                                                                                       05/08/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs March 21, 2017

               STATE OF TENNESSEE v. TERRY TRAMMELL

                  Appeal from the Criminal Court for Knox County
                         No. 106529 G. Scott Green, Judge
                     ___________________________________

                           No. E2016-01267-CCA-R3-CD
                       ___________________________________


Defendant, Terry Trammell, was convicted of two counts of theft after a jury trial. The
trial court merged the two counts and sentenced Defendant to a twelve-year sentence. On
appeal, Defendant challenges the trial court’s denial of a continuance and the sufficiency
of the evidence. After a review, we determine Defendant waived the issue with respect to
the continuance for failure to raise the issue in a motion for new trial and failure to
present an adequate record on appeal. Additionally, we determine the evidence was
sufficient to support the conviction. Accordingly, the judgment of the trial court is
affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and J. ROSS DYER, JJ., joined.

Nicholas W. Lee, Knoxville, Tennessee, for the appellant, Terry Trammell.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Takisha Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION


      Defendant was indicted by the Knox County Grand Jury in October of 2015 for
two counts of theft of property valued at least $1000 but less than $10,000. Count One of
the indictment alleged that Defendant knowingly and unlawfully obtained tablet
computers from an Aaron’s Sales and Leasing store without their effective consent.
Count Two of the indictment alleged that Defendant knowingly and unlawfully exercised
control over tablet computers from Aaron’s Sales and Leasing. Two days prior to trial,
Defendant filed a motion for a continuance on the basis that a material witness, Jordan
Edward Yarber, could not be located.

        According to a minute entry in the technical record from Tuesday, April 5, 2016,
the trial court held a hearing on the motion for a continuance. The minute entry indicates
that the trial court heard proof and arguments of counsel and denied the motion. There is
neither a transcript from this hearing nor a formal order disposing of the motion in the
technical record.

       The matter proceeded to trial at which the general manager of Aaron’s Sales and
Lease, Sam Hartness, testified. Mr. Hartness was responsible for monitoring the store’s
delivery area in the back of the store as well as watching the area around the front desk.

        On July 9, 2015, Mr. Hartness had only been working at the North Broadway store
location for approximately six months but had worked for the company for a longer
period of time. At around 3:30 p.m., Mr. Hartness saw Defendant and several others
walk into the store and look around. Admittedly, Mr. Hartness was busy because he was
“short staffed that day” and he was “going back and forth” between the delivery area in
the rear of the store and the showroom area in the front of the store where customers were
looking around. Mr. Hartness did not witness Defendant and his companions leave the
store but noticed “ten, fifteen minutes” later that they were gone. Mr. Hartness explained
that it “was probably the next day when [he] was reconciling our weekly inventory [that
he] realized that two of [the] tablets had gone missing.” Mr. Hartness recalled that the
tablets were last seen on the front counter of the store and had a value of $549.99 each.
Mr. Hartness explained that the tablets were not new but had been rented by “about two
people” prior to their return to the store. The tablets could not be located so Mr. Hartness
“reviewed the video cameras after talking to the associates to see if anybody had moved
them.” On the video, Mr. Hartness identified Defendant. He saw Defendant “approach
the front counter one of the times when [his] attention was not up front.” Defendant
appeared to “reach[] over where . . . the two tablets [were] laying, grab[] one of our
monthly advertising flyers, slip[] it over [the tablets], and tuck[] them under his arm and
walk[] out the front door.” Mr. Hartness filed a police report.

        A few days later, Defendant returned to the store and asked about “some
merchandise.” Mr. Hartness was able to get Defendant’s name and relay that information
to the police. Mr. Hartness identified Defendant from a photographic lineup.

       Defendant did not present proof at trial. The jury found Defendant guilty of two
counts of theft. The trial court sentenced Defendant as a Career Offender to twelve years
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on each count. The trial court merged Count Two with Count One, for a total effective
sentence of twelve years at 60%.

                                          Analysis

       On appeal, Defendant challenges the trial court’s denial of the motion to continue.
Specifically, Defendant insists that he “should have been afforded additional time to
interview witness Jordan Yarber” because “Jordan Yarber had already pled guilty to the
offense for which [Defendant] stood trial.” Defendant also challenges the sufficiency of
the evidence.

         It appears that Defendant failed to file a motion for new trial. When a defendant
fails to file a written motion for new trial within the required thirty days, the defendant
loses not only the right to have a hearing on the motion, but he opportunity to argue on
appeal any issues that were or should have been presented in the motion for new trial.
State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997); see also Tenn. R. App. P. 3(e)
(stating that an issue is waived if a defendant fails to raise a “ground upon which a new
trial is sought” in a motion for new trial).

       Moreover, Defendant has failed to present this Court with an adequate record for
review. The appellate record does not contain a transcript from the hearing on the motion
to continue. As we have often cautioned, an appellant has the duty to prepare an
appellate record that conveys “a fair, accurate and complete account of what transpired
with respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b); State v.
Banks, 271 S.W.3d 90, 170 (Tenn. 2008).

        Lastly, Defendant pleads for this Court to review the issue for plain error. We
decline to do so. Defendant has failed to provide a record establishing what occurred in
the trial court. For this reason alone, he is not entitled to plain error review. See State v.
Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (concluding that a defendant is not entitled to
plain error review if all five factors are not established or if “it is clear from the record
that at least one of the factors cannot be established”). This issue is waived.

        With regard to the sufficiency of the evidence, Defendant argues that Mr. Hartness
did not actually see Defendant leave the store with the tablets, instead he was only able to
testify that Defendant “visited a certain store on a certain day.” The State disagrees.

       When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. The relevant question is
whether any rational trier of fact could have found the accused guilty of every element of
the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia,
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443 U.S. 307, 319 (1979). The jury’s verdict replaces the presumption of innocence with
one of guilt; therefore, the burden is shifted onto the defendant to show that the evidence
introduced at trial was insufficient to support such a verdict. State v. Reid, 91 S.W.3d
247, 277 (Tenn. 2002). The prosecution is entitled to the “‘strongest legitimate view of
the evidence and to all reasonable and legitimate inferences that may be drawn
therefrom.’” State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (quoting State v.
Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Questions concerning the “‘credibility of the
witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the
proof are matters entrusted to the jury as the trier of fact.’” Wagner, 382 S.W.3d at 297
(quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)). “‘A guilty verdict by
the jury, approved by the trial court, accredits the testimony of the witnesses for the State
and resolves all conflicts in favor of the prosecution’s theory.’” Reid, 91 S.W.3d at 277
(quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). It is not the role of this
Court to reweigh or reevaluate the evidence, nor to substitute our own inferences for
those drawn from the evidence by the trier of fact. Id. The standard of review is the
same whether the conviction is based upon direct evidence, circumstantial evidence, or a
combination of the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).

       “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. Theft of property is a Class D felony
when the value of the property is more than $1000 but less than $10,000. T.C.A. § 39-
14-105(a)(3) (2016). A “person who acts intentionally with respect to the nature of the
conduct or to a result of the conduct when it is the person’s conscious objective or desire
to engage in the conduct or cause the result.” T.C.A. § 39-11-302(a). A “person acts
knowingly with respect to the conduct or to circumstances surrounding the conduct when
the person is aware of the nature of the conduct or that the circumstances exist.” Id. at
(b).1

       Here, the evidence is sufficient to conclude that Defendant took two tablets valued
at more than $1000 from Aaron’s Sales and Leasing. Mr. Hartness saw Defendant
walking around the store while Mr. Hartness was in charge of monitoring multiple areas
of the store. Mr. Hartness did not know the time of Defendant’s exact departure from the

        1
         This Court has held that theft of property is a nature-of-conduct offense rather than a result-of-
conduct offense. See State v. Hershel David Standridge, No. M2002-01699-CCA-R3-CD, 2003 WL
22243249, at *6 (Tenn. Crim. App. Sept. 30, 2003) (citing State v. Tracy F. Leonard, No. M2001-00368-
CCA-R3-CD, 2002 WL 1987963, at *26 (Tenn. Crim. App. Aug. 28, 2002), perm. app. denied (Tenn.
Dec. 16, 2002); State v. Marcus Webb, No. W2002-00614-CCA-R3-CD, 2003 WL 214451, at *4 (Tenn.
Crim. App. Jan. 29, 2003), perm. app. denied (Tenn. July 7, 2003)), perm. app. denied (Tenn. Mar. 16,
2004).
                                                  -4-
store but realized the next morning that the two tablet last seen sitting on the counter were
missing. When Mr. Hartness reviewed the video surveillance, he identified Defendant as
the person who stole the tablets. The jury heard the testimony of Mr. Hartness and
viewed the surveillance video. They evaluated the credibility of the witnesses and
assessed the strength of the State’s case, concluding that Defendant was guilty of theft.
We agree that the evidence supports this verdict. Defendant is not entitled to relief.

                                        Conclusion

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



                                                         ___________________________
                                                          TIMOTHY L. EASTER, JUDGE




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