        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 February 5, 2014 Session

             STATE OF TENNESSEE v. TIMOTHY NEAL STILES

                    Appeal from the Circuit Court for Tipton County
                        No. 7319     Joseph H. Walker, Judge


                No. W2013-01164-CCA-R3-CD - Filed March 21, 2014


The defendant, Timothy Neal Stiles, was convicted by a jury of theft of property valued over
$1,000 but under $10,000, a Class D felony. After trial, defense counsel investigated the
ownership of the stolen vehicle, along with other discrepancies at trial, and introduced this
evidence at the sentencing hearing and the hearing on the motion for a new trial. The trial
court denied his motion for a new trial, and the defendant appeals. He asserts as error that:
(1) the evidence is insufficient to support the verdict; (2) a variance exists between the crime
charged in the indictment and the proof at trial; (3) the State knowingly presented false
testimony or withheld exculpatory material; and (4) the trial court refused to authorize the
court reporter to transcribe the sentencing hearing. After a thorough review of the record,
we conclude there was no error and affirm the judgment of the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which A LAN E. G LENN
and C AMILLE R. M CM ULLEN, JJ., joined.

Gary F. Antrican, District Public Defender; and Parker O. Dixon, Assistant District Public
Defenders, for the appellant, Timothy Neal Stiles.

Robert E. Cooper, Jr., Attorney General & Reporter; David H. Findley, Senior Counsel;
Mike Dunavant, District Attorney General; and Jason R. Poyner, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION

                      FACTUAL AND PROCEDURAL HISTORY
         The defendant’s arrest came about as the result of the theft of a trailer bearing a 2007
Grizzly 700 four-wheeler in the possession of the defendant’s sometime employer, John
Malone. The prosecution’s theory was that the defendant stole the vehicle in order to pay
$588 in court costs and probation fees that were due the day after the theft. The vehicle was
parked in a locked shed at the victim’s business, which consisted of the buying and selling
of car parts. The key to the vehicle was kept in a wooden box in the locked shop building.
Only the victim, his employee Roger Antle, and the victim’s wife had access to the shop. At
trial, the victim testified that the defendant, who last worked for him part-time around two
weeks before the theft, had been asking for more work because he had fees due related to a
prior conviction. The victim did not have additional employment for the defendant.

        On January 4, 2012, the victim left his business sometime after dark, and at that time,
the vehicle and trailer, worth about $5,500 and $700, were in the shed. The shed was secured
with a lock. The victim testified that he believed that the shop was also locked. The next
day, January 5, 2012, he received a phone call from Roger Antle informing him that the
locks on the gate and the shed were missing. He concluded that these either had been opened
and removed or had been cut off. The four-wheeler, the trailer, and the key kept in the box
in the shop were missing, although nothing else in the shop appeared disturbed. The victim
filed a police report with the Munford Police Department.

       According to the defendant’s probation officer, on January 5, 2012, the defendant had
been “on extension” for his fines and fees and was expected at an appointment at the
probation office that day “at which time he had to provide documentation that everything had
been paid, and we would do the discharge.”1 The defendant, who had struggled to make
payments most of the time and had never made such a large payment before, came in with
a receipt for $473 paid to the court and paid an additional $115 at the probation office for his
fees. If the defendant had not met the conditions of his probation, his probation officer
would have filed a violation of probation report.

       After the theft, the victim’s suspicions soon settled on the defendant. Accordingly,
he drove by the defendant’s parents’ home in Mississippi with Zack Antle, who was both
Roger Antle’s son and the defendant’s roommate. Then on February 12, 2012, the victim,
Taylor Scott,2 and Johnny Mitchell went to the defendant’s home in Shelby County to
confront him regarding the theft. According to the victim, the defendant initially denied
taking the four-wheeler but admitted to it after about fifteen minutes. The victim testified


        1
        The defendant’s probation officer also testified, in an unexplained contradiction, that the fees were
due January 10.
        2
            The record also appears to refer to Mr. Scott as“Tater.”

                                                      -2-
that they spoke both inside and outside of the house, and he denied that either he or his
companions threatened or coerced the defendant. It is not clear from the victim’s testimony
exactly when he claimed to have called the Memphis Police Department, but he testified that
it was prior to the defendant confessing. He also testified that he had told the defendant that
he would not pursue charges if the property were returned, and he testified that he called
police after this discussion.

        Officer Michael Bartlett of the Memphis Police Department, who asserted that he had
no connection to the victim, defendant, or Munford police, responded to the confrontation
at the defendant’s home. Officer Bartlett testified that, “[i]t came in as a complaint call,” and
he did not know the nature of the complaint until he was on the scene, where he saw six to
eight people outside. After the victim told him the impetus for the argument, he spoke to the
defendant, who admitted taking the four-wheeler. The defendant stated that he did not know
where it was at the time, as he had given it to his father. The defendant did not complain of
being coerced, threatened, or assaulted, and Officer Bartlett saw no sign of a physical
confrontation. Officer Bartlett detained the defendant in his squad car after the defendant’s
admission, but soon found out from the victim that the theft had taken place outside his
jurisdiction. Following his superiors’ instructions, he created a memo for the Munford police
and released the defendant. Chuck Salayi, who had investigated the theft for the Munford
Police Department and had previously been unsuccessful in contacting the defendant,
acknowledged at trial that his supplement, based on Officer Bartlett’s memo, stated that the
defendant “spoke of” taking the four-wheeler and that the supplement did not state that the
defendant admitted the crime. He testified that, to him, the two phrases were
interchangeable.

       The defendant attempted to undermine the State’s case by calling into question the
credibility of the State’s witnesses, particularly the victim, and by introducing evidence that
the defendant could not have sold the four-wheeler to his father on the night of the theft in
order to raise money for court costs. The defendant’s father is a truck driver, and the record-
keeper of his employer testified that satellite tracking revealed that the defendant’s father left
Memphis at 2 a.m. on January 3, 2012 an did not return until 9:00 p.m. on January 5, 2012.
The defendant’s father testified that he had nothing to do with the theft.

        The defendant’s father’s testimony also cast doubt on the State’s version of events by
offering an alternate source for the defendant’s money. The defendant’s mother had died one
month prior to trial, and the defendant’s father testified that she handled the money and that
she had intended to testify at the trial. The defendant’s father acknowledged that he had not
brought or obtained any financial records showing a withdrawal from his bank account near
the time. The defendant’s father also testified that he did not believe the defendant’s vehicle
had a trailer hitch and that, while the defendant had sometimes driven a truck owned by him,

                                               -3-
the truck was inoperable at the time.3

        Defense counsel’s questions attempted to elicit information that the victim was
essentially on a witch hunt for the defendant and that the evidence against the defendant was
manufactured by the victim and his confederates, including Zack Antle. The victim
acknowledged during cross-examination that he found out after the theft of the four-wheeler
that Zack Antle had stolen and pawned tools from his shop. Zack Antle helped him retrieve
the tools from the pawn shop prior to taking the victim by the defendant’s parents’ home in
Mississippi. The defendant tried to show that the victim had a bias in favor of the Antles by
eliciting testimony that Roger Antle, Zack Antle’s father, was the victim’s sole regular
employee and had been his friend since they were teens. The victim also testified to another
theft on the property, a catalytic converter stolen from a car. The victim knew that the
defendant had kept a four-wheeler at Roger Antle’s home, but he denied having stolen it.

         The defense questioned the victim regarding the origin of the four-wheeler. The
victim testified that he “purchased” it from his nephew, Joshua Smith. He later clarified that
he had traded his nephew a truck for the four-wheeler. He stated, “But I had the title and all
to it. I turned it in to the deputy. So it was legally mine.” He testified that the four-wheeler
had suffered flood damage and was totaled by the insurance company. His nephew then
bought it from the insurance company and traded it for the truck.

       The defense also questioned the victim about the incident in Shelby County,
attempting to show that the victim had chosen that location in order to obtain access to a
biased police officer. The victim, however, denied that his nephew had ever been a Memphis
police officer, and testified that he called Memphis police rather than Munford police
because of the location of the defendant’s house.

      In the course of discussing the victim’s call to the police, the following
exchange took place:

               Q: “You took a – or you claim to have taken some kind of
               recording, didn’t you?”
               ....
               A: “I didn’t take no recording.”
               Q: “You never would have said anything to anybody about a
               recording?”
               A: “No, sir. I don’t even own a little recorder to take.”


       3
         The defendant’s father’s testimony is confused about when the truck was inoperable, and at one
point, he testified it broke down in August 2012, well after the crime.

                                                  -4-
              ....
              Q: “You didn’t – you never mentioned to the police or anybody
              else about the existence of any type of recording?”
              A: “No, sir, I did not.”
              ....
              Q: “Have you ever heard any recording of Timmy Stiles
              regarding this incident?”
              A: “No, sir.”

The defense then attempted to impeach this testimony when Investigator Salayi of the
Munford Police Department testified. Defense counsel pointed out that Investigator Salayi’s
supplement mentioned a recording. Investigator Salayi then testified that the victim was
there when the recording was reported to Investigator Salayi and that the victim knew about
the recording and had told him about it.

        Defense counsel vigorously pursued this line of questioning over the State’s objection,
indicating to the court that he desired a lost or destroyed evidence instruction. The trial court
held a hearing outside the presence of the jury, where Investigator Salayi testified that the
victim had brought Zack Antle to the police station and that the victim sat in a waiting area
while Zack Antle played a recording he had purportedly made on his phone of the defendant
confessing to the crime. Investigator Salayi attempted to transfer the recording to a CD,
which he then provided to the prosecution, and which the prosecution gave to the defense.
The defense, however, discovered that the CD contained completely unrelated material. A
second copy of the CD proved to be similarly unrelated. The trial excluded testimony
regarding the recording because it could not be authenticated, as Zack Antle was not called
as a witness at trial, and Investigator Salayi testified that he could not recognize the voices
on the recording. Defense counsel, however, ignored this ruling and continued to question
Investigator Salayi about the recording. The trial court then allowed the defense to ask about
the recording, ruling that the information which the jury had already been exposed to through
defense counsel’s questioning would be prejudicial to the State’s case if the contents were
not allowed to be put before the jury. Investigator Salayi then testified that he was provided
with a recording purporting to be the drunken defendant bragging about stealing the four-
wheeler. He testified that the victim called about the recording, but later stated that the
victim did not call about it but rather came by and asked about it.. He acknowledged that he
did not recognize the voices on the recording.

       The jury was unable to reach a verdict on the burglary charge, and the State elected
to dismiss that count. The jury convicted the defendant of theft of an item valued between
$1,000 and $10,000, and the trial court sentenced him to two years’ imprisonment, with sixty
days to be served in jail and the remainder on probation. After trial, defense counsel

                                               -5-
continued to investigate what he perceived as irregularities in the case. At the motion for a
new trial, defense counsel introduced as an exhibit the records of Memphis police indicating
that no 911 call was placed for the confrontation, but that the officer was flagged down. He
also introduced the November 2010 bankruptcy filing of the victim and the November 2011
bankruptcy filing of the victim’s nephew, neither of which shows the four-wheeler as an
asset.

       At the sentencing hearing, the defendant also apparently introduced the testimony of
Cara Cannon, who had been married to the victim’s nephew, that she had been the sole
owner of the four-wheeler and that she did not transfer ownership to the victim. The victim
was apparently called as a witness and subpoenaed to bring title to the vehicle, but he did not
produce the title. However, this hearing is not part of the record on appeal, as the trial court
denied the defendant’s request for a transcript because he raised no sentencing issues. The
defendant proceeded to file an extraordinary appeal to this court pursuant to Rule 10 of the
Tennessee Rules of Appellate Procedure. While the appeal is not part of the record, this
court’s denial is. We concluded that the petitioner’s appeal did not satisfy the requirements
of Rule 10, particularly in the absence of a record, but noted that the procedure for correcting
or modifying a record under Tennessee Rule of Appellate Procedure 24(e) and (g) was the
proper course for correcting the record. This court highlighted specifically that the order
denying the appeal “does not prevent the Petitioner from seeking to supplement the appellate
record once it is filed in this Court.” The defendant did not seek to supplement the record
on appeal.

        The defendant alleges that: (1) the evidence was insufficient to support the
conviction; (2) questions about the ownership of the vehicle create a variance between the
indictment and the proof at trial; (3) the defendant’s due process right was violated by the
State’s presentation of false testimony and the State’s failure to disclose exculpatory material;
and (4) that the trial court erred in refusing to provide the indigent defendant a transcript of
the sentencing hearing to support his issues on appeal.

                                         ANALYSIS

                               I. Sufficiency of the Evidence

       The defendant challenges the sufficiency of the evidence, asserting that the State did
not prove that the victim was the owner of the vehicle, casting blame on Zack and Roger
Antle as alternate suspects, and essentially alleging that the proof showed that the victim was
maliciously prosecuting the defendant. He also asserts that the proof that the defendant’s
father was out of town dismantles the State’s case.



                                               -6-
        An appellate court reviewing the sufficiency of the evidence must determine whether,
considering the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. State v.
Hall, 8 S.W.3d 593, 599 (Tenn. 1999). If the evidence is insufficient to support a finding of
guilt beyond a reasonable doubt, the court must set aside the conviction. Tenn. R. App.
13(e). On appeal, the State is entitled to the strongest legitimate view of the evidence and
to all reasonable and legitimate inferences that may be drawn from the evidence. State v.
Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004). The appellate court may not substitute its
inferences for those drawn by the trier of fact. State v. Smith, 24 S.W.3d 274, 279 (Tenn.
2000). “Questions about the credibility of 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, and this
Court does not re-weigh or re-evaluate the evidence.” State v. Evans, 108 S.W.3d 231, 236
(Tenn. 2003). Accordingly, “[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.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). In weighing the
sufficiency of the evidence, circumstantial and direct evidence are treated the same, and the
State is not required to exclude every reasonable hypothesis other than that of guilt. State v.
Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011). A guilty verdict replaces the presumption of
innocence with a presumption of guilt. Bland, 958 S.W.2d at 659. On appeal, the defendant
bears the burden of showing that the evidence is insufficient. State v. Franklin, 308 S.W.3d
799, 825 (Tenn. 2010).

       “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 (2010). “‘Owner’ means a person, other than the
defendant, who has possession of or any interest other than a mortgage, deed of trust or
security interest in property, even though that possession or interest is unlawful and without
whose consent the defendant has no authority to exert control over the property.” T.C.A. §
39-11-106(a)(26). Theft of property is a Class D felony when the value of the property is
between $1,000 and $10,000. T.C.A. § 39-14-105(a)(3).

       A criminal conviction cannot be based solely on the defendant’s uncorroborated
confession. State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012). The Tennessee Supreme
Court has recently adopted the modified trustworthiness standard in determining whether a
confession is sufficiently corroborated. State v. Bishop, __ S.W.3d __, 2014 WL 888198,
at *26 (Tenn. Mar. 6, 2014). When the crime involves a tangible injury, “the State must
provide substantial independent evidence tending to show that the defendant’s statement is
trustworthy, plus independent prima facie evidence that the injury actually occurred.” Id. at
*27. The State is not required to show that the injury was the result of a criminal act or to
link the defendant to the crime. Id. (noting also that “[t]he corpus delicti rule does not

                                               -7-
require corroboration of the defendant’s identity as the perpetrator”).

        The victim testified that the vehicle belonged to him and that he stored it in a locked
shed. The victim was therefore in possession of the vehicle and the defendant had no
authority to exert control over the vehicle without the victim’s consent. Accordingly, he was
an “owner” of the property within the meaning of the statute. Because proving possession
of the title is not an element of the crime, the uncontradicted proof of the victim’s possession
was sufficient to establish that the victim was the “owner” of the property.

        Taken in the light most favorable to the State, the evidence established that the vehicle
was removed from its storage place on the evening before the defendant was required to
make a critical payment toward his probation costs and fees. The defendant had struggled
to make previous smaller payments and had been looking for additional work to acquire the
money. The day after the theft, the defendant was able to pay $588. Two witnesses also
testified that the defendant admitted to taking the vehicle. The victim testified that the
defendant admitted to taking the four-wheeler when the victim and two other men came to
his home. Officer Bartlett also testified that the defendant admitted taking the four-wheeler.
While the jury was presented with evidence that Zack Antle had also committed theft against
the victim, that the victim was inclined to be more lenient with Zack Antle than with the
defendant, that the victim’s testimony regarding his knowledge of the recording was not
accurate, and that Officer Bartlett was not dispatched through 911, this evidence merely goes
to the credibility of the State’s witnesses, which remains for the jury to assess. Neither does
the proof that the defendant’s father was uninvolved in the theft on the night of January 4
exonerate the defendant. The jury was free to credit part of his statement to police – that he
stole the four-wheeler – while rejecting his statement that his father was involved. We
conclude that the evidence is sufficient to sustain the conviction.

                                         II. Variance

        The defendant next asserts that there is a variance between the indictment and the
proof presented at trial due to questions regarding the ownership of the stolen vehicle. The
indictment alleges that the defendant “did unlawfully, feloniously and knowingly obtain
property to-wit: a single axle trailer and a 2007 Yamaha Grizzly 700 four wheeler . . . of John
Malone without his effective consent . . . .” While the defendant’s motion for a new trial
explored extensively the victim’s purported lack of ownership, it never alleged that there was
a variance between the indictment and the proof at trial in this regard. Although this issue
is therefore waived, the defendant would in any case not be entitled to relief.

         Tennessee, in the more distant past, followed a stringent variance rule which dictated
that if the indictment alleged one owner and the proof at trial showed another, the variance

                                               -8-
was fatal. State v. Cox, 644 S.W.2d 692, 695-96 (Tenn. Crim. App. 1982). “A variance
between an indictment and the proof in a criminal case is not material where the allegations
and proof substantially correspond, the variance is not of a character which could have
misled the defendant at trial and is not such as to deprive the accused of his right to be
protected against another prosecution for the same offense.” State v. Moss, 662 S.W.2d 590,
592 (Tenn. 1984). In other words, a variance is not fatal if: “(1) the defendant is sufficiently
informed of the charges levied against him so that he can adequately prepare for trial and,
(2) the defendant is protected against a subsequent prosecution for the same offense based
on double jeopardy grounds.” State v. Mayes, 854 S.W.2d 638, 640 (Tenn. 1993). In
pleading double jeopardy as a bar to a second prosecution, the defendant “is not limited to
the wording in [the] count . . . but may rely on the entire record in the event of further
prosecution for the same offense.” State v. Gardner, No. M1999-02214-CCA-R3-CD, 2001
WL 306227, at *7 (Tenn. Crim. App. Mar. 30, 2001) (concluding that although victim of
shooting was named in indictment and only identified by description during trial, the facts
were sufficient to satisfy the rule in Moss).

        The defendant’s claim ultimately fails because there is simply no variance between
the indictment and the proof introduced at trial. The indictment alleged, essentially, that the
vehicle was taken from the possession of the victim. The proof at trial was that the victim
had possession of the vehicle, that he had traded a truck for the vehicle, and that he had title
to the vehicle. The proof at trial comports with the allegations of the indictment. Pointing
to the issues raised at the sentencing hearing regarding title, the defense is essentially
claiming a variance between certain evidence presented at the sentencing hearing and the
allegations of the indictment.

       However, even if the proof at trial had included evidence that the defendant did not
have good title, there would be no fatal variance. The defendant cites to the civil code for
the proposition that the owner of a vehicle must be in possession of the title. However, the
criminal code presents a much broader definition of owner: “a person, other than the
defendant, who has possession of or any interest other than a mortgage, deed of trust or
security interest in property, even though that possession or interest is unlawful and without
whose consent the defendant has no authority to exert control over the property.” T.C.A. §
39-11-106(a)(26).

        In State v. Moss, the Tennessee Supreme Court upheld a conviction where the
indictment alleged that the property belonged to a partnership, but it in reality belonged to
a corporation. Moss, 662 S.W.2d at 592, 593. Likewise, in State v. Cox, this court concluded
that a mistake regarding the name of the property owner was not fatal where a unique license
plate number both apprised the defendant of the substance of the charges and protected him
against a subsequent prosecution. Cox, 644 S.W.2d at 696. In this case, the victim listed in

                                              -9-
the indictment had possession of the vehicle, and the indictment sufficiently informed the
defendant of the charges against him. The victim, by dint of having maintained exclusive
possession of the vehicle for a period of one to two years, and without whose consent the
defendant has no authority to exert control over the property, was an owner within the
meaning of the statute.4 Although no vehicle identification was included in the indictment,
the record has been sufficiently developed that the defendant may rely on the instant record
to raise a bar to any subsequent prosecution for the same theft. Gardner, 2001 WL 306227,
at *7; see also State v. March, 293 S.W.3d 576, 592 (Tenn. Crim. App. 2008) (concluding
that law firm was an owner of stolen property, although the law firm retained a claim against
clients whose funds had been misdirected); State v. Parker, No. M2001-00773-CCA-R3-CD,
2002 WL 31852850, at *2 (Tenn. Crim. App. Dec. 18, 2002) (holding that pawn shop
employees were “owners” of the property and that State did not have to prove they had title
to the property); State v. Adkins, 710 S.W.2d 525, 528 (Tenn. Crim. App. 1985) (concluding
that there was no fatal variance where indictment alleged property belonged to husband when
it was owned by wife, as “[a]ny legal interest or special property interest in property stolen
will support an allegation of ownership”); State v. Hawk, 688 S.W.2d 467, 470 (Tenn. Crim.
App. 1985) (upholding conviction when one indictment named drivers of vehicles as victims
and the second named their parents, who held title, because the vehicle identification
numbers would prevent subsequent prosecution). The defendant is not entitled to relief on
this issue.

                                         III. Brady Violations

       The defendant argues that his due process rights were violated by the State of
Tennessee. In Brady v. Maryland, the United States Supreme Court held that the suppression
of evidence favorable to the defendant is a due process violation where the evidence is
material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). “The evidence
is material only if there is a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different.” United States v. Bagley,
473 U.S. 667, 682 (1985). The rule in Brady applies both to undisclosed information
favorable to the defendant and to false testimony knowingly presented by the prosecution.
United States v. Agurs, 427 U.S. 97, 103-07 (1976); State v. Edgin, 902 S.W.2d 387, 389
(Tenn. 1995).

                                          A. False Testimony



        4
         Although we do not rely on the events of the sentencing hearing, we note that according to the
defendant’s brief, Cara Cannon, who held title prior to the vehicle being totaled, asserts no property interest
in the vehicle, and acknowledged that she lost title to it in a bankruptcy proceeding.

                                                     -10-
        The defendant claims that false testimony given by the State’s witnesses violated his
due process rights. The Due Process Clause of the Fourteenth Amendment to the United
States Constitution and article I, sections 8 and 9 of the Tennessee Constitution prohibit the
State from knowingly using false testimony. State v. Spurlock, 874 S.W.2d 602, 617 (Tenn.
Crim. App. 1993). The State may not elicit false testimony and has an affirmative duty to
correct false testimony. Id. at 618. “When false testimony is material, the accused is entitled
to a new trial notwithstanding the fact that the false testimony is related to matters of
impeachment.” Id. at 621. The defendant is entitled to a new trial if he can demonstrate that
the State presented false testimony, that the State knew the testimony was false, and that the
testimony was material. State v. Cureton, 38 S.W.3d 64, 74-75 (Tenn. Crim. App. 2000).
In evaluating materiality, the court must determine whether there is a reasonable probability
that the outcome of the trial would have been different were it not for the State’s use of false
testimony. Shupe v. State, No. 03C019804-CC-00126, 1999 WL 88966, at *3-4 (Tenn.
Crim. App. Feb. 9, 1999); Bell v. State, No. 03C01-9210-CR-00364, 1995 WL 113420, at
*8 (Tenn. Crim. App. Mar. 15, 1995). “A ‘reasonable probability’ is a probability sufficient
to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682
(1985).

        The defendant asserts that the victim’s testimony that he “purchased” the vehicle was
false, as well as his assertion that he traded a truck for it. He asserts that this alleged
misrepresentation was material because he believes that the defendant could not have been
charged with taking the four-wheeler from the victim’s possession if the victim had no legal
interest in it. As noted above, the victim’s possession of the vehicle was sufficient to
establish him as an owner under the statute, and this evidence is accordingly not, as the
defendant asserts, a threshold question. T.C.A. § 39-11-106(a)(26); State v. Parker, No.
M2001-00773-CCA-R3-CD, 2002 WL 31852850, at *2 (Tenn. Crim. App. Dec. 18, 2002).
Furthermore, the defendant has not demonstrated either that the victim’s testimony was false
or that the State was aware of any falsity. According to the defendant’s representation, the
proof at the sentencing hearing might have at most established that the victim’s possession
was not lawful and that he did not have good title. This evidence does not create a
reasonable probability that the outcome of the trial would have been different.

        He next asserts that the victim and Officer Bartlett gave false testimony regarding how
the Memphis Police Department became involved in the dispute. He asserts that these
discrepancies are material because evidence of falsehood impeaches the witnesses’s
testimony and calls into question the credibility of Officer Bartlett and the victim, who were
the only witnesses to the defendant’s confessions. “When false testimony is material, the
accused is entitled to a new trial notwithstanding the fact that the false testimony is related
to matters of impeachment.” Spurlock, 874 S.W.2d at 621. Again, however, even assuming
that the 911 report establishes that the victim and Officer Bartlett gave false testimony that

                                              -11-
Officer Bartlett was dispatched and not flagged down, the defendant cannot show that the
State knew that the testimony was false. Neither can he show a reasonable probability that,
had the jury been presented with the true manner in which the Memphis Police Department
was summoned, the outcome of the proceeding would have been different.

        Finally, the defendant also highlights the victim’s testimony that he did not know
about the recording, which was contradicted by Investigator Salayi. We note that, because
the questions about the recording appeared to refer to a recording of the confrontation in
Shelby County, it is not clear whether the victim was merely confused or was attempting to
answer misleadingly. The victim’s testimony was that he had not heard any recording and
that he had not mentioned it to law enforcement. Investigator’s Salayi’s testimony was that
the victim knew of the recording. He also testified that the victim told him about the
recording, that the victim called about it, and that the victim did not call about it but came
by. However, there is no evidence that the State knew that the victim’s answers were false
or misleading. The State did not intend to introduce the recording or elicit any testimony
regarding the recording. Neither can the defendant demonstrate the materiality of this
testimony. The fact that the victim apparently knew of the recording made by Zack Antle
was more than adequately delved into during trial. Accordingly, there is no reasonable
probability that the outcome of the trial would have been different if the State had corrected
the testimony of the victim to reflect the fact that he was aware of the recording.

                   B. Undisclosed Evidence Favorable to the Accused

       The defendant also asserts that the State failed to disclose evidence favorable to him.
The items which the defendant claims were not disclosed are the victim’s copy of the
vehicle’s title and the recording of the defendant’s confession. However, the defendant’s
motion for a new trial only asserts that the victim withheld this potentially exculpatory
material from the State, and it thus appears that the issue is waived.

        Even if the defendant had not waived the argument, he is not entitled to relief. While
the State is not required to reveal its entire file to the defense, the State must disclose
evidence which, if suppressed, would deprive the accused of a fair trial. State v. Davis, 823
S.W.2d 217, 218 (Tenn. Crim. App. 1991). A failure to disclose favorable evidence is a
denial of due process “irrespective of the good faith or bad faith of the prosecution.” Brady
v. Maryland, 373 U.S. 83, 87 (1963). In order to establish a violation based on the
withholding of favorable material, the defendant must demonstrate: (1) that the defendant
requested the information or that it was obviously exculpatory; (2) that the State suppressed
the information; (3) that the information was favorable to the accused; and (4) that the
information was material. Hutchison v. State, 118 S.W.3d 720, 736 (Tenn. Crim. App. 2003)
(citing State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995)). Evidence is material if there is

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a reasonable probability that the result of the proceeding would have been different had the
evidence been disclosed. State v. Cureton, 38 S.W.3d 64, 77 (Tenn. Crim. App. 2000) (citing
United States v. Bagley, 473 U.S. 667, 682 (1985)).

         The defendant cannot show that the recording was favorable to him because the only
evidence regarding its contents indicated that it was a recording of a confession, purportedly
by the defendant. The title of the four-wheeler, which the victim testified he gave to the
State, is not in itself exculpatory, as the State was not required to prove that the victim had
title to the vehicle; the evidence at trial established that he had possession of the vehicle and
was therefore an owner within the meaning of the statute. The defendant asserts that the title
could have been used to impeach the victim. Impeachment evidence, as well as exculpatory
evidence, must be disclosed to the defense. Davis, 823 S.W.2d at 218. However, even if we
were to assume that the title definitively established some irregularity or illegality in the
victim’s acquisition of the vehicle and could be used as impeachment material, the defendant
cannot show that the evidence was material; that is, he cannot demonstrate a reasonable
probability that a jury would not have convicted him of stealing the four-wheeler from the
victim had he been able to show that the victim was dishonest about his acquisition of the
four-wheeler or that his possession was unlawful. Accordingly, this issue is also without
merit.

                        IV. Transcript of the Sentencing Hearing

        The defendant next asserts error in the trial court’s refusal to authorize a transcript of
the sentencing hearing. The defendant states that the hearing contained the testimony of Cara
Cannon, the (apparent) title-holder of the vehicle, as well as the victim’s refusal to testify and
his attempt to invoke his Fifth Amendment right against self-incrimination. The defendant
also refers to a copy of the title brought by Cara Cannon and to the victim’s failure to bring
title despite subpoena. The State counters that, because the defendant did not seek to
supplement the record on appeal as outlined in the denial of his Rule 10 application to this
court, he has waived the issue.

       Tennessee Rule of Appellate Procedure 36(a) indicates that “[n]othing in this rule
shall be construed as requiring relief be granted to a party . . . who failed to take whatever
action was reasonably available to prevent or nullify the harmful effect of an error.” We
agree with the State that the defendant cannot assert error in the exclusion of the transcript
when he did not seek to supplement the record as laid out in this court’s order denying his
application for relief under Rule 10.

      We nevertheless note that a trial court does not determine what portions of the
proceedings are to be transcribed by the court reporter; instead it is the defendant who

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determines this, and “[c]onsequently, it is error for a trial judge to question defense counsel
initially, make a determination as to the validity of the issues, and provide the defendant with
a transcript limited in scope to the issues the trial judge determines have merit.” State v.
Draper, 800 S.W.2d 489, 495 (Tenn. Crim. App. 1990); see also Tenn. R. Crim. P. 37(c)(2).
Under Draper, if a party to the proceedings questions the need for a complete transcript, the
trial judge must hold a hearing and the burden is on the objecting party to show that the
transcript is unnecessary. Id. at 496. The defendant is entitled to a transcript of the
proceedings relevant to issues raised in the motion for a new trial, relevant to issues which
would result in dismissal of the prosecution, and relevant to issues, like sentencing, not
required to be raised in a motion for a new trial, provided the defendant asserts that these
issues will be raised on appeal. Id. at 496-97. Of course, this court also has the authority to
remand the case for supplementation of the record. See State v. Keeton, No. M2009-01928-
SC-R11-CD, 2012 WL 5947291, at *1 (Tenn. Nov. 21, 2012).

        However, even if this issue were not waived, the evidence which the defendant alleges
was presented at the hearing did not undermine the sufficiency of the evidence, did not
establish a variance from the indictment, and did not establish a due process violation under
Brady. Accordingly, the absence of this evidence does not prevent review of the defendant’s
issues. See State v. Smith, No. 01C01-9205-CC-00152, 1995 WL 84021, at *29 (Tenn.
Crim. App. Mar. 2, 1995) (holding that “the particular circumstances presented in this case
do not reflect that the trial court’s refusal [of a transcript] improperly limited the defendant’s
ability to obtain appellate review of a viable issue”).

                                       CONCLUSION

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




                                                      _________________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE




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