IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs at Jackson August 4, 2015

STATE OF TENNESSEE v. RANDY ANTHONY SANDERS

Appeal from the Criminal Court for Sumner County

No. 6212013 Dee David Gay, Judge

No. M2014-02535-CCA-R3-CD – Filed September 18, 2015

_____________________________

Appellant, Randy Anthony Sanders, was convicted of theft valued at $1,000 or more 

but less than $10,000, a Class D felony. The trial court sentenced appellant as a 

Range II, multiple offender to seven years in confinement. On appeal, appellant 

argues that: (1) the evidence was insufficient to support his conviction; (2) the 

indictment was improperly aggregated into one count and that because of the 

aggregation, the State should have made an election of facts; (3) the State improperly 

asked the jury to view the crime from the victim‟s perspective during closing 

argument; (4) the State improperly argued facts that were not in the record during 

closing argument; and (5) the cumulative effect of these errors requires a new trial. 

Following our review of the parties‟ briefs, the record, and the applicable law, we 

affirm the judgment of the trial court. 

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

ROGER A. PAGE, delivered the opinion of the Court, in which ALAN E. GLENN and 

ROBERT H. MONTGOMERY, JR., JJ., joined.

Christopher V. Boiano (on appeal); and Jon J. Tucci (at trial), Nashville, Tennessee, for 

the Appellant, Randy Anthony Sanders.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant 

Attorney General; Lawrence Ray Whitley, District Attorney General; and Lytle Anthony 

James, Assistant District Attorney General, for the Appellee, State of Tennessee.
-2-

OPINION

This case concerns the theft of a car and numerous small items from a family‟s 

home. As a result of the incident, appellant was indicted for theft valued at $10,000 or 

more. Appellant was subsequently convicted of theft valued at $1,000 or more but less 

than $10,000. 

I. Facts

Portland Police Department Officer Carlos Cruz testified that on January 31, 2013, 

he was working the midnight shift and that in the early morning hours of February 1, 

2013, he responded to Mary Barcomb‟s home to take the initial report that appellant had 

stolen Mrs. Barcomb‟s vehicle. After his arrival, Mrs. Barcomb told Officer Cruz that 

she had received a telephone call from her husband, who was a truck driver and was out 

of town, asking if she had used her debit card to purchase items totaling $600 that 

evening. Mrs. Barcomb responded that she had not made any such purchases. Mrs. 

Barcomb tried to locate her debit card, but the card was missing from her purse. She then 

looked out the door and noticed that her gray 2012 Toyota Camry, which she had 

purchased the day prior to this incident, was also missing. Mrs. Barcomb told Officer

Cruz that she had allowed appellant, the son of her roommate, to spend the night in her 

home because appellant did not have a ride back to Memphis where he lived. Mrs. 

Barcomb explained to Officer Cruz that appellant had called her to apologize for taking 

her car and that appellant had stated that he had needed a way to return to Memphis. On 

February 22, 2013, Mrs. Barcomb also provided law enforcement with a list of items that 

had been taken from her home. To Officer Cruz‟s knowledge, the Barcombs drove to 

Memphis and recovered Mrs. Barcomb‟s car themselves. 

During cross-examination, Officer Cruz stated that Mrs. Barcomb had received a

telephone call and discovered that her car was missing at approximately 9:30 p.m. on 

January 31 but that she did not call dispatch until 2:00 a.m. on February 1. Officer Cruz 

testified that during his review of the investigative folder of this case, he saw no 

information regarding an eyewitness of the theft and that the car was found at Eaton 

Pointe Apartments in Memphis, which was not the location listed as appellant‟s

permanent address on his driver‟s license.

Charles Edward Barcomb testified that on January 31, 2013, he was driving a 

tractor-trailer and was away from home. Mr. Barcomb explained that he checked his 

bank account at approximately 2:00 a.m. on February 1 and noticed that there were three 

transactions totaling $200 each, which Mr. Barcomb stated was unusual because his wife 

was generally not “out that time of the morning.” Mr. Barcomb called Mrs. Barcomb to 

inquire about the transactions; however, Mrs. Barcomb denied making the purchases. 

Mrs. Barcomb told Mr. Barcomb that she was unable to locate her debit card and that 
-3-

their car was missing. Mr. Barcomb explained that they had just purchased the 2012 

Toyota Camry for $27,283.99 on the day prior to this incident. Mr. Barcomb testified 

that after purchasing the car, he put a “truck GPS,” which is used in tractor-trailers, in the 

car. Mr. Barcomb explained that when the Camry was returned to him, the GPS system 

was missing. Mr. Barcomb testified that he was able to locate his car by calling 

appellant‟s mother, whom he knew, and appellant‟s mother obtained the information 

about the car‟s location from appellant. After learning the car‟s location, Mr. Barcomb

called the local authorities and relayed the information. He went to Memphis three days 

later and retrieved the car from an impound lot. Mr. Barcomb explained that his 

grandson‟s Xbox Kinect was also taken from his home and that the Xbox was not found 

inside his car when it was recovered. 

During cross-examination, Mr. Barcomb stated that he retrieved his car after 

Memphis police officers had processed it. Mr. Barcomb explained that the unauthorized 

withdrawals were made from an ATM in Memphis, Tennessee.

Mary Barcomb testified that she knew appellant‟s mother and grandmother and 

that appellant‟s mother had lived with Mrs. Barcomb for three to four months due to Mrs. 

Barcomb‟s needing aid because of medical issues she was experiencing. Mrs. Barcomb 

stated that appellant came to her home in January 2013 because several of his family 

members were preparing to drive to Memphis, where appellant resided, and he was going 

to ride back with them. Mrs. Barcomb explained that she was inside her house and that 

appellant knocked on her door, stating that the family members had left him. Mrs. 

Barcomb took appellant with her when she left to do errands. One of Mrs. Barcomb‟s 

stops was at Food Lion, and Mrs. Barcomb used her debit card and PIN number to pay 

for her items. Mrs. Barcomb stated that when she paid, appellant stood directly behind 

her. Mrs. Barcomb also took appellant to a Western Union store inside of Kroger so that 

he could get money for a bus ticket. After her errands, Mrs. Barcomb and appellant 

returned to Mrs. Barcomb‟s home, and Mrs. Barcomb allowed appellant to spend the 

night in her guest bedroom. Mrs. Barcomb explained that her intent was to take appellant 

to the bus station after her grandson went to school the following morning. 

Mrs. Barcomb explained that later that night, she received a telephone call from 

her husband about the missing money and discovered that her debit card was missing.

She knocked on the door to the guest room where appellant was sleeping, but receiving 

no answer, she went inside and discovered that appellant was not inside. Mrs. Barcomb 

explained that she then went to the garage to see if appellant was smoking and discovered 

that her car and car keys were missing. Mrs. Barcomb called the police to make a report. 

Mrs. Barcomb also received a call from appellant in which appellant admitted taking the 

car because he had to return to Memphis. Mrs. Barcomb stated that when her grandson 

came home from school, he discovered that his Xbox was also missing. As a result, Mrs. 

Barcomb searched for missing items and compiled an itemized list, which included 
-4-

games, CDs, movies, a GPS system, a laptop, and the Xbox. Mrs. Barcomb estimated 

that the total value of the missing items was approximately $1,000-2,000, based upon 

the fact that her insurance provided a monetary insurance settlement over the $1,000 

deductible that she had to pay. Mrs. Barcomb testified that she never gave appellant 

permission to take her car. 

During cross-examination, Mrs. Barcomb denied that her husband had called at 

9:30 p.m. on the night of the theft. Mrs. Barcomb agreed that a PIN number was 

required to withdraw money from an ATM. She agreed that her car did not sustain 

any damage as a result of this incident. Mrs. Barcomb testified that appellant called 

her around 5:00 a.m. on February 1. She conceded that it was a possibility that 

appellant did not intend to keep her vehicle but that he intended for her to retrieve her 

vehicle from Memphis. Following this testimony, the State rested its case-in-chief, 

and appellant presented no additional proof. 

The jury subsequently found appellant guilty of theft valued at $1,000 or more 

but less than $10,000. The trial court sentenced appellant as a Range II, multiple 

offender to seven years in confinement. 

II. Analysis

On appeal, appellant argues that: (1) the evidence was insufficient to support his 

conviction; (2) the indictment was improperly aggregated into one count and that

because of the aggregation, the State should have made an election of facts; (3) the 

State improperly asked the jury to view the crime from the victim‟s perspective during 

closing argument; (4) the State improperly argued facts that were not in the record

during closing argument; (5) the cumulative effect of these errors requires a new trial. 

A. Sufficiency of the Evidence

The standard for appellate review of a claim challenging the sufficiency of the 

State‟s evidence is “whether, after viewing 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing 

Johnson v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. 

Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient 

evidence, appellant must demonstrate that no reasonable trier of fact could have found the 

essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 

319. This standard of review is identical whether the conviction is predicated on direct or 

circumstantial evidence, or a combination of both. State v. Dorantes, 331 S.W.3d 370, 

379 (Tenn. 2011); State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).
-5-

On appellate review, “„we afford the prosecution the strongest legitimate view of 

the evidence as well as all reasonable and legitimate inferences which may be drawn 

therefrom.‟” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 

(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 

571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of 

witnesses and the weight and value to be given the evidence, as well as all factual 

disputes raised by the evidence, are resolved by the jury as trier of fact. State v. Bland, 

958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). 

This court presumes that the jury has afforded the State all reasonable inferences from the 

evidence and resolved all conflicts in the testimony in favor of the State; as such, we will 

not substitute our own inferences drawn from the evidence for those drawn by the jury, 

nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379; 

Cabbage, 571 S.W.2d at 835; see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). 

Because a jury conviction removes the presumption of innocence that appellant enjoyed 

at trial and replaces it with one of guilt at the appellate level, the burden of proof shifts 

from the State to the convicted appellant, who must demonstrate to this court that the 

evidence is insufficient to support the jury‟s findings. Davis, 354 S.W.3d at 729 (citing 

State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

A person commits theft of property when “with intent to deprive the owner of 

property, the person knowingly obtains or exercises control over the property without the 

owner‟s effective consent.” Tenn. Code Ann. § 39-14-103(a). Theft of property that is 

valued at $1,000 or more but less than $10,000 is a Class D felony. Id. § 39-14-

105(a)(3). The value of the stolen or damaged property is determined by “[t]he fair 

market value of the property or service at the time and place of the offense; or . . . [i]f the 

fair market value of the property cannot be ascertained, the cost of replacing the property 

within a reasonable time after the offense.” Id. § 39-11-106(36)(A)(i)-(ii). 

Viewed in the light most favorable to the State, there was sufficient evidence to 

support appellant‟s conviction. Mrs. Barcomb testified that appellant was with her most 

of the day prior to the theft, that appellant was standing behind her when she used the 

PIN number for her debit card at Food Lion, and that appellant was inside her home when 

she went to sleep on the night of the theft. However, when her husband‟s early morning 

call awoke her, Mrs. Barcomb‟s debit card, car, and numerous miscellaneous items were 

missing from her home, and appellant was no longer present. Appellant subsequently 

called and apologized for stealing the car, explaining that he had needed to return to 

Memphis. Furthermore, $600 had been withdrawn from the Barcombs‟ joint account at a 

location in Memphis. The Barcombs only learned the location of their car after 

appellant‟s mother, whom the Barcombs knew, called appellant and extracted the 

information from him. The car was found at an apartment complex at which appellant 

did not reside. Regarding the total value of the theft, Mrs. Barcomb testified that $1,000-

2,000 in miscellaneous items had been stolen from her home, and the State introduced a 
-6-

list of the items and their values into evidence. In addition, $600 was withdrawn from the 

Barcombs‟ bank account, and the Barcomb‟s 2012 Toyota Camry was purchased for 

$27,283.99 on the day prior to the theft. While there was evidence presented that the 

value of the property totaled more than $10,000, it is the province of the jury to determine 

the value of the stolen or damaged property. State v. Hamm, 611 S.W.2d 826, 828-29 

(Tenn. 1981) (“In determining the value of stolen property in larceny cases, the trier of 

fact is to determine the fair cash market value of the stolen property at the time and place 

of the theft . . . .”). Therefore, we conclude that after viewing the evidence in the light 

most favorable to the State, a rational jury could have found beyond a reasonable doubt

that appellant committed theft valued at $1,000 or more but less than $10,000. Appellant 

is without relief as to this issue.

 

B. Indictment – Election of Offenses

Appellant argues that there was evidence presented at trial that there were 

differing intents regarding the car and the other stolen items ― that the car was merely 

taken for the purpose of returning to Memphis and not taken with the intent of keeping it,

whereas the other items were taken with the intent of keeping the items. Appellant 

argues that because of the possible differing intents, the State erred in aggregating the 

thefts into a single indictment and because it was one indictment, in failing to elect 

whether the indictment referred to the car or the other stolen property. 

First, regarding whether the State properly aggregated the thefts into a single 

indictment, Tennessee Code Annotated section 39-14-105(b)(1) states, “In a prosecution 

for theft of property, . . . the state may charge multiple criminal acts committed against 

one (1) or more victims as a single count if the criminal acts arise from a common 

scheme, purpose, intent or enterprise.” Furthermore, pursuant to subsection 105(b)(2), 

“[t]he monetary value of property from multiple criminal acts which are charged in a 

single count of theft of property shall be aggregated to establish value under this section.” 

This court has stated:

Where an accused is alleged to have stolen property in separate acts but 

from the same owner, from the same location, and pursuant to a continuing 

criminal impulse or a single sustained larcenous scheme, the State is 

permitted to aggregate the value of the stolen property and prosecute the 

thefts as a single offense.

State v. Kathyrn White Byrd, No. E2002-00417-CCA-R3-CD, 2003 WL 21276499, at *5 

(Tenn. Crim. App. May 29, 2003) (citation omitted). We note from our review of the 

record that appellant‟s defense was that he did not intend to keep the car, which he 

claimed would reduce the car theft to joyriding. However, the State proceeded on a 

theory of theft of all the items and, as stated above, presented sufficient proof of 
-7-

appellant‟s intent. As such, the State was justified in aggregating all of the theft 

allegations into one indictment as was contemplated by Tennessee Code Annotated 

section 39-14-105(b). 

Regarding whether the State was required to make an election of facts, this issue is 

waived. Appellant failed to argue this issue at trial or in his motion for new trial, which 

deprived the trial court of ruling on the merits of this argument, and he now raises it for 

the first time on appeal. Tennessee Rule of Appellate Procedure 36(a) states, “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.” As such, appellant has forfeited review of this issue. 

C. Closing Arguments

Appellant also challenges the State‟s closing arguments on two separate grounds. 

First, appellant argues that the State violated the “Golden Rule” by inviting the jury to 

view the crime from the victim‟s perspective. Second, appellant argues that the State 

argued facts outside of the record. 

“[A]rgument of counsel is a valuable privilege that should not be unduly 

restricted.” Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975). Tennessee courts give 

great latitude to counsel arguing their cases to the jury. Id. Thus, “trial judges have wide 

discretion in controlling the argument of counsel, and their action will not be reviewed 

absent abuse of that discretion.” Id. However, the comments of counsel during closing 

argument “„must be temperate, must be predicated on evidence introduced during the trial 

of the case, and must be pertinent to the issues being tried.‟” State v. James Rae Lewter, 

No. M2010-01283-CCA-RM-CD, 2011 WL 1197597, at *4 (Tenn. Crim. App. Mar. 31, 

2011) (quoting State v. Gann, 251 S.W.3d 446, 459 (Tenn. Crim. App. 2007)).

“A criminal conviction should not be lightly overturned solely on the basis of the

prosecutor‟s closing argument.” State v. Banks, 271 S.W.3d 90, 131 (Tenn. 2008) (citing 

United States v. Young, 470 U.S. 1, 11-13 (1985); State v. Bane, 57 S.W.3d 411, 425 

(Tenn. 2001) (holding that a prosecutor‟s improper closing argument does not 

automatically warrant reversal). To establish reversible error and succeed on a claim of 

prosecutorial misconduct, the appellant must show that “the argument of the prosecutor 

was so inflammatory or the conduct so improper that it affected the verdict to his 

detriment.” State v. Farmer, 927 S.W.2d 582, 591 (Tenn. Crim. App. 1996) (citing 

Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965)).

When determining whether the argument affected the jury‟s verdict, we consider 

the following five factors:
-8-

(1) the conduct complained of viewed in context and in light of the facts 

and circumstances of the case; (2) the curative measures undertaken by the 

court and the prosecution; (3) the intent of the prosecutor in making the 

improper statement; (4) the cumulative effect of the improper conduct and 

any other errors in the record; and (5) the relative strength or weakness of 

the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

This court has previously recognized five general areas of prosecutorial 

misconduct:

1. It is unprofessional conduct for the prosecutor intentionally to misstate 

the evidence or mislead the jury as to the inferences it may draw.

2. It is unprofessional conduct for the prosecutor to express his personal 

belief or opinion as to the truth or falsity of any testimony or evidence or 

the guilt of the defendant.

3. The prosecutor should not use arguments calculated to inflame the 

passions or prejudices of the jury.

4. The prosecutor should refrain from argument which would divert the jury

from its duty to decide the case on the evidence, by injecting issues broader

than the guilt or innocence of the accused under the controlling law, or by

making predictions of the consequences of the jury‟s verdict.

5. It is unprofessional conduct for a prosecutor to intentionally refer to or 

argue facts outside the record unless the facts are matters of common public

knowledge.

State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (citations omitted).

i. Golden Rule

Appellant argues that the State violated the “Golden Rule” by inviting the jury to 

view the crime from the victim‟s perspective. Appellant specifically challenges the 

following segment of the State‟s closing argument: 

By the way, if when you go out to the parking lot, after you‟ve 

rendered your verdict, and your car is gone, and a day later you get a call 

that it‟s in Memphis, and you have to go get it, and your GPS is missing 
-9-

from it, I want you to ask yourself: Did he steal my car . . . or is he just 

joyriding? 

The trial court overruled appellant‟s objection regarding the argument, stating that the 

argument was not improper. 

The golden rule argument has been defined as:

[A]rguments by counsel suggesting to the jurors that they place themselves 

in the position of a party to the cause, or posing to them the question 

whether they would go through life in the condition of the injured Plaintiff, 

or would want members of their family to go through life [physically 

disabled], are usually improper, and reversibly erroneous. 

Esmail Ashdji and Faizeh Ashdji v. Rodney E. Yardley, CA No. 1188, 1988 WL 116498, 

at *2 (Tenn. Ct. App. Nov. 4, 1988) (citation omitted). While the State‟s closing 

argument posed a similar factual scenario to that at issue, the scenario was presented in

response to appellant‟s argument that he was only guilty of joyriding. The State asked 

the jurors to view the facts presented, absent the defendant, and determine from their 

perspective, whether a theft or mere joyriding had occurred. See, e.g., State v. Fusco, 404 

S.W.3d 504, 522 (Tenn. Crim. App. 2012) (stating that argument was not improper when 

State asked the jury to determine that the facts amounted to a specific crime versus asking 

the jury to focus on the consequences of an acquittal). Considered in light of the 

circumstances of the case and the intent of the prosecutor, the argument was not so 

improper or inflammatory as to amount to prosecutorial misconduct. Therefore, the trial 

court did not abuse its discretion in overruling appellant‟s objection. Appellant is without 

relief as to this issue. 

ii. Arguing Facts Outside of the Record

Appellant also argues that the State committed prosecutorial misconduct during 

closing arguments by stating: 

Now Mr. Barcomb testified that he had called [appellant‟s] mother[] 

and that he told her that the debit card had disappeared along with the brand 

new 2012 Camry. 

Why do you think [appellant] called to apologize? I would submit to 

you, ladies and gentlemen, because Mama made him do it. That‟s why they 

even got the car back, I would submit. That‟s why they told them where it 

was. 
-10-

Appellant argues that this argument amounted to the State arguing facts outside of the 

record because there was no testimony that appellant‟s mother made him call the 

Barcombs. 

As an initial matter, we note that appellant failed to object to this argument at trial. 

Therefore, we can only review this issue for plain error. The accepted test for plain error 

review requires that:

(a) the record must clearly establish what occurred in the trial court; 

(b) a clear and unequivocal rule of law must have been breached; 

(c) a substantial right of the accused must have been adversely affected; 

(d) the accused did not waive the issue for tactical reasons; and 

(e) consideration of the error is “necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 

626, 641-42 (Tenn. Crim. App. 1994)). To rise to the level of “plain error,” an error 

“„must [have been] of such a great magnitude that it probably changed the outcome of the 

trial.‟” Adkisson, 899 S.W.2d at 642 (quoting United States v. Kerley, 838 F.2d 932, 937 

(7th Cir. 1988)). All five factors must be established by the record before a court will 

find plain error. Smith, 24 S.W.3d at 282. Complete consideration of all the factors is 

not necessary when clearly at least one of the factors cannot be established by the record. 

Appellant has failed to show that a clear and unequivocal rule of law has been 

breached. The argument was based on inferences drawn from the evidence presented at 

trial. Mr. Barcomb testified that he was able to locate his car by calling appellant‟s 

mother, whom he knew and who had stayed with Mrs. Barcomb for three to four months 

while she was ill. Appellant‟s mother contacted appellant to get the information about 

the car‟s location. Later, Mrs. Barcomb received a call from appellant apologizing for 

taking the car. Therefore, it was reasonable to infer that appellant‟s mother‟s call was the 

impetus for appellant‟s call to Mrs. Barcomb. Appellant has failed to show that the State 

committed misconduct and has failed to show that he is entitled to plain error review. 

Appellant is not entitled to relief. 

D. Cumulative Error

Lastly, appellant argues that the cumulative effect of the alleged errors entitle him 

to a new trial. However, appellant has failed to show that error occurred. See State v. 

Herron, 461 S.W.3d 890, 909-910 (Tenn. 2015) (“To warrant assessment under the 
-11-

cumulative error doctrine, there must have been more than one actual error committed in 

the trial proceedings.”). Therefore, we conclude that he is not entitled to a new trial on 

this basis.

CONCLUSION

Based on the parties‟ briefs, the record, and the applicable law, we affirm the 

judgment of the trial court.

_________________________________

ROGER A. PAGE, JUDGE