        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                  Assigned on Briefs August 16, 2016 at Knoxville

               STATE OF TENNESSEE v. MARCUS WILLIAMS

                  Appeal from the Criminal Court for Shelby County
                       No. 14-01733   W. Mark Ward, Judge


             No. W2015-01918-CCA-R3-CD - Filed September 29, 2016


The defendant, Marcus Williams, appeals his Shelby County Criminal Court jury
convictions of identity theft, theft of property, and forgery, claiming that the evidence
was insufficient to support his convictions and that the trial court erred by instructing the
jury on criminal responsibility and by admitting certain evidence at trial. Discerning no
error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and D. KELLY THOMAS, JR., JJ., joined.

Charles S. Mitchell, Memphis, Tennessee, for the appellant, Marcus Williams.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Omar Malik,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

             In April 2014, the Shelby County Grand Jury charged the defendant with
one count each of identity theft, theft of property valued at $1,000 or more but less than
$10,000, and forgery. The trial court conducted a jury trial in June 2015.

              The proof at trial established that Jazmin Cruz owned Jazzy’s Star Boutique
(“the Boutique”), a clothing store in Memphis. On August 15, 2013, a man and woman
entered the Boutique and asked Ms. Cruz for assistance in selecting several items.
Because Ms. Cruz was in a hurry to get to the airport and was in the process of leaving
the store, she placed her handbag by the check-out counter, leaving it unattended while
assisting the female customer. Both customers left a short time later without making any
purchases.

              When Ms. Cruz arrived at the airport later that day, she realized that her
wallet was missing from her handbag. She contacted an employee at the Boutique and
asked him to review the security camera footage. Through Ms. Cruz’s testimony, the
State introduced into evidence a video recording and still photographs taken from that
security camera footage. Ms. Cruz identified the defendant as the male customer
depicted in the photographs, and a series of photographs as well as the video footage
showed the defendant removing Ms. Cruz’s wallet from her handbag. Ms. Cruz testified
that her wallet, which she estimated to be worth $160, contained $900 in cash, four credit
cards, her driver’s license, her social security card, her handgun permit, and her
checkbook.

             Following the theft of her wallet, six unauthorized purchases totaling over
$900 were made on Ms. Cruz’s credit cards, and one of Ms. Cruz’s checks was cashed on
August 16 in the amount of $900. Ms. Cruz confirmed that the signature on the check in
question was not her own, and her name was, in fact, misspelled.

             After reporting the theft to the police, Ms. Cruz reviewed a photographic
lineup and positively identified the defendant as the man who entered the Boutique on
August 15 and stole her wallet.

               With this evidence, the State rested. Following the denial of the
defendant’s motion for judgment of acquittal and a Momon colloquy, the defendant
elected not to testify and chose not to present any proof.

               Based on this evidence, the jury convicted the defendant as charged of
identity theft, theft of property valued at $1,000 or more but less than $10,000, and
forgery in an amount of $500 or more but less than $1,000. Following a sentencing
hearing, the trial court sentenced the defendant as a multiple offender to a term of eight
years’ incarceration to be served at 35 percent for both the identity theft and the theft of
property convictions and a term of four years’ incarceration to be served at 35 percent for
the forgery conviction. The court ordered all sentences to be served consecutively for a
total effective sentence of 20 years.

               Following the denial of his timely motion for new trial, the defendant filed
a timely notice of appeal. In this appeal, the defendant contends that the evidence is
insufficient to support his convictions, that the trial court erred by admitting the security
camera video recording and still photographs without proper authentication, and that the

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trial court erred by instructing the jury on criminal responsibility. We will address each
issue in turn.

                                       I. Sufficiency

              The defendant contends that the evidence is insufficient to support his
convictions of identity theft, theft of property, and forgery. We disagree.

              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 identity theft who “knowingly obtains, possesses, buys,
or uses, the personal identifying information of another . . . [w]ith the intent to commit
any unlawful act including, but not limited to, obtaining or attempting to obtain credit,
goods [or] services . . . in the name of such other person” and “[w]ithout the consent of
such other person.”         T.C.A. § 39-14-150(b)(1)(A)-(B).        “Personal identifying
information” includes any “[u]nique electronic identification number, . . . routing code or
other personal identifying data which enables an individual to obtain merchandise or
service or to otherwise financially encumber the legitimate possessor of the identifying
data.” Id. § 39-14-150(e)(3).

               “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.” Id. § 39-14-103(a). “Value,” as relevant to the theft in this
case, is defined as either “[t]he fair market value of the property or service at the time of
the offense” or “[i]f the fair market value of the property cannot be ascertained, the cost
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of replacing the property within a reasonable time after the offense.” Id. § 39-11-
106(36)(A)(i)-(ii). Furthermore, Tennessee Rule of Evidence 701(b) provides “[a]
witness may testify to the value of the witness’s own property or services.” Tenn. R.
Evid. 701(b).

               The offense of forgery is committed when a person “forges a writing with
intent to defraud or harm another.” Id. § 39-14-114(a). To “forge” is to “[a]lter, make,
complete, execute or authenticate any writing so that it purports to . . . [b]e the act of
another who did not authorize that act.” Id. § 39-14-114(b)(1)(A)(i).

              Moreover, “[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.” T.C.A. § 39-11-401(a).
Additionally, criminal responsibility for the actions of another arises when the defendant,
“[a]cting with intent to promote or assist the commission of the offense, or to benefit in
the proceeds or results of the offense, . . . solicits, directs, aids, or attempts to aid another
person to commit the offense.” Id. § 39-11-402(2); see State v. Lemacks, 996 S.W.2d
166, 170 (Tenn. 1999) (“As reflected in this case, criminal responsibility is not a separate,
distinct crime. It is solely a theory by which the State may prove the defendant’s guilt of
the alleged offense . . . based upon the conduct of another person.”).

               In the instant case, the proof at trial clearly established that the defendant
stole Ms. Cruz’s wallet from her handbag. Ms. Cruz testified that the wallet contained
$900 in cash and that the wallet itself was worth $160. Specifically, Ms. Cruz stated that
it was a Brahmin wallet and that the retail price of such wallets was between $145 and
$240. In finding the defendant guilty of theft of property valued at $1,000 or more but
less than $10,000, the jury accredited Ms. Cruz’s valuation of the property, as was its
prerogative. See State v. Hamm, 611 S.W.2d 826, 828-29 (Tenn. 1981) (holding that it is
up to the jury to determine the value of the items stolen). This evidence supports a
finding that the defendant committed the offense of theft of property valued at $1,000 or
more but less than $10,000.

              With respect to the conviction of identity theft, the proof at trial established
that the defendant stole Ms. Cruz’s wallet, which contained her credit cards. Those same
credit cards were used in six unauthorized transactions, at least one of which occurred on
the same day as the theft. Although no direct evidence tied the defendant to the credit
card transactions, the circumstantial evidence supported a finding that the defendant, in
stealing Ms. Cruz’s wallet, knowingly obtained her personal identifying information with
the intent to commit an unlawful act. See T.C.A. § 39-14-150(b)(1)(A)-(B); see also
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973) (holding that criminal offense may
be established exclusively by circumstantial evidence). In any event, the proof is
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sufficient to establish that the defendant is criminally responsible for the actions of
another in the unauthorized use of Ms. Cruz’s credit cards and is therefore guilty of
identity theft.

                Likewise, although no direct evidence tied the defendant to the forgery of
Ms. Cruz’s check in the amount of $900, the check was dated and cashed on August 16,
the day after the defendant stole the wallet containing Ms. Cruz’s checkbook. Once
again, the circumstantial evidence supported a finding that the defendant forged the check
with the intent to defraud Ms. Cruz or was criminally responsible for the forgery.
Circumstantial evidence is sufficient to prove the identity of the perpetrator of a crime,
see State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006), and the perpetrator’s identity is a
determination for the trier of fact, see State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim.
App. 1993). In reviewing the sufficiency of the convicting evidence, we do not resolve
credibility issues, make inferences, or usurp the jury’s factual determinations. Our role is
to determine whether the evidence, in the light most favorable to the State, factually
establishes the elements of the conviction offense. We hold that the evidence in this case
is sufficient to support the defendant’s conviction of forgery.

                 II. Authentication of Video Recording and Photographs

              The defendant next argues that the trial court erred by admitting into
evidence the Boutique’s video surveillance footage and still photographs taken from that
footage depicting the defendant’s stealing Ms. Cruz’s wallet on August 15. The
defendant claims that the video recording and photographs were not properly
authenticated through the testimony of Ms. Cruz, and the defendant notes that he filed a
pretrial motion in limine to exclude the video recording and photographs.

               Although the record on appeal includes the defendant’s aforementioned
motion in limine, it is utterly devoid of any order by the trial court ruling on the same or a
transcript of any court proceedings in which the defendant’s motion was heard, rendering
a meaningful review of this issue impossible. The appellant bears the burden of
preparing an adequate record on appeal, see State v. Ballard, 855 S.W.2d 557, 560 (Tenn.
1993), which includes the duty to “have prepared a transcript of such part of the evidence
or proceedings as is necessary to convey a fair, accurate and complete account of what
transpired with respect to those issues that are the bases of appeal,” Tenn. R. App. P.
24(b). If the appellant fails to prepare 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).

               Furthermore, the defendant’s failure to lodge a contemporaneous objection
at trial to the introduction of this evidence results in a waiver of plenary review of the
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issue. See Tenn. R. Evid. 103 (“Error may not be predicated upon a ruling which admits .
. . evidence unless a substantial right of the party is affected, and . . . [i]n case the ruling
is one admitting evidence, a timely objection or motion to strike appears of record, stating
the specific ground of objection . . . .”); Tenn. R. App. P. 36(a) (“Nothing in this rule
shall be construed as requiring relief be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error.”); see also State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App.
1988) (waiver applies when the defendant fails to make a contemporaneous objection);
State v. Jenkins, 733 S.W.2d 528, 532 (Tenn. Crim. App. 1987). In consequence, we
must conclude that this issue has been waived.

                      III. Jury Instruction on Criminal Responsibility

               Finally, the defendant contends that the trial court erred by instructing the
jury on criminal responsibility because the evidence did not support the giving of the
instruction. The State responds that the defendant has waived this issue for failure to
object to the instruction at trial and that, in any event, the trial court’s actions do not
constitute plain error.

               An accused’s consitutional right to trial by jury, see U.S. Const. amend. VI;
Tenn. Const. art. 1, § 6, encompasses a right to a correct and complete charge of the law,
see State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). The trial court has a duty “to give a
complete charge of the law applicable to the facts of a case.” State v. Harbison, 704
S.W.2d 314, 319 (Tenn. 1986); see Teel, 793 S.W.2d at 249; see also Tenn. R. Crim. P.
30.

              The legal accuracy of the trial court’s instructions is a question of law
subject to de novo review. See Troup v. Fischer Steel Corp., 236 S.W.3d 143, 149 (Tenn.
2007). The propriety of a given instruction is a mixed question of law and fact to be
reviewed de novo with a presumption of correctness. Carpenter v. State, 126 S.W.3d
879, 892 (Tenn. 2004); State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).

               When determining on appeal whether jury instructions are erroneous, this
court should “review the charge in its entirety and read it as a whole.” State v. Hodges,
944 S.W.2d 346, 352 (Tenn. 1997) (citing State v. Stephenson, 878 S.W.2d 530, 555
(Tenn. 1994)). A jury instruction is “prejudicially erroneous if it fails to fairly submit the
legal issues or if it misleads the jury as to the applicable law.” Id. (citing State v. Forbes,
918 S.W.2d 431, 447 (Tenn. Crim. App. 1995); Graham v. State, 547 S.W.2d 531 (Tenn.
1977)). Even if a trial court errs when instructing the jury, such instructional error may
be harmless. State v. Williams, 977 S.W.2d 101, 104 (Tenn. 1998). Harmless error is an
error which does not “affirmatively appear to have affected the result of the trial on the
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merits.” Tenn. R. Crim. P. 52(a).

               Although the State avers that the defendant has waived this issue for failure
to contemporaneously object at trial, a party is not obliged to object to erroneous
instructions, as opposed to omitted instructions. See State v. Haynes, 720 S.W.2d 76, 84-
85 (Tenn. Crim. App. 1986). Because the defendant properly raised his objection to the
jury instruction in his motion for new trial, waiver does not apply. See Tenn. R. Crim. P.
30(b) (“Counsel’s failure to object does not prejudice the right of a party to assign the
basis of the objection as error in a motion for a new trial.”). Waiver does apply, however,
when a defendant challenging the omission of an instruction fails to specially request the
instruction or otherwise object to its omission at trial. State v. Cravens, 764 S.W.2d 754,
757-58 (Tenn. 1989); Haynes, 720 S.W.2d at 84-85; Bolton v. State, 591 S.W.2d 446,
448 (Tenn. Crim. App. 1979).

              In the instant case, we first note that the record fails to include a transcript
of the instructions as read to the jury, although it contains what purports to be a written
copy of the trial court’s charge. Failure to include a transcript normally waives review of
appellate issues pertaining to jury instructions because without a complete record, it is
impossible for this court to discern whether the written jury instruction conforms to the
instructions as read to the jury and thus, whether error actually occurred. See Tenn. R.
App. P. 24(b); State v. Jones, 623 S.W.2d 129, 131 (Tenn. Crim. App. 1981). In any
event, the criminal responsibility instruction provided in the written copy of the trial
court’s charge was fairly raised by the evidence, tracked the language of the pattern jury
instruction, and was a correct statement of the law. Accordingly, the inclusion of the
instruction was not error, let alone harmless error.

                                         Conclusion

              Based upon the foregoing analysis, the judgments of the trial court are
affirmed.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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