        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs at Jackson August 4, 2015


         STATE OF TENNESSEE v. RANDY ANTHONY SANDERS

                Appeal from the Criminal Court for Sumner County
                      No. 6212013    Dee David Gay, Judge




             No. M2014-02535-CCA-R3-CD – Filed September 18, 2015
                       _____________________________

Appellant, Randy Anthony Sanders, was convicted of theft valued at $1,000 or more
but less than $10,000, a Class D felony. The trial court sentenced appellant as a
Range II, multiple offender to seven years in confinement. On appeal, appellant
argues that: (1) the evidence was insufficient to support his conviction; (2) the
indictment was improperly aggregated into one count and that because of the
aggregation, the State should have made an election of facts; (3) the State improperly
asked the jury to view the crime from the victim‟s perspective during closing
argument; (4) the State improperly argued facts that were not in the record during
closing argument; and (5) the cumulative effect of these errors requires a new trial.
Following our review of the parties‟ briefs, the record, and the applicable law, we
affirm the judgment of the trial court.

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

ROGER A. PAGE, delivered the opinion of the Court, in which ALAN E. GLENN and
ROBERT H. MONTGOMERY, JR., JJ., joined.

Christopher V. Boiano (on appeal); and Jon J. Tucci (at trial), Nashville, Tennessee, for
the Appellant, Randy Anthony Sanders.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Lawrence Ray Whitley, District Attorney General; and Lytle Anthony
James, Assistant District Attorney General, for the Appellee, State of Tennessee.
                                       OPINION

       This case concerns the theft of a car and numerous small items from a family‟s
home. As a result of the incident, appellant was indicted for theft valued at $10,000 or
more. Appellant was subsequently convicted of theft valued at $1,000 or more but less
than $10,000.

                                        I. Facts

       Portland Police Department Officer Carlos Cruz testified that on January 31, 2013,
he was working the midnight shift and that in the early morning hours of February 1,
2013, he responded to Mary Barcomb‟s home to take the initial report that appellant had
stolen Mrs. Barcomb‟s vehicle. After his arrival, Mrs. Barcomb told Officer Cruz that
she had received a telephone call from her husband, who was a truck driver and was out
of town, asking if she had used her debit card to purchase items totaling $600 that
evening. Mrs. Barcomb responded that she had not made any such purchases. Mrs.
Barcomb tried to locate her debit card, but the card was missing from her purse. She then
looked out the door and noticed that her gray 2012 Toyota Camry, which she had
purchased the day prior to this incident, was also missing. Mrs. Barcomb told Officer
Cruz that she had allowed appellant, the son of her roommate, to spend the night in her
home because appellant did not have a ride back to Memphis where he lived. Mrs.
Barcomb explained to Officer Cruz that appellant had called her to apologize for taking
her car and that appellant had stated that he had needed a way to return to Memphis. On
February 22, 2013, Mrs. Barcomb also provided law enforcement with a list of items that
had been taken from her home. To Officer Cruz‟s knowledge, the Barcombs drove to
Memphis and recovered Mrs. Barcomb‟s car themselves.

        During cross-examination, Officer Cruz stated that Mrs. Barcomb had received a
telephone call and discovered that her car was missing at approximately 9:30 p.m. on
January 31 but that she did not call dispatch until 2:00 a.m. on February 1. Officer Cruz
testified that during his review of the investigative folder of this case, he saw no
information regarding an eyewitness of the theft and that the car was found at Eaton
Pointe Apartments in Memphis, which was not the location listed as appellant‟s
permanent address on his driver‟s license.

        Charles Edward Barcomb testified that on January 31, 2013, he was driving a
tractor-trailer and was away from home. Mr. Barcomb explained that he checked his
bank account at approximately 2:00 a.m. on February 1 and noticed that there were three
transactions totaling $200 each, which Mr. Barcomb stated was unusual because his wife
was generally not “out that time of the morning.” Mr. Barcomb called Mrs. Barcomb to
inquire about the transactions; however, Mrs. Barcomb denied making the purchases.
Mrs. Barcomb told Mr. Barcomb that she was unable to locate her debit card and that
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their car was missing. Mr. Barcomb explained that they had just purchased the 2012
Toyota Camry for $27,283.99 on the day prior to this incident. Mr. Barcomb testified
that after purchasing the car, he put a “truck GPS,” which is used in tractor-trailers, in the
car. Mr. Barcomb explained that when the Camry was returned to him, the GPS system
was missing. Mr. Barcomb testified that he was able to locate his car by calling
appellant‟s mother, whom he knew, and appellant‟s mother obtained the information
about the car‟s location from appellant. After learning the car‟s location, Mr. Barcomb
called the local authorities and relayed the information. He went to Memphis three days
later and retrieved the car from an impound lot. Mr. Barcomb explained that his
grandson‟s Xbox Kinect was also taken from his home and that the Xbox was not found
inside his car when it was recovered.

      During cross-examination, Mr. Barcomb stated that he retrieved his car after
Memphis police officers had processed it. Mr. Barcomb explained that the unauthorized
withdrawals were made from an ATM in Memphis, Tennessee.

        Mary Barcomb testified that she knew appellant‟s mother and grandmother and
that appellant‟s mother had lived with Mrs. Barcomb for three to four months due to Mrs.
Barcomb‟s needing aid because of medical issues she was experiencing. Mrs. Barcomb
stated that appellant came to her home in January 2013 because several of his family
members were preparing to drive to Memphis, where appellant resided, and he was going
to ride back with them. Mrs. Barcomb explained that she was inside her house and that
appellant knocked on her door, stating that the family members had left him. Mrs.
Barcomb took appellant with her when she left to do errands. One of Mrs. Barcomb‟s
stops was at Food Lion, and Mrs. Barcomb used her debit card and PIN number to pay
for her items. Mrs. Barcomb stated that when she paid, appellant stood directly behind
her. Mrs. Barcomb also took appellant to a Western Union store inside of Kroger so that
he could get money for a bus ticket. After her errands, Mrs. Barcomb and appellant
returned to Mrs. Barcomb‟s home, and Mrs. Barcomb allowed appellant to spend the
night in her guest bedroom. Mrs. Barcomb explained that her intent was to take appellant
to the bus station after her grandson went to school the following morning.

       Mrs. Barcomb explained that later that night, she received a telephone call from
her husband about the missing money and discovered that her debit card was missing.
She knocked on the door to the guest room where appellant was sleeping, but receiving
no answer, she went inside and discovered that appellant was not inside. Mrs. Barcomb
explained that she then went to the garage to see if appellant was smoking and discovered
that her car and car keys were missing. Mrs. Barcomb called the police to make a report.
Mrs. Barcomb also received a call from appellant in which appellant admitted taking the
car because he had to return to Memphis. Mrs. Barcomb stated that when her grandson
came home from school, he discovered that his Xbox was also missing. As a result, Mrs.
Barcomb searched for missing items and compiled an itemized list, which included
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games, CDs, movies, a GPS system, a laptop, and the Xbox. Mrs. Barcomb estimated
that the total value of the missing items was approximately $1,000-2,000, based upon
the fact that her insurance provided a monetary insurance settlement over the $1,000
deductible that she had to pay. Mrs. Barcomb testified that she never gave appellant
permission to take her car.

       During cross-examination, Mrs. Barcomb denied that her husband had called at
9:30 p.m. on the night of the theft. Mrs. Barcomb agreed that a PIN number was
required to withdraw money from an ATM. She agreed that her car did not sustain
any damage as a result of this incident. Mrs. Barcomb testified that appellant called
her around 5:00 a.m. on February 1. She conceded that it was a possibility that
appellant did not intend to keep her vehicle but that he intended for her to retrieve her
vehicle from Memphis. Following this testimony, the State rested its case-in-chief,
and appellant presented no additional proof.

       The jury subsequently found appellant guilty of theft valued at $1,000 or more
but less than $10,000. The trial court sentenced appellant as a Range II, multiple
offender to seven years in confinement.

                                        II. Analysis

       On appeal, appellant argues that: (1) the evidence was insufficient to support his
conviction; (2) the indictment was improperly aggregated into one count and that
because of the aggregation, the State should have made an election of facts; (3) the
State improperly asked the jury to view the crime from the victim‟s perspective during
closing argument; (4) the State improperly argued facts that were not in the record
during closing argument; (5) the cumulative effect of these errors requires a new trial.

                              A. Sufficiency of the Evidence

       The standard for appellate review of a claim challenging the sufficiency of the
State‟s evidence 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) (citing
Johnson v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v.
Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient
evidence, appellant must demonstrate that no reasonable trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at
319. This standard of review is identical whether the conviction is predicated on direct or
circumstantial evidence, or a combination of both. State v. Dorantes, 331 S.W.3d 370,
379 (Tenn. 2011); State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).
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        On appellate review, “„we afford the prosecution the strongest legitimate view of
the evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.‟” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857
(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of
witnesses and the weight and value to be given the evidence, as well as all factual
disputes raised by the evidence, are resolved by the jury as trier of fact. State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
This court presumes that the jury has afforded the State all reasonable inferences from the
evidence and resolved all conflicts in the testimony in favor of the State; as such, we will
not substitute our own inferences drawn from the evidence for those drawn by the jury,
nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379;
Cabbage, 571 S.W.2d at 835; see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
Because a jury conviction removes the presumption of innocence that appellant enjoyed
at trial and replaces it with one of guilt at the appellate level, the burden of proof shifts
from the State to the convicted appellant, who must demonstrate to this court that the
evidence is insufficient to support the jury‟s findings. Davis, 354 S.W.3d at 729 (citing
State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

       A person commits theft of property when “with intent to deprive the owner of
property, the person knowingly obtains or exercises control over the property without the
owner‟s effective consent.” Tenn. Code Ann. § 39-14-103(a). Theft of property that is
valued at $1,000 or more but less than $10,000 is a Class D felony. Id. § 39-14-
105(a)(3). The value of the stolen or damaged property is determined by “[t]he fair
market value of the property or service at the time and place of the offense; or . . . [i]f the
fair market value of the property cannot be ascertained, the cost of replacing the property
within a reasonable time after the offense.” Id. § 39-11-106(36)(A)(i)-(ii).

       Viewed in the light most favorable to the State, there was sufficient evidence to
support appellant‟s conviction. Mrs. Barcomb testified that appellant was with her most
of the day prior to the theft, that appellant was standing behind her when she used the
PIN number for her debit card at Food Lion, and that appellant was inside her home when
she went to sleep on the night of the theft. However, when her husband‟s early morning
call awoke her, Mrs. Barcomb‟s debit card, car, and numerous miscellaneous items were
missing from her home, and appellant was no longer present. Appellant subsequently
called and apologized for stealing the car, explaining that he had needed to return to
Memphis. Furthermore, $600 had been withdrawn from the Barcombs‟ joint account at a
location in Memphis. The Barcombs only learned the location of their car after
appellant‟s mother, whom the Barcombs knew, called appellant and extracted the
information from him. The car was found at an apartment complex at which appellant
did not reside. Regarding the total value of the theft, Mrs. Barcomb testified that $1,000-
2,000 in miscellaneous items had been stolen from her home, and the State introduced a
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list of the items and their values into evidence. In addition, $600 was withdrawn from the
Barcombs‟ bank account, and the Barcomb‟s 2012 Toyota Camry was purchased for
$27,283.99 on the day prior to the theft. While there was evidence presented that the
value of the property totaled more than $10,000, it is the province of the jury to determine
the value of the stolen or damaged property. State v. Hamm, 611 S.W.2d 826, 828-29
(Tenn. 1981) (“In determining the value of stolen property in larceny cases, the trier of
fact is to determine the fair cash market value of the stolen property at the time and place
of the theft . . . .”). Therefore, we conclude that after viewing the evidence in the light
most favorable to the State, a rational jury could have found beyond a reasonable doubt
that appellant committed theft valued at $1,000 or more but less than $10,000. Appellant
is without relief as to this issue.

                           B. Indictment – Election of Offenses

        Appellant argues that there was evidence presented at trial that there were
differing intents regarding the car and the other stolen items ― that the car was merely
taken for the purpose of returning to Memphis and not taken with the intent of keeping it,
whereas the other items were taken with the intent of keeping the items. Appellant
argues that because of the possible differing intents, the State erred in aggregating the
thefts into a single indictment and because it was one indictment, in failing to elect
whether the indictment referred to the car or the other stolen property.

       First, regarding whether the State properly aggregated the thefts into a single
indictment, Tennessee Code Annotated section 39-14-105(b)(1) states, “In a prosecution
for theft of property, . . . the state may charge multiple criminal acts committed against
one (1) or more victims as a single count if the criminal acts arise from a common
scheme, purpose, intent or enterprise.” Furthermore, pursuant to subsection 105(b)(2),
“[t]he monetary value of property from multiple criminal acts which are charged in a
single count of theft of property shall be aggregated to establish value under this section.”
This court has stated:

       Where an accused is alleged to have stolen property in separate acts but
       from the same owner, from the same location, and pursuant to a continuing
       criminal impulse or a single sustained larcenous scheme, the State is
       permitted to aggregate the value of the stolen property and prosecute the
       thefts as a single offense.

State v. Kathyrn White Byrd, No. E2002-00417-CCA-R3-CD, 2003 WL 21276499, at *5
(Tenn. Crim. App. May 29, 2003) (citation omitted). We note from our review of the
record that appellant‟s defense was that he did not intend to keep the car, which he
claimed would reduce the car theft to joyriding. However, the State proceeded on a
theory of theft of all the items and, as stated above, presented sufficient proof of
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appellant‟s intent. As such, the State was justified in aggregating all of the theft
allegations into one indictment as was contemplated by Tennessee Code Annotated
section 39-14-105(b).

        Regarding whether the State was required to make an election of facts, this issue is
waived. Appellant failed to argue this issue at trial or in his motion for new trial, which
deprived the trial court of ruling on the merits of this argument, and he now raises it for
the first time on appeal. Tennessee Rule of Appellate Procedure 36(a) states, “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.” As such, appellant has forfeited review of this issue.

                                  C. Closing Arguments

        Appellant also challenges the State‟s closing arguments on two separate grounds.
First, appellant argues that the State violated the “Golden Rule” by inviting the jury to
view the crime from the victim‟s perspective. Second, appellant argues that the State
argued facts outside of the record.

        “[A]rgument of counsel is a valuable privilege that should not be unduly
restricted.” Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975). Tennessee courts give
great latitude to counsel arguing their cases to the jury. Id. Thus, “trial judges have wide
discretion in controlling the argument of counsel, and their action will not be reviewed
absent abuse of that discretion.” Id. However, the comments of counsel during closing
argument “„must be temperate, must be predicated on evidence introduced during the trial
of the case, and must be pertinent to the issues being tried.‟” State v. James Rae Lewter,
No. M2010-01283-CCA-RM-CD, 2011 WL 1197597, at *4 (Tenn. Crim. App. Mar. 31,
2011) (quoting State v. Gann, 251 S.W.3d 446, 459 (Tenn. Crim. App. 2007)).

      “A criminal conviction should not be lightly overturned solely on the basis of the
prosecutor‟s closing argument.” State v. Banks, 271 S.W.3d 90, 131 (Tenn. 2008) (citing
United States v. Young, 470 U.S. 1, 11-13 (1985); State v. Bane, 57 S.W.3d 411, 425
(Tenn. 2001) (holding that a prosecutor‟s improper closing argument does not
automatically warrant reversal). To establish reversible error and succeed on a claim of
prosecutorial misconduct, the appellant must show that “the argument of the prosecutor
was so inflammatory or the conduct so improper that it affected the verdict to his
detriment.” State v. Farmer, 927 S.W.2d 582, 591 (Tenn. Crim. App. 1996) (citing
Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965)).

        When determining whether the argument affected the jury‟s verdict, we consider
the following five factors:

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      (1) the conduct complained of viewed in context and in light of the facts
      and circumstances of the case; (2) the curative measures undertaken by the
      court and the prosecution; (3) the intent of the prosecutor in making the
      improper statement; (4) the cumulative effect of the improper conduct and
      any other errors in the record; and (5) the relative strength or weakness of
      the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

      This court has previously recognized five general areas of prosecutorial
misconduct:

      1. It is unprofessional conduct for the prosecutor intentionally to misstate
      the evidence or mislead the jury as to the inferences it may draw.

      2. It is unprofessional conduct for the prosecutor to express his personal
      belief or opinion as to the truth or falsity of any testimony or evidence or
      the guilt of the defendant.

      3. The prosecutor should not use arguments calculated to inflame the
      passions or prejudices of the jury.

      4. The prosecutor should refrain from argument which would divert the jury
      from its duty to decide the case on the evidence, by injecting issues broader
      than the guilt or innocence of the accused under the controlling law, or by
      making predictions of the consequences of the jury‟s verdict.

      5. It is unprofessional conduct for a prosecutor to intentionally refer to or
      argue facts outside the record unless the facts are matters of common public
      knowledge.

State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (citations omitted).

                                     i. Golden Rule

       Appellant argues that the State violated the “Golden Rule” by inviting the jury to
view the crime from the victim‟s perspective. Appellant specifically challenges the
following segment of the State‟s closing argument:

              By the way, if when you go out to the parking lot, after you‟ve
      rendered your verdict, and your car is gone, and a day later you get a call
      that it‟s in Memphis, and you have to go get it, and your GPS is missing
                                           -8-
       from it, I want you to ask yourself: Did he steal my car . . . or is he just
       joyriding?

The trial court overruled appellant‟s objection regarding the argument, stating that the
argument was not improper.

       The golden rule argument has been defined as:

       [A]rguments by counsel suggesting to the jurors that they place themselves
       in the position of a party to the cause, or posing to them the question
       whether they would go through life in the condition of the injured Plaintiff,
       or would want members of their family to go through life [physically
       disabled], are usually improper, and reversibly erroneous.

Esmail Ashdji and Faizeh Ashdji v. Rodney E. Yardley, CA No. 1188, 1988 WL 116498,
at *2 (Tenn. Ct. App. Nov. 4, 1988) (citation omitted). While the State‟s closing
argument posed a similar factual scenario to that at issue, the scenario was presented in
response to appellant‟s argument that he was only guilty of joyriding. The State asked
the jurors to view the facts presented, absent the defendant, and determine from their
perspective, whether a theft or mere joyriding had occurred. See, e.g., State v. Fusco, 404
S.W.3d 504, 522 (Tenn. Crim. App. 2012) (stating that argument was not improper when
State asked the jury to determine that the facts amounted to a specific crime versus asking
the jury to focus on the consequences of an acquittal). Considered in light of the
circumstances of the case and the intent of the prosecutor, the argument was not so
improper or inflammatory as to amount to prosecutorial misconduct. Therefore, the trial
court did not abuse its discretion in overruling appellant‟s objection. Appellant is without
relief as to this issue.

                         ii. Arguing Facts Outside of the Record

       Appellant also argues that the State committed prosecutorial misconduct during
closing arguments by stating:

              Now Mr. Barcomb testified that he had called [appellant‟s] mother[]
       and that he told her that the debit card had disappeared along with the brand
       new 2012 Camry.

              Why do you think [appellant] called to apologize? I would submit to
       you, ladies and gentlemen, because Mama made him do it. That‟s why they
       even got the car back, I would submit. That‟s why they told them where it
       was.

                                            -9-
Appellant argues that this argument amounted to the State arguing facts outside of the
record because there was no testimony that appellant‟s mother made him call the
Barcombs.

      As an initial matter, we note that appellant failed to object to this argument at trial.
Therefore, we can only review this issue for plain error. The accepted test for plain error
review requires that:

       (a) the record must clearly establish what occurred in the trial court;

       (b) a clear and unequivocal rule of law must have been breached;

       (c) a substantial right of the accused must have been adversely affected;

       (d) the accused did not waive the issue for tactical reasons; and

       (e) consideration of the error is “necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). To rise to the level of “plain error,” an error
“„must [have been] of such a great magnitude that it probably changed the outcome of the
trial.‟” Adkisson, 899 S.W.2d at 642 (quoting United States v. Kerley, 838 F.2d 932, 937
(7th Cir. 1988)). All five factors must be established by the record before a court will
find plain error. Smith, 24 S.W.3d at 282. Complete consideration of all the factors is
not necessary when clearly at least one of the factors cannot be established by the record.

       Appellant has failed to show that a clear and unequivocal rule of law has been
breached. The argument was based on inferences drawn from the evidence presented at
trial. Mr. Barcomb testified that he was able to locate his car by calling appellant‟s
mother, whom he knew and who had stayed with Mrs. Barcomb for three to four months
while she was ill. Appellant‟s mother contacted appellant to get the information about
the car‟s location. Later, Mrs. Barcomb received a call from appellant apologizing for
taking the car. Therefore, it was reasonable to infer that appellant‟s mother‟s call was the
impetus for appellant‟s call to Mrs. Barcomb. Appellant has failed to show that the State
committed misconduct and has failed to show that he is entitled to plain error review.
Appellant is not entitled to relief.

                                   D. Cumulative Error

       Lastly, appellant argues that the cumulative effect of the alleged errors entitle him
to a new trial. However, appellant has failed to show that error occurred. See State v.
Herron, 461 S.W.3d 890, 909-910 (Tenn. 2015) (“To warrant assessment under the
                                            -10-
cumulative error doctrine, there must have been more than one actual error committed in
the trial proceedings.”). Therefore, we conclude that he is not entitled to a new trial on
this basis.

                                    CONCLUSION

      Based on the parties‟ briefs, the record, and the applicable law, we affirm the
judgment of the trial court.


                                                 _________________________________
                                                 ROGER A. PAGE, JUDGE




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