        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 8, 2013

                STATE OF TENNESSEE v. RENITRA HARLEN

                 Appeal from the Circuit Court for Williamson County
                     No. I-CR084357-C Robbie T. Beal, Judge




               No. M2012-01857-CCA-R3-CD - Filed November 26, 2013


A Williamson County jury convicted the Defendant, Renitra Harlen, of two counts of theft
of property valued at more than $1,000.00. The trial court sentenced the Defendant as a
Range I, standard offender, to concurrent terms of two years, to be served on probation
following the service of fourteen days in confinement. On appeal, the Defendant contends
that: (1) the trial court erred when it allowed the State to introduce a handwritten list of
stolen items prepared by store employees immediately after the shoplifting incident
occurred; (2) the State failed to disclose a victim questionnaire in violation of the rules of
discovery; (3) the trial court erred by failing to merge the two theft convictions; and (4) the
evidence is insufficient to support her convictions. After a thorough review of the record
and the applicable law, we remand to the trial court for the entry of modified judgments
reflecting the merger of the Defendant’s two convictions and affirm the trial court in all
other respects.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in
                                Part and Remanded

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and R OGER A. P AGE, JJ., joined.

Sandra L. Wells, Nashville, Tennessee, for the appellant, Renitra Harlen.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel;
Kim R. Helper, District Attorney General; Mary K. White, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                              1
                                                 I. Facts

       A Williamson County grand jury indicted the Defendant, Gregory B. Russell, and
Jennifer M. Massey1 for two counts of theft of property valued at more than $1,000.00
from a Kohl’s store in Franklin, Tennessee. The cases were severed; Massey pled guilty to
her charges, and Russell was tried separately.

        At the Defendant’s trial, the parties presented the following evidence: Nicole
Thompson, a loss prevention supervisor for Kohl’s Department Store, testified that her job
entailed conducting internal and external investigations of incidents that would cause or
result in a loss to the company. Ms. Thompson recalled that, on April 22, 2009, she, along
with two other loss prevention employees, apprehended the Defendant and Massey for
shoplifting. Russell was apprehended by police.

       Ms. Thompson testified that she first observed the Defendant and Massey through
closed circuit television while they were in the store’s jewelry department. The two
women were selecting various pieces of merchandise with no regard to the price of the
items. When the women left the jewelry department and walked toward another
department, Ms. Thompson left the loss prevention office and went to this area of the store
to follow the women. Ms. Thompson, who was behind the Defendant, observed her
selecting an item of clothing and then concealing the jewelry in her hand underneath the
piece of clothing. Ms. Thompson said that this behavior “is not unlike what shoplifters
tend to do.” She explained that generally shoppers look at the tag for a price or size when
shopping. The Defendant walked toward a rack, grabbed an item without looking at the
tag, and threw it over her arm. Ms. Thompson said that this is “not an intentional
procedure in shopping” and is behavior that loss prevention supervisors look for when
observing shoppers in the store. The Defendant then walked directly to the fitting room
area. Massey had already entered one of the fitting room stalls.

     Ms. Thompson testified that she entered a fitting room next to Massey. Ms.
Thompson recalled what she heard and observed while in the fitting room as follows:

                 Massey had carried in a couple of GPS’s. And a GPS system, the
           navigational systems, are enclosed in hard plastic, and you could hear that
           she was cutting into that hard plastic inside that stall.

                  A few second later [the Defendant] crossed in front of my fitting


 1
     Massey was additionally indicted for evading arrest and resisting arrest.
                                                  2
        room stall doors and went into the handicapped stall, and then Massey came
        out of her stall, leaving the hard plastic in that stall, and went in and joined
        [the Defendant] in the handicapped stall.

Ms. Thompson confirmed that she observed Massey carrying the GPS system into the
fitting room. She said that the hard plastic casing for the system makes a “very distinctive
sound” when being cut or broken. When Massey exited the fitting room stall and joined
the Defendant in the handicap fitting room, Ms. Thompson stepped into the fitting room
stall where Massey had been and saw the hard plastic casing from the GPS system left
behind.

       Ms. Thompson testified that while the two women were in the handicap fitting
room stall, she heard “a lot of conversation” and “shuffling around.” When the two
women exited the fitting room stall, neither woman had any merchandise. Ms. Thompson
stepped inside the handicap fitting room stall and found there were no items left behind.
Ms. Thompson said that she followed the two women out into the parking lot where the
Defendant was standing near the sidewalk and Massey was standing by a vehicle. Ms.
Thompson said that she approached the Defendant and introduced herself as a loss
prevention supervisor. The Defendant immediately responded “I don’t have anything, I
don’t have any other thing,” and cursed, accusing Ms. Thompson of stopping her “for no
reason.” Ms. Thompson stated that she did not tell the Defendant the reason she
approached the Defendant. The Defendant appeared “angry,” flailing her arms about and
yelled at Ms. Thompson to “search my purse, search my purse.”

       Ms. Thompson testified that another loss prevention supervisor, Nick Johnson,
joined her outside and stayed with the Defendant while Ms. Thompson approached the
vehicle where she had seen Massey standing. She found Massey lying down in the back
seat of the vehicle. Ms. Thompson knocked on the car window and asked Massey to exit
the vehicle. Massey “reluctantly” exited the vehicle. Ms. Thompson said that she asked
Massey for the items taken from the store and that Massey removed a GPS system from
her “pants area” and gave it to Ms. Thompson.

       Ms. Thompson testified that Johnson and the Defendant came over to the vehicle
and the Defendant got inside the car and then got back out. Ms. Thompson said that she
“assume[d]” this was because the Defendant and Massey did not have the keys to the
vehicle. The two women then “aimlessly walked around the parking lot” and refused to
re-enter the store with the loss prevention supervisors. Mr. Johnson called the police while
Ms. Thompson followed the two women around the parking lot. Ms. Thompson said that
both women cursed at her as she followed them.

       Ms. Thompson testified that the women finally agreed to go inside the Kohl’s store.
                                              3
Inside the store, the women waited by the cash registers. When a police officer walked in,
Massey ran outside while Ms. Thompson remained with the Defendant. Police subdued
Massey and placed her in a police car. At this point police brought a third suspect,
Russell, inside the store, and the Defendant and Russell were taken to the loss prevention
office.

        Ms. Thompson testified about the third suspect, Russell, who was apprehended by
police. Ms. Thompson explained that originally she had been observing Russell. Due to
his behavior, Ms. Thompson went to the loss prevention office to advise a colleague, Nick
Johnson, to watch Russell through the surveillance cameras. When she arrived in the
office, Johnson was already watching the Defendant and Massey. Ms. Thompson joined
Mr. Johnson and watched the two females talking in the jewelry section when Russell
joined them and was speaking mostly with the Defendant. Once police had arrived,
Massey pointed out Russell to police. Police apprehended Russell outside the store and
brought him inside. Ms. Thompson said that she noticed that Russell had changed his
shoes and was now wearing a Nike hat. Ms. Thompson said that Russell was not wearing
these items when he entered the store or when she first observed him. She said that both
the shoes and the Nike hat were Kohl’s merchandise.

       Ms. Thompson testified that after all three subjects were inside the store, police
officers went out to the vehicle and returned with a large bag of Kohl’s store merchandise
that was found inside the vehicle. Ms. Thompson said that she inventoried the items,
identifying the items by UPC numbers as Kohl’s merchandise. She said that both the
Defendant and Russell confirmed which of the items were taken from the store. Ms.
Thompson explained that, in order to cooperate with police as efficiently as possible, loss
prevention employees often write down the item, the UPC, and the price of the item in
order to give the police a dollar amount for the criminal charge. She said that initially it is
handwritten and later entered into the computer system. She confirmed that this was the
process used in this case and identified the handwritten document listing the stolen items.
The trial court entered the list into evidence with no objection from defense counsel.

       Ms. Thompson identified her handwriting on the list, noting that “a few items”
were not in her handwriting. Ms. Thompson explained that she wrote out the item, UPC
for the item, the value of the item, and the number of each item. She identified one line
that showed that nine Vanity Fair women’s panties were found among the stolen items.
Ms. Thompson asked the Defendant if she took the women’s panties, and, after initially
claiming Russell took the panties, the Defendant admitted she had taken the panties. Ms.
Thompson then went through the list identifying which items were women’s items and
which were men’s items. Ms. Thompson testified regarding the price attributed to each of
the items. She explained that every item in Kohl’s had “embedded” UPC numbers. If an
item did not have a tag, the “embedded” UPC number can be used to find the exact price
                                              4
of the item. Ms. Thompson said that she used either the price on the tag of the item or, if
there was not a tag, the “embedded” UPC number from the item when she created the list
of stolen items and the value for police. Ms. Thompson testified that the items totaled
$1,649.45 and that none of the defendants provided a receipt for the merchandise.

       Ms. Thompson identified a photograph she took of the Defendant and a trespass
notification that the Defendant refused to sign. Ms. Thompson explained that loss
prevention routinely has shoplifters sign a trespass admonition before leaving the store on
their own or with a police officer. Ms. Thompson also identified the video recording of
the three defendants in the store in April. The State played the video recording for the
jury. The video recording depicted the events of this incident consistent with Ms.
Thompson’s testimony.

        On cross-examination, Ms. Thompson testified that Massey took one GPS system
into the fitting room stall. Once in the parking lot, Massey handed over one GPS system
that she retrieved from her pants. A second GPS system was later found inside the vehicle
in the parking lot.

        Jennifer Massey, a co-defendant, testified she had been a drug addict since the age
of thirteen and “in and out of jail” her whole life. She stated that she had been “clean”
since this shoplifting incident at Kohl’s store. Massey admitted that her criminal history
included convictions for theft of property, possession of stolen property, and forgery. She
stated that she pled guilty for her role in these crimes and received a sentence involving
split confinement, eight months in jail followed by eight years probation.

       Massey testified that she had known the Defendant her “whole life” and that the
two had attended school together. She explained the nature of their relationship at the time
of these events as follows, “We would go shopping together, I would steal items and she
would pay me for them.” Massey said that the Defendant and Russell were dating at the
time of these events.

        Massey testified that she and the Defendant spoke on the telephone the night before
and arranged for Massey to steal items the Defendant wanted and then the Defendant
would later pay Massey for the items. The following morning, April 22, 2009, the
Defendant and Russell drove to Massey’s house in the Defendant’s car, an Impala.
Russell drove the three defendants to the Kohl’s store in Franklin, Tennessee. While still
in the car, Massey instructed the Defendant to pick out the items she wanted and then meet
her in the fitting room area. Massey said that she also told the Defendant “to pick up a
navigation system for [her], because [she] had somebody who would buy that.”

       Massey said that when she entered the store she picked up a navigation system and
                                             5
took it out to the Defendant’s car. When she came back in the store, she found the
Defendant in the jewelry section with “some items in her hand.” Massey told the
Defendant she would meet her in the fitting room area. Massey explained the exchange
with a navigation system in the fitting room as follows:

        I cut it out of the box in the dressing room, concealed it. I had got it from
        [the Defendant] inside the dressing room, went to another dressing room,
        cut it out of the box, concealed it in my bra, and then went to the dressing
        room that [the Defendant] was in.

Massey said that she cut the navigation system out of the box with a razor blade. She
identified a jewelry crimping tool and a wire cutter she used to remove security tags from
clothing in stores. She explained that she had carried these items into the store in her
pocket.

        Massey testified that upon entering the fitting room stall where the Defendant was,
the two women unpackaged some of the items, and Massey concealed those items,
perfume and jewelry, in her bra. The two women then left the store. Massey said that, as
they exited the store, she was in front of the Defendant and walked directly to the Impala
in the parking lot. When she looked back, she saw that a store employee had stopped the
Defendant so she got inside the car. She watched a store employee follow the Defendant
to the car and slid down in her seat in an attempt to hide. The Defendant proceeded to the
car, opened the passenger side door, and sat down inside the car. Massey said that she
exited the car and handed the stolen items to the store employee.

       Massey testified that she took a necklace, earrings, perfume, black pants, a white
top, and nine or ten pairs of underwear for the Defendant. She explained that she
concealed the women’s underwear in the waist band of her jeans. Massey said that she
“assumed” the men’s items found in the car were taken by Russell, but that she did not see
Russell take the items to the car. Massey stated that the “plan” when the three went to the
Kohl’s store was “to steal merchandise.”

        On cross-examination, Massey testified that the Defendant went inside a handicap
fitting room stall while the two were in the fitting room area. She said that she left the
casing from the GPS system in the fitting room stall. Massey said that when the
Defendant met her in the dressing room, she had jewelry and perfume in her hand and
clothing folded over her arm.

       Kelly Barger testified that at the time of these events she worked as a loss
prevention supervisor at a Kohl’s store. Ms. Barger recalled that, on April 22, 2009, a
police officer brought the Defendant into the loss prevention office and asked Ms. Barger
                                             6
to “watch her.” Later, Russell was also brought into the office. When he entered, Ms.
Barger noticed that he was wearing tennis shoes that belonged to the store. She explained
that earlier one of the store managers had brought an empty shoe box to the loss prevention
office. The empty box matched the pair of tennis shoes that Russell was wearing when
apprehended.

        Ms. Barger testified that she initially helped compile the handwritten inventory list
of stolen items. She explained that the normal procedure was to write down a description
of the item, the UPC number, the price of the item, and the quantity of the item. She said
that she wrote down two or three items on the inventory list and then Ms. Thompson
entered and completed the list. Ms. Barger identified the inventory list of stolen items and
two items, “Nike Air Generate” and “Haines t-shirt,” that were written in her handwriting.
Ms. Barger also identified her handwriting on the trespass admonishment.

        Brent Rose, a City of Franklin police officer, testified that he responded to a call
from a Kohl’s store about a suspect resisting an officer. Upon arrival, he first assisted
another officer detain Massey before proceeding inside the store where he learned of a
third suspect who was seated in an Impala in the store parking lot. Officer Rose went back
out to the parking lot and approached the vehicle where he found Russell. Russell initially
denied involvement in the shoplifting until a store employee pointed out that the shoes
Russell was wearing were Kohl’s property. Officer Rose took Russell inside the store and
retrieved the keys to the vehicle from the Defendant. Inside the car, Officer Rose found
several box cutters and store merchandise.

       Jane Teeples, a City of Franklin police officer, testified that on April 22, 2009, she
was dispatched to a Kohl’s store. When she arrived, store employees directed her to two
women standing near the cash registers. As she approached, Massey ran toward her and
out the front door. Officer Teeples pursued Massey and took her into custody. Upon a
search of Massey, Officer Teeples found attachments for a GPS unit, earrings, and a
necklace. She also found wire cutters in Massey’s pocket. Officer Teeples said that
shoplifters often use wire cutters to detach security devices in stores. Officer Teeples said
that she confirmed that the Defendant was the owner of the Impala where the store
merchandise was found.

       Based upon this evidence, the jury convicted the Defendant of two counts of theft
of property valued at more than $1000.00. The trial court sentenced the Defendant as a
Range I, standard offender to concurrent terms of two years on probation following the
service of fourteen days in confinement. It is from these judgments that the Defendant
now appeals.

                                        II. Analysis
                                             7
       The Defendant asserts that: (1) the trial court erred when it allowed the State to
introduce a handwritten list of stolen items prepared by store employees immediately after
the shoplifting incident occurred; (2) the State failed to disclose a victim questionnaire in
violation of the rules of discovery; (3) the trial court erred by failing to merge the two theft
convictions; and (4) the evidence is insufficient to support her convictions.

                    A. Admission of Handwritten List of Stolen Items

        The Defendant asserts that the trial court erred when it admitted a list of the stolen
items handwritten by Ms. Thompson, a Kohl’s store loss prevention supervisor.
Specifically, the Defendant contends that the record constituted inadmissible hearsay and
that it was improperly introduced as a business record. The State responds that because
the record was entered with no objection, the Defendant has waived this issue, and the
Defendant has failed to establish plain error.

        The Defendant filed a motion in limine asking the trial court to exclude a
handwritten list of stolen items prepared by Ms. Thompson on the day of the offense
because the store’s complete inventory list from April 22, 2009, was not preserved.
Without the store’s inventory list, the Defendant could not compare the inventory list to
the handwritten list of stolen items to ensure the items were actually in the store at the time
of the offense. The State responded that, so long as a proper foundation was laid, the
handwritten list was admissible at trial, and defense counsel would have the opportunity to
cross-examine the witnesses regarding the list. The trial court allowed the State to
introduce the handwritten list, reasoning that, if the witness authenticated the list and
testified that it was prepared near the time of the alleged incident, the handwritten list was
admissible, and any discrepancies would be subject to cross-examination.

        During the trial, the State, through Thompson’s testimony, introduced the
handwritten list. The trial court specifically asked defense counsel if there was an
objection, to which defense counsel responded that she had no objection. In the
Defendant’s motion for new trial, the issue of the handwritten list was once again raised,
but this time it was challenged as inadmissible hearsay. The trial court found that the State
had properly authenticated the list and introduced it as a business record.

       The State correctly notes that appellate relief is generally not available when a party
is “responsible for an error” or has “failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of any error.” Tenn. R. App. P. 36(a); see
State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App.1988) (stating that waiver
applies when the defendant fails to make a contemporaneous objection); see also State v.
Jenkins, 733 S.W.2d 528, 532 (Tenn. Crim. App. 1987); State v. Rhoden, 739 S.W.2d 6,
11–12, 18 (Tenn. Crim. App. 1987). Tennessee Rule of Evidence 103(a)(1) also provides
                                               8
that “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless
. . . a timely objection or motion to strike appears of record, stating the specific ground of
objection.”

        This Court may, however, review an issue which would ordinarily be considered
waived if the Court finds plain error in the record. See Tenn. R. App. P. 36(b). The
doctrine of plain error provides that “[w]hen 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.” Tenn. R.App. P. 36(b). The Defendant, in her brief, asserts that she is
entitled to plain error relief in this case because introduction of the handwritten list
violated her right to a fair trial under the Due Process Clause.

        This Court will grant plain error review only when: “(1) the record clearly
establishes what occurred in the trial court; (2) the error breached a clear and unequivocal
rule of law; (3) the error adversely affected a substantial right of the complaining party; (4)
the error was not waived for tactical purposes; and (5) substantial justice is at stake; that is,
the error was so significant that it ‘probably changed the outcome of the trial.’” State v.
Hatcher, 310 S.W.3d 788, 808 (citing State v. Smith, 24 S.W.3d 274, 282–83 (Tenn. 2000)
(quoting State v. Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim. App. 1994)). “If any of
these five criteria are not met, we will not grant relief, and complete consideration of all
five factors is not necessary when it is clear from the record that at least one of the factors
cannot be established.” Id. (citation omitted). We need not consider all five factors when
the record clearly establishes that at least one of the factors is not met. Hatcher, 310
S.W.3d at 808. It is the defendant’s burden to persuade this Court that plain error exists
and that the error “was of sufficient magnitude that it probably changed the outcome of the
trial.” State v. Hester, 324 S.W.3d 788, 808 (Tenn. 2010).

        Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Tenn. R. Evid. 801(c). In general, hearsay statements are inadmissible. Tenn.
R. Evid. 802. Some statements, however may be admissible under one of the enumerated
exceptions. In this case, the trial court found that the handwritten list of stolen items was
admissible as a business record. As relevant to this issue, Tennessee Rule of Evidence 803
provides:

        A memorandum, report, record, or data compilation, in any form, of acts,
        events, conditions, opinions, or diagnoses made at or near the time by or
        from information transmitted by a person with knowledge and a business
        duty to record or transmit if kept in the course of a regularly conducted
        business activity and if it was the regular practice of that business activity to
                                               9
        make the memorandum, report, record or data compilation, all as shown by
        the testimony of the custodian or other qualified witness . . . unless the
        source of information or the method or circumstances of preparation
        indicate lack of trustworthiness.

As this Court has previously stated:

        The term “qualified witness” [in Tenn. R. Evid. 803(6) ] should be given a
        broad interpretation. To be considered qualified, a witness must be
        personally familiar with the business’s record-keeping systems and must be
        able to explain the record-keeping procedures. The witness is not required
        to have personal knowledge of the facts recorded, to have been involved
        personally in the preparation of the records, or even to know who actually
        recorded the information.


Alexander v. Inman, 903 S.W.2d 686, 700 (Tenn. Ct. App. 1995).

        Ms. Thompson testified that, after apprehension of the defendants, the Defendant
and Russell were taken to the loss prevention office with the items retrieved from the
Defendant’s car. Ms. Thompson, as is the practice for Kohl’s loss prevention employees,
wrote down each item, the UPC number, the price of the item, and the quantity. She
explained that Kohl’s employed this process because it was the most efficient way to
provide police officers at the scene with the necessary information for prosecution. Ms.
Barger, also a loss prevention supervisor at the time of these events, confirmed the process
of documenting items following a shoplifting incident. She further identified her
handwriting on the first two lines of the handwritten list, explaining that she began the list
and then Ms. Thompson came into the office and assumed the task of documenting the
stolen items.

       Based on this evidence, we cannot conclude that the trial court erred by admitting
the handwritten list into evidence as a business record. The list of stolen items was
compiled at the time of the shoplifting incident and subsequent apprehension of the
defendants. The list was begun by Ms. Barger, a Kohl’s loss prevention supervisor, and
completed by Ms. Thompson, also a Kohl’s loss prevention supervisor. As employees and
supervisors in the area of loss prevention, both witnesses were personally familiar with the
record-keeping system for documenting stolen items and explained the procedure to the
jury. As Ms. Barger and Ms. Thompson testified, it was regular practice to create a
handwritten list of the stolen items in order to quickly provide police officers with needed
information for the prosecution of an offense. Nothing in the testimony, circumstances, or
method that indicated a lack of trustworthiness. Thus, the trial court properly admitted the
                                             10
handwritten list into evidence as a business document.

        Accordingly, the Defendant has failed to establish that there was a breach of a clear and
unequivocal rule of law. Therefore, plain error relief is not warranted, and we need not proceed
with an examination of the remaining Adkisson factors. See Smith, 24 S.W.3d at 283 (“[T]he
presence of all five factors must be established by the record before this Court will recognize the
existence of plain error.”) Accordingly, we conclude that Defendant is not entitled to relief on
this issue.

                                      B. Discovery Violation

        The Defendant argues that the State failed to disclose a victim questionnaire prior to trial,
violating her right to a fair trial. The State responds that the trial court correctly found that the
document was not material to the defense. We agree with the State.

       At issue are documents containing differing values of the items stolen. At trial, a
handwritten list indicating the total value of the stolen items as $1,649.45 was admitted into
evidence. This list was compiled on April 22, 2009, the day of the shoplifting incident.
Thereafter, Nick Johnson, a Kohl’s Store loss prevention supervisor, filled out a victim
questionnaire indicating restitution in the amount of $1,053.97. This form was filled out on
August 20, 2009, and submitted at the Defendant’s sentencing hearing with no objection from
defense counsel.

       At the motion for new trial hearing, the Defendant argued that the State failed to comply
with discovery rules by failing to disclose the victim questionnaire to the Defendant prior to trial.
The Defendant had requested discovery and yet had never seen the victim questionnaire. The
State responded that it had made the State’s file available to the defense and had shown the
questionnaire to defense counsel prior to trial. Furthermore, the State pointed out that the same
form was in Russell’s file, which defense counsel had reviewed.

       The trial court made the following findings as to this issue:

        The Court finds that this prejudicial impact is slight. While the Court accepts that
        there were some discrepancies in the amounts of restitution that was claimed, the
        Court also acknowledges that [defense counsel] did not spend a lot of time cross-
        examining the witnesses as to that point. That’s not bad lawyering. Quite frankly,
        [defense counsel] was in a bit of . . . a tough spot. If she cross-examined too . . .
        aggressively she could well open the door to these other . . . alleged thefts which
the Court had previously excluded. If she didn’t cross-examine at all she ran the risk of giving up
an issue as to whether this was a class E felony or class D felony and that’s a matter of tactics,
that’s a matter of attorney strategy.

The trial court acknowledged the victim questionnaire’s presence in the presentence report
demonstrated that this evidence was not “maliciously hidden” from the Defendant and that the
                                                 11
State did not intend to hide the victim questionnaire.

        In Brady v. Maryland, the Supreme Court held that “suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
373 U.S. 83, 87 (1963). In order to establish a due process violation under Brady, four
prerequisites must be met:

         1. The defendant must have requested the information (unless the evidence is
         obviously exculpatory, in which case the State is bound to release the information,
         whether requested or not);

         2. The State must have suppressed the information;

         3. The information must have been favorable to the accused; and

         4. The information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). Favorable evidence has been defined as:

         [E]vidence which provides some significant aid to the defendant’s case, whether it
         furnishes corroboration of the defendant’s story, calls into question a material,
         although not indispensable, element of the prosecution’s version of the events, or
         challenges the credibility of a key prosecution witness.


Johnson v. State, 38 S.W.3d 52, 56–57 (Tenn. 2001) (quoting Commonwealth v. Ellison, 379
N.E.2d 560, 571 (1978)). Evidence is material when “‘there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been
different.’” Id. at 58 (citations omitted). The burden of proving a Brady violation rests with the
defendant, and the violation must be proven by a preponderance of the evidence. Id.

        Concerning the first Brady factor, the Defendant filed a discovery motion requesting the
information. As for the second factor, whether or not the State suppressed the information is less
clear. Defense counsel claims that the victim questionnaire was not part of the record, and the
State claims that it was in the State’s file and that the State specifically showed it to defense
counsel. The fact that the victim questionnaire is part of the presentence report submitted at the
sentencing hearing supports the conclusion that the State did not suppress this information. We
also note that the presentence report also shows a restitution amount of $1,053.97. This evidence
does not support a finding that the State suppressed the victim questionnaire. We acknowledge
defense counsel’s argument that the lower value indicated in the victim questionnaire could assist
the Defendant in negotiating and/or arguing for an E felony conviction. Further, the discrepancies
between the documents could have been used during the cross-examination of the Kohl’s
employees at trial. However, both amounts are more than $1,000.00, which is consistent with the

                                                 12
Defendant’s conviction for theft of property valued at more than $1,000.00. Accordingly, the
Defendant has failed to prove by a preponderance of the evidence that a Brady violation occurred.
The Defendant is not entitled to relief.

                                 C. Sufficiency of the Evidence

       The Defendant asserts that the evidence is insufficient to sustain her convictions for theft
of property valued at more than $1,000.00. The State counters that sufficient evidence was
presented from which a reasonable juror could conclude that the Defendant committed each of the
crimes for which she was convicted.

         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.” 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 rule 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). In determining the sufficiency of the evidence, this Court
should not re-weigh or re-evaluate 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); Liakas v. State, 286
S.W.2d 856, 859 (Tenn. 1956). “Questions concerning the credibility of the witnesses, the weight
and value of 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); See also Liakas, 286 S.W.2d at
859. “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.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978) (quoting 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 (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 inferences which may be drawn from
the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d 274, 279 (Tenn.
2000)). Because a verdict of 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

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516, 557-58 (Tenn. 2000).

       The jury convicted the Defendant of theft of property valued at more than $1,000.00
pursuant to Tennessee Code Annotated § 39-14-146. The statute defines this crime as:


        [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.


T.C.A. § 39-14-146(a) (2010). The State proceeded to trial under two separate theories: (1) that
the Defendant concealed the merchandise; and (2) that the Defendant removed, took possession
of, or caused the removal of the merchandise. Id.


        The evidence, considered in the light most favorable to the State, proves that the
Defendant, Massey, and Russell drove, in the Defendant’s car, to a Kohl’s store in Franklin,
Tennessee. The Defendant and Massey had an arrangement where the Defendant would select
items she wanted, give them to Massey, and Massey would conceal the items and remove them
from the store. The three can be seen on surveillance video talking in the jewelry department of
the store where the Defendant selects jewelry and carries it into another section of the store. Ms.
Thompson observed, and the surveillance video shows, the Defendant entering the fitting room
area with the items hidden under several garments and, later, exiting the fitting room area with
nothing in her possession. Massey testified that she and the Defendant arranged for the Defendant
to take the items she wanted and meet Massey in the fitting room area where Massey hid the items




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in her bra and waist band area. The two women had exited the store when they were approached
by Ms. Thompson. Massey removed a GPS navigational system from her person and gave it to
Ms. Thompson. Later, in the loss prevention office, the Defendant confirmed for Ms. Thompson
the items she took from the store.


       The Defendant specifically contests the value of the stolen property. She contends that the
proof showed that she was responsible for only a necklace, ear rings, perfume, a pair of black
pants, a white shirt, and nine pairs of panties, and that the value of these items is less than
$1,000.00. The State responds that, under the theory of criminal responsibility, the jury properly
found the Defendant guilty of knowingly concealing and removing merchandise valued at more
than $1,000.00 from Kohl’s.


        Under Tennessee law, a person may be charged with an offense if “he or she is criminally
responsible for the perpetration of the offense.” T.C.A. § 39-11-401, Sentencing Comm’n Cmts.
A person is criminally responsible for the conduct of another if, “acting with intent to promote or
assist the commission of the offense, or to benefit in the proceeds or results of the offense, the
person solicits, directs, aids, or attempts to aid another person to commit the offense[.]” T.C.A. §
39-11-402(2). Criminal responsibility is not a separate crime; rather, it is “solely a theory by
which the State may prove the defendant’s guilt of the alleged offense . . . based upon the conduct
of another person.” State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999). Under a theory of
criminal responsibility, an individual’s presence and companionship with the perpetrator of a
felony before and after the commission of an offense are circumstances from which his or her
participation in the crime may be inferred. See State v. Ball, 973 S.W.2d 288, 293 (Tenn. Crim.
App. 1998). No particular act need be shown, and the defendant need not have taken a physical
part in the crime in order to be held criminally responsible. See id. To be criminally responsible
for the acts of another, the defendant must “‘in some way associate himself with the venture, act
with knowledge that an offense is to be committed, and share in the criminal intent of the
principal in the first degree.’” State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994)
(quoting Hembree v. State, 546 S.W.2d 235, 239 (Tenn. Crim. App. 1976)).


       Based on the evidence presented at trial, we conclude that a jury could have found the
Defendant criminally responsible for the concealment and removal of merchandise valued over
$1,000.00 from Kohl’s store. The Defendant associated herself with the venture by contacting
Massey and arranging to go to Kohl’s the following day for the purpose of stealing items, acted
with knowledge that the shoplifting was committed, and shared in the intent with Massey and
Russell to steal from a Kohl’s store.


       Accordingly, we conclude that the evidence is sufficient to support the convictions for




                                                15
theft of property valued at more than $1,000.00 beyond a reasonable doubt.            As such, the
Defendant is not entitled to relief on this issue.


                                            D. Merger


        The Defendant contends, and the State concedes, that the Defendant’s two convictions
should have been merged. The State proceeded to trial on alternate theories of the same offense
and the jury convicted the Defendant of both counts. The trial court sentenced the Defendant to
concurrent terms of two years on probation for each offense, following the service of fourteen
days in confinement.


         While the evidence is sufficient to prove both convictions, both convictions may not stand
in the face of double jeopardy concerns. See State v. Beard, 818 S.W.2d 376, 379 (Tenn. Crim.
App. 1991); State v. Burris, 40 S.W.3d 520, 524 (Tenn. Crim. App. 2000). It is clear from our
review of the record that it was the intent of the parties and the trial court to merge the two
convictions because the convictions were based on alternate theories of the same offense. It
would appear that the failure to merge the convictions was an oversight. Therefore, we remand to
the trial court for the entry of modified judgments reflecting a merger of the two convictions. This
will result in a single conviction for the theft of property valued at more than $1000.00. The
merger of the convictions will have no effect on the Defendant’s effective sentence.


                                         III. Conclusion


         In accordance with the aforementioned reasoning and authorities, we remand this case to
the trial court for the entry of modified judgments reflecting a merger of the Defendant’s two
convictions and affirm the judgments of the trial court in all other respects.


                                                          _________________________________
                                                            ROBERT W. WEDEMEYER, JUDGE




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