                                                                                      08/08/2017
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                          Assigned on Briefs July 19, 2017

           STATE OF TENNESSEE v. COMER THOMAS VANCE

                 Appeal from the Circuit Court for Bedford County
                         No. 18192 F. Lee Russell, Judge


                           No. M2017-00204-CCA-R3-CD


The defendant, Comer Thomas Vance, appeals his Bedford County Circuit Court jury
conviction of felony theft, claiming that the evidence was insufficient to support his
conviction and that the prosecutor’s closing argument was improper. Discerning no
error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

James Ronald Tucker, Jr. (on appeal and at trial) and Brian Belden (at trial), Assistant
District Public Defenders, for the appellant, Comer Thomas Vance.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Robert J. Carter, District Attorney General; and Michael D. Randles
and Richard A. Cawley, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                      OPINION

               In January 2016, the Bedford County Grand Jury charged the defendant
with one count of theft of property valued at $1,000 or more but less than $10,000. The
trial court conducted a jury trial in November 2016.

             The State’s proof at trial showed that in June 2015, the victim, Scotty
Colwell, was a full-time student at Middle Tennessee State University and worked part-
time for a construction company while living in Smithville. The victim owned a 2004
black Mazda 3 hatchback (“the Mazda”) that he estimated to be worth between $4,500
and $5,000 in June 2015.
              At approximately 6:00 a.m. on June 22, 2015, the victim’s foreman picked
the victim up from his residence to drive him to work. Before leaving, the victim
retrieved his tool belt from the Mazda, which was parked in his driveway, and he
inadvertently left his car keys on the seat of the unlocked Mazda. About two hours later,
the victim’s girlfriend called him at work to inquire about the location of the Mazda
because it was no longer parked in the victim’s driveway.

              The victim’s supervisor drove him to the police station so that he could file
a report of the theft. The victim provided Detective Matthew Holmes with a full
description of the Mazda, including the vehicle identification number (“VIN”). The
victim also informed Detective Holmes that the Mazda contained a global positioning
system (“GPS”) as well as the victim’s daughter’s baseball equipment.

              Sometime later, a law enforcement officer contacted the victim to inform
him that the Mazda had been located. The baseball equipment was recovered but the
GPS was never recovered. The driver’s side door had a large scratch, and the vehicle
“was completely full of cigarette[] butts.” The victim testified that he had never met or
heard of the defendant and that he never gave him permission to take the Mazda.

               On June 23, 2015, Shelbyville Police Department Patrolman Bobby
Peacock received a call about a suspicious vehicle parked behind a local church. When
Patrolman Peacock arrived at the scene, he discovered a black Mazda, but when he
checked the Mazda’s license plate, he learned that the plate was registered to a Nissan
Quest minivan that was owned by the family of Erica Gasbar, who resided across the
street from the church. Upon running a search for the Mazda’s VIN, Patrolman Peacock
learned that the vehicle had recently been reported as stolen.

               Patrolman Peacock spoke with Ms. Gasbar, who informed him that the
Nissan’s license plate had recently been stolen and that she had seen a white male at the
house next door driving a black vehicle. Ms. Gasbar identified the defendant as the man
she had seen driving the black vehicle, explaining that she had seen him on
approximately five prior occasions with Brandy Boyce, who resided next door. Ms.
Gasbar testified that shortly after seeing the defendant driving the black vehicle, she
noticed that the license plate was missing from the family’s Nissan.

             Brandy Boyce, the Gasbars’ next-door neighbor, testified that she and the
defendant had been involved romantically but that the two had ended their relationship in
May 2015. While the two were dating, Ms. Boyce would drive to Smithville to visit the
defendant because he did not have a car. In June 2015, the defendant “showed up” at Ms.
Boyce’s residence driving a black Mazda. When Ms. Boyce asked the defendant whose
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car he was driving, the defendant responded that he had borrowed it from a friend. The
defendant then gave Ms. Boyce a “little girl’s bat bag” and baseball bat; he told her that
“a friend” had given the items to him, and the defendant wanted Ms. Boyce’s daughter to
have them. Later that evening, the defendant and Ms. Boyce drove the Mazda to the
grocery store, and when they returned, the defendant parked the Mazda “[b]ehind the
church across the street.”

               The following morning, June 23, Ms. Boyce was awakened by detectives
knocking on her door. Shelbyville Police Department Detective Brian Crews asked Ms.
Boyce if anyone else was present in the residence, and she informed him that the
defendant was inside. Detective Crews asked to speak with the defendant and asked Ms.
Boyce to locate the keys to the black Mazda. Ms. Boyce was unable to find the keys on
the kitchen counter where she had placed them the previous night. After the detectives
spoke with the defendant outside, the detectives located the car keys behind an artificial
tree in the corner of Ms. Boyce’s bedroom. Ms. Boyce also showed Detective Crews the
pink baseball bag and bat that the defendant had given her; Detective Crews noticed that
the victim’s last name was on both the bag and the bat.

              Ms. Boyce testified that the defendant was a “[p]retty heavy” smoker,
estimating that the defendant smoked a “[p]ack or more” per day. Ms. Boyce denied
taking the Mazda from Smithville or ever seeing the Mazda before the defendant arrived
at her residence.

             With this evidence, the State rested. Following a Momon colloquy, the
defendant elected not to testify and presented no proof.

               Based on this evidence, the jury convicted the defendant as charged of theft
of property valued at $1,000 or more but less than $10,000. Following a sentencing
hearing, the trial court sentenced the defendant as a career offender to a term of 12 years’
incarceration, to be served consecutively to the defendant’s sentence in Warren County
under docket number F14157 and “any other sentence.” Following the denial of his
timely motion for new trial, the defendant filed a timely notice of appeal.

               In this appeal, the defendant contends that the evidence adduced at trial was
insufficient to support his conviction and that the prosecutor’s closing argument was
improper. We will address each issue in turn.

                                       I. Sufficiency

               The defendant first contends that the evidence adduced at trial was
insufficient to support his conviction. We disagree.
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              We review the defendant’s claim of insufficient evidence mindful that our
standard of 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, 319 (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. State v. Dorantes, 331 S.W.3d
370, 379 (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. Id.
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.
Id.

              As charged in this case, “[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.

              Here, the proof adduced at trial established that, on the morning of June 22,
2015, the victim inadvertently left his car keys on the seat of his unlocked black Mazda,
which was parked in the driveway of his Smithville residence. That afternoon, the victim
learned that his vehicle, which contained his daughter’s baseball bag and bat, had been
stolen from his driveway. Meanwhile, the defendant, who resided in Smithville and did
not own a vehicle, arrived at Ms. Boyce’s residence unannounced driving a black Mazda.
The defendant informed Ms. Boyce that he had borrowed the vehicle from a friend, and
the defendant also gave Ms. Boyce a pink baseball bag and bat to give to her daughter.
When Ms. Boyce and the defendant returned from a trip to the grocery store that evening,
the defendant parked the Mazda in the church parking lot behind Ms. Boyce’s residence.
Ms. Boyce recalled placing the car keys on her kitchen counter.

               On the morning of June 23, Patrolman Peacock, while investigating a report
of a suspicious black Mazda in a church parking lot, learned that the Mazda’s plates were
registered to a Nissan owned by the Gasbar family and that the Mazda had recently been
reported as stolen. Upon speaking with Ms. Gasbar, who lived across the street from the
church and next door to Ms. Boyce, Patrolman Peacock learned that the Gasbars’

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Nissan’s license plate had recently been stolen as well and that Ms. Gasbar had seen the
defendant driving the Mazda.

             Armed with this information, Detective Crews paid a visit to Ms. Boyce
and spoke with the defendant. Ms. Boyce provided Detective Crews with the pink
baseball bag and bat, which were both emblazoned with the victim’s last name, but she
was unable to locate the car keys on her kitchen counter. After speaking with the
defendant, Detective Crews found the Mazda’s car keys behind a plant in Ms. Boyce’s
bedroom.

             Ms. Boyce denied stealing the Mazda or ever having seen it prior to June
22, and the victim testified that he did not know the defendant and never gave him
permission to take the Mazda. Ms. Boyce also testified that the defendant was a “[p]retty
heavy smoker,” and the victim testified that, when the Mazda was returned to him, it
“was completely full of cigarette[] butts.” The victim testified that the Mazda was worth
between $4,500 and $5,000 in June 2015.

              Taking all of this into consideration, we conclude that the defendant
intended to deprive the victim of the Mazda by knowingly obtaining it without the
victim’s consent. Although the defendant argues on appeal that the evidence showed that
Ms. Boyce was, in fact, the guilty party, such matters of witness credibility and
evidentiary weight are within the exclusive province of the trier of fact, and this court
will not reweigh such evidence. See Dorantes, 331 S.W.3d at 379.

              Viewing this evidence in the light most favorable to the prosecution, we
find that the evidence adduced at trial overwhelmingly established the defendant’s
conviction of theft of property valued at $1,000 or more but less than $10,000.

                              II. Prosecutorial Misconduct

              The defendant also asserts that the prosecutor committed misconduct
during rebuttal argument by improperly commenting on the defendant’s having informed
Detective Crews of the location of the Mazda’s car keys. In addition, the defendant
asserts, with minimal supporting argument, that the trial court erred by denying a mistrial
on the basis of the prosecutor’s comments. We disagree.

            During the State’s direct examination of Ms. Boyce, the following
exchange occurred regarding the whereabouts of the Mazda’s keys:

              Q:    Did you tell Detective Crews where the car keys were
              when you had seen them?
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              A:     I was, I told him the last time I had seen them, they
              were laid on the kitchen counter, where I had layed [sic] them
              after we had came back from the grocery store.

              Q:     All right. And were they there at this point in time?

              A:     No, sir.

              Q:      Were you able to, did you help Detective Crews search
              for the keys?

              A:     I did. I did. I helped him, and there was another
              officer, it was him, Chuck Merlo, and another officer that was
              helping look through the house for the keys.

              Q:     Were you guys able to find the keys?

              A:    Once [the defendant] got a cigarette, he informed them
              they were in the bedroom.

              Q:     All right. What do you mean, once he got a cigarette?

              A:     He kept asking for a cigarette and he told them once he
              got a cigarette, he would tell them where the keys were at.

              Q:    All right. So, he told Detective Crews, Hey, if you
              give me a cigarette, I’ll tell you where the keys are?

              A:     Basically, that was my understanding. I was in the
              house the whole time. They had [the defendant] outside
              talking to him.

              Q:    All right.     Do you know where the keys were
              eventually found?

              A:     Yes, they were in a[n] artificial, like tree in the corner
              of the bedroom.

At no point during this testimony did the defendant register an objection.

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                During Detective Crews’ direct examination, the State asked the detective
to tell the jury “about the conversation you initially had with the defendant, out on the . . .
back deck.” Defense counsel objected and requested a bench conference. Outside the
presence of the jury, defense counsel explained that the State had failed to disclose during
the discovery process the audio recording of the conversation between the detective and
the defendant. The trial court sustained the objection and instructed the prosecutor to
refrain from discussing the details of the conversation that took place. The trial court did,
however, permit the State to elicit testimony from Detective Crews that he was able to
locate the car keys following a conversation with the defendant.

             When direct examination resumed, the following exchange took place,
without objection, between the prosecutor and Detective Crews:

              Q:     Okay. And I don’t want to discuss the substance of
              that conversation, but as a result of that conversation, were
              you able to learn where the keys were in the house?

              A:     Yes.

              Q:    Okay.       And that was the conversation with [the
              defendant]?

              A:     Correct.

              Q:     All right. Now, so, then, after having that conversation
              with [the defendant], did you go back in the house?

              A:     I did.

              Q:     And did you go to a specific location in the house?

              A:     I did.

              Q:     And, and did you go to that specific location as a result
              of the conversation with [the defendant]?

              A:     I did.

              Q:     And, and where was that specific location?



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              A:     In the master bedroom. In the corner of the bedroom,
              there was an artificial tree in the corner of the master
              bedroom. And behind that artificial tree, I located the keys to
              the vehicle.

Defense counsel conducted no cross examination of Detective Crews.

               During the defendant’s closing argument, defense counsel argued that the
“State wants you to take the leap that just because, after talking with [the defendant],
they, the officers were able to locate the keys inside of Ms. Boyce’s house . . . [t]hat [the
defendant] is the person that had access, had the keys, hid the keys and even stole the
vehicle.” Defense counsel then proposed the theory that Ms. Boyce had actually stolen
the Mazda. In rebuttal argument, the prosecutor stated as follows:

                      [Detectives t]alk to Ms. Boyce about it. Yeah, he’s
              driving that black car. And yeah, he’s here. And oh, yeah, by
              the way, the keys are on the counter. But when, after talking
              to [the defendant], after getting him outside and going to find
              those keys, they can’t find them. Ms. Boyce even helps them
              try to locate them. They can’t find them with Ms. Boyce’s
              help. So, they go outside and have a conversation with [the
              defendant]. After that conversation, voilà. We know where
              the keys are now. We go in, we find them exactly where [the
              defendant] said they would be located.

                     So, who has possession of that car? I mean, what
              good’s a car without the keys? So, if you’ve got the keys to
              that car, you’ve got that car. . . .

               The defendant did not object to these statements, but at the conclusion of
the prosecutor’s rebuttal argument, defense counsel requested a bench conference and
moved for a mistrial on the basis that the prosecutor’s statements regarding the
defendant’s statement about the location of the keys were in violation of the trial court’s
prior ruling to refrain from mentioning the substance of the conversation. The trial court
denied the motion, and defense counsel did not ask for a curative instruction.

              The defendant failed to lodge a contemporaneous objection to the remarks
he now challenges on appeal. Thus, to be entitled to relief, he must establish not only
that the remarks were improper but also that they rose to the level of plain error. State v.
Gann, 251 S.W.3d 446, 458 (Tenn. Crim. App. 2007) (holding that defendant’s failure to
lodge a contemporaneous objection during challenged closing argument waived plenary
                                            -8-
review of the issue and left only plain error review). We see no basis for noticing the
error despite waiver. See Tenn. R. App. P. 36(b). Even assuming that the argument was
improper, in light of the overwhelming evidence of the defendant’s guilt, as previously
addressed, it would be harmless. Thus, nothing suggests that “‘a substantial right of the
accused [was] adversely affected’” or that “‘consideration of the error is “necessary to do
substantial justice.”’” See State v. Smith, 24 S.W.3d 274, 282, 283 (Tenn. 2000) (quoting
State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)).

                To the extent the defendant argues that the trial court erred by denying his
motion for a mistrial, his failure to support this assertion with appropriate argument
renders it waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by
argument, citation to authorities, or appropriate references to the record will be treated as
waived in this court.”). In any event, we find no abuse of discretion in the trial court’s
decision to deny the motion for mistrial. See State v. Nash, 294 S.W.3d 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). Here,
nothing indicated a manifest necessity for the declaration of a mistrial, and the trial
court’s decision to deny the motion did not result in a miscarriage of justice. See Saylor,
117 S.W.3d at 250.

                                        Conclusion

              Based upon the foregoing analysis, we affirm the judgment of the trial
court.

                                                  _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




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