        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs September 9, 2014

             STATE OF TENNESSEE v. CALVIN REID QUARLES

                 Appeal from the Circuit Court for Williamson County
                     No. I-CR046393      Donald P. Harris, Judge




              No. M2014-00117-CCA-R3-CD            -Filed October 31, 2014



Calvin Reid Quarles, Defendant, was convicted by a Williamson County Jury for theft of
property valued over $500. After the denial of a motion for new trial, Defendant perfected
this appeal. The following issues are presented for our review: (1) whether the trial court
erred in giving the jury charge partially before and partially after closing arguments; and (2)
whether the trial court erred by issuing a supplemental jury instruction. After a review of the
applicable authorities and the record, we conclude that Defendant waived any challenge to
the trial court’s completing the jury instructions after closing argument by acquiescing and
by failing to raise the issue in a motion for new trial. Further, we conclude that the trial court
did not commit error in answering a question posed by the jury during deliberations.
Accordingly, the judgment of the trial court is affirmed.

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

T IMOTHY L. E ASTER, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R. and D. K ELLY T HOMAS, J R., JJ., joined.

Vanessa Pettigrew Bryan; Public Defender; Robert Wilson Jones, Assistant Public Defender;
and Allison Rasbury West, Assistant Public Defender; Franklin Tennessee, for the appellant,
Calvin Reid Quarles.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Kim Helper, District Attorney General; and Tammy J. Rettig, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                             OPINION

                                        Factual Background

        George David Boston and his daughter, Paige Boston, lived in the Villages of
Morningside, a senior living community in Williamson County. On February 2, 2012, Mr.
Boston came home around 2:00 p.m. and noticed that his back door was open. When he
approached the door, he realized that the deadbolt was “bent and disturbed.” Mr. Boston
called the police and his daughter, Ms. Boston, who was at work.

       Detective David Dixon arrived on the scene. Once the detective arrived, Mr. Boston
was permitted to enter the residence and discerned that several items were missing. Included
among those items were a thirty-two-inch flat-screen television, a jar of loose change, his
deceased wife’s jewelry box, a clock radio, an iPod, a laptop, a netbook, and “other
miscellaneous items.” The jewelry box contained at least a twenty-inch gold chain, a
rhinestone necklace, earrings, a beaded necklace, and two pendants purchased in Spain.
According to Ms. Boston, the missing items were worth around $3,400. No fingerprints were
recovered from the scene.

       The burglary occurred on a Thursday afternoon. That following weekend, Ms. Boston
distributed flyers containing photographs of the missing jewelry to several local pawnshops.
That afternoon, someone from Cashville Gold and Silver Buyers called her to inform her that
two of her missing pieces of jewelry were at their shop. Detective Dixon visited the shop to
investigate. Defendant was identified as a suspect after Detective Dixon watched
surveillance video in which Defendant was seen giving the jewelry to the store owner.1

        Defendant was arrested. He gave a statement in which he could not give specifics
about how or where he obtained the jewelry that he pawned at Cashville Gold and Silver
Buyers. He claimed that he bought “a lot of stuff” at flea markets. Defendant was unable
to produce a receipt for the items. When confronted with the fact that the items were stolen,
Defendant admitted that he did not receive the items from anyone else and that he was the
person at Cashville Gold and Silver Buyers. Defendant acknowledged that he received $165
for the items and signed the logbook at the store. Defendant explained that his son Sheldon
drove him to the pawnshop but was not involved in the transaction.

        As a result of the investigation, Defendant was indicted by the Williamson County



        1
          The surveillance video was unavailable for viewing at trial. Detective Dixon testified that he
attempted to secure the tape from Cashville Gold and Silver Buyers but was unable to do so.

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Grand Jury in April of 2012 for one count of aggravated burglary and one count of theft of
property valued over $1,000. After a jury trial, Defendant was found not guilty of aggravated
burglary and guilty of theft of property valued over $500 but less than $1,000. The trial court
sentenced Defendant to fifteen months in incarceration as a Range I, Standard Offender.

       Defendant filed a motion for new trial in which he argued that the evidence was
insufficient to support the conviction. Additionally, he argued that the trial court improperly
responded to a question from the jury and, in so doing, effectively “diminished the
requirements of theft of property.” The trial court denied the motion for new trial.
Defendant appeals.

                                            Analysis

        On appeal, Defendant complains that the “trial court gave erroneous jury instructions
and [Defendant] should be granted a new trial.” Specifically, Defendant insists that the trial
court did not give the jury a correct and complete charge of the law when the trial judge
omitted the mens rea definitions from the jury instructions, allowed the parties to complete
their closing arguments, and then continued with the jury charge. Additionally, Defendant
complains that the trial court improperly answered a jury question with an “amended
instruction” to the theft charge that did not include a definition of knowing. The State
contends that Defendant acquiesced to the separation of the jury instructions from the mens
rea elements, thus waiving the issue on appeal. Further, the State insists that despite the
waiver, the jury instructions were complete and Defendant is not entitled to relief.

                                        Jury Instructions

        A trial court has a “duty to give a complete charge of the law applicable to the facts
of the case.” State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). Anything short of a complete
charge denies a defendant his constitutional right to trial by a jury. State v. McAfee, 737
S.W.2d 304, 308 (Tenn. Crim. App. 1987). However, Tennessee law does not mandate that
any particular jury instructions be given so long as the trial court gives a complete charge on
the applicable law. See State v. West, 844 S.W.2d 144, 151 (Tenn. 1992). A trial court
commits prejudicial error “if it fails to fairly submit the legal issues or if it misleads the jury
as to the applicable law.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997) (citing State
v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995); Graham v. State, 547 S.W.2d 531
(Tenn. 1977)). In determining whether jury instructions are erroneous, this Court must
review the charge in its entirety and invalidate the charge only if, when read as a whole, it
fails to fairly submit the legal issues or misleads the jury as to the applicable law. State v.
Vann, 976 S.W.2d 93, 101 (Tenn. 1998). Because resolution of issues regarding jury
instructions are mixed questions of law and fact, the standard of review is de novo, with no

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presumption of correctness. State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).

       Defendant herein was charged with theft. Tennessee Code Annotated section 39-14-
103(2) defines theft as acting “with intent to deprive the owner of property [while]
knowingly obtaining or exercising control over the property of another without the owner’s
effective consent.” During jury instructions, the trial court instructed the jury on the elements
of theft of property as follows:

       [Trial Court]: Theft of property: Any person who commits the offense of theft
       of property is guilty of a crime. For you to find the defendant guilty of this
       offense, the State must have proven beyond a reasonable doubt the existence
       of the following essential elements:

              (1) that the defendant intentionally or knowingly obtained or
              exercised control over property owned by George Boston and
              Paige Boston.

              (2) that the defendant did not have the owners’ effective
              consent;
              (3) that the defendant intended to deprive the owner of the
              property.

The trial court went on to define “obtain,” “exercise control,” “property,” “effective
consent,” “deprive,” and how to determine “value.” At the conclusion of the jury
instructions, the following exchange took place:

       [Trial Court]: I realized I must have deleted my definitions of intentionally,
       knowingly, and recklessly. If I can - - I can get that and read it now or I can
       wait and just read it after ya’ll [sic] argue.

       [Counsel for the State]: It makes no difference, Your Honor.

       [Counsel for Defendant]: Just go ahead now.

       [Trial Court]: Go ahead and argue?

       [Counsel for Defendant]: No, go ahead - -

       [Trial Court]: Well, I have to get her to print it up for me.



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       [Counsel for Defendant]: (Inaudible) we can argue.

After the closing arguments, the trial court read these “additional definitions” to the jury:

       A person acts intentionally with respect to the nature of his or her conduct or
       to a result of the conduct when it is the person’s conscious objective or desire
       to engage in the conduct or cause the result.

       A person acts knowingly with respect to his or her conduct or through
       circumstances surrounding conduct when a person is aware of the nature of the
       conduct or that the circumstances exist.

       A person[] acts knowingly with respect to a result of his or her conduct when
       the person is aware that the conduct is reasonably certain to cause the result.

       A person acts recklessly with respect to circumstances of surrounding conduct
       or the results of conduct when the person is aware of but consciously
       disregards a substantial and unjustifiable risk that the circumstances exist or
       the result will occur. The risk must be of such a nature and degree that its
       disregard constitutes a gross deviation from the standard of care that an
       ordinary person would exercise under all the circumstances as viewed from the
       accused person’s standpoint.

        We determine that Defendant has waived any issue with regard to whether the trial
court improperly gave the jury instructions for mens reas after the closing arguments rather
than with the rest of the jury charge. Defendant, as pointed out by the State, acquiesced to
this procedure at trial. See 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.”). Moreover, Defendant did not specifically raise this issue in a motion for new trial.
 Tennessee Rule of Appellate Procedure 3(e) provides that in “all cases tried by a jury, no
issue presented for review shall be predicated upon . . . [a] ground upon which a new trial is
sought, unless the same was specifically stated in a motion for a new trial; otherwise such
issues will be treated as waived.” See also State v. Lowe-Kelley, 380 S.W.3d 30, 33 (Tenn.
2012) (noting that “[a] defendant who fails to provide specific grounds for relief in a motion
for new trial risks failing to preserve those grounds for appeal”).

                                        Jury Questions

       Later, during deliberations, the jury submitted two written questions to the trial court.

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The first question read as follows: “Number one mean [sic] he knew it was stolen even if he
did not steal it himself?” The trial court informed the parties that it thought the jurors were
referring to the first element of the offense of theft, and proposed the following answer:

       If you find beyond a reasonable doubt that, one, [Defendant] knowingly
       exercised control over property owned by George and Paige Boston, and two,
       [Defendant] knew he did not have the owners’ effective consent, and three,
       [Defendant] intended to deprive the owner of the property, then you have
       found [Defendant] guilty of theft.

The trial court commented that it was “really just restating the elements of the crime with a
few words left out.” Counsel for Defendant objected to the “restating” of the charge and
asked the trial court to “refer to the charge as given.” When the trial court called the jury
back in, he stated that he interpreted the question as “referring to the first element of the
offense of theft.” The trial court then instructed the jury as follows:

       [I]f you find beyond a reasonable doubt that [Defendant] knowingly exercised
       control over property owned by George and Paige Boston and, two,
       [Defendant] knew he did not have the owners’ effective consent, and, three,
       [Defendant] intended to deprive the owner of the property, then you have
       found [Defendant] guilty of theft.

       Trial courts have “the authority to respond to jury questions with a supplemental
instruction.” Forbes, 918 S.W.2d at 451. The “appropriate course of action” for a trial court
responding to a jury question is to “bring the jurors back into open court, read the
supplemental instruction . . . along with a supplemental instruction emphasizing that the jury
should not place undue emphasis on the supplemental instruction, and then allow the jury to
resume its deliberations.” State v. Bowers, 77 S.W.3d 776, 791 (Tenn. Crim. App. 2001).
Any omission in the jury instructions of an element of an offense is subject to harmless error
analysis. State v. Faulkner, 148 S.W.3d 45, 58 (Tenn. 2005).

       Here, the trial court simply answered the question with its supplemental instruction.
However, Defendant did not raise any objection to the trial court’s procedure in providing
the supplemental instruction to the jury. Instead, Defendant argues that the trial court’s
supplemental instruction was erroneous because it omitted a portion of the definition of theft,
namely the words “intentional” and “intentionally.”

       In Tennessee, there are four culpable mental states: intentionally, knowingly,
recklessly, and criminally negligent. See T.C.A. § 39-11-302. If the statute defining the
offense does not plainly dispense with a mental element, then “intent, knowledge, or

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recklessness suffices” to establish the culpable mental state. T.C.A. § 39-11-301(c); State
v. Page, 81 S.W.3d 781, 786 (Tenn. Crim. App. 2002); State v. Chester Wayne Walters, No.
M2003-03019-CCA-R3-CD, 2004 WL 2726034, at *12 (Tenn. Crim. App. Nov. 30, 2004),
perm. app. denied (Tenn. Mar. 21, 2005). If the elements of an offense have distinctly
varying mens rea, then the trial court must clearly instruct the jury about the mental state for
each element. State v. Howard, 926 S.W2d 579, 587 (Tenn. Crim. App. 1996), overruled on
other grounds in State v. Williams, 977 S.W.2d 101 (Tenn. 1998). “Each of these mental
states is defined with reference to two or three of the following possible conduct elements:
(1) nature of defendant’s conduct, (2) circumstances surrounding the defendant’s conduct,
and (3) result of the defendant’s conduct.” Page, 81 S.W.3d at 787 (citing T.C.A. § 39-11-
302).

        “‘Intentional’ refers to a person who acts intentionally with respect to the nature of
the conduct or to a result of the conduct when it is the person’s conscious objective or desire
to engage in the conduct or cause the result.” T.C.A. § 39-11-302(a). “‘Knowing’ refers to
a person who acts knowingly with respect to the conduct or to circumstances surrounding the
conduct when the person is aware of the nature of the conduct or that the circumstances
exist.” T.C.A. § 39-11-302(b). A person can also act knowingly “with respect to a result of
the person’s conduct when the person is aware that the conduct is reasonably certain to cause
the result.” T.C.A. § 39-11-302(b) (emphasis added). “‘Reckless’ refers to a person who
acts recklessly with respect to circumstances surrounding the conduct or the result of the
conduct when the person is aware of but consciously disregards a substantial and
unjustifiable risk that the circumstances exist or the result will occur.” T.C.A. § 39-11-
302(c).

       As set out above, Tennessee Code Annotated section 39-14-103(a) defines theft as
acting with intent to deprive the owner of property while knowingly obtaining or exercising
control over the property of another without the owner’s effective consent.

        When the trial court herein answered the jury’s question, he correctly stated “[I]f you
find beyond a reasonable doubt that the Defendant knowingly exercised control over property
owned by George and Paige Boston and, two, the Defendant knew he did not have the
owner’s effective consent, and, three, the Defendant intended to deprive the owner of the
property, then you have found the Defendant guilty of theft” (emphases added). The trial
court did not use the words “intentional” and “intentionally” in element three regarding
depriving the owner of the property but instead used the word “intended.” While the trial
court included the word “intentionally” in the original jury instructions in regards to
obtaining or exercising control over property owned by the Bostons, element 1, it was left
out in the answer to the jury question. The instruction as given to the jury in response to their
question was entirely consistent with the theft of property statute and the pattern jury

                                               -7-
instructions.

       Further, Defendant did not deny possessing the jewelry and pawning it at Cashville.
Moreover, the complete definition for theft, including the words “intentional” and
“intentionally,” appeared in the jury instructions given by the trial court. Those terms were
then separately defined by the trial court. See State v. Leach, 148 S.W.3d 42, 58 (Tenn.
2004) (“In determining whether instructions are erroneous, th[e] Court must review the
charge in its entirety and read it as a whole.”). The jury charge, taken as a whole, properly
defined theft and the requisite mens rea. This issue is without merit.

                                        Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                                   _________________________________
                                                   TIMOTHY L. EASTER,/JUDGE




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