                                                                                     08/24/2018

       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                          Assigned on Briefs June 5, 2018

            STATE OF TENNESSEE v. CHRISTOPHER TALLEY

                  Appeal from the Criminal Court for Shelby County
                      No. 14-05964     Glenn I. Wright, Judge



                            No. W2017-01752-CCA-R3-CD
                       _____________________________

A Shelby County jury convicted the Defendant, Christopher Talley, of attempted second-
degree murder, aggravated assault, and theft of property valued under $500. The trial
court sentenced him to an effective sentence of twenty-four years of incarceration. On
appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his
convictions; (2) the prosecutor committed prosecutorial misconduct; and (3) the trial
court erred when it applied certain enhancement factors at sentencing. After review, we
affirm the trial court’s judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE, J., joined. THOMAS T. WOODALL, J., filed a concurring opinion.

Claiborne H. Ferguson and John Patrick McNeil (at trial), Gregory D. Allen (on appeal),
Memphis, Tennessee, for the appellant, Christopher Talley.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Amy P. Weirich, District Attorney General; Gavin Smith, Assistant
Attorney General, for the appellee, State of Tennessee.

                                      OPINION
                                       I. Facts
                                      A. Trial

      This case arises from the strangulation of a T.J. Maxx store security guard. The
Shelby County grand jury indicted the Defendant and a female co-defendant with
attempted first-degree murder, aggravated assault by strangulation, and theft of property
valued under $500. At the Defendant’s trial on these charges, the parties presented the
following evidence: Eldridge Davis testified that he was forty-nine years old at the time
of trial and had two teenage children. Mr. Davis served as a lieutenant on the Memphis
Fire Department and had also worked in loss prevention for T.J. Maxx for almost
seventeen years. Mr. Davis said that, on August 10, 2014, he was working at T.J. Maxx.
He recalled that he was in his office conducting paperwork while looking at the cameras
when he saw a man come into the store who looked familiar to him. He later identified
the man as the Defendant. The Defendant immediately started picking up several purses
and not looking at the prices, which signaled Mr. Davis to investigate further. Mr. Davis
explained that the store had recently had several “grab and runs.” This was a term used
for the situation when a customer came into the store, grabbed merchandise, and then ran
out the door to a vehicle with a driver awaiting them to leave.

        To investigate, Mr. Davis said that he went to the front of the store to see the
Defendant more clearly. He watched as the man came out of the purse department,
looked around, and immediately exited the store. Mr. Davis followed the Defendant out
of the exit, identified himself as a security officer, and told the Defendant to return to the
store. At the time, Mr. Davis noted that there was a tan-colored SUV sitting outside T.J.
Maxx. Although the windows were tinted, Mr. Davis saw that there was a female in the
driver’s seat. The Defendant did not initially comply with Mr. Davis’s request to return
to the store, but Mr. Davis then assisted him back into the store. As the two were headed
toward Mr. Davis’s office, the Defendant said, “N-word, ‘I’ll kill you.’” The Defendant
then dropped the purses to the floor and reached toward his own waistband, so Mr. Davis
put his arms up and restrained him.

        Mr. Davis said that he continued to walk the Defendant back to his office, during
which time the Defendant was cursing and using profanity. The Defendant tried to kick
racks over and was scaring the customers. When the two men arrived at Mr. Davis’s
office, Mr. Davis sat the man in a chair, which was not his usual routine. He explained
that he did not trust the Defendant based on his behavior, so he “cuffed” him. Mr. Davis
said that the Defendant was “fidgeting,” and Mr. Davis told him to “be cool” and to
“keep his hands where [Mr. Davis] could see them.”

       Mr. Davis said that he backed away from the Defendant, who jumped up and went
away from the office door. Mr. Davis noted that in his office were security ink tags with
cords and ten-pound metal “detachers.” The Defendant went toward the detachers, and
Mr. Davis got his hands on one to prevent the Defendant from picking it up. The
Defendant then grabbed the phone cord and wrapped it around Mr. Davis’s neck. Mr.
Davis said that the two men were “tussling,” and Mr. Davis tried to push the Defendant
away from the counter where there were several detachers. Mr. Davis said that, at some
                                              2
point, he lost his balance. When he pulled away from the Defendant, the Defendant
tightened the cord around his neck. Mr. Davis saw the Defendant’s hands pulling the
cord around his neck.

       Mr. Davis said that he could not speak because of the cord around his neck. Mr.
Davis said the he felt himself get light-headed and knew that the situation “was getting
serious.” Mr. Davis pulled a hammer from his desk drawer and tried to hit the Defendant
with it. He was, however, so weak that he was unable to swing the hammer and it fell
onto the floor. One of the legs on the desk broke, causing the men to fall.

        Mr. Davis said that he fell on top of the Defendant and that the Defendant
continued tightening the cord around Mr. Davis’s neck. Out of his peripheral vision, Mr.
Davis saw a woman, later identified as his co-defendant, holding a child, open the door of
his office. The woman said something, but Mr. Davis could not make out what she was
saying because of the ringing in his ears due to the ligature around his neck. Mr. Davis
said that he reached for the Defendant’s throat, and the woman grabbed his hands and
held them back while the Defendant continued to choke him. Mr. Davis said that he
thought he was going to die, and he wondered what his wife would tell his children after
his death.

       Mr. Davis said that he must have lost consciousness because, when he regained
consciousness, a female customer was standing over him asking if he was all right. She
told him that she was a nurse. Mr. Davis said that he went to the hospital where he
stayed for that day. He had to return to the hospital later for surgery because he tore
“some things” in his legs. Mr. Davis said that he suffered scratches, bruises, and
bloodshot eyes.

       Mr. Davis said that he gave his statement to police and that he identified the
Defendant from a photographic lineup. Mr. Davis said that all of these events were
captured in a video taken from his office that day. While watching the video with the
jury, Mr. Davis clarified that he was “going” to cuff the Defendant but that the Defendant
attacked him before he could do so. The video comported with Mr. Davis’s testimony.

      During cross-examination, Mr. Davis said he did not recall previously detaining
the Defendant and that he was unsure why his face looked familiar. Mr. Davis said that
when he first approached the Defendant after the Defendant left the store with the purses,
the Defendant “bump[ed]” into him, and Mr. Davis “sp[u]n him around.” He agreed that
the Defendant did not hit or punch him at this time. Mr. Davis agreed that he outsized the
Defendant. Mr. Davis said that, since the Defendant dropped the merchandise as they
were walking to his office, he needed to call someone to retrieve the merchandise. Based
upon the Defendant’s behavior, however, he wanted to handcuff the Defendant first.
                                            3
When the Defendant saw Mr. Davis go for the handcuffs, the Defendant “reacted.”

       Mr. Davis said that he did not recall stabbing the Defendant with scissors. Mr.
Davis said that he did not bleed as a result of this incident, so any blood on the floor of
his office did not belong to Mr. Davis. He agreed that he was told that the scissors had
blood on them and that the contents of his drawer had to be discarded because they were
contaminated with blood. Mr. Davis said that the Defendant repeatedly told him “I have
AIDS.” The Defendant made this statement while Mr. Davis was being strangled, so he
said he was unsure what the Defendant meant by it. Mr. Davis said that, on the video, the
Defendant is seen still holding his hands around Mr. Davis’s neck after Mr. Davis loses
consciousness.

        During redirect-examination, Mr. Davis said that the Defendant could have hit his
head when the two fell onto the floor, causing him to bleed. Mr. Davis said that the two
hit the floor “pretty hard,” which caused Mr. Davis to tear his ACL and his meniscus and
also to fracture his tibia.

        Aubrey Anthony, who was shopping at T.J. Maxx on the day of these events,
testified that she saw Mr. Davis walking the Defendant toward the back of the store. She
said that Mr. Davis was holding the Defendant “behind his neck,” and the Defendant was
hollering, screaming, and cursing. Ms. Anthony saw the two men go into the security
office. She then heard a ruckus like fighting, so she called 911. She then ran to the front
of the store looking for a manager. Ms. Anthony ran toward the back of the store, and
she heard the Defendant say “I’m going to kill you,” and “I’m going to give you AIDS.”
She then heard a lady screaming, “Stop stabbing him, stop stabbing him.” Ms. Anthony
said a lady and a little girl then ran out of the security office and, soon thereafter, the
Defendant ran from the office, and he was bleeding all over.

       Ms. Anthony said that, although she was shopping at T.J. Maxx that day, she also
worked there part time. She knew Mr. Davis from her employment with him. She was
certain that it was not Mr. Davis’s voice saying “I’m going to kill you. I have AIDS.”

        Denise Shelton testified that she was the Assistant Manager at T.J. Maxx on the
day of this incident. She said that, as she was arriving, she saw someone leaving the store
with purses. She then went into the store, heard someone say that Mr. Davis was hurt,
and went to Mr. Davis’s office. She found Mr. Davis lying on the floor with a cord
wrapped around his neck. Another woman present, who said she was a nurse, assisted
her in removing the cord from around his neck.

       Jackeline Harris, another T.J. Maxx employee, testified that she was working in
the jewelry department when Mr. Davis took the Defendant to the back of the store. She
                                            4
described the Defendant as “wrestling” with Mr. Davis. The Defendant asked Mr. Davis
why he was taking him to the back of the store, and Mr. Davis responded that the
Defendant had been stealing. The Defendant then said that he had to go to the bathroom,
and Mr. Davis told him that he should have thought of that before taking merchandise.
Ms. Harris said that, a short time later, she saw the Defendant run back by the jewelry
counter, grab “a whole lot of purses” and run out the door without paying for them.

       Joshua Stanley, an officer with the Memphis Police Department, testified that he
was assigned to investigate this case on August 11, 2014. He obtained the surveillance
video of the incident, which he reviewed and from which he created still images of the
suspects. He released those images to media outlets, and he received a tip on August 13,
2014. This tip included the Defendant’s last name, which Officer Stanley put into a
database, and he obtained the Defendant’s address. He then called the phone number
associated with that address, and the Defendant’s mother answered. He spoke with her,
and then he used the Defendant’s picture to create the photographic lineup that he
presented to Mr. Davis on August 14, 2014, and from which Mr. Davis identified the
Defendant as his assailant. At that same meeting, Mr. Davis provided him a statement.
Officer Stanley issued a warrant for the Defendant’s arrest.

       Based upon this evidence, the jury convicted the Defendant of the lesser-included
offense of attempted second-degree murder and the charged offenses of aggravated
assault and theft of property valued under $500.

                                     B. Sentencing

       Before sentencing, the Defendant filed a motion to relieve counsel, which the trial
court granted and appointed new counsel. Also before sentencing, the State filed a notice
of enhancement factors, including that the Defendant had a previous history of criminal
convictions or behavior, that he was the leader in the commission of an offense involving
two or more actors, and that he had no hesitation about committing a crime when the risk
to human life was high. See T.C.A. § 40-35-114 (1), (2), and (10) (2014). During the
hearing, the Defendant’s attorney approached the bench and asked that the trial court
consider in mitigation that the Defendant was HIV positive.

       The trial court reviewed and admitted the presentence report. The Defendant’s
attorney informed the trial court that the Defendant had some high school education and
also attended several community colleges, with a focus on cosmetology. The
Defendant’s attorney acknowledged that the Defendant had some previous criminal
history, including two B felonies and three C felonies, making him a Range III offender.

      The Defendant’s attorney noted that some mitigating factors applied, including
                                            5
that the Defendant acted under strong provocation and in self-defense without a cooling
down period. The Defendant also asserted that he was hit by the security guard first. The
Defendant’s attorney noted that the Defendant had a history of mental illness, including
anxiety and depression. Finally, the Defendant’s attorney noted that the co-defendant in
this case had received only a two-year sentence. The State argued in favor of the
enhancement factors it had requested.

        Carolyn Tunstall testified that the Defendant was one of her younger brothers,
estimating that he was twelve or thirteen years her junior. She said that he came from a
large family and that he had always been a “troubled” child. Ms. Tunstall said that she
moved away when the Defendant was still young, so she did not recall how his mental
illness had been addressed. Ms. Tunstall said that the Defendant had been “bounced
around from . . . juvenile facilities to some other facilities.” She said that the Defendant
had been affected by things that had happened in those facilities.

       The Defendant spoke to the court, saying that he should not have committed these
crimes but that he never intended or tried to kill anyone. He said that he was overcharged
and instead acted in self-defense. He said he never would have reacted the way he did
had the security guard not hit him. He would have waited for the police to come and
charge him with the theft. The Defendant further posited that he was not a career
offender. The Defendant said that he was not a monster and that he needed help.

       The State argued that the enhancement factors applied and that the jury had been
instructed on self-defense and that it had rejected that argument. The State asked that the
Defendant be sentenced at the top of the range for a Range III offender. It asserted that
the Defendant had sixteen prior felony convictions dating back to 1987.

       The trial court made the following findings:

       I’ve considered the evidence at trial and at this sentencing hearing, which
       was: [the Defendant’s] sister. The presentence report, Exhibit[] 1. And the
       other exhibits, Exhibit 1A, Exhibit[] 2. The principal[s] of sentencing and
       arguments as to sentencing alternatives. The nature of the criminal conduct
       involved in this case.

              [The Defendant] essentially was shoplifting when he was confronted
       by the security guard who took him back to the security office and at some
       point there was a scuffle and [the Defendant] used some items to choke the
       security guard with and choke him until he was unconscious. And then he
       left him there on the floor and as he was leaving the store he managed to
       pick up an item and to shoplift on the way out the door.
                                             6
             And I mention that because it’s some callousness involved there.
       Not know[ing] what he had done to the security guard he still shoplifted.

              I have considered the evidence in both as to enhancement and
       mitigation. I do think he was the leader in the commission involving two or
       more criminal actors. I do think he has a previous history of criminal
       convictions or criminal behavior. He had no hesitation about committing a
       crime when the risk [to] human life was high.

The trial court found that no mitigating factors applied. It did, however, consider that
there was some history of the Defendant suffering from anxiety and or depression. The
trial court also considered that the Defendant had participated in classes while in jail,
including an alcohol and drug rehabilitation class, an anger management course, and a
life skills class. The trial court found, however, that this only showed some slight
potential for rehabilitation.

        The trial court found that the Defendant was a Career Offender for the aggravated
assault conviction, a Class C felony, making the applicable sentence fifteen years. The
trial court sentenced him to fifteen years as a Career Offender on this offense. For the
attempted second degree murder conviction, a Class B felony, the trial court found that
the Defendant was a Range III, Persistent Offender. The trial court found the
Defendant’s applicable range was twenty to thirty years, and he sentenced the Defendant
to twenty-four years. For the final conviction, theft of property, a misdemeanor, the trial
court sentenced the Defendant to eleven months and twenty-nine days. The trial court
ordered that all the sentences run concurrently for a total effective sentence of twenty-
four years in the Department of Correction.

                                       II. Analysis

       On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain
his convictions; (2) the prosecutor committed prosecutorial misconduct; and (3) the trial
court erred when it applied enhancement factors.

                                A. Sufficiency of Evidence

        The Defendant contends that the evidence is insufficient to sustain each of his
convictions, and we will articulate his specific arguments below. When an accused
challenges the sufficiency of the evidence, this court’s standard of review is whether,
after considering the evidence in the light most favorable to the State, “any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
                                             7
Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P. 13(e); State v.
Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276
(Tenn. 2002)). This standard applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence.
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999) (citing State v.
Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the absence of direct
evidence, a criminal offense may be established exclusively by circumstantial evidence.
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury decides the weight to be
given to circumstantial evidence, and ‘[t]he inferences to be drawn from such evidence,
and the extent to which the circumstances are consistent with guilt and inconsistent with
innocence, are questions primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662
(Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The
standard of review [for sufficiency of the evidence] ‘is the same whether the conviction is
based upon direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

       In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v.
State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of
witnesses, the weight and value to be given the evidence, as well as all factual issues
raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). “A guilty verdict by the jury, approved by the trial judge, accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the theory of
the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The Tennessee Supreme
Court stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge
       and the jury see the witnesses face to face, hear their testimony and observe
       their demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523, 527 (Tenn. 1963)). This court must afford the State of Tennessee the “‘strongest
legitimate view of the evidence’” contained in the record, as well as “‘all reasonable and
legitimate inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at
775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of
                                             8
guilt against a defendant removes the presumption of innocence and raises a presumption
of guilt, the convicted criminal defendant bears the burden of showing that the evidence
was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516,
557-58 (Tenn. 2000) (citations omitted).

                           1.   Attempted Second Degree Murder

        The Defendant contends that the evidence was insufficient to sustain his
conviction for attempted second degree murder because the evidence showed that he
reacted to Mr. Davis grabbing him. He notes that a witness said that Mr. Davis held the
Defendant by the neck as he walked him through the store back to the office. The
Defendant further notes that he did not use a weapon, such as the scissors or the hammer,
to strike Mr. Davis while he was on the ground. The State contends that the evidence is
more than sufficient to sustain the conviction. We agree with the State.

       Second degree murder is the “knowing killing of another.” T.C.A. § 39-13-
210(a)(1) (2014). “A person acts knowingly . . . when the person is aware that the
conduct is reasonably certain to cause the result.” T.C.A. § 39-11-302(b) (2016). “A
person commits criminal attempt who, acting with the kind of culpability otherwise
required for the offense . . . [a]cts with intent to cause a result that is an element of the
offense, and believes the conduct will cause the result without further conduct on the
person’s part.” T.C.A. § 39-12-101(a)(2) (2016). Attempted second degree murder,
therefore, requires the State to prove that a defendant acted with the intent to knowingly
kill another and believed that his conduct would cause the killing without further conduct
on the defendant’s part.

        In the case under submission, the Defendant entered the T.J. Maxx store and
grabbed some merchandise, leaving without paying for it. Mr. Davis approached him,
and the Defendant returned with Mr. Davis back into the store, knocking over tables and
yelling profanity and threatening to kill Mr. Davis while going through the store. The
Defendant dropped the merchandise while on the way to the office. When in Mr. Davis’s
office, Mr. Davis placed the Defendant in a seat and began to make a call to get someone
to bring him the merchandise so he could fill out the necessary paperwork.
Simultaneously, Mr. Davis reached into his pocket for his handcuffs. Upon seeing Mr.
Davis reach for the handcuffs, the Defendant stood and went toward some large heavy
objects. Mr. Davis, fearing that he would be attacked with the objects, stopped the
Defendant from gaining possession of them. The Defendant then grabbed a telephone
cord and placed it around Mr. Davis’s neck. The two men scuffled, as can be seen in the
video, and Mr. Davis began to lose strength. He opened his desk drawer and attempted to
get a hammer, but, losing strength from the ligature, could not swing the hammer. The
Defendant maintained and tightened pressure on the cord wrapped around Mr. Davis’s
                                             9
neck. His co-defendant entered the office, and she held Mr. Davis’s hands back while the
Defendant continued applying pressure on the cord around Mr. Davis’s neck. Eventually,
Mr. Davis lost consciousness. The Defendant maintained pressure on the cord for a short
period of time after Mr. Davis lost consciousness, and then he left the office. This
evidence supports the jury’s conclusion that the Defendant’s actions met the necessary
elements of attempted second degree murder.

        As to the Defendant’s contentions that his actions were in response to Mr. Davis’s
treatment of him, this is a jury question. The jury was instructed on self-defense, and
they rejected that defense. “Questions concerning the credibility of witnesses, the weight
and value to be given the evidence, as well as all factual issues raised by the evidence are
resolved by the trier of fact.” Bland, 958 S.W.2d at 659. The Defendant is not entitled to
relief on this issue.

                                  2.   Aggravated Assault

       The Defendant next contends that the evidence is insufficient to sustain his
conviction for aggravated assault because, when the witness found Mr. Davis after the
incident, the cord was only “semi-tight” around Mr. Davis’s neck. This, the Defendant
posits, proves that the Defendant was not trying to strangle Mr. Davis but rather only
protecting himself. The State counters that the proof at trial supporting this conviction
was overwhelming. We agree with the State.

       Aggravated assault occurs when a defendant intentionally, knowingly, or
recklessly causes bodily injury to another. T.C.A. § 39-13-101(a)(1) (2016). A person
commits aggravated assault who: “(A) Intentionally or knowingly commits an assault as
defined in § 39-13-101, and the assault . . . Involved strangulation or attempted
strangulation . . . .” T.C.A. § 39-13-102(a)(1)(A)(iv).

       For purposes of subdivision (a)(1)(A)(iv), “strangulation” means
       intentionally or knowingly impeding normal breathing or circulation of the
       blood by applying pressure to the throat or neck or by blocking the nose
       and mouth of another person, regardless of whether that conduct results in
       any visible injury or whether the person has any intent to kill or
       protractedly injure the victim.

T.C.A. § 39-13-102(a)(2).

       The evidence in this case, viewed in the light most favorable to the State, shows
that during a struggle with Mr. Davis the Defendant reached for the phone cord. He
wrapped the cord around Mr. Davis’s neck and applied pressure. The Defendant
                                            10
continued to apply pressure until Mr. Davis lost consciousness and for some period of
time after Mr. Davis lost consciousness. The entire incident was recorded on surveillance
footage from Mr. Davis’s office, and the video comports with the witnesses’ testimony
about the assault. The evidence supports the Defendant’s conviction, and he is not
entitled to relief on this issue.

                                                     3.    Theft

    The Defendant contends that the evidence is insufficient to sustain his conviction for
theft of property valued at less than $500 because the State did not prove his identity or
the value of the items taken. The State counters that it proved the requisite elements of
theft. We agree.

    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. T.C.A. § 39-14-103(a) (2016). “Theft of property or services is: (1) A
Class A misdemeanor if the value of the property or services obtained is five hundred
dollars $500 or less. T. C.A. § 39-14-105(a).1 When the State does not present evidence
regarding the actual value of the items stolen, the jury is free to infer that the items had
some value, which is sufficient to support a conviction for misdemeanor theft. See State
v. Charles Cox, W2010-00129-CCA-R3-CD, 2010 WL 5270622, at *3 (Tenn. Crim.
App., at Jackson, Dec. 13, 2010), no Tenn. R. App. P. 11 application filed (citing See
State v. Hill, 856 S.W.2d 155, 156 (Tenn. Crim. App. 1993)).

       In this case, the evidence viewed in the light most favorable to the State, showed
that the Defendant entered the T.J. Maxx store and began grabbing purses without
looking at the prices listed on the purses, which Mr. Davis said were a “higher ticket”
item. Mr. Davis saw the Defendant’s behavior and noted that it seemed suspicious, so he
went to the front of the store to watch the Defendant. The Defendant left the store with
the purses and went toward a car being driven by his co-defendant. Mr. Davis
apprehended the Defendant and brought him back into the store. Mr. Davis identified the
Defendant in court and said that the Defendant left the store with the purses before Mr.
Davis apprehended him. The Defendant’s actions constitute theft. Additionally, another
witness testified that, as the Defendant was later leaving the store, he again grabbed
purses before he left, taking them out the door with him. We conclude that the State
proved that the Defendant exercised control over the purses with the intent to deprive T.J.
Maxx of the property without its consent. We further conclude that the State provided
enough evidence upon which the jury could conclude that the purses had “some value.”
The Defendant is not entitled to relief on this issue.

1 T.C.A. § 39-14-105(a) was changed in 2016 to increase the value of theft of property qualifying as a Class A
misdemeanor from $500 to $1,000.
                                                          11
                                B. Prosecutorial Misconduct

    The Defendant next contends that the prosecutor committed reversible misconduct
when, during closing arguments, he quoted Mark Twain, saying “if you can’t convince
them, confuse them,” and then directing the jury’s attention to defense counsel’s
questions during cross-examination of witnesses. The Defendant notes that the quote was
misattributed to Mark Twain. He also acknowledges that he did not lodge a
contemporaneous objection but asks this court to review the issue for plain error. The
State counters that plain error review is not warranted because no clear and unequivocal
rule of law was breached and because the Defendant did not prove that the waiver was
not for tactical reasons. We agree with the State.

    The Defendant’s failure to object to the State’s argument at trial precludes our review
of this issue, subject to our noticing “plain error.” See Tenn. R. App. P. 3(e) (providing
that “no issue presented for review shall be predicated upon error in the admission or
exclusion of evidence, jury instructions granted or refused, misconduct of jurors, parties
or counsel, or other action committed or occurring during the trial of the case, or other
ground upon which a new trial is sought, unless the same was specifically stated in the
motion for new trial . . . .); Tenn. R. App. P. 36(a) (providing that relief is not required
for a party who failed to take reasonably available action to prevent or nullify an error);
State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992) (stating that failure to
object to prosecutor’s alleged misconduct in closing argument waives any later
complaint).

       This Court has, in its discretion, from time to time reviewed allegations of
prosecutorial misconduct as “plain error” even in the absence of a contemporaneous
objection. See, e.g., State v. Marshall, 870 S.W.2d 532 (Tenn. Crim. App. 1993),
overruled on other grounds by State v. Carter, 988 S.W.2d 145 (Tenn. 1999)
(determining in absence of objection that prosecutor’s jury argument was not plain error);
State v. Butler, 795 S.W.2d 680 (Tenn. Crim. App. 1990) (considering whether
statements of prosecutor were plain error despite lack of objection by defendant); Anglin
v. State, 553 S.W.2d 616 (Tenn. Crim. App. 1977) (determining that in order to justify
reversal on the basis of improper argument and remarks of counsel in absence of
objection, it must affirmatively appear that the improper conduct affected the verdict to
the prejudice of the defendant).

       Pursuant to Rule 36(b) of the Tennessee Rules of Appellate Procedure, “when
‘necessary to do substantial justice,’ this Court has the authority to ‘consider an error that
has affected the substantial rights of a party at any time, even though the error was not
raised in the motion for a new trial or assigned as error on appeal.’” State v. Hatcher,
                                             12
310 S.W.3d 788, 808 (Tenn. 2010). We refer to this discretionary consideration of
waived issues as “plain error” review. Id. (citing Grindstaff v. State, 297 S.W.3d 208,
219 n.12 (Tenn. 2009)).

       When considering whether “plain error” exists we consider the following factors:
(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, 282-83 (Tenn. 2000) (adopting the test articulated by the Court
of Criminal Appeals in State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App.
1994)). All five factors must be established by the record before an appellate court will
recognize the existence of “plain error,” and complete consideration of all the factors is
not necessary when it is clear from the record that at least one of the factors cannot be
established. Id. In addition, the “‘plain 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.

       “Courts have recognized that closing argument is a valuable privilege afforded to
the State and the defense and have afforded wide latitude to counsel in arguing their cases
to the jury.” State v. Cleveland, 959 S.W.2d 548, 551 (Tenn.1997) (citing State v.
Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994)). We have recognized five general areas of
prosecutorial misconduct: (1) intentionally misstating the evidence or misleading of the
jury on the inferences it can draw; (2) expressing personal beliefs or opinions; (3)
inflaming or attempting to inflame the passions or prejudices of the jury; (4) adding
outside issues to the guilt or innocence issue; and (5) arguing or referring to outside facts.
State v. Goltz, 111 S.W.3d 1, 5-6 (Tenn. Crim. App. 2003).

       Having reviewed the closing argument in its entirety, we conclude that plain error
review is not warranted. The comment does not constitute a breach of the wide latitude
afforded during closing arguments. The Defendant is not entitled to relief on this issue.

                                        C. Sentencing

    The Defendant contends that the trial court erred when it sentenced him, contending
that the trial court misapplied enhancement factors (2) that he was a leader in the
commission of an offense involving two more criminal actors and (10), that the defendant
had no hesitation about committing a crime when the risk to human life was high. See §
T.C.A. 40-35-114 (2), (10) (2014). The State contends that the sentence was within
range, that there is at least one applicable enhancement factor, and that the sentence
therefore is proper. We agree.
                                             13
    “[S]entences imposed by the trial court within the appropriate statutory range are to
be reviewed under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682 (Tenn. 2012). A finding of abuse of
discretion “‘reflects that the trial court’s logic and reasoning was improper when viewed
in light of the factual circumstances and relevant legal principles involved in a particular
case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6
S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of discretion, the record must be void
of any substantial evidence that would support the trial court’s decision. Id. at 554-55;
State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398
(Tenn. Crim. App. 1980). The reviewing court should uphold the sentence “so long as it
is within the appropriate range and the record demonstrates that the sentence is otherwise
in compliance with the purposes and principles listed by statute.” Bise, 380 S.W.3d at
709-10. So long as the trial court sentences within the appropriate range and properly
applies the purposes and principles of the Sentencing Act, its decision will be granted a
presumption of reasonableness. Id. at 707. The defendant bears “[t]he burden of
demonstrating that the sentence is improper.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991).

       The trial court must consider: (1) the evidence, if any, received at the trial and the
sentencing hearing; (2) the presentence report; (3) the principles of sentencing and
arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal
conduct involved; (5) evidence and information offered by the parties on the mitigating
and enhancement factors set out in Tennessee Code Annotated sections 40-35-113 and -
114; (6) any statistical information provided by the administrative office of the courts as
to sentencing practices for similar offenses in Tennessee; and (7) any statement the
defendant made on the defendant’s own behalf about sentencing. See T.C.A. § 40-35-
210 (2014); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).

       The misapplication of an enhancement or mitigating factor does not remove the
presumption of reasonableness from a trial court’s sentencing decision. Bise, at 708. A
reviewing court should not invalidate a sentence on this basis unless the trial court wholly
departed from the principles of the Sentencing Act. Id. at 707. So long as there are other
reasons consistent with the purpose and principles of sentencing, a sentence within the
appropriate range should be upheld. Id.

        We conclude that the trial court properly sentenced the Defendant. The trial court
considered the relevant principles and sentenced the Defendant to a within range
sentence. The evidence presented at trial and during the sentencing hearing supports the
trial court’s application of enhancement factor (1), that the Defendant had a previous
history of criminal convictions or behavior. We agree that the evidence does not support
                                             14
the application of enhancement factor 10, that the defendant had no hesitation about
committing a crime when the risk to human life was high, because that enhancement
factor is applicable only when there is proof that the defendant’s conduct in committing
the offense created a high risk to the life of someone other than the victim. See State v.
Trent, 533 S.W.3d 282, 294 (Tenn. 2017). The record in this case contains no proof that
any person other than the victim was put at risk by the Defendant’s offense. Accordingly
the trial court erred in this regard. While the trial court erred in the misapplication of a
single enhancement factor, the misapplication does not void the Defendant’s sentence.
See Bise at 708. As such, the Defendant is not entitled to relief on this issue.

                                     III. Conclusion

       In accordance with the foregoing reasoning and authorities, we affirm the trial
court’s judgments.

                                                 _________________________________
                                                 ROBERT W. WEDEMEYER, JUDGE




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