct is
reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-302(b).

At trial, the State had to prove the defendant intended to deprive Best Buy of
property, and the defendant knowingly concealed, removed, took possession of, or caused
the removal of merchandise. Tenn. Code Ann. § 39-14-146. To sustain the defendant’s
Class E felony conviction, the State also had to prove the value of the property was over
$500. Tenn. Code Ann. § 39-14-105(2). Tennessee Code Annotated section 39-11-106
defines “value” as “(i) [t]he fair market value of the property or service at the time and
place of the offense; or (ii) [i]f the fair market value of the property cannot be
ascertained, the cost of replacing the property within a reasonable time after the
offense[.]” Tenn. Code Ann. § 39-11-106(a)(36)(A). The fair market value of property
is a question of fact for the trier of fact. See State v. Hamm, 611 S.W.2d 826, 828-29
(Tenn.1981); see also, State v. Leverette, No. M2009-01286-CCA-R3-CD, 2010 WL
2943290, at *2 (Tenn. Crim. App. Jul. 26, 2010).

In the present matter, the defendant argues the evidence is insufficient to support
his convictions for theft of property over $500. With respect to the morning incident, the
defendant asserts the State did not adequately identify the defendant, failed to present
proof he concealed the laptop into his bag, and failed to prove the value of the laptop.
However, despite being unable to identify the perpetrator in the lineup presented two
weeks after the incident, Mr. Tolbert was able to identify the defendant at trial. Mr.
Salamon, who witnessed the defendant in the store during the evening incident, positively
identified him during the morning incident based on surveillance video footage. Mr.
Tolbert testified that he saw the defendant in the store holding a bag the morning of May
10, 2012, and Mr. Salamon confirmed this when explaining the surveillance video to the
jury. Critical to the eyewitnesses’ identification of the defendant was a detailed
description of his eyes. While this proof is required to be considered when reviewing the
sufficiency of the evidence, it also magnifies the harm of the trial court’s error which
requires reversal of the convictions and remand for a new trial.

The security alarm sounded when the defendant exited the store the morning of
May 10, 2012, and Mr. Tolbert noted the defendant had a bag containing a laptop bound
with a security device. The inventory check performed at the end of the day revealed two
missing laptop computers, one Samsung and one Toshiba. Mr. Salamon saw the Toshiba
laptop in the bag carried by the defendant’s accomplice during the theft that occurred
later the evening of May 10, 2012, and reasoned the missing Samsung laptop was the one

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taken by the defendant that morning. Mr. Salamon testified the Samsung laptop had a
value of “eight seventy-three.”

Considering this testimony in the light most favorable to the State, there was
ample evidence at trial to support the defendant’s conviction for theft of property over
$500 as a result of the morning incident. By challenging the reliability of the
identification of the defendant by Mr. Tolbert and Mr. Salamon, the defendant questions
the credibility of their testimony. The trier of fact is in a better position than this Court to
assess the credibility of witnesses, determine the weight of the evidence and the value
afforded it, and resolve any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996). We will not disturb this credibility finding on appeal.

Moreover, the defendant’s challenge of Mr. Salamon’s testimony regarding the
value of the stolen Samsung computer is without merit. The fair market value of property
is a question of fact for the jury that may be demonstrated through testimony as to the
listed price of the stolen merchandise. See State v. Leverette, No. M2009-01286-CCA-
R3-CD, 2010 WL 2943290, at *2 (Tenn. Crim. App. July 26, 2010) (finding sufficient
evidence for a rational trier of fact to find the fair market value of the stolen property to
be over $500 where store employees testified eight tires were stolen, and those tires
typically sold in the store for $79 each). Through its verdict, the jury found the stolen
Samsung computer to have a fair market value of $873. Juries are able to use their
collective knowledge, experience, and common sense when reaching factual
determinations, and a rational jury could find that when testifying the stolen Samsung
laptop had a value of “eight seventy-three,” Mr. Salamon meant $873. See State v. Keen,
31 S.W.3d 196, 212 (Tenn. 2000) (stating “[a] jury’s ability to use its collective
knowledge, experience, and common sense to assist in reaching a determination in these
weighty and complex matters is the very strength of the jury system”). The defendant is
not entitled to relief on this issue.

With respect to the evening incident, the defendant again contends the State failed
to establish the defendant’s identity as the perpetrator of the offense. The defendant
argues Mr. Salamon’s identification occurred over two weeks after the theft, making it
suspect. Likewise, when the State asked Mr. Hitt at trial whether he saw the suspect in
the courtroom, Mr. Hitt expressed hesitation by stating, “I believe so.” Again, the
defendant challenges the credibility of the testimony rendered by Mr. Salamon and Mr.
Hitt, and this Court does not make credibility determinations. The defendant is not
entitled to relief on this issue.

The defendant further contends the evidence was insufficient to establish he
committed theft of property the evening of March 10, 2012. According to the defendant,
the man with him carried the bag containing the Toshiba laptop; the defendant himself
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did not physically take anything out of the store that night. In addition, the defendant
contends the State failed to prove the value of the laptop. Our review of the record,
however, reveals the defendant exited the store with the man carrying the laptop,
attempted to present a receipt for the item carried by his companion, refused the store
employee’s request to inspect the contents of the bag, and drove away with the other man
in a car registered in the defendant’s name. Mr. Salamon saw the Toshiba laptop in the
bag carried by the defendant’s accomplice and, with respect to the value of the laptop,
testified “I believe it was seven fifty.”

When viewing this evidence in the light most favorable to the State, the evidence
was sufficient to show the defendant intended to deprive Best Buy of the laptop and
knowingly caused it to be removed from the store the evening of May 10, 2012. With
respect to the value of the property, again, the evidence was sufficient for a rational jury
to conclude the stolen Toshiba laptop had a fair market value of $750. The defendant is
not entitled to relief on this issue.

II. Impeachment with Prior Conviction

The defendant next contends the trial court abused its discretion by ruling the
defendant could be impeached with his prior conviction for theft of property over $1000
in the event he testified at trial. He argues the prior offense was identical or substantially
similar to the offense for which he was tried, so the probative value did not outweigh the
prejudicial effect on the substantive issues. The State argues the trial court did not err
when it determined the defendant’s prior conviction would be admissible. Discerning no
error, we affirm the decision of the trial court.

This Court reviews the trial court’s ruling on the admissibility of a prior
conviction for impeachment purposes under an abuse of discretion standard. State v.
Russell, 382 S.W.3d 312, 317 (Tenn. 2012). “A trial court abuses its discretion when it
applies an incorrect legal standard or reaches a decision that is against logic or reasoning
that causes an injustice to the party complaining.” Id.

Tennessee Rule of Evidence 609 allows impeachment with a prior conviction if
these conditions are satisfied:

(a) [T]he conviction is for a crime punishable by death or imprisonment in
excess of one year, or the conviction is for a misdemeanor which involved
dishonesty or false statement; (b) less than ten years has elapsed between
the date the accused was released from confinement and the
commencement of the subject prosecution; (c) the State gives reasonable
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 pretrial written notice of the particular conviction or convictions it intends
to use as impeachment; and (d) the trial court concludes that the probative
value of the prior conviction on the issue of credibility outweighs its unfair
prejudicial effect on the substantive issues.

State v. Mixon, 983 S.W.2d 661, 674 (Tenn. 1999).

When determining whether the probative value of the prior conviction outweighs
the danger of unfair prejudice, the trial court should “analyze the relevance of the
impeaching conviction as to the issue of credibility.” Id. If the trial court finds the prior
conviction is relevant, then it should state the reason for its finding on the record, and
“‘assess the similarity between the crime on trial and the crime underlying the
impeaching conviction.’” Mixon, 983 S.W.2d at 674 (quoting Cohen, Sheppeard Paine,
Tennessee Law of Evidence § 609.9 at 376 (3d ed. 1995)). The potential for prejudice as
to the substantive issues increases greatly when the impeaching conviction is the same as
the crime for which the accused is being tried. Mixon, 983 S.W.2d at 674. However,
“[t]he mere fact a prior conviction of the accused is identical or similar in nature to the
offense for which the accused is being tried does not, as a matter of law, bar the use of
the conviction to impeach him as a witness.” State v. Baker, 956 S.W.2d 8, 15 (Tenn.
Crim. App. 1997). Convictions for theft and burglary are crimes of dishonesty and, as
such, are “highly probative of credibility.” Id. Accordingly, this Court has affirmed the
use of prior convictions for impeachment purposes even when the defendant is being
tried for the same or similar offense. See, e.g., State v. Mickey Edwards, No. W2014-
00987-CCA-R3-CD, 2015 WL 5169110, at *16-17 (Tenn. Crim. App. Aug. 27, 2015)
(theft convictions admissible to impeach defendant in prosecution for theft); Baker, 956
S.W.2d at 15 (prior convictions for burglary admissible to impeach defendant in
prosecution for aggravated burglary).

The defendant is only entitled to relief if the error “more probably than not
affected the judgment to the defendant’s prejudice.” State v. Taylor, 993 S.W.2d 33, 35
(Tenn. 1999). When determining “whether the erroneous impeachment would have an
impact on the result of the trial” this Court considers whether the trial court’s ruling
prejudiced the defendant by examining the defense theory presented through the
arguments of counsel, the presentation of evidence during the defendant’s case-in-chief,
and the defendant’s cross-examination of the State’s witnesses. State v. Lankford, 298
S.W.3d 176, 182-83 (Tenn. Crim. App. 2008). In cases where the defendant elects not to
testify, the defendant is not required to make an offer of proof regarding what his
testimony would have been. State v. Galmore, 994 S.W.2d 120, 125 (Tenn.1999).
However, our Supreme Court has also recognized that, “[d]epending on the facts and
circumstances of a case, an offer of proof may be the only way to demonstrate prejudice.”
Id.
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 Here, after filing the requisite written notice, the State asked to impeach the
defendant with a conviction for theft of property over $1000 dated January 24, 2010.1
The defendant objected, arguing the prejudicial effect of impeachment with the same
crime would outweigh its probative value. The trial court disagreed and granted the
request. In support of its ruling, the trial court noted on the record that the defendant’s
prior conviction was both a felony and a crime of dishonesty. The trial court referenced
case law allowing impeachment with a prior similar crime when that crime is also one of
dishonesty, acknowledging, “[i]f [the prior conviction] didn’t have any value as far as
dishonesty – if it was a drug case, you would have a good argument.”

The trial court did not abuse its discretion when ruling that the defendant could be
impeached with his prior conviction if he chose to testify. While the conviction sought to
be used by the State was virtually identical to the crime for which the defendant was
being tried, the trial court stated, on the record, it would allow the use of the prior
conviction because it was a felony and highly probative of the defendant’s credibility.
Again, a conviction for theft is highly probative of a defendant’s credibility. See Baker,
956 S.W.2d at 15.

Additionally, the defendant failed to show how the trial court’s ruling prejudiced
his case. The defendant did not testify or present any other evidence at trial, and the
closing arguments presented by the parties are not part of the record. Based on the
defendant’s cross-examination of the State’s witnesses and the arguments of counsel
during trial, the defendant theorized he had not been properly identified as the
perpetrator, and the State failed to present proof the defendant himself put the laptops in
the shopping bag and walked out of the store without paying for them. The defendant did
not present a defense theory that required his testimony and did not make an offer of
proof as to his proposed testimony. See Taylor, 993 S.W.2d at 35; State v. Deangelo
Jackson, No. W2014-01981-CCA-R3-CD, 2015 WL 7526949, *8 (Tenn. Crim. App.
Nov. 24, 2015). Even if the trial court had abused its discretion in allowing the State to
impeach the defendant with his prior conviction, the defendant has failed to prove he was
prejudiced by that ruling. The defendant is not entitled to relief on this issue.

III. Double Jeopardy

The defendant next argues his convictions for theft of property over $500 violate
the double jeopardy clauses of both the Federal and State constitutions because they arise

1
The State also asked to impeach the defendant with four additional felony convictions
occurring between 1992 and 2000 but subsequently withdrew the request, acknowledging the
convictions were too old.
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from a single criminal episode. The defendant acknowledges he failed to raise this claim
in his motion for new trial but submits he is entitled to plain error review. We disagree
and affirm the judgments of the trial court.

The defendant raises his double jeopardy argument for the first time on appeal, so
it has been waived. State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010). Moreover, the
defendant is not entitled to “plain error” review. In discussing “plain error” review, the
Tennessee Supreme Court has held:

This Court will not grant relief under plain error review unless five criteria
are met: (1) the record clearly establishes what occurred in the trial court;
(2) the error breached a clear and unequivocal rule of law; (3) the error
adversely affected a substantial right of the complaining party; (4) the error
was not waived for tactical purposes; and (5) substantial justice is at stake;
that is, the error was so significant that it probably changed the outcome of
the trial. If any of these five criteria are not met, we will not grant relief,
and complete consideration of all five factors is not necessary when it is
clear from the record that at least one of the factors cannot be established.
The party claiming plain error has the burden of persuading the appellate
court.

Id.

Here, there has not been a breach of a clear and unequivocal rule of law nor has a
substantial right of the defendant been adversely affected. The defendant’s theft
convictions arose as the result of two separate takings occurring over nine hours apart.
This Court has previously determined that the proper unit of prosecution for aggravated
robbery in Tennessee is the number of thefts or takings, not the number of victims. See
State v. Franklin, 130 S.W.3d 789, 798 (Tenn. Crim. App. 2003). Our review of the
record reveals the defendant committed two independent thefts from Best Buy – one
around 10:00 a.m. the morning of May 10, 2012, and the second around 7:44 p.m. the
same day. The defendant left the store property after taking the first laptop computer,
only to return with an accomplice over nine hours later and take another. These are two
separate takings, so the defendant’s protections against double jeopardy have not been
violated. The defendant has not shown a breach of a clear and unequivocal rule of law
or that the alleged error violated a substantial right, so he is not entitled to plain error
review. The defendant is not entitled to relief on this issue.

IV. Expanded Identity Jury Instruction

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 Relying on State v. Dyle, 899 S.W.2d 607 (Tenn. 1995), the defendant argues the
trial court erred by issuing the “abbreviated identity instruction” because identity was a
key issue in this case. The defendant failed to raise this issue at trial or in his motion for
new trial but claims this Court should review the issue for harmless error. The State
asserts the defendant has waived the issue and is not entitled to plain error review. We
agree the issue has been waived.

In Dyle, the Tennessee Supreme Court promulgated a comprehensive jury
instruction to be used in cases where identity is a material issue. Dyle, 899 S.W.2d at
612. This instruction, which is now part of the Tennessee Pattern Jury Instructions, must
be given whenever identification is a material issue, and the instruction is requested by
the defendant’s counsel. Id. Identity is a material issue “when the defendant puts it in
issue or the eyewitness testimony is uncorroborated by circumstantial evidence.” Id. at
612 n.4. It is plain error for the trial court not to give the comprehensive identity jury
instruction under these circumstances. Id. at 612. “If identification is a material issue
and the defendant does not request the instructions, failure to give it will be reviewable
under Rule 52 harmless error standard.” Id.

Again, the closing arguments made by the parties have not been made part of the
record before this Court. Based on the questions posed by the defendant’s counsel on
cross-examination, it appears he challenged the accuracy of his identification by the
witnesses for the State. The defendant contends the trial court should have given the
comprehensive identification jury instruction promulgated by the Dyle court, now
Tennessee Pattern Jury Instruction – Criminal 42.05. Had the defendant properly raised
this instruction in his motion for a new trial, it would be subject to harmless error review
despite his failure to request the instruction at trial. See Dyle, 899 S.W.2d at 612. The
defendant, however, did not raise this issue in his motion for new trial, so it has been
waived. See Tenn. R. App. P. 3(e) (“[I]n all cases tried by a jury, no issue presented for
review shall be predicated upon error in the admission or exclusion of evidence, jury
instructions granted or refused, misconduct of jurors, parties or counsel, or other action
committed or occurring during the trial of the case, or other grounds upon which a new
trial is sought, unless the same was specifically stated in a motion for new trial; otherwise
such issues will be treated as waived.”); see also State v. Turner, 919 S.W.2d 346, 356-57
(Tenn. Crim. App. 1995) (“A party may not raise an issue for the first time in the
appellate court.”) Moreover, the transcript from the jury charge conference is noticeably
missing from the record before this Court, making the record insufficient to permit
review of this issue, again resulting in waiver. Tenn. R. App. P. 36(a). The defendant is
not entitled to relief on this issue.

V. Jury Request to View the Defendant’s Eyes

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 The defendant additionally contends the trial court abused its discretion when
ordering him to stand in front of the jury after the close of proof and during deliberations
so the jurors could view his eyes. According to the defendant, this order deprived him of
a fair trial and violated his privilege against self-incrimination. The State asserts the trial
court’s order did not deprive the defendant of a fair trial because three witnesses testified
regarding the uniqueness of the defendant’s eyes and their importance when identifying
the defendant. The State further asserts the trial court’s order did not violate his right
against self-incrimination because the right does not extend to non-testimonial evidence.
We agree the trial court’s order deprived the defendant of a fair trial and, accordingly,
reverse the judgments of the trial court and remand the cases for a new trial.

The trial court’s decision to allow the jury to view the defendant’s eyes while
deliberating is analogous to re-opening the State’s proof. It is within the discretion of the
trial court to allow additional proof after a party has announced proof is closed, and this
Court will not set aside that decision in the absence of a showing of injustice. State v.
Bell, 690 S.W.2d 879, 882 (Tenn. Crim. App. 1985). However, if the trial court allows
the re-opening of proof, it should be done prior to the final submission of the case to the
jury. See State v. Harold Eugene Pack, C.C.A. No. 50, 1989 WL 19698, at * 3 (Tenn.
Crim. App. March 10, 1989) (quoting White v. State, 497 S.W.2d 751 (Tenn. Crim. App.
1973) (stating “[t]he trial court may, in its discretion, allow either side to re-open the
proof prior to the case being finally submitted to the jury for determination.”); see also
McCrory v. Tribble, No. W2009-00792-COA-R3-CV, 2010 WL 1610587, *7 (Tenn. Ct.
App. April 22, 2010) (finding “[the plaintiff] cites no Tennessee case in which the trial
court reopened proof after the jury had retired to deliberate, and we have found none”)
(emphasis in original).

Here, our review of the record reveals the trial court abused its discretion when
allowing the jury to view the defendant’s eyes while deliberating. The State correctly
contends “[i]t is generally recognized that a defendant may be required to exhibit himself
in any manner in which an ordinary person is commonly seen in public” and such non-
testimonial evidence does not violate a defendant’s right against self-incrimination. State
v. Sanders, 691 S.W.2d 566, 568-69 (Tenn. Crim. App. 1984). While there was
testimony concerning the defendant’s eyes, neither party presented the defendant as an
actual exhibit. Accordingly, the trial court abused its discretion when it essentially re-
opened the State’s case and allowed the presentation of new evidence in response to a
question from the jury posed after the close of all proof and during deliberations.

The State relies heavily on State v. Jenkins, 845 S.W.2d 782 (Tenn. Crim. App.
1992). In Jenkins, this Court held the trial court did not err when, in response to a
question from the jury posed during deliberations, it allowed the jury to listen to a
recording of a witness’ trial testimony, noting Tennessee joined the majority of
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jurisdictions “in allowing the jury to hear evidence again under the guidance and
discretion of the trial judge.” Jenkins, 845 S.W.2d at 792. Our ruling in Jenkins is not
determinative of this case. During the course of trial, neither party presented the
defendant’s appearance as non-testimonial evidence by asking him to stand in front of the
jury so it could view his eyes in close proximity. Rather, the trial court allowed the jury
to view the defendant’s eyes up close for the first time after the case had been submitted
to the jury, essentially allowing it to view new evidence while deliberating. This was
error.

The Supreme Court of Tennessee has recognized two categories of constitutional
error – structural and non-structural. State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn.
2001). “Structural constitutional errors are errors that compromise the integrity of the
judicial process itself” and “‘deprive defendants of basic protections without which a
criminal trial cannot reliably serve its function as a vehicle for determination of guilt or
innocence . . . and no [such] criminal punishment may be regarded as fundamentally
fair.’” Id. (quoting Momon v. State, 18 S.W.3d 152, 165 (Tenn. 1999). Examples of
structural constitutional errors include “the complete denial of the right to counsel, racial
discrimination in the selection of a grand jury, denial of the right of self-representation at
trial, and denial to the right of a trial by jury.” Id. Structural errors defy harmless error
analysis and require automatic reversal. Id. All other errors touching on constitutional
concerns are non-structural and subject to harmless error analysis, requiring reversal
unless the State demonstrates beyond a reasonable doubt the error did not contribute to
the verdict. Id.

By allowing the jury to view the defendant’s eyes in close proximity for the first
time after the submission of the case to the jury, the trial court violated the defendant’s
fundamental right to a fair trial. We have reviewed this as a non-structural constitutional
error. The record reveals that at 2:11 p.m., the jury indicated it was deadlocked. After
the trial court told the jury to keep working, it asked to view the defendant’s eyes at 2:29
p.m. Over the objections of the defendant, the trial court allowed the defendant to stand
in front of the jury box so the jury could examine his eyes, and deliberations continued at
2:42 p.m. The jury subsequently returned a guilty verdict at 3:20 p.m. Given the close
proximity in time between viewing the defendant’s eyes and the return of a guilty verdict
by a previously deadlocked jury, the error was not harmless. The State has not proven
otherwise beyond a reasonable doubt. Accordingly, the defendant is entitled to a new
trial. The judgments of the trial court are reversed, and we remand for a new trial.

VI. Instructing the Jury to Continue Deliberation

The defendant contends that the trial court abused its discretion by instructing the
jury to “keep working” despite their communications to the trial court that they were
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unable to reach a verdict. The state responds that the trial court’s instruction was not
coercive and the trial court “did not direct its comments to the minority or urge the
minority to cede his or her views.” We agree with the state.

As a mixed question of law and fact, our standard of review for questions
concerning the propriety of jury instructions is de novo with no presumption of
correctness. State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001). Under Kersey v. State,
when the jury advises the trial court that it is deadlocked, the trial court may give
supplemental instructions if it “feels that further deliberations might be productive.” 525
S.W.2d 139, at 141 (Tenn. 1975). In order to avoid intruding on the province of the jury
by “coercing the minority to yield to the majority,” when instructing the jury to continue
deliberations, the trial court should not “direct any of its comments to jurors in the
minority” or “urge such jurors to reevaluate or to cede his or her views to those of the
majority.” State v. Baxter, 938 S.W.2d 697, 704 (Tenn. Crim. App. 1996). Kersey
advises trial courts that they may re-read the portion of the jury charge that explains that
the verdict should be unanimous while warning the jurors against “surrender[ing] [their]
honest conviction . . . because of the opinion of [their] fellow jurors.” Kersey, 525
S.W.2d at 145. However, the court is not required to repeat the Kersey charge. See id.
Additionally, when a court chooses to repeat instructions or give supplemental
instructions, the instructions must be:

(1) appropriately indicated by questions or statements from jurors, or from
the circumstances surrounding the deliberative and decisional process, (2)
comprehensively fair to all parties, and (3) not unduly emphatic upon
certain portions of the law to the exclusion of other parts equally applicable
to the area of jury misunderstanding or confusion.

Berry v. Conover, 673 S.W.2d 541, 545 (Tenn. Ct. App. 1984).

While the record on this issue is sparse, it appears that the jury retired to begin
deliberations at 10:52 a.m. on May 14, 2015. Less than two hours into deliberations, the
jury sent the trial court a note at 12:20 p.m. reading, “One juror is not convinced that
given the state of the evidence the accused is the same individual.” The trial court
responded, “Re-read p. 10 on identity and unanimous verdict.” At 12:38 p.m., the jury
sent a second note to the trial court reading, “We will not have a unanimous vote on any
count.” The trial court responded, “Keep working.” After responding to the jury’s note,
the trial court sent the jury to lunch and instructed them not to discuss the case during
lunch. The jury took a lunch break at 12:39 p.m. According to the record, the jury
returned to deliberations at 1:45 p.m. Immediately upon returning to deliberations, the
jury sent a third letter to the trial court at 1:45 p.m. reading, “The jury is hopelessly
deadlocked.” Again, the trial court, noting to the parties that the jury had only been
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deliberating less than two hours, responded, “Keep working.” At 3:20 p.m., the jury
returned with its verdict. We note that at no point did the defendant object to the trial
court’s responses to the jury’s notes.

The defendant contends that the trial court’s instruction to “keep working” was
coercive in light of the fact that the jury claimed to be deadlocked. While the court might
have repeated the Kersey instructions, the court was not required to do so. Kersey, 525
S.W.2d at 145. The court’s instruction to the jury to continue deliberations was not
coercive. Baxter, 938 S.W.2d at 704. Therefore, we conclude that the court’s instruction
was appropriate, and the defendant’s argument is without merit.

VII. Sentencing

Finally, the defendant contends that the trial court erred in imposing consecutive
terms. While conceding the record supports the trial court’s finding that the defendant is
an offender whose record of criminal activity is extensive, the defendant argues the
sentence imposed “resulted in a sentence that is greater than that deserved” and “not the
least severe measure necessary to achieve the purpose for which the sentence is
imposed.” The State contends that the trial court did not abuse its discretion. We agree
with the State.

This Court reviews challenges to the length of a sentence within the appropriate
sentence range “under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report,
the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature
and characteristics of the criminal conduct, any mitigating or statutory enhancement
factors, statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee, any statement that the defendant
made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby,
823 S.W.2d 166, 168 (Tenn. 1991) (citing Tenn. Code Ann. §§ 40-35-103 (2014), -210
(2014); State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d
919 (Tenn. Crim. App. 1987)); see Tenn. Code Ann. § 40-35-102 (2014).

Likewise, a trial court’s application of enhancement and mitigating factors is
reviewed for an abuse of discretion with “a presumption of reasonableness to within-
range sentencing decisions that reflect a proper application of the purposes and principles
of our Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of
an enhancement or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long
as there are other reasons consistent with the purposes and principles of sentencing, as
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provided by statute, a sentence imposed . . . within the appropriate range” will be upheld
on appeal. Id.

The abuse of discretion with a presumption of reasonableness standard also
applies to the imposition of consecutive sentences. State v. Pollard, 432 S.W.3d 851, 859
(Tenn. 2013). A trial court has broad discretion in determining whether to impose
consecutive service. Id. A trial court may impose consecutive sentencing if it finds by a
preponderance of the evidence that one criterion is satisfied in Tennessee Code
Annotated section 40-35-115(b)(1)-(7) (2014). In determining whether to impose
consecutive sentences, though, a trial court must ensure the sentence is “no greater than
that deserved for the offense committed” and is “the least severe measure necessary to
achieve the purposes for which the sentence is imposed.” Tenn. Code Ann. § 40-35-
103(2), (4) (2014); see State v. Desirey, 909 S.W.2d 20, 33 (Tenn. Crim. App. 1995).

In determining whether the sentences would be served concurrently or
consecutively, the trial court found that the defendant was an offender with an extensive
record of criminal activity and that he was a professional criminal. See id. §§ 40-35-
115(b)(1) (2014) (permitting consecutive sentencing upon a finding that “[t]he defendant
is a professional criminal who has knowingly devoted the defendant’s life to criminal acts
as a major source of livelihood), 40-35-115(b)(2) (permitting imposition of consecutive
sentencing if the trial court finds that “[t]he defendant is an offender whose record of
criminal activity is extensive”). The court stated, “Looking at the presentence report it is
evidence also that he has numerous convictions and he has been committing crimes since
he turned eighteen.” The court also stated,

[The defendant] doesn’t really say anything of importance as far as
employment and he’s been committing crimes and really serving – most of
his adult life it seems like he’s been in jail. He’ll get out, commit another
crime and go back to jail, it seems like he likes being in jail. But, he
certainly hasn’t produced anything worthwhile for society by way of
anything other than keeping the police in – securing their job security, the
police and the jailers and the Judges and the prosecutors and defense
lawyers.

Based on these findings, the trial court imposed consecutive six year terms for an
effective sentence of 12 years.

Despite the defendant’s claim to the contrary, the record supports the trial court’s
findings relative to the consecutive sentencing. The defendant’s lengthy record consists
of at least twenty prior convictions including numerous robbery and theft convictions,
convictions for aggravated and simple assault, criminal trespass, several drug
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convictions, and one weapons charge. Additionally, at the time of the defendant’s trial in
the instant matter, he had two additional theft cases pending and awaiting trial. The
defendant has failed to show that the court abused its discretion in imposing consecutive
sentences. Accordingly, he is not entitled to relief on this basis.

Conclusion

In accordance with the aforementioned reasoning and authorities, we reverse the
judgments of the trial court, and remand for a new trial.

____________________________________
J. ROSS DYER, JUDGE

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