State of Tennessee v. Steven Michael Odom

03/12/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 18, 2018 at Knoxville

STATE OF TENNESSEE v. STEVEN MICHAEL ODOM

Appeal from the Circuit Court for Tipton County
No. 8761 Joseph H. Walker, Judge

No. W2018-00634-CCA-R3-CD

The Defendant, Steven Michael Odom, appeals his jury convictions for aggravated
burglary and theft of property $500 or more but less than $1,000. The Defendant alleges
that (1) the evidence was insufficient to support his jury convictions, challenging the
evidence establishing his entry into a habitation and his criminal responsibility for the
actions of his co-defendant; and (2) that the trial court’s refusal to play for the jury the
portion of the Defendant’s police interview during which the Defendant stated adamantly
that he was telling the truth was error. Following our review of the record and the
applicable authorities, we conclude that the Defendant’s issues do not entitle him to
relief. However, we find plain error because the trial court failed to apply the amended
theft grading statute at sentencing. Accordingly, we vacate the two-year, Class E felony
sentence for the Defendant’s theft conviction, and the case is remanded for entry of a
modified judgment reflecting an eleven-month and twenty-nine-day sentence for a Class
A misdemeanor conviction of theft of property valued at $1,000 or less. Furthermore,
upon remand, it shall be notated on all three judgment forms, including the Defendant’s
guilty plea to felon in possession of a weapon offense, the concurrent nature of the
Defendant’s various sentences. In all other respects, the judgments are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court
Affirmed in part; Modified in part; Case Remanded

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ALAN E. GLENN, JJ., joined.

Lauren A. Raynor, Brighton, Tennessee, for the Appellant, Steven Michael Odom.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; D. Michael Dunavant, District Attorney General; and James
Walter Freeland, Jr., Assistant District Attorney General, for the appellee, State of
Tennessee.

OPINION
FACTUAL BACKGROUND
A Tipton County grand jury charged the Defendant, along with his co-defendant,
Bryan Adam Pilkington, with aggravated burglary and theft of property valued at $500 or
more but less than $1,000. See Tenn. Code Ann. §§ 39-14-103, -105, -403. The
Defendant was also charged with being a felon in possession of a weapon. See Tenn.
Code Ann. § 39-17-1307. The Defendant proceeded to a jury trial on the theft and
burglary charges.

At trial, the Defendant’s father, Ben Odom (“Mr. Odom”), testified that he lived
on Kelleys Chapel Road with his fourteen-year-old son, W.O.,1 but the Defendant did not
live with them. According to Mr. Odom, he left his home around 9 a.m. on Saturday,
May 28, 2016, and returned later that evening around 5:00 p.m. Mr. Odom could not
recall exactly what he was doing that day, explaining, “When I’m not working at work,
I’m always doing something or helping somebody. If not at my house, I’ll be like cutting
grass at the church, or it’s all kind of stuff. I go out and stay busy all the time.” Mr.
Odom testified that, when he returned home, the front door was still locked, but as he
entered his bedroom, he immediately noticed that a cabinet had been pulled away from
the wall and that two shotguns, one a 12 gauge and the other a 20 gauge, he kept behind
the cabinet were missing. Though there were other items of value inside the home,
including electronics and other weapons, nothing else was stolen. Mr. Odom called the
police right away and “made a report.”

Mr. Odom discovered a few weeks later that a jar full of change he placed on top
of the freezer was also missing. He estimated that the jar contained “about 50, 60, 70
dollars[’] worth of change[.]” Mr. Odom called the police and added the jar to the report
he had previously filed.

In addition, Mr. Odom testified that W.O. sometimes lost his keys, so W.O. would
enter the house through a bedroom window that did not latch. Mr. Odom said that there
were both a stepladder and a chair near the window to facilitate W.O.’s entry. But, the
Defendant was a “big guy,” and it would have been “very difficult” for the Defendant to
fit through the window, in Mr. Odom’s opinion. Mr. Odom explained that he himself had
difficulty climbing in the window due to his size but that it was not impossible for either
Mr. Odom or the Defendant to make it through the window. According to Mr. Odom,
“[the Defendant] probably would have [had] to turn sideways” to fit in the window, like
Mr. Odom did. Mr. Odom said that it hurt him to climb through the window sideways.
1
It is the policy of this court to refer to minors by their initials.
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Mr. Odom believed that it would have been much easier for the co-defendant to fit
through the window.

According to Mr. Odom, the Defendant knew about the window’s being unlocked,
and the Defendant also knew where the shotguns were kept. Finally, Mr. Odom
confirmed that he did not give the Defendant or the co-defendant permission to enter his
home that day.

Subsequently, the police recovered the shotguns from Christy Sanders, who was
the wife of John Sanders. Mr. Odom went to the police station on June 16 and identified
the shotguns as his. Mr. Odom estimated that the two guns were worth about $600.

During the morning of June 14, 2016, the Defendant gave a statement to police
after signing a Miranda waiver. The interview, which was conducted by Detective2
Dustin Henshaw of the Tipton County Sheriff’s Office, lasted about forty-minutes and
was video recorded. At the conclusion of the interview, around 11:00 a.m., the
Defendant signed a written synopsis of his statement. The Defendant’s version, as typed
by Detective Henshaw, provided the following:

Around May, Bryan and me [sic] went to my father’s house on a
Sunday because I knew dad would be at church. Bryan needed money and
John Sanders wanted a shotgun. We took a black Saturn and Bryan drove.
We parked in the drive by the house like normal. I got out and knocked.
No one answered so I told Bryan to go ahead. We originally went out there
to scope out some AC units. I walked around back to make sure he got in.
He was going to pry open the back door but the window was open and we
saw a chair under the window. I then walked down to the neighbor’s AC
unit to scope it out and when I got back Bryan was already in the car. We
left and went to Kroger in Atoka and Bryan got $35.74 for the change. I
shopped. The next day we took the pump 20 gauge to John Sanders. Bryan
got a gram of methamphetamine for the gun. I stayed in the car. About a
week and a half ago, Bryan and I went and got the 12 gauge from Brandon
Lillie. This was on the second of June. I took Bryan back home and then I
took the 12 gauge to John Sanders to pay off a debt. I gave it to his wife at
the gate. John didn’t give me anything that day.

We were going to steal “dro” from Verly Wells on Mae Sigma. He
keeps it in the grill. Verly’s dad was at home so we didn’t. My dad goes to
church on the same road and I thought I saw his red truck at church so I

2
By the time of trial, Detective Henshaw had been promoted to Investigator.
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 knew he wouldn’t be home. I said I would knock and if no one answered
Bryan could go in the back because people could see from the front.

A short break was taken after Detective Henshaw read the Defendant’s statement
into the record. During the break, the prosecutor announced his intention to play the
video recording of the Defendant’s interview. In order to delete any reference to separate
armed robbery charges against the Defendant and his co-defendant that involved John
Sanders, the prosecutor said that he would begin the recording at 10:44 a.m. Defense
counsel noted her concern “with the entire video not being played” because “at 10:36,
there [was] a point where [the Defendant] [was] saying his statement over and over so
that” the detective would believe him. She wanted the jury to see that the Defendant
stated adamantly that the information he provided was truthful. The trial court ruled that
the State could play the recording beginning at 10:44 a.m. and that, if defense counsel
“want[ed] other parts played,” then they would take a break to address those additional
portions. Defense counsel replied, “Yes, sir.” The prosecutor noted that defense counsel
could “[c]ertainly” ask the detective about the Defendant’s comments. The jury returned
to the courtroom, and the delineated portion of the video recording was played.

On cross-examination, the following colloquy between Detective Henshaw and
defense counsel took place:

Q. . . . And the video that you played, you asked him if this was the
absolute truth?

A. Correct.

Q. And he told you over and over again that this was the truth, correct?

A. Yes, mam.

Detective Henshaw then affirmed that the Defendant never stated that he was the one
who climbed through the window, steadfastly maintaining that it was the co-defendant.
Detective Henshaw was asked, “And even in that video, you asked him several times,
man, I know you’re not telling the truth, and he still said that he did not climb in,
correct?” Detective Henshaw replied in the affirmative. When asked if the Defendant
ever changed his story, Detective Henshaw said, “Nothing drastic. He would give me a
few more details here and there[.]”

In addition, Detective Henshaw confirmed that, at the time of the interview, the
Defendant was being utilized as a confidential informant by the Tipton County Sheriff’s
Office. Moreover, Detective Henshaw also conducted a separate interview with the co-
defendant.
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 The co-defendant testified at the Defendant’s trial. The co-defendant confirmed
that he had pled “no contest” that morning to the aggravated burglary and theft charges
involving the two shotguns stolen from Mr. Odom on May 28, 2016. The co-defendant
further acknowledged that he had previously made a statement to law enforcement on
June 14, 2016, regarding these events.

When asked to provide a narrative of the events that day, the co-defendant stated
that, around 8:30 or 9:00 a.m., he was driving the Defendant’s girlfriend’s Saturn Ion and
that he and the Defendant were “just cruis[ing]” and thinking about stealing some
marijuana. They decided to go to the Defendant’s father’s house to steal two shotguns,
believing that Mr. Odom was at church and not at home. When they arrived at the house,
they did not see Mr. Odom’s truck in the driveway. According to the co-defendant, the
Defendant exited the car and went to the backyard of the home where the Defendant
crawled inside through a “[n]ormal-sized window” using a “little stepladder” that was
nearby. The co-defendant claimed that the Defendant did not have any trouble climbing
in the window. The co-defendant said that he waited outside and that the Defendant
returned with the two shotguns and a jar full of change. They left.

The co-defendant testified that they took the jar of change to a Kroger in Atoka;
that he was the one who converted the coins to cash, receiving approximately $28; and
that they then “went shopping for about an hour” before returning to their home.
According to the co-defendant, they did not use the money they garnered from the change
jar for groceries but instead used the Defendant’s girlfriend’s “food stamp card.” The co-
defendant said that they “spent” the $28, although he did not provide specifics on what
they purchased.

When asked what happened to the shotguns, the co-defendant testified that
initially they used the 20 gauge shotgun to pay the Defendant’s drug debt to John Sanders
and hid the 12 gauge shotgun at Brandon Lillie’s house. However, the co-defendant
maintained that they sold the 12 gauge shotgun several days later in exchange for “[a]
little over half a gram” of methamphetamine from John Sanders, which they “split . . .
down the middle.” According to the co-defendant, both shotguns were in John Sanders’s
possession at the time the co-defendant spoke with law enforcement on June 14.

On cross-examination, the co-defendant admitted that he could not remember the
exact dates these events occurred, believing that they occurred sometime in May. The
co-defendant acknowledged that certain details in his police statement were untrue,
including his statements therein that these events occurred in March and that he was the
owner of the Saturn they were riding in that day. The co-defendant also did not mention
a stepladder or chair when he spoke with Detective Henshaw.

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 The Defendant testified on his own behalf. The Defendant provided that, in May
2016, the co-defendant “was staying with” him. According to the Defendant, they were
riding around May 28, 2016, in the Defendant’s girlfriend’s Saturn with the intention of
stealing marijuana to pay the co-defendant’s drug debt to John Sanders. Both he and the
co-defendant had been using methamphetamine. When they discovered that the person
from whom they intended to steal the marijuana was at home, they drove by Central
Baptist Church where they saw the Defendant’s father’s truck. Because the truck was
parked at church, the Defendant believed that these events occurred on a Sunday, not a
Saturday.

After seeing the truck, the Defendant told the co-defendant about the shotguns at
his father’s house because the Defendant knew that John Sanders “was also interested in
purchasing shotguns.” According to the Defendant, they went to the Defendant’s house
and drove by “once or twice just to make sure that [his father] hadn’t got out of church or
left church early for some reason.” The Defendant exited his vehicle and knocked on the
front door for about five minutes. When no one answered, the Defendant walked around
to the back of the house and told the co-defendant that “it was safe for him to go on in[.]”
The Defendant claimed that “[t]here was a white chair sitting outside of the middle
bedroom window of the house[,]” so the co-defendant used the chair to climb in the
window. According to the Defendant, he did not know that the window was open until
the co-defendant told him. In addition, the Defendant claimed that the window was too
small for him to climb through.

The Defendant maintained that, while the co-defendant was inside, he walked to a
neighbor’s house looking to “see if there was any extra AC units in the window or
anything that [he] could take for scrap.” When the Defendant was walking back towards
his father’s house, he saw the co-defendant standing outside the Saturn. According to the
Defendant, the co-defendant put the guns and the jar of change in the trunk and got inside
the car. The Defendant confirmed that they then went to Kroger in Atoka to convert the
change to currency. The Defendant asserted that the co-defendant took the change to the
machine to be converted and that the jar of change got them $35.74.

The Defendant claimed that, the following day, both he and the co-defendant went
to take the 20 gauge shotgun to John Sanders to pay the co-defendant’s drug debt, and
they both went in order “to make sure that neither one of [them] got screwed out the extra
that was given” in return for the weapon. The Defendant also claimed that the 12 gauge
shotgun was used to reimburse John Sanders approximately “three weeks later,” on June
2, 2016, for another debt of the co-defendant. The Defendant rationalized, “[I]f we
planned on ever getting anymore methamphetamine, this is who it had to go to.”
According to the Defendant, they went to Brandon Lillie’s house to retrieve the 12 gauge

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before going to the Sanders’s residence, and the Defendant delivered the 12 gauge to
Christy Sanders “outside the gate to pay off [the co-defendant’s] debt.”

On cross-examination, the Defendant averred that his trial testimony was the same
as the details he provided to Detective Henshaw during the interview. The Defendant
noted that he was “adamant” in the video that it was the co-defendant who went inside his
father’s residence and that this was even after the Defendant was told that it did not
“really matter which one of [them] went” inside in order to establish culpability.
Nonetheless, the Defendant acknowledged that he, “at the very least[,] assisted [the co-
defendant] in this aggravated burglary” and that he “got some of the proceeds or the
benefit of the proceeds of this aggravated burglary[.]” The Defendant further admitted
that he was the one who knew that the shotguns were inside his father’s house and that
they did not have permission to take them. The Defendant also acquiesced that he
handled the shotguns after they were stolen and that they were used to pay debts to his
drug dealer and in order to secure drugs in the future.

On redirect, the Defendant confirmed that he had acted as a confidential informant
for the Tipton County Sheriff’s Office and maintained that he “had nothing to hide[.]”
He affirmed that, during his interview, he said “no, no, hell no, this is the truth[,]” even
“slap[ing] the table[,]” and that he was asked “[a]t least [twenty] times” if his statement
was true. The Defendant acknowledged that he was “guilty of some crime,” but he
claimed it was not aggravated burglary because he was not the person who entered the
home.

Following the conclusion of the proof, the jury found the Defendant guilty as
charged of theft and aggravated burglary. The Defendant thereafter pled guilty to the
felon in possession of a weapon offense. On January 12, 2017, he was sentenced, as a
Range II, multiple offender, to concurrent terms of six years, two years, and four years,
respectively, and judgment forms were filed that same day. The Defendant’s motion for
new trial was filed on September 17, 2017, well past the thirty-day time limit. See Tenn.
R. Crim. P. 33(b). No motion is contained in the appellate record before us. A hearing
was held on the motion on March 19, 2018. The only issue raised during the hearing was
sufficiency of the evidence. The trial court thereafter dismissed the motion as untimely
and concluded that the evidence was sufficient to support the jury’s verdict. A notice of
appeal was filed on April 6, 2018. The case is now before us for our review.

ANALYSIS
On appeal, the Defendant argues (1) that the evidence was insufficient to support
his jury convictions, challenging the evidence establishing his entry into a habitation and
his criminal responsibility for the actions of his co-defendant; and (2) that the trial court’s
refusal to play for the jury the portion of the Defendant’s police interview during which
the Defendant stated adamantly that he was telling the truth was error. Before beginning
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our review of the Defendant’s issues, we feel constrained to note that the failure to timely
file a motion for new trial results in the waiver of all issues except for sufficiency of the
evidence and sentencing. See State v. Bough, 152 S.W.3d 453, 460 (Tenn. 2004)
(citations omitted); see also Tenn. R. App. P. 3(e).

I. Sufficiency of the Evidence
The Defendant challenges the sufficiency of the convicting evidence supporting
his aggravated burglary and theft of property convictions. Specifically, the Defendant
argues that “the evidence only points” to the co-defendant’s entering the home and that
the co-defendant’s testimony to the contrary was unreliable. The Defendant also submits
that there was insufficient evidence presented to establish his criminal responsibility for
his co-defendant’s actions. The State counters that the evidence was sufficient.

An appellate court’s standard of review when a defendant questions the
sufficiency of the evidence on appeal 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). This court does not reweigh the evidence; rather, it presumes that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Id.; see State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). The standard of proof is the same whether the evidence
is direct or circumstantial. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).
Likewise, appellate review of the convicting evidence “is the same whether the
conviction is based upon direct or circumstantial evidence.” Id. (quoting State v. Hanson,
279 S.W.3d 265, 275 (Tenn. 2009)). The duty of this court “on appeal of a conviction is
not to contemplate all plausible inferences in the [d]efendant’s favor, but to draw all
reasonable inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d
60, 67 (Tenn. 2011).

Aggravated burglary is the “burglary of a habitation[.]” Tenn. Code Ann. § 39-14-
403(a). Burglary is committed when a person, “without the effective consent of the
property owner,” “[e]nters a building . . . with [the] intent to commit a felony, theft[,] or
assault[.]” Tenn. Code Ann. § 39-14-402(a)(1). A habitation is defined as “any structure
. . . which is designed or adapted for the overnight accommodation of persons[.]” Tenn.
Code Ann. § 39-14-401(1)(A). Theft of property occurs if, with intent to deprive the
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owner of property, a person knowingly obtains or exercises control over the property
without the owner’s effective consent. Tenn. Code Ann. § 39-14-103.

The State argued that, in addition to the Defendant’s being the principal offender,
the Defendant was guilty based upon a theory of criminal responsibility. “A person is
criminally responsible as a party to an offense if the offense is committed by the person’s
own conduct, by the conduct of another for which the person is criminally responsible, or
by both.” Tenn. Code Ann. § 39-11-401(a). A person is criminally responsible for an
offense committed by the conduct of another, if “[a]cting with intent to promote or assist
the commission of the offense, or to benefit in the proceeds or results of the offense, the
person solicits, directs, aids, or attempts to aid another person to commit the offense[.]”
Tenn. Code Ann. § 39-11-402(2).

Although not a separate crime, criminal responsibility is a theory by which the
State may alternatively establish guilt based on the conduct of another. Dorantes, 331
S.W.3d at 386 (citing State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999)). No specific
act or deed needs to be demonstrated by the State, and the presence and companionship
of an accused with the offender before and after the offense are circumstances from
which participation in the crime may be inferred. State v. Ball, 973 S.W.2d 288, 293
(Tenn. Crim. App. 1998). To be convicted, however, “the evidence must establish that
the defendant in some way knowingly and voluntarily shared in the criminal intent of the
crime and promoted its commission.” Dorantes, 331 S.W.3d at 386 (citing State v.
Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994)); see State v. Foster, 755 S.W.2d
846, 848 (Tenn. Crim. App. 1988)).

In the light most favorable to the State, the evidence established that the Defendant
was the one who devised the plan to steal the two shotguns from his father’s home on
May 28, 2016. Mr. Odom testified that the shotguns were located behind a cabinet in the
bedroom. According to Mr. Odom, the Defendant knew where the two guns were kept,
and the Defendant was also aware that the home’s window remained unlocked. Aside
from the jar of change and shotguns, nothing else of value was taken from inside the
residence. Mr. Odom’s testimony established that, while it would have been difficult for
the Defendant to crawl through the window, it was not impossible as he could have
“turn[ed] sideways” to accomplish his goal. Nonetheless, Mr. Odom believed that the co-
defendant would have had a much easier time fitting through the window.

The Defendant testified that, while they riding around that day in the Defendant’s
girlfriend’s Saturn, he saw his father’s truck parked at church. After seeing the truck, the
Defendant told the co-defendant about the shotguns at his father’s house because the
Defendant knew that John Sanders, to whom a debt was owed, “was also interested in
purchasing shotguns.” They drove by the Defendant’s father’s residence “once or twice”
to make sure no one was home before parking and exiting the vehicle. After the
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Defendant knocked on the door for about five minutes, he informed the co-defendant that
“it was safe for him to go on in[.]” The Defendant testified that there was a white chair
sitting near the window and that the co-defendant used the chair to enter the window.

The Defendant claimed that he next saw the co-defendant putting the jar of change
and shotguns in the trunk of the car. After that, they proceeded to Kroger in Atoka to
convert the change to currency. The Defendant admitted that he, along with the co-
defendant, delivered the 20 gauge shotgun the following day to John Sanders to pay a
drug debt. According to the Defendant, they both went in order “to make sure that
neither one of [them] got screwed out the extra that was given” in return for the weapon.
The Defendant, in his statement to Detective Henshaw, said that the co-defendant
received a gram of methamphetamine in exchange for the 20 gauge. The Defendant also
testified at trial to being present three weeks later when the 12 gauge shotgun was given
to John Sanders to pay a drug debt and facilitate the sale of more drugs. Moreover, the
two shotguns were found in the possession of Christy Sanders, John Sanders’s wife.

The Defendant’s statement to Detective Henshaw was consistent with his trial
testimony. Moreover, at trial, the Defendant acknowledged that he, “at the very least[,]
assisted [the co-defendant] in this aggravated burglary” and that he benefitted from the
sale of the shotguns.

It is the law in Tennessee that possession of recently stolen property, unless it is
satisfactorily explained, creates a permissible inference that the person who possessed the
stolen property gained possession through theft. See State v. James, 315 S.W.3d 440,
450 (Tenn. 2010). Additionally, our supreme court held that a jury may “infer a burglary
from possession of recently stolen property only when there exists a rational connection
between possession and participation, when guilt more likely than not flows from
possession, and, importantly, when there is some other evidence corroborating the
burglary that warrants the inference.” Id. at 452 (citing 13 Am. Jur. 2d Burglary § 48
(2009)). The commission of the aggravated burglary on May 28, 2016, was adequately
corroborated by the State. The Defendant’s transfer of property stolen during that
burglary, on the following day, and again three weeks later, is a rational connection
between the Defendant’s possession of the stolen property and his participation in the
aggravated burglary. Thus, the Defendant’s guilt of aggravated burglary more likely than
not flows from his possession and prompt sale of items stolen during the aggravated
burglary.

The co-defendant provided a similar version of events other than his claiming that
it was the Defendant who went inside the residence and that the Defendant was the one
who owed the drug debt John Sanders. We conclude that, regardless of who went inside,
the evidence showed that Defendant benefitted from the proceeds of the aggravated
burglary and theft and aided his co-defendant in the commission of the offenses. See,
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e.g., State v. David Roger Petty, No. M2016-01036-CCA-R3-CD, 2017 WL 4457592, at
*4 (Tenn. Crim. App. Oct. 15, 2017) (finding the evidence sufficient to support
aggravated burglary and theft convictions where the defendant admitted that he sold the
jewelry but claimed that his co-defendant entered the home and stole it). Therefore, the
evidence is sufficient to support the Defendant’s convictions.

II. Video Footage
The Defendant asserts that “[a]ll evidence” of his statements to Detective
Henshaw was “not published to the [j]ury.” In essence, the Defendant submits that the
trial court’s refusal to play for the jury the portion of the Defendant’s police interview
beginning at 10:36 a.m. on the recording, wherein the Defendant stated adamantly that he
was telling the truth, was error. The Defendant raises this evidentiary challenge within
his sufficiency argument and concludes as follows:

This is not to say that [the Defendant] did not assist [the co-
defendant], but when considering whether [the Defendant’s] testimony is
credible and the evidence of [the Defendant’s] statement relating to the
[a]ggravated [b]urglary . . . was not fully presented to the jury, it is
necessary to consider whether the jury’s observation of [the Defendant’s]
statement could have persuaded the jury of the truthfulness of [the
Defendant’s] statement.

The State responds that the Defendant has waived appellate review of the issue by failing
to timely file a motion for new trial.

The Defendant is attempting to disguise his evidentiary complaint by
incorporating it within his sufficiency challenge. Again, the failure to timely file a
motion for new trial results in the waiver of all issues except for sufficiency of the
evidence and sentencing. See Bough, 152 S.W.3d at 460; see also Tenn. R. App. P. 3(e).
Accordingly, the State is correct that this issue is waived, and it is, therefore, reviewable
only for plain error. See Tenn. R. App. P. 36(b) (“A final judgment from which relief is
available and otherwise appropriate shall not be set aside unless, considering the whole
record, error involving a substantial right more probably than not affected the judgment
or would result in prejudice to the judicial process.”). There are five factors that must be
established before an error may be recognized as plain: (1) the record clearly establishes
what occurred in the trial court, (2) a clear and unequivocal rule of law was breached, (3)
a substantial right of the accused was adversely affected, (4) the issue was not waived for
tactical reasons, and (5) consideration of the error is necessary to do substantial justice.
State v. Minor, 546 S.W.3d 59, 70 (Tenn. 2018) (citations omitted); State v. Adkisson,
899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994).

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 The Defendant makes no argument for plain error, and as discussed above, the
evidence is sufficient to support the Defendant’s convictions based upon a theory that the
Defendant is criminally responsible for the actions of his co-defendant. The jury could
have believed that the Defendant was truthful during his interview when he claimed that
it was the co-defendant who entered the residence and still found the Defendant guilty.
Moreover, the record reflects that, by beginning the recording at 10:44 a.m., the State was
attempting to avoid evidence of other bad acts committed by the Defendant. The trial
court ruled that the State could play the recording beginning at 10:44 a.m. and that, if the
defense counsel “want[ed] other parts played,” then they would take a break to address
those additional portions. However, after the recording was played, defense counsel
never renewed her request to play any additional portions of the recording.

In addition, Detective Henshaw testified for the jury that there was a point during
the interview where the Defendant asserted “over and over again” that he was telling the
truth. Detective Henshaw further testified that the Defendant steadfastly maintained
throughout the interview that it was the co-defendant who went inside the home. The
Defendant also testified about his truthfulness during the interview, noting that he was
“adamant” in the video that it was the co-defendant who went inside his father’s
residence. The Defendant affirmed that, during the interview, he said “no, no, hell no,
this is the truth[,]” even “slap[ing] the table[,]” and that he was asked “[a]t least [twenty]
times” if his statement was true. We are not compelled by the facts of the case to
consider the matter as one of plain error. The Defendant is not entitled to a new trial
based upon this evidentiary issue.

III. Theft Grading
Although neither party addresses the application of the amended theft grading
statute, we must conclude that grading the Defendant’s theft conviction as a Class E
felony and imposing a Class E felony, Range II offender sentence of two years
constitutes plain error. At the time when the Defendant committed the theft offense and
was later indicted for that offense, theft of property valued at $500 or more but less than
$1,000 was a Class E felony. See Tenn. Code Ann. § 39-14-105(a) (Supp. 2016).
However, effective January 1, 2017, prior to the Defendant’s sentencing hearing,
Tennessee Code Annotated section 39-14-105(a) was amended by the legislature. See
2016 Pub Acts, c. 906, §§ 5, 17. As is applicable in this case, the amendment provides
that the theft of property valued at $1,000 or less is now a Class A misdemeanor rather
than a Class E felony. See Tenn. Code Ann. § 39-14-105(a) (2018).

We agree with the panels of this court that have held that the amended grading
theft statute “provides the penalty for theft based upon the value of the property taken”
and, thus, “any amendment to that statute that lessens the penalty falls squarely within the

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‘exception’ to Code section 39-11-112.”3 State v. Michael Eugene Tolle, No. E2017-
00571-CCA-R3-CD, 2018 WL 1661616, at *8-10 (Tenn. Crim. App. Mar. 19, 2018),
perm. app. granted (Tenn. Aug. 9, 2018); State v. Charles Keese, No. E2016-02020-
CCA-R3-CD, 2018 WL 1353697, at *7-9 (Tenn. Crim. App. Mar. 15, 2018), perm. app.
granted (Tenn. Aug. 9, 2018). But cf. State v. Ashley N. Menke, No. M2017-00597-
CCA-R3-CD, 2018 WL 2304275, at *3-8 (Tenn. Crim. App. May 21, 2018) (determining
criminal savings statute does not apply to punishment for theft for plea entered to Class D
felony theft prior to amendment of theft statute where sentencing occurred after
amendment of theft statute), perm. app. granted (Tenn. Oct. 11, 2018). Therefore, we
vacate the sentence. Because all of the Defendant’s sentences are concurrent, a remand
for resentencing is not necessary. Accordingly, the judgment is modified to reflect a
Class A misdemeanor conviction of theft of property valued at $1,000 or less and a
sentence of eleven months and twenty-nine days.

We also note that the judgment forms for all three convictions are silent regarding
whether the Defendant’s sentences should run concurrently with or consecutively to one
another. Because it is clear that the Defendant’s three sentences were ordered to be
served concurrently with one another, we instruct that this be notated on all three
judgment forms upon remand.

CONCLUSION
The evidence was sufficient to support the Defendant’s convictions in this case,
and the Defendant’s evidentiary issue does not entitle him to relief. However, we find as
plain error the trial court’s failure to apply the amended theft grading statute at
sentencing, and therefore, we vacate the two-year, Class E felony sentence for the
Defendant’s theft conviction. The case is remanded for entry of a modified judgment
reflecting an eleven-month and twenty-nine-day sentence for a Class A misdemeanor
conviction of theft of property valued at $1,000 or less. In addition, upon remand, all
three judgment forms must also reflect the concurrent nature of the sentences. In all other
respects, the judgments are affirmed.

_________________________________
D. KELLY THOMAS, JR., JUDGE
3
The criminal savings statute found in Tennessee 39-11-112 provides as follows:

When a penal statute or penal legislative act of the state is repealed or amended
by a subsequent legislative act, the offense, as defined by the statute or act being repealed
or amended, committed while the statute or act was in full force and effect shall be
prosecuted under the act or statute in effect at the time of the commission of the offense.
Except as provided under § 40-35-117, in the event the subsequent act provides for a
lesser penalty, any punishment imposed shall be in accordance with the subsequent act.
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