State of Tennessee v. Denton Jones

06/28/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
January 23, 2018 Session

STATE OF TENNESSEE v. DENTON JONES

Appeal from the Criminal Court for Knox County
No. 105473 Scott Green, Judge

No. E2017-00535-CCA-R3-CD

The defendant, Denton Jones, appeals his Knox County Criminal Court jury conviction of
theft of property valued at $1,000 or more, arguing that the State should not have been
permitted to aggregate into a single count of theft the value of property taken on five
separate occasions from two different locations; that the trial court erred by permitting
testimony concerning evidence that suggested the defendant had committed other
offenses; that the trial court erred by denying his motions for mistrial, including one
based upon an alleged violation of Brady v. Maryland; that the evidence was insufficient
to support his conviction; and that the cumulative effect of the errors at trial entitle him to
a new trial. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Robert L. Jolley, Jr., and Megan A. Swain, Knoxville, Tennessee, for the appellant,
Denton Jones.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Charme P. Allen, District Attorney General; and TaKisha Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The Knox County Grand Jury charged the defendant with theft of property
valued at $1,000 or more but less than $10,000 from Target between April 28 and May
12, 2014.
 At the defendant’s December 2016 trial, Frederick Joe Smith, executive
team leader for asset protection at the Parkside Drive Target in Knoxville testified that on
April 28, April 30, and May 10, 2014, the defendant entered the store and took fitness
trackers without paying for them. Mr. Smith said that because fitness trackers were
regarded as high-value, high-theft items, they were placed on a “perpetual inventory log”
or “PIT log” maintained by the asset protection department at the Parkside Drive Target.
He explained that the PIT log contained the item numbers, prices, and building locations
of 50 such items and that items purchased by customers were automatically removed
from the PIT log. In addition to being placed on the PIT log, fitness trackers were
outfitted with spider wrap, hung from “a locking peg hook,” and placed under constant
video surveillance.

On April 28, 2014, Mr. Smith observed spider wrap for two fitness trackers
“just hanging on the locking peg hook” in the sporting goods area, so he decided to watch
the video surveillance recording for that area. Mr. Smith explained that the video, which
was exhibited to Mr. Smith’s testimony and played for the jury, showed a man later
identified as the defendant wearing an “Under Armour hat and hooded sweatshirt.” The
defendant worked the fitness trackers free from the spider wrap, placed them behind other
merchandise on a nearby shelf, and then left the area. He walked back to the area shortly
thereafter, retrieved the items, and concealed them on his person. After watching the
video, Mr. Smith checked the PIT log and determined that two fitness trackers were
missing. Store records indicated that neither had been purchased by a customer. The
value of the two fitness trackers was $199.98.

On April 30, 2014, Mr. Smith again observed empty spider wrap hanging
from a locking peg hook, and, again, video surveillance showed the defendant, who was
“wearing the same hooded sweatshirt and the same hat,” removing the spider wrap from
three fitness trackers and placing each item behind other merchandise on a nearby shelf
before coming back to retrieve all of the fitness trackers and conceal them on his person.
Again, the PIT log reflected that the defendant had not purchased the items, which had a
total value of $329.97.

On May 10, 2014, Mr. Smith again observed empty spider wrap hanging
from a locking peg hook, and, again, video surveillance showed the defendant, who was
“wearing basically the same hat, shorts, and shoes,” going through the same process to
take two fitness trackers worth a total of $259.98.

On May 12, 2014, Mr. Smith had an occasion to observe the defendant
begin his process firsthand. When another customer interrupted him, the defendant left
the store before completing the process, and Mr. Smith followed him to the parking lot,

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where he recorded the license tag number for the silver sedan that the defendant had been
seen entering after each previous theft.

During cross-examination, Mr. Smith acknowledged that he had no
documentation other than his own notes to establish the value of the items taken from the
Target. He also acknowledged that he did not contact the police at the time of each
taking, stating that he waited until he could positively identify the perpetrator.

Jim Elliott, the former asset protection team leader at the Town Center
Boulevard Target, testified that on April 30, 2014, he observed fitness trackers “missing
off of the peg hooks.” Mr. Elliott watched the video surveillance footage from the
sporting goods area and saw the defendant “bend down in front of the [fitness trackers],
defeat the spider wraps, take them, put them . . . behind the weights, and he looked
around and made sure nobody was around, picked them up, concealed them, and left.”
The total retail value of the two fitness trackers taken on this occasion was $259.98.

On May 12, 2014, Mr. Elliot again observed a fitness tracker missing from
its spider wrap, and when he watched the video surveillance footage from the area, he
observed the defendant engage in the same process to take the fitness tracker, which had
a value of $129.99.

Mike Adams, owner of Red Rhino, “a buy, sale, trade second hand store,”
testified that part of his business was the purchase and resale of fitness trackers. He said
that those individuals selling items to Red Rhino were required to present their driver’s
licenses and that, after purchasing an item from an individual, his employees were
required to “enter it into LEIDS online,” which Mr. Adams described as “a database for
the police department to make sure if the item is stolen or something like that.” He
explained that the employee would use the seller’s driver’s license “to auto-populate
different fields” and then add a description of each item sold during a particular
transaction. Mr. Adams said that his records indicated that the defendant had sold fitness
trackers to Red Rhino during April and May of 2014. He said that Red Rhino paid the
defendant $30 for each of the fitness trackers and would have resold them “in the $60.00
to $70.00 range.” He said that, “[b]ased upon the price paid, those would be new or new
in box items.”

During cross-examination, Mr. Adams testified that employees were
required by law to record the seller’s race into LEIDS and acknowledged that some of the
LEIDS entries for the defendant indicated his race as African American even though he is
Caucasian, explaining that the entries were “most likely a clerical error.”

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 Knoxville Police Department Officer Tom Epps testified that he was
contacted by Target to investigate a series of thefts at the Parkside Drive and Town
Center Boulevard locations. Officer Epps examined Target’s records and reviewed the
video surveillance recordings. He searched the defendant’s name in the LEIDS database,
which showed that the defendant had sold fitness trackers to Red Rhino.

Following Officer Epps’s testimony, the State rested, and, following a full
Momon colloquy, the defendant elected not to testify and chose not to present any proof.
The jury convicted the defendant of theft of property valued at $1,000 or more but less
than $10,000. Following a January 2017 sentencing hearing, the trial court sentenced the
defendant, a career offender, to a six-year Class E felony sentence.

In this timely appeal, the defendant challenges the State’s aggregation of
the value of the property taken during the five thefts, the admission of certain evidence,
the denial of his motions for a mistrial, and the sufficiency of the convicting evidence.
He also argues that the cumulative effect of the errors at trial entitle him to a new trial.
We consider each claim in turn.

I. Aggregation

The defendant contends that the trial court erroneously determined that
Code section 39-14-105 permitted the State to aggregate the value of the property taken
during the separate thefts in this case. The State asserts that the plain language of the
2012 amendment to the statute permitted the aggregation of value in this case.

Because our determination of the propriety of the aggregation of value in
this case depends upon our interpretation of Code section 39-14-105, our review is de
novo with no presumption of correctness afforded to the ruling of the trial court. See,
e.g., State v. Howard, 504 S.W.3d 260, 267 (Tenn. 2016).

The most basic principle of statutory construction is “‘to ascertain and give
effect to the legislative intent without unduly restricting or expanding a statute’s coverage
beyond its intended scope.’” Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678
(Tenn. 2002) (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). “Legislative
intent is determined ‘from the natural and ordinary meaning of the statutory language
within the context of the entire statute without any forced or subtle construction that
would extend or limit the statute’s meaning.’” Osborn v. Marr, 127 S.W.3d 737, 740
(Tenn. 2004) (quoting State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000)). “When the
statutory language is clear and unambiguous, we apply the plain language in its normal
and accepted use.” Boarman v. Jaynes, 109 S.W.3d 286, 291 (Tenn. 2003) (citing State
v. Nelson, 23 S.W.3d 270, 271 (Tenn. 2000)). “It is only when a statute is ambiguous
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that we may reference the broader statutory scheme, the history of the legislation, or other
sources.” In re Estate of Davis, 308 S.W.3d 832, 837 (Tenn. 2010) (citing Parks v. Tenn.
Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998)).

At the time of the offenses in this case, Code section 39-14-105 provided,
in pertinent part:

(b)(1) In a prosecution for theft of property, theft of services,
and any offense for which the punishment is determined
pursuant to this section, the state may charge multiple
criminal acts committed against one (1) or more victims as a
single count if the criminal acts arise from a common scheme,
purpose, intent or enterprise.
(2) The monetary value of property from multiple criminal
acts which are charged in a single count of theft of property
shall be aggregated to establish value under this section.

T.C.A. § 39-14-105(b)(1)-(2).

The defendant argues on appeal as he did in the trial court that this
language is merely an expression of the rule previously stated by our supreme court that
“[a]ggregation of separate thefts is generally permissible where separate larcenous acts
are: (1) from the same owner[s]; (2) from the same location; and (3) pursuant to a
continuing criminal impulse or a single sustained larcenous scheme,” see State v. Byrd,
968 S.W.2d 290, 291 (Tenn. 1998), or “when a defendant exercises simultaneous
possession or control over stolen property belonging to different owners,” id. at 292. The
defendant also points to the legislative history of the 2012 amendment to Code section
39-14-105 as evidence that the legislature did not intend to expand the circumstances
under which routine thefts could be aggregated but was instead designed solely to punish
“Ponzi schemes.” The State contends that the plain language of the statute alters the rule
expressed in the case law.

We begin, as we must, with the plain language of the statute. At issue in
this case is that portion of the 2012 amendment to Code section 39-14-105 that added
subsection (b). New subsection (b)(1) specifically permits the State to “charge multiple
criminal acts committed against one (1) or more victims as a single count if the criminal
acts arise from a common scheme, purpose, intent or enterprise.” T.C.A. § 39-14-
105(b)(1).

Prior to the passage of the 2012 amendment, the value of property taken
during multiple thefts from a single owner could be aggregated only when the “separate
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larcenous acts” occurred “pursuant to a continuing criminal impulse or a single sustained
larcenous scheme” and “from the same location.” Byrd, 968 S.W.2d at 291. Code
section 39-14-105(b)(1) permits aggregation when the State can establish that “the
criminal acts arise from a common scheme, purpose, intent or enterprise,” see T.C.A. §
39-14-105(b)(1), but does not require that the takings occurred “from the same location.”

Importantly, “[t]he legislature is presumed to know the state of existing
case law,” State v. Powers, 101 S.W.3d 383, 394 (Tenn. 2003), and this court “must
‘presume that the legislature says in a statute what it means and means in a statute what it
says there,’” Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 803 (Tenn. 2000)
(quoting BellSouth Telecommunications, Inc. v. Greer, 972 S.W.2d 663, 673 (Tenn. Ct.
App. 1997)). Although the “[r]ules of the common law are not repealed by implication,”
Monk v. Ramsey, 443 S.W.2d 653, 655 (Tenn. 1969), “[w]hen there is a conflict between
the common law and a statute, the provision[s] of the statute must prevail,” Graves v.
Illinois Cent. R. Co., 148 S.W. 239, 242 (1912). “When statutory language is clear and
unambiguous,” a reviewing court is required to “apply its plain meaning in its normal and
accepted use, without a forced interpretation that would extend the meaning of the
language and, in that instance, we enforce the language without reference to the broader
statutory intent, legislative history, or other sources.” Carter v. Bell, 279 S.W.3d 560,
564 (Tenn. 2009) (citing Overstreet v. TRW Commercial Steering Div., 256 S.W.3d 626,
630 (Tenn. 2008)).

Code section 39-14-105(b)(1) is not ambiguous. Consequently, we decline
the defendant’s invitation to delve into the legislative history to ascertain a meaning
beyond that contained in the language of the statute. “When the words of a statute are
ambiguous or when it is just not clear what the legislature had in mind,” this court is
authorized to “look beyond a statute’s text for reliable guides to the statute’s meaning.”
BellSouth Telecommunications, Inc., 972 S.W.2d at 673. “Where the statutory language
is not ambiguous, however, the plain and ordinary meaning of the statute must be given
effect.” In re Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn. 2007).

We must next determine whether aggregation of the thefts in this case was
appropriate under the terms of Code section 39-14-105(b)(1). We conclude that it was.
On five separate occasions, the defendant entered two different Target stores and stole
fitness trackers. On each occasion, the defendant worked the fitness trackers free of theft
deterrent devices before placing them behind other merchandise on a nearby shelf. He
then walked around until the coast was clear before returning to retrieve the merchandise.
Then he concealed the purloined merchandise and left the store. The defendant wore
nearly identical clothing during each of the offenses. After taking the fitness trackers
from Target without paying for them, he sold them to Red Rhino. In our view, this

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evidence established that each of the separate thefts arose “from a common scheme,
purpose, intent or enterprise.” See T.C.A. § 39-14-105(b)(1).

II. Evidentiary Issues

The defendant next contends that the trial court erred by permitting
witnesses “to testify that they had prior dealings with” the defendant. He argues that the
“multiple incidents of blatant, repeated, intentional violations of Rule 404(b)” entitle him
to a new trial. The State asserts that the trial court committed no error.

Tennessee Rule of Evidence 404(b) provides that “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order to
show action in conformity with the character trait.” Tenn. R. Evid. 404(b). The rationale
underlying the general rule is that admission of such evidence carries with it the inherent
risk of the jury’s convicting the defendant of a crime based upon his bad character or
propensity to commit a crime, rather than upon the strength of the evidence. State v.
Thacker, 164 S.W.3d 208, 239 (Tenn. 2005). This rule is subject to certain exceptions,
however, including “evidence of a pertinent trait of character offered by an accused or by
the prosecution to rebut the same.” Tenn. R. Evid. 404(a)(1). In addition, “[e]vidence of
other crimes, wrongs, or acts” may be admissible for “other purposes,” such as proving
identity, criminal intent, or rebuttal of accident or mistake. The rule specifies three
prerequisites to admission:

(1) The court upon request must hold a hearing outside the
jury’s presence;

(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon
request state on the record the material issue, the ruling, and
the reasons for admitting the evidence; and

(3) The court must exclude the evidence if its probative value
is outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). A fourth prerequisite to admission is that the court must find by
clear and convincing evidence that the defendant committed the other crime or bad act.
Id., Advisory Comm’n Comments; State v. DuBose, 953 S.W.2d 649, 654 (Tenn. 1997);
State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985).

When the trial court substantially complies with the procedural
requirements of Rule 404(b), this court will overturn the trial court’s ruling only when
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there has been an abuse of discretion. See Thacker, 164 S.W.3d at 240; see also DuBose,
953 S.W.2d at 652. If, however, the strict requirements of the rule are not substantially
observed, the reviewing court gives the trial court’s decision no deference. See id.

A. Mr. Smith’s Testimony

During Mr. Smith’s direct examination testimony, the prosecutor asked Mr.
Smith whether he could identify the person who had taken the fitness trackers from the
Parkside Drive Target, and Mr. Smith indicated that that person was the defendant.
Defense counsel objected to the identification, saying, “[T]hat identification is based
solely on a picture and I don’t believe he’s qualified to . . . do that.” The prosecutor
replied, “It’s not, but I will let him explain how he was able to identify him.” Mr. Smith
then identified the defendant by name and testified that he had seen the defendant’s
photograph, had seen the defendant on the store’s video surveillance recording, and had
observed the defendant in person, explaining, “I have seen him in person ten feet away
from me.” The defendant objected again to the identification, and the court overruled the
objection. When the prosecutor asked the witness to explain when he had seen the
defendant in person, Mr. Smith testified that on May 12, 2014, he was “in the area doing
my PIT log” when he observed the defendant on video surveillance in the sporting goods
area. Mr. Smith went to the area where he had seen the defendant and “proceed[ed] to
watch [the defendant] go through his process of how he had been taking the [fitness
trackers]. I was about ten feet away from him behind him watching this process.” Mr.
Smith said that the defendant abandoned his task when another customer approached.
Mr. Smith then followed the defendant to his car and took down the license plate number.

Following this testimony, the defendant objected on Rule 404(b) grounds
and requested a curative instruction. The trial court agreed and instructed the jury that it
could consider the testimony only for its impact on Mr. Smith’s ability to identify the
defendant. The defendant did not request a jury-out hearing pursuant to Rule 404(b)(1)
and did not object after the curative instruction was given.

During cross-examination, the defendant questioned Mr. Smith about why
he had waited several months to report the thefts. In response to a question on redirect
examination about the reporting delay, Mr. Smith indicated that he had waited until he
was able to identify the defendant as the perpetrator, which was “when the attempt was
made”. The defendant objected, and the trial court sustained the objection and ordered
the State to rephrase its question.

In our view, the trial court committed no error with regard to Mr. Smith’s
testimony. The trial court issued a curative instruction at the defendant’s request
following the revelation during Mr. Smith’s direct examination testimony. The defendant
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cannot be heard to complain about the trial court’s failure to hold a jury-out hearing on
the issue because he failed to request one. Finally, the court sustained the defendant’s
objection to a second revelation during redirect examination. The defendant is not
entitled to relief on the basis of this testimony.

B. Mr. Elliott’s Testimony

The State asked Mr. Elliott if he could identify the defendant, and Mr.
Elliott testified that he could, adding, “[T]here were three other times where I had
recoveries on [the defendant].” The defendant objected, and the prosecutor indicated that
she was surprised by Mr. Elliott’s response. The trial court sustained the defendant’s
objection and provided the following instruction to the jury:

Ladies and gentlemen, you are to disregard the last
response that was given. Whether there is the belief that [the
defendant] was involved or not in involved in any other
instance at this store other than the 4-30 incident that we just
discussed, you are not to consider that. You may consider it
for other limited purposes such as identity but not for any
other purpose.

After the trial court provided this instruction, the State asked Mr. Elliott how he could
identify the defendant, and Mr. Elliott testified that he had seen the defendant in person
on three previous occasions. The defendant did not object to this testimony and did not
ask for a jury-out hearing.

Again, we conclude that the trial court committed no error.

C. Testimony of Detective Epps

When the State asked Detective Epps where he was employed, he indicated
that he was a member of the “repeat offender squad” of the Knoxville Police Department.
The defendant objected and asked for a mistrial based upon what he characterized as the
State’s repeated, intentional violations of Rule 404(b). The trial court overruled the
objection to Detective Epps’s testimony about his current duty assignment and denied the
defendant’s motion for a mistrial.

In our view, the trial court did not err by refusing to exclude Detective
Epps’s testimony about his current duty assignment. The detective did not testify that the
defendant was a repeat offender, only that he was himself assigned to the repeat offender
squad at the time of trial.
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 D. Motion for Mistrial

The defendant moved the trial court for a mistrial once after Mr. Elliott’s
testimony and again after Detective Epps’s testimony. The trial court denied both
motions.

We find no abuse of discretion in the trial court’s decision to deny these
motions for mistrial. See State v. Nash, 294 S.W.3d 541, 546 (Tenn. 2009). “Normally,
a mistrial should be declared only if there is a manifest necessity for such action.” State
v. Saylor, 117 S.W.3d 239, 250 (Tenn. 2003) (citing State v. Millbrooks, 819 S.W.2d 441,
443 (Tenn. Crim. App. 1991)). (“In other words, a mistrial is an appropriate remedy
when a trial cannot continue, or a miscarriage of justice would result if it did.” Saylor,
117 S.W.3d at 250 (quoting State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000)).
“The purpose for declaring a mistrial is to correct damage done to the judicial process
when some event has occurred which precludes an impartial verdict.” State v. Williams,
929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). Here, nothing indicated a manifest
necessity for the declaration of a mistrial, and the trial court’s decision to deny the motion
did not result in a miscarriage of justice. See Saylor, 117 S.W.3d at 250.

III. Brady v. Maryland

The defendant asserts that the trial court erred by refusing to grant a mistrial
after Mr. Adams indicated that he had records of the defendant’s sales at Red Rhino that
included a copy of the defendant’s driver’s license. He argues that the State’s failure to
disclose the records prior to trial violated the tenets of Brady v. Maryland and that the
erroneous failure to disclose caused defense counsel to claim during his opening
statement, erroneously, that records of the sales to Red Rhino did not actually identify the
defendant as the seller.

During Mr. Adams’ direct examination, the prosecutor asked Mr. Adams if
he had records of the defendant’s sales of fitness trackers to Red Rhino, and Mr. Adams
indicated that he did. In response to further questioning, Mr. Adams indicated that the
records included photocopies of the defendant’s driver’s license. The defendant objected
to the admission of the records, citing the State’s failure to disclose them prior to trial.
The prosecutor indicated that although the State had subpoenaed Mr. Adams and the
records in question, it had not collected the records prior to trial and that the records had
remained within the exclusive control of Red Rhino. Upon further inquiry by the trial
court, Mr. Adams indicated that he had shown the records to the prosecutor during the
first trial setting but that the State had not examined the records in detail and had not
collected the records from him. The defendant asserted that the State’s failure to disclose
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the records had caused defense counsel to rely on the records from the LEIDs database,
which records indicated that many of the sales to Red Rhino were conducted by an
African American man named Denton Jones. He used this information to indicate to the
jury during opening statement that this was a case of mistaken identity. Defense counsel
argued that the only appropriate remedy in this situation was a mistrial.

The trial court thoroughly chastised the prosecutor for failing to disclose
the existence of the records when she knew that she intended to rely on them in her case
in chief. The court implied that it was disingenuous of the prosecutor to refuse to collect
the records ostensibly to avoid having to provide them to the defense. Although the court
indicated frustration with the prosecutor’s attempt to “hide the ball,” it ultimately
concluded that no discovery violation or Brady violation had occurred because the
records were equally available to both parties. The court also expressed concern about
the position in which defense counsel had been placed because of the State’s failure to
disclose the records but denied the defendant’s motion for a mistrial, concluding that the
defendant had failed to establish a manifest necessity for a mistrial.

“It is well settled that the government has the obligation to turn over
evidence in its possession that is both favorable to the accused and material to guilt or
punishment.” Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987) (citing United States v.
Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83, 87 (1963)). Indeed, the
“suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. To
establish a due process violation via the suppression of evidence, the defendant must
establish that (1) he “requested the information (unless the evidence is obviously
exculpatory, in which case the [S]tate is bound to release the information whether
requested or not),” (2) “the State suppressed the information,” (3) “the information was
favorable to” his case, and (4) “the information was material.” Johnson v. State, 38
S.W.3d 52, 56 (Tenn. 2001). “Evidence ‘favorable to an accused’ includes evidence
deemed to be exculpatory in nature and evidence that could be used to impeach the
[S]tate’s witnesses.” Johnson, 38 S.W.3d at 55-56 (citing State v. Walker, 910 S.W.2d
381, 389 (Tenn. 1995); State v. Copeland, 983 S.W.2d 703, 706 (Tenn. Crim. App.
1998); United States v. Bagley, 473 U.S. 667, 676 (1985)).

Although courts have used different terminologies to define
“materiality,” a majority of this Court has agreed, “[e]vidence
is material only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different. A ‘reasonable
probability’ is a probability sufficient to undermine
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 confidence in the outcome.”

Ritchie, 480 U.S. at 57 (citations omitted); see also Bagley, 473 U.S. at 682.

Importantly, “Brady obviously does not apply to information that is not
wholly within the control of the prosecution.” Coe v. Bell, 161 F.3d 320, 344 (6th Cir.
1998); see State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992). The State
has no duty “‘to disclose information that the defendant already possesses or is able to
obtain’” or “which is not possessed by or under the control of the prosecution or other
governmental agency.” Jordan v. State, 343 S.W.3d 84, 96 (Tenn. Crim. App. 2011)
(quoting Marshall, 845 S.W.2d at 233). The State is also under no obligation “to seek
out exculpatory evidence not already in its possession or in the possession of a
governmental agency.” Marshall, 845 S.W.2d at 233 (citing United States v. Xheka, 704
F.2d 974, 982 (7th Cir. 1983)). When the defendant knows or should know “‘the
essential facts permitting him to take advantage of any exculpatory information,’” or
when “‘the evidence is available . . . from another source,’” there can be no Brady
violation “because in such cases there is really nothing for the government to disclose.”
Coe, 161 F.3d at 344 (quoting United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1989)).
“When exculpatory evidence is equally available to the prosecution and the accused, the
accused ‘must bear the responsibility of [his] failure to seek its discovery.’” Marshall,
845 S.W.2d at 233 (quoting United States v. McKenzie, 768 F.2d 602, 608 (5th Cir.
1985)).

Although we have concerns about the circumstances surrounding the
prosecutor’s refusal to examine and collect the records at issue prior to trial, especially
when she was aware that the information in the Red Rhino records contradicted the
information in the LEIDs records, the fact remains that the challenged evidence was not
within the exclusive control of the prosecution and was instead equally available to both
the defendant and the State through the use of compulsory process. The State indicated
prior to trial that it intended to present Mr. Adams as a witness and that it had subpoenaed
the records from Red Rhino for trial. Nothing prevented the defendant from interviewing
Mr. Adams and examining the records prior to trial. Moreover, and perhaps most
importantly, there is no indication that the Red Rhino records actually contained
exculpatory information. In fact, the records tended to inculpate the defendant even more
than the records contained in the LEIDs database. In consequence, the defendant is not
entitled to relief.

With regard to the defendant’s motion for mistrial, we note that our review
of this issue is hampered by the absence of the opening statements from the record on
appeal. The defendant, as the appellant, bore the burden to prepare an adequate record
for appellate review, see State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), and, in the
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absence of an adequate record, this court must presume the trial court’s ruling was
correct, see State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993). Without
the benefit of the defendant’s actual opening statement, we cannot effectively evaluate
the impact of the opening statement in light of the evidence adduced at trial. Thus, we
must presume that the trial court did not abuse its discretion by failing to declare a
mistrial based upon the failure to disclose the Red Rhino records.

IV. Sufficiency

The defendant next contends that the evidence was insufficient to support
his conviction, alleging that the State failed to establish value. He reiterates his earlier
argument that the value of the property taken was improperly aggregated and also argues
that neither Mr. Smith nor Mr. Elliott was qualified to testify as to the value of the fitness
trackers taken during each theft. The State avers that the evidence was sufficient. We
agree with the State.

As an initial matter, we have previously disposed of the defendant’s
challenge to the aggregation of the thefts in this case, and we will not rehash the issue
here.

We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).

When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.

“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.” T.C.A. § 39-14-103(a). Property is defined as “anything of
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value, including, but not limited to, money, real estate, tangible or intangible personal
property, including anything severed from land, library material, contract rights, choses-
in-action, interests in or claims to wealth, credit, admission or transportation tickets,
captured or domestic animals, food and drink, electric or other power.” Id. § 39-11-106.
In most theft cases,

“Value”:

(A) Subject to the additional criteria of subdivisions
(a)(36)(B)-(D), “value” under this title means:

(i) The fair market value of the property or service at the
time and place of the offense; or

(ii) If the fair market value of the property cannot be
ascertained, the cost of replacing the property within a
reasonable time after the offense;

....

(C) If property or service has value that cannot be ascertained
by the criteria set forth in subdivisions (a)(36)(A) and (B), the
property or service is deemed to have a value of less than fifty
dollars ($50.00);

Id. § 39-11-106(36)(A),(C).

In this case, both Mr. Smith and Mr. Elliott testified that they were charged
with keeping track of those items inside the Target that had both a high retail value and a
high risk of theft. Both maintained logs of these items, which included the types of
fitness trackers taken by the defendant, as well as item numbers and prices of each item
on the list. Both witnesses testified to the manufacturer’s suggested retail price of the
fitness trackers at the time they were taken. Their testimony established that the total
value of all the fitness trackers taken during the five thefts was $1,062.90. Although the
defendant asserts that neither witness was qualified to testify about the value of the
fitness trackers, he failed to support his assertion with any argument or citation to
appropriate authorities. The evidence adduced by the State was sufficient to support the
jury’s verdict.

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 V. Cumulative Error

Finally, the defendant asserts that the cumulative effect of the errors
deprived him of his constitutional rights to due process and a fair trial. Having
considered the issues presented on appeal and having concluded that the defendant is not
entitled to relief for any, we need not consider the cumulative effect of the alleged errors.
See State v. Hester, 324 S.W.3d 1, 77 (Tenn. 2010) (“To warrant assessment under the
cumulative error doctrine, there must have been more than one actual error committed.”).

Conclusion

Based upon the foregoing, we affirm the judgment of the trial court.

_________________________________
JAMES CURWOOD WITT, JR., JUDGE

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