        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs April 14, 2015

                  STATE OF TENNESSEE v. SHELTON POPE

                 Appeal from the Criminal Court for Shelby County
                   No. 13-04615     J. Robert Carter, Jr., Judge


                No. W2014-01057-CCA-R3-CD - Filed June 16, 2015


The defendant, Shelton Pope, appeals his Shelby County Criminal Court jury conviction
of theft of property valued at more than $500 but less than $1,000. On appeal, the
defendant claims that the trial court erroneously denied his motion for a mistrial in
response to the jury’s being exposed to improper influence and that the evidence is
insufficient to support the conviction. Following our review, we affirm the judgment of
the criminal court.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and NORMA MCGEE OGLE, J., joined.

Phyllis Aluko (on appeal) and Alicia Kutch (at trial), Assistant District Public Defenders,
for the appellant, Shelton Pope.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Meghan Fowler,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

               The defendant was originally charged with theft of property valued at
$1,000 or more but less than $10,000, a Class D felony. See T.C.A. §§ 39-14-103(a), -
105(a)(3). The jury convicted him of the lesser included offense of theft of property
valued at more than $500 but less than $1,000, a Class E felony. See id. § 39-14-
105(a)(2). The trial court sentenced the defendant to serve six years in the workhouse as
a career offender. Following the denial of the defendant’s timely motion for new trial, he
filed a timely notice of appeal.
              At trial, Mark Bassett, the victim, testified that his 1995 green Toyota
4Runner truck was stolen on March 9, 2013. The victim testified that on that date the
truck had an electrical problem; sometimes it would not start. On March 9, he drove the
truck to a Kroger store, and thinking his visit inside the store would be brief and being
unsure whether he could restart the truck if he turned off the ignition, he left the motor
running and the door unlocked. He was in the store 15 to 20 minutes, and while standing
in the checkout line, he noticed the truck was gone and called the police. After police
officers arrived, the victim gave the truck’s description and license number and his
insurance information to Officer Smith. The victim testified that his cellular telephone
was inside the truck.

              The victim testified that he heard on April 8, 2013, that the truck had been
found. Upon retrieving the truck, the victim found it to be in “awful,” “disgusting”
condition. The truck contained a man’s soiled clothing, “drug paraphernalia,” and a
small “baggie” that contained a “rock type substance.” He also found a job application
bearing the defendant’s name. The victim did not recover his telephone.

              The victim testified that the value of the truck at the time of the theft was
$1,200 to $1,300 and that he had recently invested about $1,500 making repairs and
installing new tires, a new battery, and a new starter.

              Gregory Manning testified that he and his wife went to the Kroger store on
March 9, 2013, and parked directly behind the victim’s truck. Mr. Manning remained in
his car while his wife went into the store. When the victim came out of the store with
groceries in hand and started looking around, Mr. Manning asked whether there was a
problem. The victim said his truck was missing, and Mr. Manning let the victim use Mr.
Manning’s telephone to call the police. Mr. Manning said he saw the victim’s truck
being driven away by a “black guy.”

              On cross-examination, Mr. Manning testified that the victim’s truck and his
own car had been parked “behind each other” with a drive lane separating them. He said
he noticed the truck’s driver because the truck nearly hit Mr. Manning’s vehicle as it was
quickly backing out of the parking space.

              Memphis Police Department (“MPD”) Officer Reginald Smith testified that
he answered a call to go to the Kroger on March 9, 2013, to investigate a complaint about
a stolen truck and that he entered the information on the truck into the department’s
stolen vehicle database. MPD Officer Timothy Shaw testified that at approximately
11:50 p.m. on April 6, 2013, he saw a Toyota 4Runner parked at Rodney Baber Park,
which was closed at that hour. Officer Shaw “ran the plates” and learned that the Toyota
was stolen and that the owner was not the defendant, who was sitting in the driver’s seat.
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A woman sat in the passenger seat.

             Inside the Toyota truck, the officer found clothing, papers bearing the
defendant’s name, and a “crack pipe.” The defendant told the officer that the clothing in
the truck was his. The officer had the truck towed to the city impound lot. On cross-
examination, Officer Shaw testified that the defendant made no attempt to flee or resist
arrest.

              Angela Thomas testified that she was arrested along with the defendant at a
park in April 2013. Ms. Thomas and the defendant were in a green truck. She said that
she told an officer at the time that she had seen the defendant driving that truck the week
before.

                The defendant presented no proof in the trial. The jury convicted him of
theft, albeit at a grade less than that charged.

               In the defendant’s first appellate issue, he claims that the trial court erred by
failing to order a mistrial based upon the jury’s being exposed to extraneous information.

              During its deliberation, the jury posed a question to the trial court: “If we
cannot conclude on value, what happens?” The court did not respond immediately but
adjourned trial proceedings for the day and sent the unsequestered jurors home. When
court opened the following morning and with the jury absent from the courtroom, the trial
judge and counsel discussed the possibility that some jurors may have used extraneous
information to help the jury determine the value of the stolen truck. The judge brought in
the jury and instructed them not to consult or use information outside the evidence
presented in the case. The jurors indicated their assent to this instruction.

               The jury was excused, and the trial judge then placed on the record the
events that had prompted the new instruction. He indicated that a juror had
communicated to court personnel that one or more of the jurors “might have used their
cell phones and already checked the internet or Googled the Kelley blue book value of
the vehicle in question.”

             When the court announced that the jury was ready to return with a verdict,
the defendant then moved for a mistrial based upon the jury’s exposure to extraneous
information. The trial court denied the motion.

               The decision to grant or deny a mistrial is entrusted to the sound discretion
of the trial court, and this court will disturb the trial court’s ruling in this regard only
when there has been an abuse of the trial court’s discretion. State v. Nash, 294 S.W.3d
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541, 546 (Tenn. 2009). “Normally, a mistrial should be declared only if there is a
manifest necessity for such action.” State v. Saylor, 117 S.W.3d 239, 250 (Tenn. 2003)
(citing State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991)). “In other
words, a mistrial is an appropriate remedy when a trial cannot continue, or a miscarriage
of justice would result if it did.” Saylor, 117 S.W.3d at 250 (quoting State v. Land, 34
S.W.3d 516, 527 (Tenn. Crim. App. 2000)). “The purpose for declaring a mistrial is to
correct damage done to the judicial process when some event has occurred which
precludes an impartial verdict.” State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim.
App. 1996). The burden of establishing the necessity for mistrial lies with the party
seeking it. Id.

               In the present case, the motion for a mistrial was founded upon the claim
that members of the jury acquired non-evidentiary information to use in resolving the
issues on trial. Our supreme court has recently addressed this issue:

                     When a trial court learns that an extra-judicial
             communication between a juror and a third-party has
             occurred, the court must take steps to assure that the juror has
             not been exposed to extraneous information or has not been
             improperly influenced.            In most circumstances, the
             appropriate first step is to conduct a hearing in open court in
             the presence of the defendant to place the facts in the record
             and to determine on the record whether cause exists to find
             that the juror should be disqualified. As the Court of Appeals
             has noted, when misconduct involving a juror is brought to a
             trial court’s attention, “it [is] well within [the judge’s] power
             and authority to launch a full scale investigation by
             summoning . . . all the affiants and other members of the jury,
             if need be, with a view of getting to the bottom of the matter,
             and this, if necessary, upon [the judge’s] own motion.”

                    Because of the potentially prejudicial effect of a
             juror’s receipt of extraneous information, the State bears the
             burden in criminal cases either to explain the conduct of the
             juror or the third party or to demonstrate how the conduct was
             harmless. Error is harmless when “it appears beyond a
             reasonable doubt that the error complained of did not
             contribute to the verdict obtained.”

                   When a jury is not sequestered, something more than a
             showing of an extra-judicial communication between a juror
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             and a third party is required to shift the burden to the State.
             There must also be evidence that, as a result of the extra-
             judicial communication, some extraneous prejudicial fact or
             opinion “was imported to one or more jurors or some outside
             improper influence was brought to bear on one or more
             jurors.” Thus, when it is shown that a juror has been exposed
             to extraneous prejudicial information or an improper
             influence, a rebuttable presumption arises and the burden
             shifts to the State to explain the conduct or demonstrate that it
             was harmless.

State v. Smith, 418 S.W.3d 38, 46 (Tenn. 2013) (citations and footnote omitted).

              “A party challenging the validity of a verdict must produce admissible
evidence to make an initial showing that the jury was exposed to extraneous prejudicial
information or subjected to an improper outside influence.” State v. Adams, 405 S.W.3d
641, 651 (Tenn. 2013). Tennessee Rule of Evidence 606(b) allows a juror to be called to
testify “on the question of whether extraneous prejudicial information was improperly
brought to the jury’s attention, [or] whether any outside influence was improperly
brought to bear upon any juror.” Tenn. R. Evid. 606(b).

               In the case before us, the defendant did not utilize the mechanism afforded
by Rule 606(b) to establish through admissible evidence that an exposure to extraneous
information actually occurred. That burden lay with him, and because he did not
shoulder this burden, the State was never obliged “to explain the conduct or demonstrate
that it was harmless.” See Smith, 418 S.W.3d at 46.

              In passing, we are aware that, even if the defendant had shown an
impermissible interjection of extraneous information as alleged, the circumstances
indicate that an exposure to the information was harmless beyond a reasonable doubt.
See id. The allegation was that the information related to the value of the stolen vehicle.
The only value evidence presented at trial was the victim’s testimony that the vehicle was
worth $1,200 to $1,300. For whatever reason, the jury placed the value at an amount less
than $1,000 and, in so doing, lessened the grade of the felony offense from Class D to
Class E. Certainly, no outside information that may have been imparted to the jury
caused them to accept the victim’s testimony; indeed, if any such imparting occurred, it
likely accounts for the diminution in value to the defendant’s benefit. Under these
circumstances, any error appears to be harmless beyond a reasonable doubt.

              In the defendant’s other issue on appeal, he challenges the sufficiency of
the convicting evidence. We review the defendant’s claim mindful that our standard of
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review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307,
324 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. Winters, 137 S.W.3d at 654.
“[D]irect and circumstantial evidence should be treated the same when weighing the
sufficiency of such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

              When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.
Winters, 137 S.W.3d at 655. 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. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Significantly, this court must afford the State the strongest legitimate view of the
evidence contained in the record as well as all reasonable and legitimate inferences which
may be drawn from the evidence.

              “A person commits theft of property if, with intent to deprive the owner of
property, the person knowingly obtains or exercises control over the property without the
owner’s effective consent.” T.C.A. § 39-14-103(a). Theft is graded by the value of the
property taken. The theft of property valued at more than $500 but less than $1,000 is a
Class E felony. Id. § 39-14-105(a)(2).

               The defendant’s attack upon the sufficiency of the evidence is based upon
his claim that the State failed to prove his identity as the thief. We disagree. In the light
most favorable to the State, the evidence showed that a man matching the defendant’s
ethnic derivation took the victim’s truck which the victim had left unlocked with the
engine running and hurriedly departed the Kroger parking lot. The defendant was seen
driving the truck less than three weeks after the theft, and when the police officer found
the truck slightly less than a month after the theft, the defendant was in the driver’s seat.
Inside the truck, officers found clothing that the defendant admitted to owning, and they
found a job application form bearing the defendant’s name. Upon these facts, the jury’s
inference that the defendant stole the truck was reasonable. Thus, the evidence was
sufficient to convict the defendant of theft.

              In conclusion, we affirm the judgment of the trial court.

                                          _________________________________
                                          JAMES CURWOOD WITT, JR., JUDGE

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