IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 9, 2014

STATE OF TENNESSEE v. CALVIN REID QUARLES

Appeal from the Circuit Court for Williamson County

No. I-CR046393 Donald P. Harris, Judge

No. M2014-00117-CCA-R3-CD -Filed October 31, 2014

Calvin Reid Quarles, Defendant, was convicted by a Williamson County Jury for theft of

property valued over $500. After the denial of a motion for new trial, Defendant perfected

this appeal. The following issues are presented for our review: (1) whether the trial court

erred in giving the jury charge partially before and partially after closing arguments; and (2)

whether the trial court erred by issuing a supplemental jury instruction. After a review of the

applicable authorities and the record, we conclude that Defendant waived any challenge to

the trial court’s completing the jury instructions after closing argument by acquiescing and

by failing to raise the issue in a motion for new trial. Further, we conclude that the trial court

did not commit error in answering a question posed by the jury during deliberations.

Accordingly, the judgment of the trial court is affirmed.

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

TIMOTHY L. EASTER,J., delivered the opinion of the court, in which JAMES CURWOOD WITT,

JR. and D. KELLY THOMAS, JR., JJ., joined.

Vanessa Pettigrew Bryan; Public Defender; Robert Wilson Jones, Assistant Public Defender;

and Allison Rasbury West, Assistant Public Defender; Franklin Tennessee, for the appellant,

Calvin Reid Quarles.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Kim Helper, District Attorney General; and Tammy J. Rettig, Assistant District

Attorney General, for the appellee, State of Tennessee.
OPINION

Factual Background

George David Boston and his daughter, Paige Boston, lived in the Villages of

Morningside, a senior living community in Williamson County. On February 2, 2012, Mr.

Boston came home around 2:00 p.m. and noticed that his back door was open. When he

approached the door, he realized that the deadbolt was “bent and disturbed.” Mr. Boston

called the police and his daughter, Ms. Boston, who was at work.

Detective David Dixon arrived on the scene. Once the detective arrived, Mr. Boston

was permitted to enter the residence and discerned that several items were missing. Included

among those items were a thirty-two-inch flat-screen television, a jar of loose change, his

deceased wife’s jewelry box, a clock radio, an iPod, a laptop, a netbook, and “other

miscellaneous items.” The jewelry box contained at least a twenty-inch gold chain, a

rhinestone necklace, earrings, a beaded necklace, and two pendants purchased in Spain.

According to Ms. Boston, the missing items were worth around $3,400. No fingerprints were

recovered from the scene.

The burglary occurred on a Thursday afternoon. That following weekend, Ms. Boston

distributed flyers containing photographs of the missing jewelry to several local pawnshops.

That afternoon, someone from Cashville Gold and Silver Buyers called her to inform her that

two of her missing pieces of jewelry were at their shop. Detective Dixon visited the shop to

investigate. Defendant was identified as a suspect after Detective Dixon watched

surveillance video in which Defendant was seen giving the jewelry to the store owner.

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Defendant was arrested. He gave a statement in which he could not give specifics

about how or where he obtained the jewelry that he pawned at Cashville Gold and Silver

Buyers. He claimed that he bought “a lot of stuff” at flea markets. Defendant was unable

to produce a receipt for the items. When confronted with the fact that the items were stolen,

Defendant admitted that he did not receive the items from anyone else and that he was the

person at Cashville Gold and Silver Buyers. Defendant acknowledged that he received $165

for the items and signed the logbook at the store. Defendant explained that his son Sheldon

drove him to the pawnshop but was not involved in the transaction.

As a result of the investigation, Defendant was indicted by the Williamson County

The surveillance video was unavailable for viewing at trial. Detective Dixon testified that he 1

attempted to secure the tape from Cashville Gold and Silver Buyers but was unable to do so.

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Grand Jury in April of 2012 for one count of aggravated burglary and one count of theft of

property valued over $1,000. After a jury trial, Defendant was found not guilty of aggravated

burglary and guilty of theft of property valued over $500 but less than $1,000. The trial court

sentenced Defendant to fifteen months in incarceration as a Range I, Standard Offender.

Defendant filed a motion for new trial in which he argued that the evidence was

insufficient to support the conviction. Additionally, he argued that the trial court improperly

responded to a question from the jury and, in so doing, effectively “diminished the

requirements of theft of property.” The trial court denied the motion for new trial.

Defendant appeals.

Analysis

On appeal, Defendant complains that the “trial court gave erroneous jury instructions

and [Defendant] should be granted a new trial.” Specifically, Defendant insists that the trial

court did not give the jury a correct and complete charge of the law when the trial judge

omitted the mens rea definitions from the jury instructions, allowed the parties to complete

their closing arguments, and then continued with the jury charge. Additionally, Defendant

complains that the trial court improperly answered a jury question with an “amended

instruction” to the theft charge that did not include a definition of knowing. The State

contends that Defendant acquiesced to the separation of the jury instructions from the mens

rea elements, thus waiving the issue on appeal. Further, the State insists that despite the

waiver, the jury instructions were complete and Defendant is not entitled to relief.

Jury Instructions

A trial court has a “duty to give a complete charge of the law applicable to the facts

of the case.” State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). Anything short of a complete

charge denies a defendant his constitutional right to trial by a jury. State v. McAfee, 737

S.W.2d 304, 308 (Tenn. Crim. App. 1987). However, Tennessee law does not mandate that

any particular jury instructions be given so long as the trial court gives a complete charge on

the applicable law. See State v. West, 844 S.W.2d 144, 151 (Tenn. 1992). A trial court

commits prejudicial error “if it fails to fairly submit the legal issues or if it misleads the jury

as to the applicable law.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997) (citing State

v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995); Graham v. State, 547 S.W.2d 531

(Tenn. 1977)). In determining whether jury instructions are erroneous, this Court must

review the charge in its entirety and invalidate the charge only if, when read as a whole, it

fails to fairly submit the legal issues or misleads the jury as to the applicable law. State v.

Vann, 976 S.W.2d 93, 101 (Tenn. 1998). Because resolution of issues regarding jury

instructions are mixed questions of law and fact, the standard of review is de novo, with no

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presumption of correctness. State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).

Defendant herein was charged with theft. Tennessee Code Annotated section 39-14-

103(2) defines theft as acting “with intent to deprive the owner of property [while]

knowingly obtaining or exercising control over the property of another without the owner’s

effective consent.” During jury instructions, the trial court instructed the jury on the elements

of theft of property as follows:

[Trial Court]: Theft of property: Any person who commits the offense of theft

of property is guilty of a crime. For you to find the defendant guilty of this

offense, the State must have proven beyond a reasonable doubt the existence

of the following essential elements:

(1) that the defendant intentionally or knowingly obtained or

exercised control over property owned by George Boston and

Paige Boston.

(2) that the defendant did not have the owners’ effective

consent;

(3) that the defendant intended to deprive the owner of the

property.

The trial court went on to define “obtain,” “exercise control,” “property,” “effective

consent,” “deprive,” and how to determine “value.” At the conclusion of the jury

instructions, the following exchange took place:

[Trial Court]: I realized I must have deleted my definitions of intentionally,

knowingly, and recklessly. If I can - - I can get that and read it now or I can

wait and just read it after ya’ll [sic] argue.

[Counsel for the State]: It makes no difference, Your Honor.

[Counsel for Defendant]: Just go ahead now.

[Trial Court]: Go ahead and argue?

[Counsel for Defendant]: No, go ahead - -

[Trial Court]: Well, I have to get her to print it up for me.

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[Counsel for Defendant]: (Inaudible) we can argue.

After the closing arguments, the trial court read these “additional definitions” to the jury:

A person acts intentionally with respect to the nature of his or her conduct or

to a result of the conduct when it is the person’s conscious objective or desire

to engage in the conduct or cause the result.

A person acts knowingly with respect to his or her conduct or through

circumstances surrounding conduct when a person is aware of the nature of the

conduct or that the circumstances exist.

A person[] acts knowingly with respect to a result of his or her conduct when

the person is aware that the conduct is reasonably certain to cause the result.

A person acts recklessly with respect to circumstances of surrounding conduct

or the results of conduct when the person is aware of but consciously

disregards a substantial and unjustifiable risk that the circumstances exist or

the result will occur. The risk must be of such a nature and degree that its

disregard constitutes a gross deviation from the standard of care that an

ordinary person would exercise under all the circumstances as viewed from the

accused person’s standpoint.

We determine that Defendant has waived any issue with regard to whether the trial

court improperly gave the jury instructions for mens reas after the closing arguments rather

than with the rest of the jury charge. Defendant, as pointed out by the State, acquiesced to

this procedure at trial. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed

as requiring relief be granted to a party responsible for an error or who failed to take

whatever action was reasonably available to prevent or nullify the harmful effect of an

error.”). Moreover, Defendant did not specifically raise this issue in a motion for new trial.

Tennessee Rule of Appellate Procedure 3(e) provides that in “all cases tried by a jury, no

issue presented for review shall be predicated upon . . . [a] ground upon which a new trial is

sought, unless the same was specifically stated in a motion for a new trial; otherwise such

issues will be treated as waived.” See also State v. Lowe-Kelley, 380 S.W.3d 30, 33 (Tenn.

2012) (noting that “[a] defendant who fails to provide specific grounds for relief in a motion

for new trial risks failing to preserve those grounds for appeal”).

Jury Questions

Later, during deliberations, the jury submitted two written questions to the trial court.

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The first question read as follows: “Number one mean [sic] he knew it was stolen even if he

did not steal it himself?” The trial court informed the parties that it thought the jurors were

referring to the first element of the offense of theft, and proposed the following answer:

If you find beyond a reasonable doubt that, one, [Defendant] knowingly

exercised control over property owned by George and Paige Boston, and two,

[Defendant] knew he did not have the owners’ effective consent, and three,

[Defendant] intended to deprive the owner of the property, then you have

found [Defendant] guilty of theft.

The trial court commented that it was “really just restating the elements of the crime with a

few words left out.” Counsel for Defendant objected to the “restating” of the charge and

asked the trial court to “refer to the charge as given.” When the trial court called the jury

back in, he stated that he interpreted the question as “referring to the first element of the

offense of theft.” The trial court then instructed the jury as follows:

[I]f you find beyond a reasonable doubt that [Defendant] knowingly exercised

control over property owned by George and Paige Boston and, two,

[Defendant] knew he did not have the owners’ effective consent, and, three,

[Defendant] intended to deprive the owner of the property, then you have

found [Defendant] guilty of theft.

Trial courts have “the authority to respond to jury questions with a supplemental

instruction.” Forbes, 918 S.W.2d at 451. The “appropriate course of action” for a trial court

responding to a jury question is to “bring the jurors back into open court, read the

supplemental instruction . . . along with a supplemental instruction emphasizing that the jury

should not place undue emphasis on the supplemental instruction, and then allow the jury to

resume its deliberations.” State v. Bowers, 77 S.W.3d 776, 791 (Tenn. Crim. App. 2001).

Any omission in the jury instructions of an element of an offense is subject to harmless error

analysis. State v. Faulkner, 148 S.W.3d 45, 58 (Tenn. 2005).

Here, the trial court simply answered the question with its supplemental instruction.

However, Defendant did not raise any objection to the trial court’s procedure in providing

the supplemental instruction to the jury. Instead, Defendant argues that the trial court’s

supplemental instruction was erroneous because it omitted a portion of the definition of theft,

namely the words “intentional” and “intentionally.”

In Tennessee, there are four culpable mental states: intentionally, knowingly,

recklessly, and criminally negligent. See T.C.A. § 39-11-302. If the statute defining the

offense does not plainly dispense with a mental element, then “intent, knowledge, or

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recklessness suffices” to establish the culpable mental state. T.C.A. § 39-11-301(c); State

v. Page, 81 S.W.3d 781, 786 (Tenn. Crim. App. 2002); State v. Chester Wayne Walters, No.

M2003-03019-CCA-R3-CD, 2004 WL 2726034, at *12 (Tenn. Crim. App. Nov. 30, 2004),

perm. app. denied (Tenn. Mar. 21, 2005). If the elements of an offense have distinctly

varying mens rea, then the trial court must clearly instruct the jury about the mental state for

each element. State v. Howard, 926 S.W2d 579, 587 (Tenn. Crim. App. 1996), overruled on

other grounds in State v. Williams, 977 S.W.2d 101 (Tenn. 1998). “Each of these mental

states is defined with reference to two or three of the following possible conduct elements:

(1) nature of defendant’s conduct, (2) circumstances surrounding the defendant’s conduct,

and (3) result of the defendant’s conduct.” Page, 81 S.W.3d at 787 (citing T.C.A. § 39-11-

302).

“‘Intentional’ refers to a person who acts intentionally with respect to the nature of

the conduct or to a result of the conduct when it is the person’s conscious objective or desire

to engage in the conduct or cause the result.” T.C.A. § 39-11-302(a). “‘Knowing’ refers to

a person who acts knowingly with respect to the conduct or to circumstances surrounding the

conduct when the person is aware of the nature of the conduct or that the circumstances

exist.” T.C.A. § 39-11-302(b). A person can also act knowingly “with respect to a result of

the person’s conduct when the person is aware that the conduct is reasonably certain to cause

the result.” T.C.A. § 39-11-302(b) (emphasis added). “‘Reckless’ refers to a person who

acts recklessly with respect to circumstances surrounding the conduct or the result of the

conduct when the person is aware of but consciously disregards a substantial and

unjustifiable risk that the circumstances exist or the result will occur.” T.C.A. § 39-11-

302(c).

As set out above, Tennessee Code Annotated section 39-14-103(a) defines theft as

acting with intent to deprive the owner of property while knowingly obtaining or exercising

control over the property of another without the owner’s effective consent.

When the trial court herein answered the jury’s question, he correctly stated “[I]f you

find beyond a reasonable doubt that the Defendant knowingly exercised control over property

owned by George and Paige Boston and, two, the Defendant knew he did not have the

owner’s effective consent, and, three, the Defendant intended to deprive the owner of the

property, then you have found the Defendant guilty of theft” (emphases added). The trial

court did not use the words “intentional” and “intentionally” in element three regarding

depriving the owner of the property but instead used the word “intended.” While the trial

court included the word “intentionally” in the original jury instructions in regards to

obtaining or exercising control over property owned by the Bostons, element 1, it was left

out in the answer to the jury question. The instruction as given to the jury in response to their

question was entirely consistent with the theft of property statute and the pattern jury

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instructions.

Further, Defendant did not deny possessing the jewelry and pawning it at Cashville.

Moreover, the complete definition for theft, including the words “intentional” and

“intentionally,” appeared in the jury instructions given by the trial court. Those terms were

then separately defined by the trial court. See State v. Leach, 148 S.W.3d 42, 58 (Tenn.

2004) (“In determining whether instructions are erroneous, th[e] Court must review the

charge in its entirety and read it as a whole.”). The jury charge, taken as a whole, properly

defined theft and the requisite mens rea. This issue is without merit.

Conclusion

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

_________________________________

TIMOTHY L. EASTER,/JUDGE

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