         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    March 20, 2007 Session

         STATE OF TENNESSEE v. LACHANTA MONIQUE TYLER

                     Appeal from the Criminal Court for Davidson County
                          No. 2005-B-1095     Seth Norman, Judge



                    No. M2006-00878-CCA-R3-CD - Filed August 23, 2007


The defendant, Lachanta Monique Tyler, was convicted by a Davidson County jury of aggravated
assault, a Class C felony, and theft of property involving merchandise valued at $500 or less, a Class
A misdemeanor. See T.C.A. §§ 39-13-102; 39-14-103; 39-14-105; 39-14-146. She was sentenced
to three years for the aggravated assault conviction and eleven months and twenty-nine days for the
theft conviction, with the sentences imposed concurrently and to be served on probation. The
defendant appeals, claiming (1) that the evidence was insufficient to support her conviction of
aggravated assault, (2) that the trial court erred in denying her motion for judgment of acquittal on
aggravated assault, (3) that the trial court erred in failing to sever these offenses from two other
offenses of which she was acquitted, (4) that the court erred by admitting prior bad act evidence of
a prior shoplifting incident. Upon review, we affirm the defendant’s theft conviction, modify the
aggravated assault conviction to assault, and remand the case for imposition of judgment on the
assault conviction including a sentence of eleven months and twenty-nine days to be served on
probation and concurrently with the theft sentence.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part,
                           Modified in Part, Case Remanded

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which THOMAS T. WOODALL and J.C.
MCLIN , JJ., joined.

Manuel B. Russ, Nashville, Tennessee, for the appellant, Lachanta Monique Tyler.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Sharon Reddick, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        The defendant was charged with two counts of theft of property and two counts of aggravated
assault. The charges stemmed from allegations of two separate shoplifting incidents and chemical
spray attacks on security personnel at a TJ Maxx store on February 8, 2005, and at a Hecht’s store
on February 10, 2005. The defendant was acquitted of the TJ Maxx incidents but convicted of the
Hecht’s crimes.

        William “Jamie” Harris testified that he was working as a loss prevention detective at the TJ
Maxx store in Bellevue on February 8, 2005. He said that he observed the defendant and another
woman enter the store and that he recognized the defendant as someone who had been in the store
in the past. He said he saw the defendant and her companion taking sensor tags off merchandise,
taking the merchandise off hangers, and concealing the merchandise inside a jacket and a black
purse. He said the black purse was also TJ Maxx merchandise. He said he had Emily Inman, the
store’s assistant manager, assist him in watching the defendant and her companion. He said that he
watched the defendant and her friend from a tower inside his office and that when he saw them
walking toward the front of the store, he decided to apprehend them. He said that as he moved
toward them, a third woman whom he recognized as having been in the store on prior occasions tried
to stop him. He said that he walked past this woman and that the defendant’s companion then began
gesturing, talking loudly, and whistling. He said one of the defendant’s friends who was at the
service desk of the jewelry counter whistled at the defendant. He said the defendant was at the front
door about to go outside, turned and saw him, and went back inside the store to the active wear
department. He said he took a towel from a rack, went through the checkout line, and purchased the
towel in an attempt to maintain his cover. He said that the woman who had been at the service desk
came up to him and attempted to make conversation and that he tried to avoid her. He said the
woman approached the defendant and handed her something and then came back. He said he went
to the defendant, identified himself as a loss prevention detective, and showed her his identification
badge. He said that the defendant attempted to hit him with her fist but that he was able to block her
hand. He said he saw an object in her hand. He said that she sprayed him with “an unknown
chemical agent” and that he was blinded. He said he pulled her outside to get her away from
customers and restrained her in a hold he had used when he was employed with the sheriff’s
department. He said that one of the defendant’s friends came out and said she was pregnant and that
one of her friends began kicking him and pulling on his arm. He said one of her friends said, “[G]o
get the gun out of the truck.” He said that at this point, he released the defendant. He said one of
the store managers was able to get the tag number of the Suburban in which the defendant left. He
said the store’s employees gathered up the items left behind and that an expensive pocketbook with
an identification card bearing the defendant’s name was among the items.

        Mr. Harris testified that after the altercation, he started having chest pains and trouble
breathing and became nauseous. He said that an ambulance came to attend to him and that these
symptoms subsided in a couple of hours. He said that his eyes burned and that the pain was an eight
or nine on a one-to-ten scale. He said that his eyes were sensitive to bright light, that he had to wear
dark glasses like the type worn by people who have had cataract surgery, that he was prescribed
antibiotics and eye drops for irritation and redness, that the pain and sensitivity to bright light lasted
for three to six months, that his face was red for twenty-four to forty-eight hours, and that his eyes
were red for six to eight months afterwards. He identified a photograph in which his eyes appeared
red and testified that it was taken six to eight months after the incident. He said that at the time of


                                                   -2-
his testimony, which was just over a year after the incident, his eye still became irritated and dry,
which he said previously had not been a problem. He said he previously had been sprayed with mace
as part of law enforcement training. He said that no one died from the law enforcement exercise but
that it might be fatal to a person with asthma.

        Mr. Harris testified that he was able to match the photograph on the identification card with
one of the women on the store’s surveillance video. He said the woman who took merchandise and
sprayed him was the defendant. He said he was familiar with the defendant because he had seen her
at TJ Maxx on several occasions. He recalled that on December 31, he saw her come into the store
with a friend and take a sensor tag off an Adidas duffle bag and then fill the bag with store
merchandise after first taking off the sensor tags. He said that ultimately he did not apprehend the
defendant and her friend that day and that “[t]hey ended up dropping the merchandise and walking
out the door cussing me and telling me ha, ha, you didn’t get me this time.” He said that after the
February 8 incident, he had not seen the defendant in TJ Maxx again.

       Mr. Harris testified that TJ Maxx had surveillance cameras which he used on February 8.
The surveillance footage was displayed for the jury, and the witness narrated the events depicted.

       Emily Inman testified that she was working as an assistant manager at TJ Maxx on February
8, 2005. She said four women came into the store, at least two of whom she recognized “from past
experiences.” She said she recognized the defendant immediately. She said that she and Harris
watched one of the women from the office. She witnessed Harris’s encounter and altercation with
the women. She recalled hearing one woman say, “[G]o get the gun, go get the gun.” She said she
saw the women flee in an SUV that was parked in a front spot, which was a typical location “when
we have run-outs.” She identified the defendant as the woman she saw concealing store
merchandise.

        Kathy Eggleston testified that she was working as an assistant manager at TJ Maxx on
February 8, 2005. She said she was called to the scene of the altercation and found Harris with the
defendant in a headlock. She said she made a note of the car tags. She heard someone mention
getting a gun. She said she unloaded merchandise from the defendant’s purse and jacket. She said
that merchandise was stuffed into the arms of the jacket. She said she inventoried the items and
determined that merchandise valued at $802.63 was recovered. She said that much of the
merchandise was damaged by the chemical spray and that they had used towels that were for sale to
help Harris clean up the chemical spray. When asked whether she had seen any of the individuals
in the store before February 8, she said she had, and she identified the defendant as one of those
individuals.

        Officer George Spencer of the Metro Police Department testified that he responded to a call
at Bellevue TJ Maxx. He said there had been a shoplifting incident and an altercation in which a
victim had been assaulted in the face with pepper spray. He said he took possession of a purse and
its contents, which he identified. He said he was given a vehicle tag number and vehicle description.
He said that as part of his law enforcement training, he had been required to go into a trailer where


                                                -3-
mace had been sprayed. He said it was painful. He said he was not required to take a direct hit in
the face.

         William Foster testified that he was the loss prevention manager at Hecht’s at Rivergate and
was on duty on February 10, 2005. He said he was watching surveillance monitors when he noticed
the defendant and another woman in the cologne department on one of the monitors. He saw the
defendant’s companion pick up two bottles of J Lo cologne. He then observed the two women go
to the juniors’ department, take some clothing from a rack, and go into the dressing room. He said
that he radioed Kay Martin to go into the dressing room to see what was happening, that he saw the
defendant and her companion come out of the dressing room without the boxes of cologne, and that
Martin radioed him that she found two empty J Lo cologne boxes in the dressing room. He said he
saw the defendant and her friend hang up the clothing they had taken to the dressing room and walk
out of the store. He said that he went outside and confronted them and that Kay Martin arrived
shortly thereafter. He said that he and Martin identified themselves as Hecht’s loss prevention
employees and that he requested that the defendant’s companion come back inside to discuss the J
Lo cologne she had taken into the dressing room. He said the defendant’s companion denied
knowing what he was talking about and refused to go back to the store. He said he could see one
of the cologne bottles protruding from the woman’s blouse. He said the defendant grabbed her
companion’s handbag and went toward the car. He said that the defendant’s companion became
combative with Martin and him and that they tried to handcuff the woman. He said the defendant
came up and said she would spray him and Martin if they did not release her cousin. He said the
defendant also used profanity and grabbed Martin by her hair. He said he saw a spray canister and
was able to duck as the defendant sprayed him. He said he knocked the canister out of her hand and
grabbed it when it fell on the pavement. He said that there was a store employee in the parking lot
who dialed 9-1-1 and that mall security and the Goodlettsville police responded. He said the
defendant was involved in the struggle and that they were not able to subdue the defendant and her
companion until mall security assisted them. He said the defendant was irate toward one of the mall
security officers and made statements that she was going to file a lawsuit. He said the defendant
never said anything about not realizing that her companion had stolen something or that Foster was
a security employee.

         With respect to the chemical spraying he received, Foster testified that he was able to duck
down and shield himself. He said the spray hit the front, back, and side of his face. He said some
of it got into his eyes. He said that he had to wash his eyes out but that he did not miss work or have
to go to the hospital. He said he did not have any permanent injuries as a result of being sprayed.

        The state played the video surveillance tapes for the jury. Foster narrated the relevant events
depicting the defendant and her companion inside the store. The tapes did not contain evidence of
the encounter outside the store.

        Kay Martin testified that she was working as a loss prevention employee at Hecht’s at
Rivergate Mall on February 10, 2005. She said that she followed the defendant and her companion
into the dressing room. She said the women were in rooms across from each other. She said that


                                                 -4-
she could hear their conversation about the clothing they had taken in the rooms with them and that
the conversation was not relevant to the perfume. She said that after the women left the dressing
room, she went into the room where the defendant’s companion had been and that she found two
empty J Lo cologne boxes. She said she informed Foster of this by radio. She said she went outside
the store and saw Foster talking to the defendant’s companion. She said Foster identified himself
as a loss prevention employee and told the woman she needed to come back inside to discuss the two
bottles of cologne. She said that the defendant and her companion were using profanity and refusing
to comply. She said that she dropped her radio and that the defendant kicked it away. She said that
she and Foster struggled with the defendant’s companion to try to get her subdued and that the
defendant walked up and took her companion’s purse. She said she continued to struggle with the
defendant’s companion and that she suddenly felt pain from the defendant pulling her by the back
of the head off the defendant’s companion. She said the defendant said, “I am going to spray you,
b----.” She said she was very fearful of being sprayed because she had asthma. She said that she
turned her head and that the defendant sprayed the back of her hair. She identified the defendant as
the person who had sprayed her. She said another Hecht’s employee who was in the parking lot
called for help. She said mall security personnel helped subdue the defendant and her companion.

        Officer Tim Preston of the Goodlettsville Police Department testified that he was called to
Rivergate Mall on February 10, 2005. He said that when he arrived, he found Foster and Martin with
two shoplifting suspects. He said the suspects were taken to Metro Nashville for booking. He said
he learned that there were “open” warrants for the defendant. He said that he generally left it up to
security personnel what charges, if any, to file against shoplifters and that Foster did not take out a
theft warrant against the defendant.

        The defendant testified on her own behalf. She testified that she had never been to TJ Maxx
at Bellvue and that she had never seen Harris other than in court. She said she had been in a
nightclub on January 9, 2005, and that her coat and its contents, including her identification, had
been taken. She offered a police report to corroborate her testimony. She identified a duplicate state
identification card issued on January 10, 2005. She said she never recovered the identification card
taken on January 9.

        The defendant said she was at the mall on February 10, 2005. She said she had been
shopping with money from her income tax refund. She said she went to Hecht’s to purchase
cologne. She said she was shopping with her cousin, Angel Crump. She said her cousin showed her
some J Lo and Beyonce perfume. She said she went to the men’s cologne section and purchased
Armani cologne. She said that she and her cousin went separate ways for a time. She said she went
to the juniors’ department, selected some clothes, and went into the dressing room. She said her
cousin was already in the dressing room when she arrived. She said that they were in separate stalls
and that she could not see her cousin because she was behind a closed door. She said that she tried
on some clothes and that she assumed her cousin was doing the same. She said that they left the
dressing room, that she put the clothes back on the rack, and that they left the store. She said she
walked toward her car with her cousin a few steps behind her. She said she put a bag of cologne in
the car and was getting inside the car when she heard a man talking to her cousin. She said she could


                                                 -5-
not hear what was being said. She said the man grabbed her cousin’s arm and tried to force it behind
her back. She said she did not hear the man announce his identity as a security officer. She said she
could hear her cousin yelling for the man to leave her alone. She said the man told her cousin that
she needed to come back into the store, that her cousin refused, and that they were fighting. She said
a woman came outside and assisted Foster and that the two of them “done slammed her on the
ground, and he had his knee in her back.” She said her cousin pleaded for the defendant to help her
and for the man to get off her because she was pregnant. The defendant said she picked up her
cousin’s purse and took mace from inside it. She said she told the man and woman to get off her
cousin or she would spray them. She said that the man still had his knee in her cousin’s back, that
her cousin was still screaming, and that she sprayed the mace. She said the mace hit the man’s back.
She said the man knocked the mace out of her hand, picked it up, and sprayed it at her. She said that
her cousin continued to struggle and that she heard glass break. She said she could see glass come
out of her cousin’s shirt. She said one of the mall security officers grabbed her and that she resisted
and told him she was not doing anything. She said she was later advised by a Goodlettsville police
officer that there were two warrants for her arrest.

       The defendant said she sprayed mace because she was scared. She said she did not know the
man and woman who were struggling with her cousin. She said she did not hear them announce that
they were security personnel.

        The defendant acknowledged on cross-examination that her hair was a different color than
it was on February 10 and that she had changed her hairstyle on the weekend before the trial. She
admitted knowing that Angel Crump had been arrested for shoplifting in the past.

        Angel Crump testified that the defendant was her cousin. She said that on February 10, she
and the defendant were shopping at Hecht’s and that she stole some perfume by concealing it inside
her shirt when she was in the dressing room. She said the defendant was not in the dressing room
when she did this but was elsewhere in the store purchasing some cologne. Crump testified that she
had served an eighty-one-day jail sentence for the crime. She said that as they were approaching
their car outside the store that day, a man approached her and told her she needed to come back
inside. She said that he told her he needed to discuss the perfume with her and that she denied
having stolen it. She said he did not identify himself as a store employee, but she acknowledged
that she “kind of” knew who he was. She said she tried to walk away but the man grabbed her. She
said that she was wrestled to the ground and that the perfume broke. She said she asked the
defendant to help her. She said the defendant took mace from Crump’s purse and tried to spray the
store employees. Crump said she did not think mace hit either of the employees and that she thought
the female employee knocked the mace out of the defendant’s hand. Crump admitted she had six
theft convictions.

       After receiving this evidence, the jury acquitted the defendant of the TJ Maxx charges.
However, it found her guilty of the Hecht’s charges. After receiving an effective three-year sentence
on probation, the defendant filed this appeal.



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                                                   I

        The defendant has related issues regarding the sufficiency of the evidence and the trial court’s
denial of the motion for judgment of acquittal on the aggravated assault conviction. Our standard
of review when the sufficiency of the evidence is questioned 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, 99 S. Ct. 2781, 2789 (1979). This means we do not reweigh the evidence but presume 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). On appellate review of a denial of a motion for judgment of
acquittal, we apply the same standard as a question of the sufficiency of the convicting evidence.
See, e.g., State v. Brewer, 945 S.W.2d 803, 805 n.2 (Tenn. Crim. App. 1997).

        The aggravated assault charged in the indictment is that the defendant intentionally or
knowingly caused bodily injury with the use or display of a deadly weapon. T.C.A. § 39-13-
101(a)(1), -102(a)(1)(B). A “deadly weapon” is “[a] firearm or anything manifestly designed, made
or adapted for the purpose of inflicting death or serious bodily injury” or “[a]nything that in the
manner of its use or intended use is capable of causing death or serious bodily injury[.]” Id. § 39-11-
106(5)(A), (B). “‘Bodily injury’ includes a cut, abrasion, bruise, burn or disfigurement, and physical
pain or temporary illness or impairment of the function of a bodily member, organ, or mental
faculty[.]” Id. § 39-11-106(a)(2). “‘Serious bodily injury’ means bodily injury that involves: (A) A
substantial risk of death; (B) Protracted unconsciousness; (C) Extreme physical pain; (D) Protracted
or obvious disfigurement; or (E) Protracted loss or substantial impairment of a function of a bodily
member, order or mental faculty[.]” Id. § 39-11-106(a)(34).

        The question in this case is whether the chemical spray that the defendant sprayed at William
Foster was a deadly weapon. Our supreme court has recognized that there are two categories of
deadly weapons, those which are deadly per se, tracking subsection (A) of Code section 39-11-
106(5), and those which are deadly because of the way in which they are used, tracking subsection
(B). State v. Thomas Martin McGouey, ___ S.W.3d ___, No. E2005-00642-SC-R11-CD (Tenn.,
June 29, 2007) (relying on Morgan v. State, 415 S.W.2d 879 (Tenn. 1967)). A firearm is an example
of a deadly weapon per se. Morgan; 415 S.W.2d at 882; State v. Haynes, 720 S.W.2d 76, 81 (Tenn.
Crim. App. 1986). “If an item is not a deadly weapon per se, it will only be considered a deadly
weapon under subsection B if the defendant in a particular case actually used or intended to use the
item to cause death or serious bodily injury.” See McGouey, ___ S.W.3d at ___ (citing State v.
Flemming, 19 S.W.3d 195, 197 (Tenn. 2000)) (emphasis in McGouey).

        Thus, in determining whether the chemical spray used by the defendant was a deadly weapon
in the assault against Foster, our inquiry must focus on whether the defendant used or intended to
use the chemical spray to cause death or serious bodily injury. First, we note the record does not
resolve the question of the identity of the chemical spray. The indictment charges the defendant with
using “pepper spray” in both the TJ Maxx and Hecht’s incidents. There was trial evidence that the


                                                  -7-
substance may have been mace, rather than pepper spray. There was testimony about the effects of
mace during law enforcement training, but there was no corresponding evidence about the effects
of pepper spray. William Harris, the loss prevention officer at TJ Maxx, testified about the pain
from exposure to mace in his law enforcement training and from a chemical spray when he was
attacked by an alleged shoplifter on February 8, 2005. There was testimony about the effects of the
spray actually used on both victims. There was evidence that Harris’s injuries were painful,
protracted, and significant. The evidence of Foster’s injuries was less compelling. In the light most
favorable to the state, the defendant sprayed Foster to assist in Crump’s and her flight from a
shoplifting crime. The defendant sprayed Foster on his head. Foster anticipated the assault and
turned his head in order that the spray hit the side and back of his head, rather than his face. He did
not have any permanent injuries and did not require any medical treatment.

        The state urges us to consider the evidence of Harris’s injuries in determining the sufficiency
of the evidence of the conviction relative to Foster. However, there is no evidence that the substance
the defendant sprayed on Foster was the same substance with which Harris’s assailant sprayed him.
The jury rejected the state’s proof that the defendant was the person who sprayed Harris, and given
that rejection, we are not inclined to hold that the evidence supports an inference that the assailant
in both cases was the defendant and that she used the same chemical spray in both incidents.

         Given these uncertainties, we cannot say that evidence beyond a reasonable doubt exists that
the defendant either caused or intended to cause death or serious bodily injury to Foster, as opposed
to a lesser assault sufficient to allow the defendant and Ms. Crump a successful escape from the store
security officers. We conclude that the evidence is insufficient to support the aggravated assault
conviction and that the trial court erred in denying the motion for judgment of acquittal.

         We hold that the evidence was sufficient to support a conviction of the lesser offense of
assault. The defendant sprayed Foster with chemical spray, causing him bodily injury. Foster
testified that some of the spray got into his eyes and that he had to wash them out with water. We
therefore modify the defendant’s conviction of aggravated assault to one of Class A misdemeanor
assault.

                                                  II

        We consider next whether the trial court erred in denying her motion to sever the TJ Maxx
offenses from the Hecht’s offenses. The defendant claims the trial court erroneously relied upon the
issue of identity in denying her motion.

        Separate offenses may be permissively joined if they are part of a common scheme or plan
or are of the same or similar character. Tenn. R. Crim. P. 8(b). If, however, they are not part of a
common scheme or plan or if the evidence of one is not admissible at the trial of the other, the
defendant has a right to a severance of offenses. Tenn. R. Crim. P. 14(b)(1). A severance of such
offenses shall be granted (1) before trial if it is deemed appropriate to promote a fair determination
of the defendant’s guilt or lack thereof or (2) during trial if it is deemed necessary to achieve such


                                                 -8-
a fair determination. Tenn. R. Crim. P. 14(b)(2)(A), (B). The issue includes consideration of the
number of offenses, the complexity of the evidence, and the difficulty with which the jury would be
able to distinguish the evidence and apply the law as to each offense. Whether or not to grant a
severance rests within the sound discretion of the trial court. State v. Wiseman, 643 S.W.2d 354
(Tenn. Crim. App. 1982).

        Our supreme court has recognized three categories of common scheme or plan evidence:
“(1) offenses that reveal a distinctive design or are so similar as to constitute ‘signature’ crimes; (2)
offenses that are part of a larger, continuing plan or conspiracy; and (3) offenses that are all part of
the same criminal transaction.” State v. Moore, 6 S.W.3d 235, 240 (Tenn. 1999). In the present
case, there was no evidence of a continuing plan or conspiracy or that all of the offenses were part
of the same criminal transaction. Thus, we consider only whether the offenses were distinctive
signature crimes. Evidence of signature crimes is admissible under limited circumstances. Such
evidence is typically offered to prove a defendant’s identity. See id. at 239. In the present case, the
state sought to prove the defendant’s identity as the perpetrator of both the TJ Maxx crimes and the
Hecht’s crimes based upon the distinctive nature of the offenses.

         For the offenses to reveal a distinct design, the “modus operandi employed must be so unique
and distinctive as to be like a signature.” Id. at 240 (quoting State v. Carter, 714 S.W.2d 241, 245
(Tenn. Crim. App. 1986)). Although the offenses do not have to be identical in every respect, a
common scheme or plan is not found merely because there was evidence that the defendant
committed the multiple offenses or because the similarities of the offenses outweigh the differences.
Id. at 240-41. “Rather, the trial court must find that a distinct design or unique method was used in
committing the offenses.” Id. at 241. The method of perpetrating the crimes must employ “‘such
unusual particularities’” that a reasonable person could believe it unlikely that different people were
using this method. Id. at 240 (quoting Harris v. State, 189 Tenn. 635, 644, 227 S.W.2d 8, 11
(1950)).

         The danger in not severing offenses is that the jury will improperly find a defendant guilty
of a crime by inferring his propensity to commit the crime from the evidence of the other crimes.
Id. at 242. Thus, the question is primarily one of evidentiary concern. Id.; see Tenn. R. Evid. 404(b).

        In the present case, we cannot say that the similarity of spraying store personnel with
chemical spray is so unique as to constitute a signature crime that is unlikely to be replicated by
someone other than a single perpetrator. This tactic to prevent a shoplifting defendant’s
confrontation with store security personnel is not unique. See, e.g., United States v. Pardue, 765 F.
Supp. 513, 515 (W.D. Ark. 1991) (defendant in murder-for-hire case had history of shoplifting and
spraying security officer with mace in order to facilitate escape), rev’d on other grounds, 983 F.2d
835 (8th Cir. 1993); People v. Gina Hinton, No. A114057, San Mateo County (Cal. Dist. Ct. App.,
June 19, 2007) (shoplifting defendant sprayed mace when confronted by security guard as defendant
attempted to leave store with stolen merchandise); Schaeffer v. State, 779 So. 2d 485 (Fla. Dist. Ct.
App. 2000) (defendant, who was part of a three-person shoplifting group that went into a department
store, “maced” security guard during confrontation in parking lot over stolen merchandise); Albert


                                                  -9-
Judie v. State, No. 04-95-00322-CR, Dallas County (Tex. Ct. App., Dec. 27, 1995) (in revocation
proceeding, evidence that probationer sprayed store investigator with mace when confronted outside
the store about stolen merchandise); State v. Paul P., No. 44457-3-I, King County (Wash. Ct. App.,
Apr. 22, 2002) (defendant’s companion unsuccessfully attempted to spray security guard with mace
or pepper spray when defendant was confronted in store parking lot over stolen merchandise). We
note, as well, that with respect to the Hecht’s crimes of which the defendant was convicted, the
defendant’s identity was not at issue because she was apprehended on the scene. Thus, we conclude
that the trial court should have granted the defendant’s motion for severance.

        It does not follow, however, that reversal is required. We cannot conclude that the defendant
was prejudiced by the error. The jury rejected the evidence that the defendant was involved in a
similar shoplifting and assault incident at TJ Maxx two days before the conviction crimes took place,
meaning the jury did not improperly infer her guilt of the Hecht’s offenses from the TJ Maxx
allegations. We conclude that the error was harmless. See Moore, 6 S.W.3d at 242-43 (holding that
denial of severance was harmless when defendant was convicted of some charges and acquitted of
others).

                                                   III

         Finally, the defendant contends that the trial court violated Tennessee Rule of Evidence
404(b) by admitting evidence of other crimes, wrongs, or acts of the defendant. She argues that the
trial court should have excluded the evidence about the defendant having been in TJ Maxx before
February 8, 2005, on one occasion removing security tags from merchandise in an apparent effort
to steal the items. The defendant acknowledges that the evidence had some bearing on the issue of
identity and challenges the admissibility of the evidence only to the extent that it implicated her in
a theft.

         Tennessee Rule of Evidence 404(b) prohibits the introduction of evidence of other crimes
or acts, except when the evidence of other acts is relevant to a litigated issue, such as identity, intent,
or motive, and its probative value is not outweighed by the danger of unfair prejudice. The rule
states:

                Evidence 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. It may, however, be admissible for some other
                purpose. The conditions which must be satisfied before allowing
                such evidence are:

                (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



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                on the record the material issue, the ruling and the reasons for
                admitting the evidence;
                (3) The court must find proof of the other crime, wrong, or act to be
                clear and convincing; and
                (4) The court must exclude the evidence if its probative value is
                outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). We review a trial court’s ruling on evidentiary matters under Rule 404(b)
for abuse of discretion, provided the trial court has substantially complied with the procedural
prerequisites of the rule. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). If the court did not
substantially comply with the procedure, its decision is not entitled to deference by the appellate
court. See id. at 653.

         The issue arose when the state moved the court for permission to elicit evidence from
William Harris about the defendant’s having been at TJ Maxx a few weeks before February 8 with
a group of women. The state sought to have Harris testify that he saw the women, including the
defendant, removing security sensor tags from merchandise but that they left the store without taking
the merchandise and laughed and made a comment about Harris not catching them stealing. The
state sought to introduce this evidence to establish the defendant’s identity and to explain why Harris
conducted surveillance of the defendant when she came to the store on February 8. When the trial
court conducted a pretrial hearing on the matter, the defense stated that it did not object to admission
of evidence that TJ Maxx personnel claimed to have seen her in the store before February 8 but did
object to the evidence that the defendant had been involved in shoplifting activity before February
8. The trial court ruled that Harris could testify about having seen the defendant in the store and
removing sensors from the merchandise, provided Harris’s testimony was that he actually observed
the defendant removing sensors. Harris ultimately testified in detail about the earlier occasion on
which he claimed to have seen the defendant among a group of women that took sensor tags from
merchandise, concealed the merchandise in a duffel bag, dropped the merchandise before leaving
the store, and cursed at him and said “ha, ha, you didn’t get me this time.” In her motion for new
trial, the defendant raised a general allegation that the trial court “erred in allowing the State to
present improper 404(b) material,” and she did not elaborate on the nature of the alleged error at the
hearing on the motion for new trial.

         The defendant argues on appeal that the trial court failed to make one of the necessary
findings which is a prerequisite to admission of evidence under Rule 404(b). She claims that the trial
court did not find that the state had proven by clear and convincing evidence that the prior incident
occurred. She also argues that any probative value of the evidence was outweighed by its prejudice.
The state counters that the trial judge substantially complied with the rule. It acknowledges that
although the judge never made an explicit “clear and convincing” finding, the defendant has waived
any complaint by her failure to object to the lack of specificity of the court’s ruling relative to clear
and convincing evidence of the fact at the time the ruling was made. The state argues, as well, that
the record does not reflect prejudice to the defendant from admission of the evidence, particularly
in light of her acquittal on the TJ Maxx charges.


                                                  -11-
        The defendant is correct that the trial court failed to make a finding by clear and convincing
evidence that the prior incident occurred. The state is correct, as well, that the defendant did not
object. We note that the defendant did not contend that the evidence should be excluded altogether.
Despite the fact that she testified at trial that she had never been to TJ Maxx at Bellevue, she did not
object to admission of evidence that TJ Maxx personnel claimed to have seen her in the store before
February 8. She objected only to the evidence that she had been involved in shoplifting activity
before February 8.

        The trial court should have made an explicit finding as required by Rule 404(b), although it
may have overlooked the necessity of this finding due to the defendant’s challenging only the
admissibility and not the substance of the testimony. In any event, the defendant has not
demonstrated that she was prejudiced by the trial court’s omission. The defendant was acquitted of
the TJ Maxx charges, and her identity was not in question with respect to the Hecht’s charges. The
jury’s verdict reflects that it was able to consider the evidence properly. There is no indication that
the jury discounted the 404(b) evidence in acquitting the defendant on the TJ Maxx charges but
accredited it in finding her guilty of the Hecht’s charges. Indeed, such a conclusion is not logical.

        In consideration of the foregoing and the record as a whole, the judgment of the trial court
on the theft conviction is affirmed. The aggravated assault conviction is modified to reflect a
conviction of Class A misdemeanor assault and a sentence of eleven months and twenty-nine days
to be served on probation and concurrently with the theft sentence. The case is remanded for entry
of a corrected judgment.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, PRESIDING JUDGE




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