        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs February 3, 2015

              STATE OF TENNESSEE v. ANTONIO CRENSHAW

                    Appeal from the Criminal Court for Shelby County
                        No. 12-005228   Lee V. Coffee, Judge


                 No. W2014-01367-CCA-R3-CD - Filed May 22, 2015


The Defendant-Appellant, Antonio Crenshaw, was convicted by a Shelby County jury of
the charged offense of robbery, and the trial court sentenced him as a Range III,
persistent offender to fifteen years. On appeal, Crenshaw argues: (1) the evidence is
insufficient to sustain his conviction; (2) the trial court erred by instructing the jury on the
generic offense of theft of property rather than the offense of shoplifting, by providing an
incomplete charge for theft of property, and by giving a confusing definition for the term
“violence” in the robbery charge in response to a question from the jury; (3) he was
deprived of due process and a fair trial when the trial court corrected defense counsel
during and after his closing argument, when the trial court ruled against him on a Rule
404(b) issue, and when a witness later testified, over his objection, that employees
informed her Crenshaw had been “stealing again” after the incident in this case; and (4)
the trial court lacked jurisdiction over his case because the grand jury foreperson on the
grand jury indicting him possibly served longer than her two-year term. Upon review, we
affirm the trial court‟s judgment.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ALAN E. GLENN, JJ., joined.

Terrell L. Tooten, Memphis, Tennessee, for the Defendant-Appellant, Antonio Crenshaw.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Alanda Dwyer,
Assistant District Attorney General, for the Appellee, State of Tennessee.
                                       OPINION

       This appeal stems from the robbery of a Roses Department Store in Memphis on
February 17, 2012. Crenshaw was identified as one of the perpetrators and was later
indicted.

        Trial. Cyrine Howard testified that on February 17, 2012, she was the store
manager of a Roses Department Store in Memphis. On the morning of February 17,
2012, Monica Foster, one of the office managers, informed Howard that a man, later
identified as Antonio Crenshaw, had “got[ten] something,” which meant that Crenshaw
was attempting to steal merchandise. Although Howard did not know Crenshaw‟s name,
she recognized him as a regular customer at the store. Howard said that when she had
seen Crenshaw in the store on prior occasions, he was “walking real slow, and he‟d just
look around. So I thought he was on medication or something.” When Howard was
asked if she believed Crenshaw was “up to something” on those previous occasions,
Howard responded, “No ma‟am. I just thought he was sick or something, he was on
medication.” She added, “He had been in the store lots of times, so I didn‟t think
anything about it. I just thought he was a regular customer.”

        When Foster informed Howard that Crenshaw was attempting to take some
merchandise without paying for it, Howard looked up from the work she was doing. The
store‟s cashier, Mary Blaire, approached Crenshaw, who had a trash can full of clothing,
and told him to leave it there. When Howard saw that Crenshaw was not going to leave
the items, she ran to the entrance of the store to stop him from leaving the store with the
store‟s merchandise, which included both the trash can and the clothing. As soon as she
got there, Howard told Crenshaw to leave the merchandise, and Crenshaw informed her
that he was not going to leave it. Howard said that at that point, “[Crenshaw] pushed the
trash can up against me, and we went to tussling over the trash can.” She added, “I
thought [Crenshaw] was going to turn loose and hit me, but he didn‟t.” Howard said she
believed Crenshaw was going to hit her when he attempted to exit the store‟s second door
to the outside.

       Crenshaw refused to release the trash can and informed Howard that he was going
to keep the trash can and its contents. During the struggle over the trash can, Foster
approached them, and Howard asked her if she was going to help her. Howard said she
was unable to hold her grip on the trash can because Crenshaw was relentlessly pulling
on it. Finally, Crenshaw snatched the trash can from Howard, ran out of the store, and
threw the trash can and its contents into the back seat of a black Chrysler 300 that was
waiting nearby. Crenshaw jumped inside the passenger seat of the car, which
immediately drove away from the scene. Howard identified Crenshaw at trial as the man
who had taken the merchandise from the store on February 17, 2012. A surveillance
                                           -2-
videotape, which depicted Crenshaw during the incident on February 17, 2012, was
shown to the jury.1

       Howard later identified Crenshaw from a police photographic lineup. Several
days after Howard identified Crenshaw in this lineup, Crenshaw approached Howard at
the store, told her his name was Tony, and asked her not to press charges against him.
Because Howard was frightened that Crenshaw might hurt her, she began talking to him
about turning his life around. A few days later, Howard told the prosecutor about
Crenshaw returning to the store and about the details of their conversation.

       Near the end of Howard‟s testimony, the trial court relayed the following question
to Howard from a juror: “What made you feel as though Antonio Crenshaw was going to
hit you?” Howard replied, “He said he wasn‟t going to let [the trash can with the
merchandise] go when I asked him to leave it. And as me being a woman and him being
a male, I assumed he would try to hit me. But he didn‟t.”

       Monica Foster testified that on February 17, 2012, she was working at the Roses
Department Store in Memphis when she observed Crenshaw pulling a garbage can full of
merchandise. She told Howard that Crenshaw “ha[d] something,” and Blaire, the cashier,
told Crenshaw to stop, although he continued with the merchandise to the front of the
store. Howard approached Crenshaw, and Foster followed behind. Foster said Howard
told Crenshaw to drop the garbage can, and he refused. At that point, Crenshaw and
Howard began fighting over the garbage can. Foster said that she was unable to grab
onto the garbage can because of the way they were fighting over it.

       When asked if she thought Crenshaw was going to hurt Howard, Foster replied,
“The way I was looking—I was like—I didn‟t know what [Crenshaw] was going to do,
but he was determined to get the garbage can.” When asked if she was afraid or was
watching what was happening, she said, “Well, I [was] watching. I was hoping he wasn‟t
going to do anything to her, you know.” Foster said that during the altercation, nearly six
hundred dollars of clothing fell out of the garbage can. Despite this, Foster said the
garbage can was still nearly full of merchandise when Crenshaw exited the store with it.
After Crenshaw fled with the merchandise, Foster notified the police that Crenshaw had
dropped his hat and a business card during the incident.

       Nancy Trentham, an officer with the Memphis Police Department, testified that
she collected a black hat and a business card with Officer Croom‟s name on it from the
Roses Department Store when she investigated this case on February 17, 2012. She later

          1
              No trial exhibits, including the store‟s surveillance videotape, were included in the record on
appeal.
                                                      -3-
contacted Officer Croom to notify him that his business card was found at the crime
scene.

         Joshua Croom, an officer with Organized Crime Unit of the Memphis Police
Department, testified that he first met Crenshaw during a traffic stop just prior to
midnight on February 16, 2012. During this stop, Crenshaw told Officer Croom that he
needed a job to make some money, and Officer Croom made him an offer to work as a
confidential informant for his unit and gave him his business card. Officer Croom
identified the card collected by Officer Trentham as one of his business cards. When he
gave Crenshaw his business card, he wrote down Crenshaw‟s name and date of birth. A
few hours later, he received a call from Officer Trentham that his business card had been
found at the scene of a robbery. Officer Croom later reviewed a surveillance videotape
from the Roses Department Store and identified Crenshaw as the man in the videotape
and as the man to whom he gave his card during the traffic stop. He noted that Crenshaw
was wearing the same clothes in the videotape as he had been wearing during the traffic
stop.

        Dexter Moses, a lieutenant with the Memphis Police Department, testified that in
February 2012 he worked in the Robbery Bureau. When he learned that Officer Croom‟s
business card had been found at the scene of a robbery at the Roses Department Store on
February 17, 2012, he contacted Officer Croom to see if he had recently talked to
someone about being a confidential informant. He then asked Officer Croom to look at
the surveillance videotape from the robbery. Based on Officer Croom‟s information,
Lieutenant Moses compiled a photographic lineup, which he presented to Howard. He
stated that Howard immediately identified Antonio Crenshaw in the lineup and that he
later issued an arrest warrant for Crenshaw.

                                      ANALYSIS

       I. Sufficiency of the Evidence. Crenshaw argues that the evidence is insufficient
to support his robbery conviction. Specifically, he claims that the theft was complete
prior to the use of any violence or fear and that it was only after Howard attempted to
retrieve the merchandise that a physical altercation with her occurred. Because the record
shows that Crenshaw used violence and placed Howard in fear in order to take the
property in this case, we conclude the proof is sufficient to sustain the conviction for
robbery.

      When a defendant challenges the sufficiency of the evidence, the standard of
review applied by this court is “whether, after reviewing 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,
                                           -4-
319 (1979). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states,
“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if
the evidence is insufficient to support the finding by the trier of fact of guilt beyond a
reasonable doubt.” When considering the sufficiency of the evidence on appeal, the State
is entitled to the strongest legitimate view of the evidence and all reasonable inferences
which may be drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn.
2011) (citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). “Because a verdict of
guilt removes the presumption of innocence and raises a presumption of guilt, the
criminal defendant bears the burden on appeal of showing that the evidence was legally
insufficient to sustain a guilty verdict.” State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009).

       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). 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
Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the credibility of
the witnesses, determine the weight given to witnesses‟ testimony, and reconcile all
conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing
Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the jury
determines the weight to be given to circumstantial evidence and the inferences to be
drawn from this evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence are questions primarily for the jury. Dorantes, 331
S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). This court,
when considering the sufficiency of the evidence, shall not reweigh the evidence or
substitute its inferences for those drawn by the trier of fact. Id.

       Robbery is “the intentional or knowing theft of property from the person of
another by violence or putting the person in fear.” T.C.A. ' 39-13-401(a) (Supp. 2011).
“A person commits theft of property if, with intent to deprive the owner of property, the
person knowingly obtains or exercises control over the property without the owner‟s
effective consent.” Id. ' 39-14-103(a) (Supp. 2011). “Owner” is “a person, other than
the defendant, who has possession of or any interest . . . in property . . . and without
whose consent the defendant has no authority to exert control over the property.” T.C.A.
' 39-11-106(a)(26) (Supp. 2011). “Possession may be actual or constructive.” State v.
Robinson, 400 S.W.3d 529, 534 (Tenn. 2013) (citing State v. Shaw, 37 S.W.3d 900, 903
(Tenn. 2001)). Actual possession “refers to physical control over an item.” State v.
Fayne, 451 S.W.3d 362, 370 (Tenn. 2014). On the other hand, constructive possession is
established when a person has “„the power and intention at a given time to exercise
                                             -5-
dominion and control over [an object] either directly or through others.‟” Shaw, 37
S.W.3d at 903 (quoting State v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim. App.
1997)).

        “The use of violence or fear elevates theft to robbery.” State v. Swift, 308 S.W.3d
827, 830 (Tenn. 2010) (citing State v. Bowles, 52 S.W.3d 69, 80 (Tenn. 2001)). “„If an
individual uses violence or puts another in fear to obtain or exercise control over
another‟s property, he or she has committed a robbery.” Id. (quoting State v. Owens, 20
S.W.3d 634, 638 (Tenn. 2000)). Accordingly, “„whether a taking is properly
characterized as a theft or a robbery is contingent upon whether and when violence or
fear is imposed.‟” Id. (quoting Owens, 20 S.W.3d at 638). The use of violence or fear
must precede or be contemporaneous with the taking of property. Id. (citing Owens, 20
S.W.3d at 641).

       Crenshaw relies on State v. Swift, 308 S.W.3d 827 (Tenn. 2010), to argue that the
theft was complete, prior to any violence or fear, when he made his intent clear to steal
the merchandise. Specifically, he asserts that the theft was complete when he placed the
merchandise into the trash can or, at the very least, when the following things occurred:
when he passed Foster, who told Howard that he had “got[ten] something,” when Blaire
told him to put the merchandise down, or when Howard told him to leave the items.
Crenshaw argues that it was only after all these things occurred that Howard tried to
retrieve the items he had taken and the physical altercation occurred.

       In Swift, the Tennessee Supreme Court considered “whether the location of the
use of violence or fear is relevant in distinguishing theft from robbery.” 308 S.W.3d at
828. There, an employee saw the defendant, “who was holding merchandise, put his
hands behind televisions located on a display shelf.” Id. at 829. When the defendant saw
the employee watching him, he “quickly removed his hands, put them into his pants, and
walked away.” Id. The employee assisted another customer for around two minutes as
he continued to watch the defendant. Id. The employee then walked to the shelf where
the defendant had been standing and found two empty videogame cases on the shelf. Id.
He immediately informed the loss prevention specialist at the front of the store that the
defendant had “just stole[n] two games.” Id. The loss prevention specialist found the
defendant on the store‟s surveillance cameras, and approximately two minutes later, the
defendant walked toward the store‟s front door. Id. When the loss prevention specialist
asked to speak to the defendant, the defendant did not respond. Id. As the loss
prevention specialist attempted to restrain the defendant, the defendant swung at him, and
the loss prevention specialist and the employee reached for the defendant. Id. When the
defendant took a second swing at the loss prevention specialist, both employees saw that
the defendant had a knife in his hand. Id. Fearing for their safety, they backed away, and
the defendant left the store. Id. The employees followed the defendant to the parking lot
                                           -6-
and saw him get in a car and drive away. Id. The video games were never found. Id. At
trial, the defendant was convicted of aggravated robbery. Id.

        On appeal, the State argued that Swift‟s case was distinguishable from State v.
Owens, 20 S.W.3d 634 (Tenn. 2000), because the defendant‟s “use of violence and fear
occurred inside rather than outside the store.” Id. at 831. The Tennessee Supreme Court
disagreed, holding that the location of the use of violence or fear was inconsequential and
that “[t]he temporal proximity between the taking of property and the use of violence or
fear [was] the sole relevant factor.” Id. The court held that it was necessary to determine
when the taking was complete in order to assess the temporal proximity between the
taking and the use of violence or fear. Id. Although the State argued that the taking was
not complete until the defendant tried to exit the store without paying for the
merchandise, the court held that the taking was complete when the defendant “removed
the games from their cases and concealed them in his pants, evincing his intent to deprive
[the store] of the property.” Id. In considering the temporal proximity between the
defendant‟s taking of the games and the use of violence or fear, the court concluded:

             Mr. Swift‟s use of violence and fear did not precede or occur
      contemporaneously with the removal and concealment of the games. Mr.
      Swift walked toward the exit and swung a knife at the Best Buy employees
      several minutes after the taking was complete. We therefore hold that the
      evidence is insufficient to support Mr. Swift‟s conviction for aggravated
      robbery.

Id. Because the evidence was sufficient to sustain a conviction for aggravated assault, a
lesser-included offense of aggravated robbery, the Tennessee Supreme Court vacated the
defendant‟s conviction for aggravated robbery and modified it to aggravated assault. Id.
at 831-32.

       We conclude that Swift is distinguishable from the instant case and that
Crenshaw‟s case more closely resembles State v. Johnson, 366 S.W.3d 150, 157 (Tenn.
Crim. App. 2011), State v. Jonathan Greer, No. W2009-02414-CCA-R3-CD, 2010 WL
4621730 (Tenn. Crim. App. Nov. 12, 2010), and State v. Mario Merritt, No. W2003-
02868-CCA-R3-CD, 2004 WL 2726030 (Tenn. Crim. App. Nov. 30, 2004). In the
instant case, Crenshaw had yet to “evinc[e] his intent to deprive [the Roses Department
Store] of the property” until he had the physical altercation with Howard. See Swift, 308
S.W.3d at 831; T.C.A § 39-14-103. During this altercation, Crenshaw pushed the trash
can against Howard, and they began wrestling over the trash can full of clothing.
Howard testified that while the confrontation was taking place, she believed that
Crenshaw was going to hit her. Crenshaw was only able to complete the “taking” of the
property during this confrontation when he snatched the trash can full of clothing out of
                                           -7-
Howard‟s hands and exited the store. Unlike the defendant in Swift, Crenshaw never
concealed the property on his person prior to using violence or fear. Both Howard and
Foster testified that the merchandise, which included the trash can and the clothing, was
in full view as Crenshaw approached the store‟s front door. In fact, when Howard and
Crenshaw were struggling over the full trash can, approximately half of the clothing
spilled onto the floor of the store before Crenshaw escaped with the trash can containing
the remaining clothing.

       Crenshaw asserts that Howard‟s belief he was going to hit her “was based solely
on the fact that she was a female and [he] was a male” and that “there is nothing in the
record that shows . . . [he] was even aware” of Howard‟s fear. Instead, he claims the
testimony from Howard and Foster established that he was more concerned about
keeping the merchandise than using violence or fear to take the merchandise. In this
case, the jury found that Crenshaw used violence or fear to obtain the property. As we
previously noted, the jury determines the inferences to be drawn from the evidence, and
this court shall not substitute its inferences for those drawn by the jury. Dorantes, 331
S.W.3d at 379. Viewed in the light most favorable to the State, a rational jury could have
found that Crenshaw used both violence and fear to accomplish the theft, therefore
elevating the theft to robbery. Because the use of violence and fear occurred
contemporaneously with the taking of the property in this case, the evidence is sufficient
to sustain Crenshaw‟s conviction for robbery.

       II. Jury Instruction. Crenshaw argues that because the theft in this case involved
theft of property from a merchant, the trial court should have instructed the jury on the
offense of Theft of Property—Conduct Involving Merchandise (also known as
Shoplifting) in Tennessee Code Annotated section 39-14-146 rather than the generic
Theft of Property offense in Tennessee Code Annotated section 39-14-103. He also
claims that even if the trial court instructed the jury as to the correct theft offense, the trial
court erred in omitting the words “or exercised control” when it charged the jury on Theft
of Property in Code section 39-14-103 in its final jury instructions. Finally, Crenshaw
claims the trial court‟s definition of “violence” in response to a question from a juror was
incorrect or misleading. We conclude that Crenshaw is not entitled to relief.

        A. Instruction on Shoplifting Offense. Crenshaw contends that the trial court
should have instructed the jury on the offense of shoplifting in Code section 39-14-146
rather than the generic theft of property offense in Code section 39-14-103. He argues
that instructing the jury on shoplifting “would have removed the confusion that existed as
it related to „owner‟ [and would have] made it clear when the [t]heft was completed[.]”

       As we previously noted, “A person commits theft of property if, with intent to
deprive the owner of property, the person knowingly obtains or exercises control over the
                                              -8-
property without the owner‟s effective consent.” T.C.A. ' 39-14-103(a). On the other
hand, the offense of shoplifting is defined as follows:

       (a) For purposes of § 39-14-103, a person commits theft of property if the
       person, with the intent to deprive a merchant of the stated price of
       merchandise, knowingly commits any of the following acts:
       (1) Conceals the merchandise;
       (2) Removes, takes possession of, or causes the removal of merchandise;
       (3) Alters, transfers or removes any price marking, or any other marking
       which aids in determining value affixed to the merchandise;
       (4) Transfers the merchandise from one (1) container to another; or
       (5) Causes the cash register or other sales recording device to reflect less
       than the merchant‟s stated price for the merchandise.
       (b) In a theft prosecution under this section, unless applicable, the state is
       not required to prove that the defendant obtained or exercised control over
       the merchandise as required in a prosecution under § 39-14-103.

Id. § 39-14-146 (Supp. 2011).

        The right to trial by jury is guaranteed by the United States and Tennessee
Constitutions. U.S. Const. amend. VI; Tenn. Const. art. I, ' 6. It follows that a defendant
has a right to a correct and complete charge of the law, so that each issue of fact raised by
the evidence will be submitted to the jury on proper instructions. Dorantes, 331 S.W.3d
at 390 (citing State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005); State v. Farner, 66
S.W.3d 188, 204 (Tenn. 2001); State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000)).
This constitutional right to a trial by jury is violated when the jury is not allowed to
consider all offenses supported by the proof. State v. Ely, 48 S.W.3d 710, 727 (Tenn.
2001). If the jury is prevented from considering the pertinent lesser-included offenses,
there is a risk that the jury will be forced “into an „all or nothing‟ decision that,
unfortunately, is likely to be resolved against the defendant, who is clearly guilty of
„something.‟” State v. Burns, 6 S.W.3d 453, 466 (Tenn. 1999). However, “„[t]his does
not mean . . . that an instruction must be given simply because an offense is a lesser-
included offense of another.‟” Bryant v. State, No. M2012-01560-SC-R11-PC, —
S.W.3d —, 2015 WL 1137755, at *6 (Tenn. Mar. 13, 2015) (citing State v. Dellinger, 79
S.W.3d 458, 496 (Tenn. 2002)). When, as in this case, a party does not make a written
request for an instruction on a lesser-included offense, the trial court may charge the
lesser-included offense, although the party is not entitled to such an instruction. Bryant,
— S.W.3d —, 2015 WL 1137755, at *6 (citing Fayne, 451 S.W.3d at 371).

        We note that theft is a lesser-included offense of robbery. Bowles, 52 S.W.3d at
79 (citing State v. Fitz, 19 S.W.3d 213, 216 (Tenn. 2000)). Pursuant to Tennessee Code
                                            -9-
Annotated section 40-18-110(a)-(c) (Supp. 2013), a defendant may not present an issue
on appeal regarding the failure to instruct on a lesser-included offense unless he or she
requested the instruction in writing prior to trial. Because the record shows that
Crenshaw did not make such a request, the issue is waived. Fayne, 451 S.W.3d at 371;
State v. Page, 184 S.W.3d 223, 230 (Tenn. 2006); State v. Henry Wayne Russell, No.
M2013-00166-CCA-R3-CD, 2014 WL 1704953, at *24 (Tenn. Crim. App. Apr. 29,
2014). Crenshaw has failed to show that a substantial right of the accused was adversely
affected or that consideration of the error is necessary to do substantial justice. He is not
entitled to plain error relief on this issue.

        B. Incomplete Instruction on Theft of Property. Crenshaw also asserts that the
trial court‟s theft of property charge pursuant to Code section 39-14-103 was incomplete.
In the final jury instructions, the trial court gave the following charge for theft of
property, in pertinent part:

       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 knowingly obtained property
       owned by Cyrine Howard; and (2) that the defendant did not have the
       owner‟s effective consent; and (3) that the defendant intended to deprive
       the owner of the property.

       Crenshaw notes that Code section 39-14-103 defines theft of property as the
following: “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 (emphasis added). He claims, and the
record shows, that the words “or exercised control” were omitted from the final jury
instructions for the lesser-included offense of theft of property. Crenshaw acknowledges
that the omitted language was included in the court‟s charge for robbery in the
instructions; however, he argues that the jury was not properly instructed as to the offense
of theft of property because the robbery charge did not use a heading or any other words
indicating that it had incorporated the charge for theft of property. He claims that
because the jury, from voir dire to deliberations, had difficulty distinguishing between
theft and robbery and had trouble understanding how violence elevates a theft to a
robbery, the trial court‟s failure to give a complete definition of theft more probably than
not affected the judgment. Although Crenshaw cites State v. Gorman, 628 S.W.2d 739
(Tenn. 1982), for the proposition that it is error for the trial court to violate the
requirements of Tennessee Rule of Criminal Procedure 30(c) in failing to submit “every
word” of the charge to the jury in written form, we conclude that Gorman is inapplicable

                                           - 10 -
because the record shows that the trial court read from the written instructions when it
gave the final instructions to the jury.

       When reviewing challenged jury instructions, we must look at “the charge as a
whole in determining whether prejudicial error has been committed.” In re Estate of
Elam, 738 S.W.2d 169, 174 (Tenn. 1987) (citation omitted); see State v. Phipps, 883
S.W.2d 138, 142 (Tenn. Crim. App. 1994); Tenn. R. App. P. 36(b) (“A final judgment
from which relief is available and otherwise appropriate shall not be set aside unless,
considering the whole record, error involving a substantial right more probably than not
affected the judgment or would result in prejudice to the judicial process.”). “„An
instruction should be considered prejudicially erroneous only if the jury charge, when
read as a whole, fails to fairly submit the legal issues or misleads the jury as to the
applicable law.‟” Majors, 318 S.W.3d at 864-65 (quoting Faulkner, 154 S.W.3d at 58);
see 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, 544 (Tenn.
1977)). Omissions of an essential element of an offense are subject to harmless error
analysis. Garrison, 40 S.W.3d at 434 (Tenn. 2000).

        The record shows that although the trial court omitted the above language when it
instructed the jury on the theft of property offense, it included the omitted language when
it instructed the jury on the offense of robbery in the final jury instructions. The trial
court‟s instruction on robbery substantially complied with Tennessee Pattern Jury
Instruction 9.01, which includes the definition for theft of property. See 7 Tenn. Prac.
Pattern Jury Instr. T.P.I.CCrim. 9.01. Moreover, the evidence established that Crenshaw
“obtain[ed]” the property rather than “exercise[d] control of” it when he snatched the
trash can full of clothing out of Howard‟s hands and exited the store. For these reasons,
we conclude that the jury charge as a whole fairly submitted the legal issues and
contained a proper statement of the applicable law. See Majors, 318 S.W.3d at 864-65.
We further conclude that the court‟s omission of the words “or exercises control” from
the instruction on theft of property had no impact on the jury‟s verdict and was harmless
beyond a reasonable doubt. See Garrison, 40 S.W.3d at 435.

       C. Court’s Definition of “Violence.” Finally, Crenshaw argues that the trial
court‟s definition of “violence” in response to a jury question was incorrect, or, at the
very least, confusing. After deliberations had begun, the jury submitted the following
question: “Does the „so as to‟ mean intentional in the definition of violence?” The court
gave the following response:

      Again, “violence” . . . means evidence of physical force unlawfully
      exercised so as to damage, injure, or abuse, and physical contact is not
      required to prove violence. The “so as to” would indicate—and, again,
                                          - 11 -
       there does not have to be physical contact in order for you to find that
       violence was used towards the victim in the taking of this property.

               “So as to” is one of those legal terms that I wish we would define
       better, but it is indicating that, if you find that property was taken
       unlawfully and violence was used in the taking of this property, the
       violence is so as to damage, injure or abuse [and] does not require any
       actual damage, injury or abuse, but “so as to” is that language that means
       that it could have, violence that was used, that it could have caused damage,
       injury or abuse, because, again, physical contact is not required in order to
       prove violence.

       Once the jury had retired to continue to deliberate, defense counsel objected to the
court‟s response to the jury‟s question, stating:

       I didn‟t want to have that be perceived as any type of disrespect while they
       were in here, but I don‟t believe that “so as to” means “it could have.” I
       believe it did mean more of an intention, and I would object to the
       definition of telling the jurors that “so as to” meant “could have.”

The trial court noted the objection, stating, “[T]he State . . . does not have to prove that
the victim in this case was actually damaged, injured or abused in order for them to find
violence, because, again, physical contact is not required to prove violence.” Defense
counsel added, “[M]y understanding of the law is that „so as to‟ means the conduct was
intentional, even if there is no actual damage.” The trial court replied that it believed it
told the jury that information, and if it did not, the record would reflect what it told them.

        The trial court has the authority to respond to questions from the jury with a
supplemental instruction. State v. Bowers, 77 S.W.3d 776, 790 (Tenn. Crim. App. 2001)
(citing Forbes, 918 S.W.2d at 451). The “appropriate course of action” for the trial court
in responding to a question from the jury is “to bring the jurors back into open court [and]
read the supplemental instruction . . . along with a supplemental instruction emphasizing
that the jury should not place undue emphasis on the supplemental instructions . . . .” Id.
at 791. The failure to follow the proper procedure is subject to harmless error analysis
and reversal is not required if the defendant has not been prejudiced. State v. Tune, 872
S.W.2d 922, 929 (Tenn. Crim. App. 1993). When a trial court repeats instructions or
gives supplemental instructions, the instructions must be:

       (1) appropriately indicated by questions or statements from jurors, or from
       the circumstances surrounding the deliberative and decisional process, (2)
       comprehensively fair to all parties, and (3) not unduly emphatic upon
                                            - 12 -
       certain portions of the law to the exclusion of other parts equally applicable
       to the area of jury misunderstanding or confusion.

Berry v. Conover, 673 S.W.2d 541, 545 (Tenn. Ct. App. 1984).

        We conclude that the court‟s response merely restated a portion of the final jury
instructions and attempted to provide a definition for the phrase “so as to” in the
definition for violence. See 7 Tenn. Prac. Pattern Jury Instr. T.P.I.CCrim. 9.01. The
response was limited to the juror‟s question, did not show any partiality or bias toward
either party, and did not emphasize certain parts of the law to the exclusion of other parts
of the law also applicable to the question. See Berry, 673 S.W.2d at 545. While the trial
court‟s supplemental instruction should have admonished the jury not to place undue
emphasis upon the supplemental instruction, the final jury instructions informed the jury
that “[t]he order in which these instructions are given is no indication of their relative
importance” and that it “should not single out any one or more of them to the exclusion
of another or others but should consider each instruction in light of and in harmony with
all the others.” See Forbes, 918 S.W.2d at 452 (citing State v. Chance, 778 S.W.2d 457,
462 (Tenn. Crim. App. 1989)); see Burton v. State, 394 S.W.2d 873, 876-77 (Tenn.
1965). Although Crenshaw suggests that the trial court‟s response allowed the jury to
find violence based on his unintentional acts, there was overwhelming proof presented at
trial that Crenshaw used violence or fear to take the property in this case. Because
Crenshaw was not prejudiced by the trial court‟s response, he is not entitled to relief.
Tune, 872 S.W.2d at 929.

       III. Due Process and Right to a Fair Trial Violation. Crenshaw argues he was
deprived of due process and a fair trial when the trial court corrected defense counsel as
to the definition of “owner” during and after his closing argument, when the trial court
ruled against him on a Rule 404(b) issue, and when Howard later testified, over his
objection, that employees informed her Crenshaw had been “stealing again” after the
incident in this case. We conclude that Crenshaw is not entitled to relief.

       The Due Process Clause of the Fourteenth Amendment to the United States
Constitution and the “Law of the Land” Clause of Article I, section 8 of the Tennessee
Constitution afford all criminal defendants the right to a fair trial. A fair trial is a basic
tenet of due process. Leighton v. Henderson, 414 S.W.2d 419, 421-22 (Tenn. 1967); In
re Cameron, 151 S.W. 64, 76 (Tenn. 1912).

        A. Closing Argument. First, Crenshaw argues that his rights to due process and
a fair trial were violated when the trial court corrected defense counsel regarding the
definition of “owner” during and after his closing argument, which had the effect of
suggesting to the jury that the State was not required to prove every element of the
                                            - 13 -
offense beyond a reasonable doubt. He asserts that the trial court‟s actions violated
Tennessee Rule of Criminal Procedure 30(d)(2), gave the jury the impression that the
court was biased in favor of the State, and sent the jury a message that it should not trust
defense counsel. We conclude that Crenshaw is not entitled to relief because the trial
court‟s instruction was proper, did not remove the State‟s burden of proving every
element of the charged offense of robbery beyond a reasonable doubt, and did not show
any bias in favor of the State.

       During closing argument, defense counsel made the following argument regarding
the definition of “owner” in the court‟s robbery charge:

       [T]his was a crime against Roses Department Store, it is an alleged crime,
       and the first thing we look at in the definition of “robbery” is that they have
       to exercise control over the property owned by Ms. Howard. I will allow
       you to look through these jury instructions and allow you to use your notes
       and recall anything on the stand to get to the basic elements.

             . . . I‟m here to see did they reach the level of law beyond all
       reasonable doubt and then apply it to this case. Look at the definition of
       “owner.”

Immediately, the State asked to approach, and during the ensuing bench conference, the
State asked that the trial court read the definition of “owner” to the jury because defense
counsel was suggesting that “owner” was “something other than what is in the
instruction” on robbery.

       At the conclusion of the bench conference, the trial court gave the following
curative instruction to the jury in open court:

               Ladies and gentlemen of the jury, again, I don‟t comment on the
       facts, don‟t comment on credibility. “Owner,” when you look at the
       definition of “owner” on page 4 of the jury instructions, it will tell you that
       “owner” means a person other than the Defendant who has possession of or
       any interest in property.

             The State of Tennessee does not have to prove that Ms. Howard
       owned this property, that she worked at Roses; they have to prove that she
       had possession of the property. They do not have to prove that she‟s a legal
       owner of the property. “Owner” is any person other than the Defendant
       who has possession of that property.

                                           - 14 -
When defense counsel continued his closing argument, he stated the following, in
pertinent part:

             Thank you. When you use your jury instructions and we look it
      over, as I was still saying, we look at the definition of “owner”—and thank
      you for clarifying the definition of “owner”—as I suggested you do was
      look at the facts and see if Ms. Howard, based on what she said and based
      on the evidence, was even the owner or this property. Did she have
      possession of it? Was she the owner?

              What did we hear from her? Did she have it? If she had it, why did
      it leave the store? Did she have it? Prior, the first person who [saw] this
      incident, they say it was someone who was over the counter, and then they
      got her attention, and she tried to run to catch him and he was going out the
      exit. Did she have possession ever?

             Possession. What does “possession” mean? If she had possession,
      where is the stuff now? So when we look at the definition of “owner” and
      use our standard of beyond all reasonable doubt, what does that mean?
      What that means is that, if there‟s a reasonable doubt that she ever had
      possession of this property, then she can‟t be an owner under the law, and
      the verdict would have to be not guilty.

               And it doesn‟t matter how many times she asked us to repeat the
      definition, it doesn‟t matter how many different people said what the
      definition is, it doesn‟t matter how many people tell you what the definition
      is, it doesn‟t change what the definition is.

             I‟m not here twisting words or making things up. . . . So if we look
      at the definition and we use the standard of beyond all reasonable doubt,
      did we ever hear her say, “At this point, I actually had possession”? Did
      she say it? I didn‟t hear her say it.

After defense counsel finished his closing argument but prior to the State presenting its
final closing statement, the court, sua sponte, provided the following instruction to the
jury:

            Thank you, [defense counsel]. Ladies and gentlemen of the jury, it
      is my obligation to fully charge you as to what the law is. Now, [defense
      counsel] may have told you some things as to what he thinks the law is, and

                                          - 15 -
       that is not what the law is. The law is what I give to you in the jury
       instructions.

              One, I told you that an “owner” is a person other than the defendant
       who has possession of or any interest in property. [Defense counsel] also
       told you that the State of Tennessee had to prove that Ms. Howard . . . [had
       to] actually possess the property in order for you to find the person guilty of
       that offense. That is not the law. The law is, such possession may be
       actual or constructive, sole or joint. And that‟s what I told you on page 4 of
       the jury instructions.

              And “actual possession” is something that somebody has in his or
       her actual hands. Now, that‟s what [defense counsel] has told you, in order
       to be an owner, that Ms. Howard had to have this property in her actual
       possession. That is not the law. The law is that possession may be actual
       or constructive. It is “actual” when it is in the possession or the hands of a
       person. It is “constructive” when it‟s in the curtilage, in the general
       immediate area of the person, and the person has the right to exercise
       control over it. That‟s included in your definition of “exercise control over
       property.”

               And the law would also tell you that possession may be sole or joint.
       “Sole possession,” one person [who] has entire possession over that thing,
       that is “sole possession.” If you have two or three or more other folks that
       ha[ve] the ability to exercise control over that item, it is “joint possession.”

               So the State of Tennessee does not have to prove that Ms. Howard
       actually had this property in her hands in order for you to find that she was,
       in fact, an owner.

       Initially, we agree with the State that Crenshaw has waived this issue by failing to
make a contemporaneous objection when the court corrected defense counsel during and
after his closing argument. 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.”). We also agree that this issue does not rise to the level of plain error. See
Tenn. R. App. P. 36(b) (“When necessary to do substantial justice, an appellate court may
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.”); Adkisson, 899 S.W.2d at 641-42 (establishing the five factors that should be
considered by this court when determining whether an error is “plain error.”).
                                            - 16 -
        The Tennessee Supreme Court has recognized that “closing argument is a valuable
privilege that should not be unduly restricted.” State v. Bane, 57 S.W.3d 411, 425 (Tenn.
2001). Although the courts of this state traditionally have given counsel wide latitude in
presenting their position, a trial court‟s action in controlling the argument of counsel will
not be reversed unless the court abused its discretion. State v. Sutton, 562 S.W.2d 820,
823 (Tenn. 1978) (citing Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975)). Broad
discretion is extended to the trial judge in controlling the course and conduct of the trial,
but “the trial judge must refrain from expressing „any thought that might lead the jury to
infer that the judge is in favor of or against the defendant in a criminal trial.‟” State v.
Dotson, 450 S.W.3d 1, 90 (Tenn. 2014) (quoting State v. Cazes, 875 S.W.2d 253, 260
(Tenn. 1994)) (citing State v. Harris, 839 S.W.2d 54, 66 (Tenn. 1992)). However, any
comments made by the trial court during trial must be construed in the context of “all the
facts and circumstances to determine whether a reasonable person would construe those
remarks as indicating partiality on the merits of the case.” State v. Boggs, 932 S.W.2d
467, 472 (Tenn. Crim. App. 1996) (citing Alley v. State, 882 S.W.2d 810, 822 (Tenn.
Crim. App. 1994)).

        We conclude that the trial court was exercising its discretion to control closing
argument and to instruct the jury on the correct law applicable to the case. See State v.
Gary Jones, No. M2005-00674-CCA-R3-CD, 2006 WL 1868443, at *6 (Tenn. Crim.
App. July 6, 2006) (holding that the court‟s statement that the jury is charged to follow
the law in response to defense counsel‟s suggestion that the drafting of the jury charge
had some purpose other than instructing the jury as to the law was proper because the
court was exercising its duty to control closing argument). In the first comment that
occurred during the defense‟s closing argument, the court simply reiterated the definition
of “owner” in the robbery charge. See Dorantes, 331 S.W.3d at 390 (quoting State v.
Teel, 793 S.W.2d 236, 249 (Tenn. 1990) (“It is the duty of the trial judge without request
to give the jury proper instructions as to the law governing the issues raised by the nature
of the proceedings and the evidence introduced during trial . . . .”)). In the second
comment that occurred just after defense counsel‟s closing argument, the court reiterated
the definitions of “owner” and “possession,” including actual and constructive
possession, as they were stated in the court‟s charge for robbery. The record shows that
the trial court made both comments because it was concerned that defense counsel was
confusing the jury as to the proper law to be applied in this case.

        Contrary to Crenshaw‟s claim, the trial court never made any statement that
removed the State‟s burden to prove all the elements of the offense beyond a reasonable
doubt. Instead, the trial court repeatedly instructed the jury that the State had the burden
of proving every element of the offense beyond a reasonable doubt. As to his claim that
the trial court‟s comments violated Tennessee Rule of Criminal Procedure 30(d)(2), we
note that Rule 30(d)(2) merely allows the court the option of giving the final jury
                                           - 17 -
instructions to the jury before or after closing argument and does not preclude a court
from giving a supplemental jury instruction during a closing argument. Although
Crenshaw claims the trial court‟s comments gave the jury the impression that the court
was biased in favor of the State and sent the jury a message that it should not trust
defense counsel, the record shows that the trial court provided these supplemental
instructions to clarify the law as to the definition of “owner” and “possession” in the
robbery charge and not to bias the jury in favor of the State. Compare State v. David L.
Croom, No. 3, 1988 WL 63503, at *3 (Tenn. Crim. App., at Jackson, June 22, 1988)
(“Although counsel may summarize the law during closing arguments, the possibility of
misstatement of the law makes this an undesirable practice.”); 7 Tenn. Prac. Pattern Jury
Instr. T.P.I.CCrim. 9.01. The supplemental instructions at issue were prompted by the
State‟s objection and the content of defense counsel‟s closing argument, were fair to all
parties because they were a correct statement of the law, and did not emphasize certain
portions of the law to the exclusion of other portions of the law applicable to the issue,
especially in light of the charge as a whole. See Berry, 673 S.W.2d at 545; see also
Forbes, 918 S.W.2d at 452; Burton, 394 S.W.2d at 876-77. Because Crenshaw has failed
to show that a substantial right of the accused was adversely affected or that
consideration of the error is necessary to do substantial justice, he is not entitled to plain
error relief on this issue.

       B. Crenshaw “Stealing Again.” Crenshaw argues that the trial court erred in
ruling, over his objection, that Howard was allowed to testify that she recognized
Crenshaw during the incident in this case because she had suspected Crenshaw of
stealing from the store on prior occasions. He also argues that Howard‟s later testimony,
that her employees told her that Crenshaw was “stealing again” after the incident in this
case, prejudiced his case despite the curative instruction from the court. Crenshaw claims
these errors violated his right to due process and his right to a fair trial.

       Prior to trial, the State filed a Rule 404(b) notice. At a jury-out hearing just prior
to the start of trial, the State argued Howard should be allowed to testify that she
recognized Crenshaw because she had suspected him of stealing from the store in the past
and because he had appeared to be under the influence of a substance on prior occasions.
The State argued that these prior bad acts were admissible because they helped establish
Crenshaw‟s identity at trial. See State v. Berry, 141 S.W.3d 549, 582 (Tenn. 2004)
(holding that evidence of other crimes, wrongs, or bad acts may be admissible for other
purposes, such as motive, intent, guilty knowledge, identity of the defendant, absence of
mistake or accident, a common scheme or plan, completion of the story, opportunity, and
preparation). Defense counsel replied that any mention of Howard‟s suspicions that
Crenshaw had stolen from the store before or that he had been under the influence of
substances while in the store in the past would be prejudicial, and he asked that Howard‟s

                                            - 18 -
testimony be limited to the fact that she had simply seen Crenshaw in the store on prior
occasions.

       The trial court held that evidence that Howard was paying close attention to
Crenshaw because she suspected him of stealing in the past was admissible because it
was relevant to show identity, intent, and motive and because it “provide[d] contextual
background information as to why she paid particular attention to Mr. Crenshaw when he
moved about her store.” But cf. State v. Gilliland, 22 S.W.3d 266, 272 (Tenn. 2000)
(outlining a test for the admissibility of evidence of other crimes, wrongs, or acts that are
relevant only to provide contextual background evidence). The court added, “And the
probative value of that is not substantially outweighed by the danger of unfair prejudice.”
The court also held that Howard would be allowed to testify that she recognized
Crenshaw because he appeared to be acting strangely during his prior visits to the store as
long as she did not mention that he appeared under the influence of drugs.

        During the State‟s proof, Howard testified that she recognized Crenshaw, not
because she had suspected him of stealing in the past but because Crenshaw was “walking
real slow, and he‟d just look around,” which made her believe that “he was on medication
or something.” When Howard was asked if she believed Crenshaw was “up to something”
on those prior occasions, Howard responded, “No ma‟am. I just thought he was sick or
something, he was on medication.” She added, “He had been in the store lots of times, so I
didn‟t think anything about it. I just thought he was a regular customer.” Later, when the
State asked Howard if she had talked to someone about Crenshaw returning to the store to
ask her not to press charges against him, Howard replied that she had told the prosecutor
about Crenshaw returning to the store and that two days before he returned to the store, her
“cash office lady and one of the assistants told [her] that [Crenshaw] had c[o]me in the
store stealing again.” Defense counsel immediately asked for a bench conference and
requested a mistrial, arguing that the court had ruled that Howard was not to testify about
Crenshaw‟s prior incidents of stealing and was only allowed to testify that she suspected
him of stealing in the past. Defense counsel also argued that Howard had not personally
observed the stealing that occurred after the incident in this case. The trial court replied
that Howard‟s statement about Crenshaw “stealing again” was “an unresponsive answer to
a question asked by [the State].” The court implicitly denied the request for a mistrial and
stated that it would instruct the jury to disregard Howard‟s last statement. The trial court
then gave the following curative instruction:

              Ladies and gentlemen of the jury, . . . if you heard Ms. Howard make
       a statement that somebody had told her that Mr. Crenshaw had come back
       to the store after this conversation in which he asked her to drop charges
       and someone had told her that he had been back in the store stealing again,
       if you heard that statement, I‟m going to order that you disregard that
                                           - 19 -
      statement. It is not being offered for the truth of the matter asserted.
      There‟s no evidence that Mr. Crenshaw went back to the store and stole
      anything after the date for which his case is being tried, and that statement
      would be a hearsay statement that somebody may have told Ms. Howard,
      and you cannot consider those out-of-court statements for the truth of the
      matter asserted.

             So if you heard that statement that somebody told . . . Ms. Howard
      that Mr. Crenshaw had been back in the store stealing again, I‟m going to
      order that you disregard that statement.

       Crenshaw claims the trial court erred in ruling that Howard was allowed to testify
that she recognized Crenshaw because she had suspected Crenshaw of stealing from the
store on prior occasions. However, Howard never actually testified that she suspected
Crenshaw of stealing from the store in the past. Instead, she testified that she recognized
Crenshaw because he had been in the store in the past, had been walking slowly in the
store, and appeared to be on medication. Consequently, even if the trial court‟s Rule
404(b) ruling was in error, Crenshaw cannot establish prejudice because Howard did not
present this evidence at trial. Crenshaw also claims that Howard‟s later testimony, that
her employees informed her Crenshaw was “stealing again” after the incident in this case,
prejudiced his case despite the curative instruction from the court. As to this claim, we
note that the State never elicited this statement and the proof of Crenshaw‟s guilt was
overwhelming. Moreover, the jury is presumed to follow a court‟s curative instructions,
and we must presume that the jury in this case followed the court‟s instruction to
disregard this statement. See State v. Johnson, 401 S.W.3d 1, 22 (Tenn. 2013); State v.
Parker, 350 S.W.3d 883, 897 (Tenn. 2011). For these reasons, we conclude that these
two incidents neither deprived Crenshaw of due process nor violated his right to a fair
trial.

       IV. Jurisdiction. Finally, Crenshaw argues the trial court lacked jurisdiction
over his case because the grand jury foreperson on the grand jury indicting him may have
exceeded her two-year term. Because this court has consistently held that a grand jury
foreperson may serve on successive grand juries, Crenshaw is not entitled to relief.

       At the post-trial hearing on the defense‟s Motion to Arrest Judgment pursuant to
Tennessee Rule of Criminal Procedure 34, Crenshaw suggested that the trial court did not
have jurisdiction over this case because the grand jury foreperson on the grand jury
indicting him may have exceeded her term, given that she had served in that capacity as
far back as 2009. Defense counsel acknowledged that because of the secretive nature of
the grand jury process, he did not know if the grand jury foreperson had exceeded the
two-year term. However, he argued that if she had exceeded her term, then Crenshaw
                                          - 20 -
was not properly indicted and the trial court lacked jurisdiction in this matter.
Alternatively, defense counsel argued that if this grand jury foreperson had been
repeatedly re-appointed, then he was requesting the trial court to make a ruling about
whether her reappointment violated the intent of Tennessee Rule of Criminal Procedure
6(g)(3) by removing the two-year term. In denying this motion, the court asserted that
grand jury forepersons were often reappointed by the Criminal Court Judges, and it was
“not uncommon for those folks to serve eight, ten, twelve, twenty years or so more.” The
court also noted that in twenty-three years in the county, it was aware of only four
individuals who had served as grand jury forepersons.

        Tennessee Rule of Criminal Procedure 6(g)(3) states that a grand jury foreperson
“shall hold office and exercise powers for a term of two (2) years from appointment” and
that “[i]n the discretion of the presiding judge, the foreperson may be removed, relieved,
or excused from office for good cause at any time.” This court has consistently held that
a grand jury foreperson may serve longer than the requisite two-year term. See Teague v.
State, 529 S.W.2d 734, 736 (Tenn. Crim. App. 1975) (holding that the long,
uninterrupted tenure of a grand jury foreman did not deprive the defendant of due process
or equal protection under the law); Nelson v. State, 499 S.W.2d 956, 956 (Tenn. Crim.
App. 1972) (finding no authority indicating that a grand jury foreman appointed for two
years was disqualified to serve a longer period either by reappointment or holding over);
Joseph B. Thompson v. State, No. E2004-00920-CCA-R3-PC, 2005 WL 2546913, at *25
(Tenn. Crim. App. Oct. 12, 2005) (reiterating the rule announced in Nelson); see also
David Louis Raybin, Tennessee Criminal Practice & Procedure § 9:8 (2014) (asserting
that although a grand jury foreperson‟s term of office is two years, the grand jury
foreperson may be reappointed). Based on this authority, which Crenshaw fails to
address in his brief, we conclude that he is not entitled to relief.

                                    CONCLUSION

        In accordance with the foregoing authorities and reasoning, the judgment of the
trial court is affirmed.


                                                   _________________________________
                                                   CAMILLE R. MCMULLEN, JUDGE




                                          - 21 -
