### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs A ugust 5, 2003 STATE OF TENN ESSEE v. JASPER T URNER Direct Appeal from the Circuit Court for Madison County

No. 01-21 Roy B. Morgan, Jr., Judge

No. W2002-02159-CCA-R3-CD - Filed Nove mber 24, 2003
Following a jury

trial, Defendant, Jasper Turner, was convicted of identity theft, a Cl as s D fe lo ny. He was sentenced to twelve y ears incarceration as a ca reer offen der. On a ppeal, Defendant challenges the sufficiency of the evidence t

o support the conviction, argues that the trial court err ed in sentencing him, and contends that it was plain error for the trial court to allow the State to refer to the victim

being a ttacked at the time

the victim’s wa llet and credit cards were taken. Af ter a thorough review of the evidence, w e affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which N ORMA M C G EE O GLE and R OBER T W. W EDEMEYER , JJ., joined. J. Colin Morr

is, Jackson , Tennes see (on a ppeal); and Geor

ge Mo rton G ooge, D istrict Pub lic Defender; and Stephen P. Spracher, Assis tant Public Defend er, Jacks on, Tenne ssee (a

t trial) for the appellant, Jasper Turner. Paul G. Summers , Attorne y General and Repor

ter; P. Robin Dickson , Assistan t Attorne y General ; James G. Woodall, District A ttorney Genera l; and Jody

S. Pickens , Assistan

t Dist rict A ttorney General, for the appellee, the State of Te nnessee. OPINION I. Facts Defendant

did not testify or offer

any proof dur

ing the trial. The evidence presented by the Stateis as follows: On September 11, 2000, the victim, Swanee Lawre nce, was at his sister-in-law’s homein Jackson to mow her yard. While he was unlocking a chain which secur ed the mower to a tree, Lawrence

was tackled by

an unidentified person who took his wallet and its conten ts, including credit and debit cards.-2-

Investigator

Cathy Fer

gusen of the Jackson Police Department became involved in the investigation of the inci dent involving Mr. Lawre nce. She advised Mr. Law rence to notify

the credit/d ebit card companies of the theft. She also told Mr. Lawr ence to ask the companies to notify him if there were any

transactions involving the cards after the thef t. Subsequently, I

nvestigator Fergusen became aware

that Mr. Lawrence’ s Banco rpSou th deb it car d had b een us ed at t he Dod ge store in Jackson on September 11, after the card had bee n taken from Mr. Lawr

ence. Investigator

Fergusen went to the Dodg e store and obtained a receipt showing tha t M r. Lawrence ’s debit ca

rd had be en used to

make a pu

rchase in th e amount of $2.60. The receipt showed the purchase wa s made at 6:05 p.m. on

Septembe

r 11, 2000 , and waspurporte d ly signed “Lawrenc e Swanee. ” The re ceipt ha d imprinte d thereon t he specific BancorpSouth debit card number of Mr. Lawrenc e’s card, which was printed from the magnetic tape on the back of the card. Mr. Lawrence ’s name was printed on the receipt just below the purported signature. Mr. Lawrence

testified that the written name on the receipt was not his signature, that he had never been to the Dodge stor

e, a nd that he

did not know

Defend ant or ev er perm it any one with Defendant’s name to use his debit card to make a pur chase at the Dodge store. Thomas Andrew Yo ung, manager of the Dodge s tore, ident ified the rec eipt s howin g a purchas e at his store by the use of Mr

. Lawrence’s Ba ncorpSouth debit card on the evening of September

11, 2000. He testified that at his store, a debit card likeMr. Lawrence ’s is read after the card’s magnetic tape is “swiped” through the machine. In the situation of Mr. Lawrence ’s card, the machine read a code that gener ated Mr. Lawre

nce’s name and the card number on the r eceipt. Mr. Lawrence ’s BancorpSouth debit card was made an e xhibit at tri al. In addition to the magnetic strip, Mr. Lawrence ’s full name and the card number are e mbossed upon the card. Mr. Young stated that if the machine was unable to read the magnetic strip, a purchase could still bemade using the card by manually

“punching in” the card number to facilitate a transaction. Investigator

Fergusen obta

ined a sta

tement fr om Defendant aft

e r inf orming h im of his Miranda rights and after Defendant sig ned a waiver

of these rights. Defendant admitted to using Mr. Lawrence ’s debit ca

rd to make

the purchase reflected

on the re ceipt, a

fter he was sh own “ still” photographs of himself

made from the videotape taken at the Dodge store. Defendant denied be ing involved in the theft of the wallet and card from Mr. Lawrenc e. Defendant stated that he found the card on the ground

nea r an ol d ca r wa sh a nd t ook it to th e Do dge st ore and mad e on e pu rch ase . It is not explained in the reco rd when o r under what circumstances the Ba ncorpSouth debit card belonging to Mr. La

wrence was recovered.

II. Analysis A. Sufficiency

of the Evidence When an accused challengesthe s ufficiency of the evidence, this court must review the record to det ermine if the evidence adduced during the trial was sufficient "to support the finding-3-

by the trier of fact of guilt bey ond a reasona

ble doub t." Tenn . R. App. P. 1 3(e). Th is rule is applica ble to fin dings of gu ilt predicated upon direct evidence, circumstantial evide nce or a combination of direct

and circumstantial evidence. State v. Brewer , 932 S.W.2d 1,18 (Tenn. Crim. App. 1996). In determining the sufficiency of the evidence, this court does not r

eweigh or reevaluate

the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this cour t substitute

its inferences for those drawn by the trier of fact from circumstantial evidence

. Liakas v. S tate , 199 Tenn. 298, 305, 2 86 S.W.2d 856 , 859 (195 6). To the contrar y, t his court is requir ed to afford the Statethe strongest legitimate viewof the evidence contained in the record a s well as a ll reason able and legitimate inferences which may be dra

wn from the evidence. State v. Tu ttle , 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). The trier of fact, not this court, resolves questions concerning the cre dibility

of the wit nesses, the weight and value to be given the e vidence as well as all factual issues raised by the evidenc e. Id. In State v. Grace , the Tennessee Supreme Court stated, "[a] guilty verdict by the jury , approved by the trial judge, accredits the testimony of the witne sses for

the State and reso lves all c onflicts in favor of the theory

of the State." 493 S.W.2d 474, 476 (Tenn. 1973). Becau se a verdict of guilt removes the presumption of innocence and re places it with a presumption of guilt, the ac cuse d has the burden in t his court of illustr ating why t

he evide nce is insufficient

to support the verdict returned by the trier of fact

. State v. Tu

ggle , 639 S.W.2d 913, 914 (Tenn. 1 982); Grace , 493 S.W.2d at 476. Tennessee Code Anno tated section 39-14-150(a) defines the crime of identity theft as follows: “A person commits identity theft who kn ow in gl y tr an sfer s o r u se s, wi th ou t l aw fu l a ut ho ri ty, a means of identification of another person with the intent to commit, or otherwise promote, carry on, or facilitate any

unlawful activity.” Te

nn. Code Ann. § 39-14-150(a) (Supp. 2002). As pertine

nt to Defe

ndant’s a ppeal in t his case , the ter

m “means of identif

icatio n” is also defined: (b) As used in this section, “means of identification” means any name or number that may be used, alone or

in conjunction with any other information, to identify a speci fic in divi dual, inclu ding: (1) Name, social security

number, date of birth, officialstate or government issued driver license or identification number, alien registration number , passport number, employer

or taxpayer identifica

tion number; (2) Unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physica

l representation;-4-

(3) Uni que electronic identification number, address, routing code or other personal identify

ing data which en ables an

individua

l to ob tain merchandise or service or to otherwise financially encumber the legitimate posses sor of the identifying da

ta; or (4) Telecommunication identify ing information or access device. Tenn. Code Ann. § 39-14-150(b) (Supp. 2002). In his argument challenging the sufficiency

of the evidence, Defendant does not state whic h element( s) of the crime of identity the ft was not established beyond a r easonable doubt. Defendant does argue that at most he was guilty of fra udulent use of adebit card, in violation of Tennessee Code Annotated section 39-14-118(b). I n f act, the indictment charging him with one count of identity theft also originally

contained an additional count charging him with the offense of fraudul ent use

of a debit card involving the same transaction. On the day of trial, prior to the jury being sworn, the count charging fraudulent use of a debit card was dismissed by the trial court upon the State’s motion for nolle prosequi . This wasdone with out an objection by Defend ant. On a

ppeal, Defendant

now argues that the trial court “abused its discretion” in allowing the nolle prosequi , and that the trial court should have f

ound “pla in error ” inth e d is mi ss al . U nd er st an da bl y, the Defendant cites no authority in support of his rather unique argument. Neverth eless, from the proof in the recor d, a c onviction for fraudulent use of a debit card could have been sustained if the State had chosen ultimately

to prosec ute Defendant for that offense. Howeve r, there i s nothing in Tennessee Code Annotated section 39-14-118 which pre cludes prosecution under an

y g eneral statute f or the cr iminal ac t that the p

roof sh owed De fendant committed. Tennessee Code Annotated section 39-11-109(a) provides, “[w]hen the same conduct may be defined under

both a spe cific sta

tu te an d a general statute, the person may be prosecuted under either statute unless the specific statute precludes prosec ution un der the general statute.” Tenn. Code Ann. § 39-11-109(a) (Tenn. 1997). The overwhelming proof in this case is that Defendant knowingly used Mr

. Law

rence’ s debit card (which had both Mr. Lawre nce’s name and electronic identification number imprinted

on it, as well as in the ma

gnetic tape on the card) without lawful authority, with the intent to facilitate “a ny unlawful activity.” I

n this case, the evidence clearly showed that Defendant committed forgery when he signed Mr. Lawr

ence’s name to the receipt from the Dodg e store. See Tenn. Code Ann. § 39-14- 114(a) and (b)(1)(A)(i). The State was authorized by statute, Te nnessee Code Annotated section 3 9-11-109 (a), to prosecu te Defendant under the gene ral statute of identity theft, ra ther than the more

specific statute of fraudulent use of a debit card. See State v. Phillips , 967 S.W.2d 826, 828 (Tenn. Crim. App. 1997). Furthermore, the evidence was suffici ent to establish beyond a re asonable doubt that Defendant was guilty

of identity theft. Defe

ndant is not entitled to relief on this issue.-5-

B. Sentencing Th e transcript reflects that Defendant per sonally acce pted, in open court, the sentence of twelve ye ars as a

caree r offen der in co njunction with a neg otiated p lea in two other ca ses, whic

h included a provision that the sentences in the unrelated cases would be served concurrently

with the twelve-ye ar sentence imposed for the conviction of identity theft. Defendant clearly

asserted, and the trial court agreed, that Defe ndant was not waiving his right to appeal the convicti on, but wa s only waiving his right to appeal his sentence if the convicti on was af

firmed. D efenda

nt conce des this in his brief and fails to cite authority in support of

his argument. Therefore the issue is waived. See Tenn. Ct. Crim. App. R. 10(b). C. Prosecutor’s Reference to the Victim being “Attacked” Defendant

asserts that the trial court sh ould have declared a mistrial when the prosecutor made the statemen t, emphas ized below , during direct e xamination o f the vic tim: Q And y ou were

over the re cutting her g

rass. A Yes, sir. I

was in the

habit of c

utting he r gras s for the

m. Sh e has - - Well there’s two elderly

sisters that live there. Q And, Mr. Lawrence, while you were there and I believe about to unlock the mowers, you were assaulted by someone. Correct ? A Right. I was in the process , had the l awnmowe r locked - - chai ned to a tree to keep somebody f

rom stealing it, and I wasin the pr ocess of unlocking

it when somebody tac

kles me from behind. Q During the

time t hat you were

out there

about to cut the

grass and you were assaulted, your wallet was taken. Correct? A Right. Q And, also, I

guess w ith that wa

llet, all the i tems that were contained in that wallet were taken also. A Right. Q Ok ay. Mr. Lawrence , the court officer is going to hand y ou something, and I’ll ask y ou, do y

ou recog nize that? A It’s my Banc orpSouth debit card, bank card, that has my signature on the back.-6-

Q No w, wa s t ha t o ne of th e c ar ds th at wa s t ak en fr om you th at da y? A Right. No obj ection wa s ma de by Def endant to the questions, and he asserts that the trial court committed “plain error” by not declaring a mistrialbased upon the prosecutor’s remarks. He makes no effort in his brief to demonstrate how this is “plain error” within the factors set forth in State v. Adki s son , 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994). Defendant does make the assertion that the prosecutor’s questions “taint the jury and [sic] to make them think that the Defendant played a part in Mr. Lawre

nce being robbed.” Defendant

wa s n ot charged with robbery . Neither the victim nor any one else identified Defendant

as the person who “attacked” the victim. Defenda nt admitted in his statement to police that he made a purchase at the Dodge store using Mr. Lawre

nce’s debit card. Photographs taken from a security

videotape showed Defendant making the tra nsaction. As stated above, Defendant made no objection at the time of the prosecutor’s questions. The failure to object

contempo

raneous ly constitutes a waiver of the issue. See Tenn. R. App. P 36(a); see also S tate v. Litt

le , 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992). An error which has affected the substantial right of

a defendant may

be notice d at any

time in the discretion of the appellate court where necessary to do substantial justice. State v. Taylor , 992 S.W.2d 941, 944 (Tenn. 1999). “Plain error” or “fundamental error” is recog nized under Tennessee Rule of Criminal Procedure 52(b). Adkisson , 899 S.W.2d at 639. Some errors are so fundamental and pervasive that they

require revers al without

regar d to the fa cts or circumstances of the particular case. Delaware

v. Van Ars

dall , 475 U.S. 673, 681, 106 S. Ct. 1431, 1436, 89 L. Ed. 2d 674 (1986). There a re five factor s which mus t be pres ent for a court to d

etermine “plain e rror” e xists: (a) the record must clea

rly establish what occ urred in the trial court; (b) a cl ear and

unequivo cal rule

of law mus t have be en brea ched; (c) a su bstantial right of the accused must h ave bee n advers ely

affec ted; (d) the accused did not waive the issue for tactica l reasons; and (e) consideration of the error is “nec essary to do substantial justice.” State v. S mith , 24 S .W.3 d 274, 282 (T enn. 2 000) ( citi ng Adkisson , 899 S.W.2d at 641-42). Complete consideration of all five factors is unnecessary if at least one is absent. Id . at 283. Furthermore, the plain error must be such that it probably changed the outcome of t he tr ial. Adkisson , 899 S.W.2d at 642. Since Defendant was not clearly identified as the person who “attacked” the victim, it cannot be said th at “other

crimes” by D efendant were admitted into evidence in violation of Rule 404(b)-7-

of the Tennessee Rules of Evidence. Also, the proof of De fendant’s guilt as to identity theft was so overwhelming that even if it was error to allow the pr osecutor to ask the questions, it cannot be concluded

that these questions changed the outcome of the trial. Defendant is not entitled to relief on this issue. CONCLUSION For the r easons st ated her ein, we a ffirm the judgmen t of the tr ial cour t.

___________________________________ THOMAS T. WOODALL , JUDGE