IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

November 17, 2020 Session1

STATE OF TENNESSEE v. AARON EVAN PERRY

Appeal from the Criminal Court for Knox County

No. 114134 G. Scott Green, Judge

No. E2019-02210-CCA-R3-CD

The Defendant, Aaron Evan Perry, was convicted by a jury of three counts of fraudulent 

use of a credit card of an amount of $1,000 or less, a Class A misdemeanor. See Tenn. 

Code Ann. §§ 39-14-105(a)(1), -118(b). The trial court imposed an effective sentence of 

eleven months and twenty-nine days, suspended to time served. On appeal, the Defendant 

contends that (1) the trial court erred by denying his motion to suppress evidence, arguing 

that a Belk department store loss prevention manager acted as an agent of the State when 

he seized the Defendant’s identification card and credit card, that the police conducted a 

pretextual traffic stop of the Defendant to investigate the Belk incident, and that the 

warrantless search of his vehicle was not justified as a search incident to arrest or inventory 

search; (2) the evidence is insufficient to support his convictions; (3) the trial court erred 

by admitting information generated by a hand-held credit card scanner without an adequate 

foundation; and (4) the trial court erred when it instructed the jury on the elements of illegal

possession of a credit card instead of fraudulent use of a credit card. After a thorough 

review of the record, we conclude that the evidence was insufficient to support the 

Defendant’s convictions and that reversible error occurred when the trial court mistakenly 

instructed the jury on the elements of illegal possession of a credit card. As a result, we 

remand the case for the entry of amended judgments reflecting the new conviction offenses

of attempted theft, a Class B misdemeanor. In addition, in the interest of judicial 

economy, we modify the sentence in each count to reflect concurrent sentences of six 

months and apply to the Defendant’s two years of jail credit to satisfy his sentences. 

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

Reversed; Case Remanded

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD

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

 

1 We note that due to technical difficulties, the oral arguments in this case were not recorded.

04/29/2021
2

Eric D. Lutton, District Public Defender2; and Tyler M. Caviness, Jonathan Harwell, and 

Sarah Olesiuk Parker, Assistant Public Defenders, for the appellant, Aaron Evan Perry. 

Herbert H. Slatery III, Attorney General and Reporter; Cody N. Brandon, Assistant 

Attorney General; Charme P. Allen, District Attorney General; and William C. Bright and 

Sean Deitrick, Assistant District Attorneys General, for the appellee, State of Tennessee. 

OPINION

FACTUAL BACKGROUND

This case arises from an October 10, 2017 incident in which the Defendant 

attempted to purchase gift cards at a Knoxville Belk department store using a falsified 

credit card. The Knox County Grand Jury subsequently indicted the Defendant for twelve 

counts of identity theft with the intent to commit theft of property relative to twelve 

separate victims. Counts 1, 2, 3, 4, and 12 related to customers of Y-12 Federal Credit 

Union, and Counts 5 through 11 related to customers of Eastman Credit Union. 

At trial, Sierra Lopez3testified that on October 10, 2017, she was working as a sales 

manager at Belk women’s store in Turkey Creek when she was called to the sales floor by 

a sales associate regarding a gift card purchase. She agreed that the store contained 

surveillance cameras, which recorded the relevant events. 

 

The surveillance recording, which did not include audio, showed a man later 

identified as the Defendant wearing a white jacket and a white baseball cap standing at a 

cashier station in the lingerie section of Belk. The Defendant took two cards from a 

display on the counter and spoke to a sales associate, who took the cards, picked up the 

telephone, and appeared to place a call. After an interval, a woman identified as Ms. 

Lopez walked to the station, scanned the two cards at the cashier station, and reached across 

the counter to swipe them on the credit card pin pad. The Defendant handed Ms. Lopez 

additional cards from his wallet. Two men later identified as loss prevention manager Bill

Muenzer and loss prevention associate Derrick Stratton walked behind the counter and 

stood beside Ms. Lopez; after Ms. Lopez handed Mr. Muenzer the cards the Defendant 

 

2 Mark E. Stephens was the District Public Defender from the time the Public Defender’s Office was 

appointed to represent the Defendant until the conclusion of the Defendant’s October 28-30, 2019 trial. 

On November 1, 2019, Mr. Stephens retired from public service, and Mr. Lutton was appointed as his 

successor.

3 At the time of trial, Ms. Lopez’s surname was Weldon. Because other witnesses referred to her as Ms. 

Lopez, for consistency, we will use that name here. 
3

gave her, Mr. Muenzer and the Defendant appeared to converse. The Defendant 

gesticulated as he spoke, and he pointed at Mr. Muenzer and Ms. Lopez. Mr. Muenzer 

began to walk away, and the Defendant moved in the opposite direction and continued to 

gesticulate before turning and walking out of the camera frame.

Ms. Lopez testified that in the recording, she compared the Defendant’s driver’s 

license and credit card, entered the gift card amount into the computer, and swiped the gift 

cards through a card scanner to “load” them. Ms. Lopez stated that Mr. Muenzer retrieved 

the identification and credit cards from her. Ms. Lopez affirmed that neither she nor the 

sales associate completed the gift card transaction. Ms. Lopez identified a driver’s license 

and credit card that were similar to the ones the sales associate gave her and which Ms. 

Lopez provided to Mr. Muenzer. The first card was a Connecticut driver’s license issued

to a Will Andrews. The second card was a PNC Bank Visa credit card, also issued to Will 

Andrews.

Bill Muenzer testified that he had worked in loss prevention since 2001 and that 

on October 10, 2017, around noon, he was working at the Belk women’s store when he 

became aware of a situation he “wanted to attend to.” Mr. Muenzer called Ms. Lopez and 

spoke to her about the situation; some time later, he and Mr. Stratton approached Ms. 

Lopez, the sales associate, and a customer, whom Mr. Muenzer identified as the Defendant. 

Mr. Muenzer retrieved an identification card and a credit card from Ms. Lopez; he also 

stated, though, that the Defendant handed him the cards. Mr. Muenzer told the Defendant 

that he needed to verify his information before they could complete the gift card purchase. 

Mr. Muenzer did not remember how the Defendant responded. Mr. Muenzer handed the 

cards to Mr. Stratton, and the Defendant walked away. 

Mr. Muenzer testified that he followed the Defendant to the store’s entrance and

called Detective Angela Varner with the Knox County Sheriff’s Office. Later, Detective 

Varner called Mr. Muenzer, and Mr. Muenzer traveled to the scene of a traffic stop, where 

he again saw the Defendant. At the traffic stop, Mr. Muenzer provided Detective Varner 

with the driver’s license and credit card belonging to Will Andrews that the Defendant had 

presented for the gift card purchases at Belk. 

On cross-examination, Mr. Muenzer testified that a customer seeking to purchase a 

gift card was not generally required to provide identification, a social security number, or 

an address. Mr. Muenzer agreed that he had no special expertise in “what [went] on . . . 

behind the scenes” in a credit card transaction. Mr. Muenzer affirmed that he did not know 

by looking at the cards whether the credit card actually belonged to Will Andrews or 

whether Will Andrews was a real person. 
4

Knox County Sheriff’s Captain Robert Hubbs testified that on October 10, 2017, he 

worked at the Turkey Creek Precinct station in the retail theft unit. Captain Hubbs stated

that Detective Varner left the station after receiving a call related to the Belk women’s 

store. Captain Hubbs left a few minutes later to join Detective Varner at the Belk parking 

lot. Captain Hubbs saw a man, whom he later identified as the Defendant, rapidly walking 

“almost in a jog” toward a car in the parking lot. 

Captain Hubbs testified that as the Defendant drove away, Captain Hubbs followed 

him in his unmarked police cruiser. The Defendant accelerated as he drove and ran a red 

light at a nearby intersection at about 12:30 p.m., at which point Captain Hubbs activated 

his blue lights and stopped the Defendant. Captain Hubbs noted that the car had an Illinois 

license plate and that the Defendant moved around in the passenger compartment in a 

suspicious manner. Captain Hubbs explained that he could see the Defendant’s rapidly 

removing a white jacket and “stuffing things under” the front passenger seat. 

Captain Hubbs testified that after calling for backup, he approached the passengerside window. The Defendant initially refused to roll down the window to speak to Captain 

Hubbs, but eventually “crack[ed] it” open and handed him a car rental agreement and a 

driver’s license. The Defendant identified himself as Aaron Perry. Captain Hubbs stated 

that he and the Defendant discussed the red light violation and that he may have asked the 

Defendant what he was doing at Belk, although he did not remember all of the 

conversation. 

Captain Hubbs identified three Michigan driver’s licenses reflecting the name 

Aaron Perry. The three licenses, which were all taken from the Defendant’s wallet,

contained the same license number and address, although they contained different issue 

dates and expiration dates. Two of the licenses expired on May 9, 2016, and the third 

contained an expiration date of May 9, 2020. Each license reflected a different photograph 

of the same person. Captain Hubbs did not recall which license the Defendant gave him

during the stop. 

Captain Hubbs testified that after he returned to his police cruiser to verify the 

Defendant’s driver’s license, Detective Varner, a patrol officer, and Mr. Muenzer arrived 

shortly thereafter. Captain Hubbs identified the Connecticut driver’s license and PNC 

Bank credit card as the ones Mr. Muenzer brought to the location of the traffic stop. 

 

Captain Hubbs testified that the police searched the Defendant’s car, his wallet, and 

a gym bag. Captain Hubbs stated that they found “a number of” credit cards in the gym 

bag, that five of the cards reflected the Defendant’s legal name, and that other cards 
5

reflected the name Will Andrews. Captain Hubbs said that a laptop computer and “card 

swiper” were also found inside the car.

Knox County Sheriff’s Officer Lee Strzelecki4testified that on October 10, 2017, 

he was working as a patrol officer when he answered a call requesting assistance with a 

traffic stop on Parkside Drive in Turkey Creek. Officer Strzelecki testified consistently 

with Captain Hubbs regarding the items found during the traffic stop and the people in 

attendance. In the Defendant’s car, Officer Strzelecki found a wallet containing credit 

cards; the center console contained additional credit cards. A “card encoder,” hotel room 

key, and white hooded coat were also found in the car. 

During a recess in the proceedings, defense counsel objected to Knox County 

Sheriff’s Detective John Huff’s anticipated testimony regarding a card scanner machine. 

Counsel stated that Detective Huff “swiped some things in some kind of machine, [got] 

some information, [wrote] it down,” and was going to testify regarding the information 

obtained from the machine. The State responded that the machine displayed the number 

associated with the magnetic strip on a credit card and that the State could “do a sample” 

of the Defendant’s cards to “verify that process.” The trial court stated that because the 

jury had been waiting for some time, it would consider the issue later.

Detective Huff testified for the jury that he worked in the property crimes unit and 

investigated forgery and fraud cases. Detective Huff also responded to the traffic stop and 

collected items seized from the Defendant and his car. Detective Huff stated that he 

examined the credit cards found in the Defendant’s car “to verify if the encoded numbers 

on the magnetic strips on the back of the cards matched the numbers and name on the front 

of the card.”

Detective Huff testified that he took the Defendant’s hotel key to the corresponding 

hotel and that the hotel staff gave him the room number to which the key belonged. 

During a search of the room, police found an Illinois driver’s license with the name Joseph 

Barber, which contained the Defendant’s photograph. In addition, they collected a 

“company I.D.” for “Center Plan Construction Company” and an identification card for “a 

Mason type group” called “Hope, Faith, and Charity.” Both of those cards reflected the 

name Will Andrews and contained the Defendant’s photograph. Detective Huff testified 

that under one of the mattresses in the hotel room, he found “stacks” of blank credit cards 

and an “embossing machine,” which he explained was used to imprint the numbers and 

name on the front of a debit or credit card. 

 

4 Officer Strzelecki was a detective at the time of trial.
6

Detective Huff testified that in his office, he used a scanning device to compare the 

number encoded on the magnetic strip of a credit card with the number embossed on the 

card. He stated that the card scanner displayed the number encoded on the magnetic strip.

At this juncture, defense counsel requested a bench conference and lodged the 

following objection:

I think it’s getting into testimony of this witness that he used some 

kind of machine to analyze these cards. I don’t think that’s admissible 

absent some foundation that he has expertise with the machine and he 

understands how it works and that it is a reliable method of doing this. I’m

not sure that he has any of this knowledge[.]

The State responded that unlike a device like a breathalyzer, “[t]here [were] non-special 

qualifications [that made] the test result come out right. This [was] . . . just like the card 

reader that [was] at the grocery store. Except this device d[id not] transmit that data into 

something else.” The State argued that the machine did not have to be calibrated and that 

Detective Huff could testify about the machine due to his training and experience. The 

trial court stated that it did not “see a problem” with the testimony and found that it was 

admissible.

Detective Huff testified that if the number displayed on his card scanner did not 

match the number on the credit card, he used the first six digits of the displayed number, 

which was a “bank identification number,” to determine to which bank the credit card 

account belonged. Generally, a bank employee would confirm whether the account 

owner’s name corresponded to the name embossed on the credit card. As a demonstrative 

exhibit, Detective Huff used the card scanner with one of the credit cards showing the 

Defendant’s name; the number generated by the card scanner matched the number 

embossed on the card. Detective Huff then used the card scanner with the PNC Bank 

credit card the Defendant presented inside Belk. The number displayed on the scanner did 

not match the number shown on the card. Detective Huff read from a list the card numbers 

associated with three cards found in the Defendant’s car, which varied from the numbers 

obtained by the card scanner. 

On cross-examination, Detective Huff testified that he began working in the fraud 

and forgery department in May 2017; he agreed that he was not present for the incident 

inside Belk. When asked to explain how the card scanner worked, Detective Huff stated 

that it read the numbers encoded on a card’s magnetic strip and that the card scanner in 

evidence was the one his office used in this case. He did not know whether the reader was 

connected to a database, although he noted that the reader was not connected to a computer. 
7

To his knowledge, the card scanner did not read any data contained on a “chip” present in

some of the cards. Detective Huff agreed that the card scanner did not generate a 

“printout” of information and that he did not receive specialized training related to the card 

scanner, its hardware, or its software. When asked whether the machine had a rate of 

error, he responded, “Not aware of that.” Detective Huff did not know whether any of the 

alleged victims in the Defendant’s case lost money, had fraudulent purchases made to their 

accounts, or had fraudulent accounts opened in their names. He agreed that he reached 

out to the victims, as opposed to their having contacted the police to make a complaint.

Detective Huff testified that the Connecticut driver’s license belonging to Will 

Andrews did not “come back” as a valid license; he did not research the address listed on 

the license. Detective Huff never connected a person named Will Andrews or Anthony 

Palmer to the Defendant’s case, and he agreed that to his knowledge, the Defendant did not 

pretend to be another existing person named Will Andrews. Detective Huff composed a 

typed document comparing the embossed and encoded numbers for three cards found in 

the Defendant’s car, as well as the numbers for the card the Defendant presented inside 

Belk. In addition, by request of the State, Detective Huff hand-wrote the numbers for an 

additional card found inside the Defendant’s car. 

Wendy Mioduski testified that she worked for Y-12 Federal Credit Union and that 

as part of her duties, she was a records custodian who researched fraudulent activity and 

testified on the bank’s behalf in fraud cases. Ms. Mioduski affirmed that she printed 

records upon the request of the State related to customers Terry Clark, Doug Kibler, John 

Cowan, and Myrtle McGhee; she also obtained records related to Axis Autobody, a 

business. Ms. Mioduski stated that she wrote notes on the printouts containing the card 

number associated with each account. She stated that a “servicer” produced Y-12’s credit 

and debit cards, including programming the card, embossing it, and sending it to the 

customer. Ms. Mioduski’s records for Mr. Clark, Mr. Kibler, and Axis Autobody 

contained card numbers matching the numbers Detective Huff listed as encoded on cards 

in the Defendant’s car.5 Ms. Mioduski printed a record for Mr. Cowan, but it did not 

contain a card number. Ms. Mioduski did not bring a record for Ms. McGhee to court.

On cross-examination, Ms. Mioduski testified that the magnetic strip on a credit 

card contained the sixteen-digit card number, the account holder’s name, the expiration 

date, and the validation code. She agreed that when a credit card was swiped “through a 

terminal,” the machine would not process the transaction if any piece of information was

missing on the card; for example, if the card contained the account number but not the 

expiration date, a person would be unable to make a purchase. Ms. Mioduski stated that 

 

5 The card presented at Belk was not connected to a Y-12 account holder.
8

her bank office contained card scanners that were connected to their computer system, with 

which she could scan a credit card and print out the electronic record for that account. She 

denied that anyone asked her to perform this task in connection with the Defendant’s case. 

She agreed that some bank accounts had multiple account holders or were associated with 

a business. Ms. Mioduski agreed that a credit card number generally did not match the 

customer’s bank account number. Ms. Mioduski testified that if a customer requested a 

new card because his or her card had been compromised, the bank would issue a new card. 

She was not aware that any new cards were issued relevant to this case. 

 

Douglas Kibler testified that he was a customer of Y-12 Federal Credit Union and 

possessed a credit card for his account. He did not remember the card number of the card 

he had in October 2017; he noted that “this ha[d] happened like three times” and that he 

had obtained a different card by the time of trial. Mr. Kibler agreed that the records Ms. 

Mioduski prepared corresponded to his account and that they contained his social security 

number. Mr. Kibler denied knowing the Defendant or authorizing him or anyone aside 

from his wife to use his bank account.

On cross-examination, Mr. Kibler testified that the bank alerted him that someone 

might have used his credit card. He noted that he regularly reviewed his bank statements 

and would have seen any fraudulent charges. When asked whether fraudulent charges 

appeared on his account as of October 10, 2017, Mr. Kibler responded that he had 

previously found fraudulent charges on his account, but due to the passage of time, he did 

not know the dates of the charges. He agreed that to his knowledge, the Defendant never 

used his information to open other lines of credit.

Terry Clark testified that in October 2017, he was a customer of Y-12 Federal Credit 

Union. He stated that he had both a credit and debit card, although he had not memorized 

either card’s number. He affirmed that the bank record of his account contained accurate 

information and that the credit and debit card numbers listed therein were consistent with 

his memory of them. Mr. Clark did not know the Defendant or authorize him to use his 

credit or debit card numbers.

On cross-examination, Mr. Clark testified that to his knowledge, the Defendant 

never used his card to make purchases, open new lines of credit, or impersonate him at the 

bank. Mr. Clark stated that although a credit card of his had been “hacked” two years

previously and he had disputed that charge, he did not know if that card was the one 

relevant to this case. He stated that prior to receiving a subpoena in this case, he was never 

contacted by police and did not know that his credit card number had been compromised. 

Lena Burris testified that her husband, Richard Burris, owned Axis Autobody and 

that she handled the business’s finances. She stated that the business had an account at Y-
9

12 Federal Credit Union, for which she and Mr. Burris each had a debit card with different 

numbers. Ms. Burris denied that she knew the Defendant or authorized him to use the 

business’s debit card numbers. 

On cross-examination, Ms. Burris stated that the business was a limited liability 

corporation and that the bank contacted her about the debit card number’s being in another 

person’s possession. She did not recall when the bank called her, and she noted that the

debit card number had been stolen “four or five times.” Ms. Burris did not know whether 

the Defendant ever possessed her personal identifying information. Ms. Burris obtained 

a new card number after the bank alerted her to the issue.

John Paul Cowan testified that he was a customer of Y-12 Federal Credit Union, 

and he affirmed that the bank record Ms. Mioduski provided reflected his personal 

information as of October 2017. He stated that he had a credit and debit card connected 

to his account. He did not recall the number of either card. Mr. Cowan did not recall 

whether he noticed an issue with his account or whether the bank contacted him. He noted 

that the communication occurred about two years previously, but he was unable to provide 

further details. Mr. Cowan denied giving the Defendant permission to use his card.

On cross-examination, Mr. Cowan agreed that his wife was a joint owner of his 

account. He denied that he communicated with law enforcement regarding his account. 

Mr. Cowan did not know if the Defendant ever possessed his social security number, name, 

or address; similarly, Mr. Cowan did not know whether the Defendant ever used his credit 

card, opened additional accounts, or opened lines of credit using the information. 

Daksha Zaveir testified that she and her husband owned a Days Inn hotel in the 

Cedar Bluff area of Knoxville and that she handled the business’s finances. She identified 

a hotel record reflecting that a Joseph Barber checked into the hotel on October 5 and 

checked out on October 7; a “registration card” reflected Mr. Barber’s name and signature, 

as well as a telephone number and an Illinois address. Mr. Barber stayed in Room 214. 

Ms. Zaveir agreed that the information contained in the Illinois driver’s license found in 

the room matched the information reflected on the hotel record. She stated that if a guest 

left small items in a room past check-out time, the housekeeper would collect the items, 

remove them from the room, and note the room number and the date; if a guest left a large 

quantity of personal items, they would leave the items in the room and attempt to contact 

the guest. Ms. Zaveir said that if a guest chose to extend his stay, it would sometimes be 

noted on the guest’s original record and sometimes be reflected on a separate record. On 

cross-examination, Ms. Zaveir stated that Mr. Barber would have left the hotel by 11:00 

a.m. on October 7, which was check-out time. 
10

After the jury had retired for the day, the State conceded that it had presented no 

proof related to Counts 5, 6, 7, 8, 9, 10, or 11 for the identity theft of the seven victims who 

were customers of Eastman Credit Union.

6

 The trial court granted the Defendant’s motion 

for a judgment of acquittal relative to these counts and denied his motion relative to Counts 

1, 2, 3, 4, and 12, the identity theft of Mr. Kibler, Robert Burris d/b/a Axis Autobody, Mr. 

Clark, and Ms. McGhee, respectively.

7

The following day, Myrtle McGhee testified that she was a customer of Y-12 

Federal Credit Union, that she had a credit or debit card related to her bank account there, 

and that she never gave anyone permission to take information from her card, place it on 

another card, and make a purchase at Belk. She said that in late fall 2017, the bank 

contacted her about a compromised credit card. Ms. McGhee did not recall her credit card 

number. 

The Defendant did not put on any proof and requested that the trial court instruct 

the jury on two lesser offenses, fraudulent use of a credit card and attempted theft. Before 

the trial court issued its instructions, it asked the parties whether they had any changes 

relative to the instructions in each count and the respective lesser offenses. The parties 

responded negatively each time. The court instructed the jury on the indicted offense of 

identity theft in Counts 1, 2, 3, 4, and 12, as well as fraudulent use of a credit card and 

attempted theft. 

Relative to the issues on appeal, the trial court instructed the jury as follows:

If you have a reasonable doubt as to the defendant’s guilt of identity 

theft, then your verdict must be not guilty as to this offense and then you shall

proceed to determine his guilt or innocence of fraudulent use of a credit card, 

a lesser included offense of the first count.

 

6 At a recess on the first day of the State’s proof, October 29, the State informed the trial court that during 

discovery, it had provided the Defendant with a summary of information compiled from Eastman Credit 

Union bank records relative to the seven victims specified in the indictment in Counts 5 through 11. The 

parties indicated that the summary consisted of a spreadsheet authored by an unknown person. However, 

the State did not obtain the supporting bank records until the afternoon of October 28. The State provided 

the bank records to the Defendant after court was adjourned that afternoon following opening arguments. 

After substantial argument about whether a discovery violation occurred and whether the summary was 

admissible, the State chose not to introduce the bank record summary. As a result, it offered no evidence 

relevant to Counts 5 through 11.

7 Because defense counsel, the prosecutors, and the trial court anticipated an abbreviated workday on 

October 31 due to their needing to attend a retirement reception for Mr. Stephens, the trial court discussed 

Ms. McGhee’s anticipated testimony with the parties and made a preliminary denial of the motion for 

judgment of acquittal relevant to Count 12. It was noted that Ms. McGhee was not available to testify on 

October 30. 
11

Any person who illegally possesses a credit or debit card is guilty of 

a crime.

For you to find the [D]efendant guilty of this offense, the State must 

have proven beyond a reasonable doubt the existence of the following 

essential elements:

(1) That the [D]efendant took, exercised control or otherwise used a credit 

or debit card or information from such card; and

(2) That the [D]efendant acted without the consent of the owner or issuer; 

and

(3) That the [D]efendant acted knowingly.

Based upon this evidence, the jury found the Defendant guilty of fraudulent use of 

a credit card in Counts 1, 2, 4, and 12, relative to Mr. Kibler, Robert Burris d/b/a Axis 

Autobody, Mr. Clark, and Ms. McGhee, respectively. The jury acquitted the Defendant 

in Count 3 relative to Mr. Cowan. The trial court imposed an agreed-upon sentence of 

eleven months, twenty-nine days in each count, to be served concurrently. The sentence 

was suspended to time served because the Defendant had been in jail for two years pending 

trial. At the motion for a new trial hearing, the trial court granted the motion for a 

judgment of acquittal in Count 12 relative to Ms. McGhee and denied the motion for a new 

trial. The Defendant timely appealed.

ANALYSIS

On appeal, the Defendant contends that (1) the trial court erred by denying his 

motion to suppress evidence, arguing that a Belk department store loss prevention manager 

acted as an agent of the State when he seized the Defendant’s identification card and credit 

card, that the police conducted a pretextual traffic stop of the Defendant to investigate the 

Belk incident, and that the warrantless search of his vehicle was not justified as a search 

incident to arrest or inventory search; (2) the evidence is insufficient to support his 

convictions; (3) the trial court erred by admitting information generated by a hand-held 

credit card scanner without an adequate foundation; and (4) the trial court erred when it 

instructed the jury on the elements of illegal possession of a credit card instead of 

fraudulent use of a credit card.

I. Motion to Suppress
12

The Defendant contends that the trial court erred by denying his motion to suppress

the evidence obtained when Mr. Muenzer seized the Defendant’s credit card and driver’s 

license, arguing that Mr. Muenzer was acting as an agent of law enforcement at the time. 

The Defendant also challenges the traffic stop, arguing that Captain Hubbs stopped the 

Defendant on the pretextual basis of the red light violation and that Captain Hubbs 

impermissibly delayed his investigation, failed to investigate the red light violation, and 

instead focused on the true object of the investigation, the incident at Belk. Finally, the 

Defendant contends that the search of his rental car was not justified either as a search 

incident to arrest or an inventory search, arguing that the officers did not have probable 

cause to believe that evidence of the red light violation or the incident at Belk would be 

present in the car and that the officers did not ask the Defendant to make arrangements for 

the car before having it impounded and inventoried. 8 The State responds that Mr. 

Muenzer was not an agent of law enforcement and that the traffic stop and vehicle search 

were both permissible. 

A. Factual Background

At the October 1, 2019 suppression hearing, Mr. Muenzer testified on October 9, 

2017, he was working at the Belk store in the Knoxville Center Mall when he received an 

email from Rick Santino, a Belk loss prevention manager in Johnson City, Tennessee. 

The email detailed an incident in which a person purchased or attempted to purchase 

several gift cards; Mr. Santino suspected that credit card fraud had occurred and attached 

several surveillance photographs of the customer. Mr. Muenzer did not recall whether 

Mr. Santino told him the customer’s name. 

Later that day, a sales associate reported to Mr. Muenzer that a customer who had 

already left the building had purchased several large gift cards. Upon examining the

store’s surveillance recording, Mr. Muenzer concluded that the customer was the same 

person described in Mr. Santino’s email and noted that the man was wearing identical 

clothing to the man Mr. Santino observed. Mr. Muenzer informed the store manager, and 

she voided the transaction, thereby voiding the gift cards and limiting Belk’s loss. When 

asked why he did not call the police, Mr. Muenzer stated, “[H]e was gone and I wouldn’t 

have done that anyway.” Mr. Muenzer testified that his job entailed protecting Belk’s 

assets and trying to prevent losses by internal or external theft or “anything relating from 

store processes.” 

 

8 The pretrial hearing testimony addressed three motions to suppress. The Defendant only appeals the trial 

court’s determinations relative to Mr. Muenzer’s agency relationship with the police and the traffic stop, 

and we will confine our recitation of the suppression hearing testimony accordingly. 
13

When asked to describe his relationship with the Knox County Sheriff’s Office retail 

task force, Mr. Muenzer stated, 

I personally did not have much of a relationship with them. Although 

I was working at the Belk store in Knox[ville] Center Mall that day. My 

main store was a store at Turkey Creek. That’s where I was actually based 

out of. So they have the Sheriff’s Office . . . . basically within walking 

distance of that store.

. . . . 

And I actually – I would talk to them – work with them somewhat, 

but I did not deal with them a lot.

Mr. Muenzer affirmed that although he sometimes interacted with law enforcement, he did 

not work for them. He denied that the Sheriff’s Office paid him for referring cases to them 

or that he served as a reserve deputy. Mr. Muenzer stated that aside from his sometimes 

calling the police in his capacity as a loss prevention manager, he had no relationship with 

the police. 

Mr. Muenzer testified that on October 10, 2017, he was working at the Turkey Creek 

Belk and informed the sales associates to “watch out for” a person purchasing several large 

Belk gift cards. When a sales associate called him regarding a customer requesting to 

make such a purchase, Mr. Muenzer called Ms. Lopez and informed her that credit card 

fraud might be occurring. He instructed her to “handle that situation” and not to complete 

the purchase until he came to her location. Mr. Muenzer denied that he contacted the 

police before walking to the register. Mr. Muenzer testified consistently with his trial 

testimony regarding the surveillance recording of the incident. Mr. Muenzer noted that 

another loss prevention associate named Derrick Stratton was accompanying him when he 

walked to the register.

Mr. Muenzer testified that he explained to the Defendant that he “needed to verify 

certain information with the credit card because . . . we knew he had either made or 

attempted to purchase several large Belk gift cards . . . traveling the Belk stores.” Mr. 

Muenzer stated that his reasoning was “to protect Belk” and that he wanted to gather more 

information and “verify the situation either way.” Mr. Muenzer denied taking the driver’s 

license and credit card from the Defendant’s person, detaining the Defendant, or searching 

the Defendant. He affirmed that Ms. Lopez gave him the driver’s license and credit card. 
14

Upon examination by the trial court, Mr. Muenzer denied that he was instructed by 

law enforcement to confiscate the cards. Mr. Muenzer noted that he told the Defendant 

that he needed to verify the information and that he would “be right back.” As Mr. 

Muenzer walked toward his office, the Defendant exited the building, at which point Mr. 

Muenzer called Detective Varner. Mr. Muenzer agreed that the Belk men’s store was 

about thirty feet from the Sheriff’s Department office. 

Mr. Muenzer testified that he told Detective Varner that he had a situation in which 

he suspected “credit fraud” was occurring, that the suspect was leaving the building, and 

that Mr. Muenzer had the person’s identification and credit card. Mr. Muenzer described 

the Defendant as being an African-American man wearing a “white pullover” and a white 

hat. While Mr. Muenzer was on the telephone, he followed the Defendant outside and 

saw the Defendant enter a vehicle and drive away; Mr. Muenzer described the vehicle to 

Detective Varner.

After his call with Detective Varner, Mr. Muenzer contacted the credit card 

company; he was informed that although the card reflected being associated with a PNC 

Bank account, the account number was associated with Y-12 Federal Credit Union. 

Detective Varner called Mr. Muenzer after some time and informed him that “the subject” 

had been stopped for a traffic violation and that the subject had presented a false 

identification card. Detective Varner asked Mr. Muenzer to bring the driver’s license and 

credit card he possessed to the location of the traffic stop. Mr. Muenzer stated that when 

he arrived, police officers were speaking to the Defendant and that “[m]any, many gift 

cards,” “multiple IDs,” and “stacks of credit cards” had been placed on the hood of the 

Defendant’s vehicle. Mr. Muenzer gave officers the driver’s license and credit card, and 

he relayed to them his conversation with the credit card company. 

On cross examination, Mr. Muenzer testified that he was a loss prevention associate 

at the time of the incident with the Defendant; he characterized his position as the “acting 

loss prevention manager” and clarified that his supervisor was an “area” loss prevention 

manager. When asked why he directed the surveillance camera to the Defendant’s 

location, Mr. Muenzer stated that he anticipated needing to record the Defendant due to the 

Defendant’s purchasing large gift cards. Mr. Muenzer denied that he “planned” to 

approach the Defendant. Mr. Muenzer did not recall whether he instructed the sales 

associate not to complete the Defendant’s transaction, although he noted that he told Ms. 

Lopez not to do such. Mr. Muenzer agreed that the Defendant had been waiting to 

complete his transaction for about seven minutes when Ms. Lopez arrived at the cashier 

station. 
15

Mr. Muenzer testified that to his recollection, he did not call Detective Varner 

during the seven-minute interval. He elaborated that in spite of the Sheriff’s Office’s 

proximity to the Belk women’s store, Detective Varner “took . . . a little bit of time to get 

down there”; he noted that if he had called Detective Varner before speaking to the 

Defendant, she would “have already been in a position to be at the store.” Mr. Muenzer 

disagreed that he told Detective Varner that he was going to attempt to “retrieve the card.” 

Mr. Muenzer stated that he was “fairly certain” that he only spoke to her after he had the 

Defendant’s cards, although he acknowledged that in the absence of telephone records, he 

was “speculating off of [his] memory.” 

Mr. Muenzer testified that the Knox County Retail Task Force focused on instances 

of retail theft and that he had been aware of the task force for several years prior to the 

incident in this case. Mr. Muenzer stated that had worked with officers on the task force 

during his time at Belk; he noted that the Sheriff’s Office had a “holiday” task force as 

well. Mr. Muenzer was not aware of a “special relationship” between Belk and the retail 

task force, and he did not recall receiving instruction from Belk regarding “working cases” 

with task force officers. Mr. Muenzer stated that every fourth quarter, all of the retail loss 

prevention employees would meet with the task force to discuss the times and locations 

that retail task force officers would patrol during the holiday season. 

Mr. Muenzer denied that any member of the retail task force instructed him on how 

to handle shoplifting incidents. He stated, though, that an email group existed between 

retailers and the retail task force, which he described as the “alert line,” explaining, “[T]hat 

way if we have any BOLOs, situations like in a real time, we can send an email out and 

that way other retailers could look out for possible suspects.” Mr. Muenzer agreed that 

employees of various retail establishments and Sheriff’s Officers received the emails. He 

agreed that retail employees and officers shared descriptions of suspects and photographs 

in the email group; he did not know of any other method by which the retail task force and 

Belk shared information. Mr. Muenzer did not know whether he had sent any emails 

about the Defendant using the email group. He stated that the initial email alerting him to 

the Defendant was sent internally to Belk’s regional loss prevention employees.

Mr. Muenzer testified that he was working in loss prevention prior to the retail task 

force’s creation and that the manner in which he handled retail theft incidents did not 

change after its inception. Mr. Muenzer again described the enhanced support the task 

force officers gave Belk during the holiday season in November and December. 

When asked whether he had worked with Detective Varner previously, Mr. Muenzer 

stated that it was possible, but that he did not work with “any of them” often. He could 

not give a number of times or a period of time during which he worked with Detective 

Varner before the incident in this case. Mr. Muenzer acknowledged that he called 
16

Detective Varner using his cell phone and that a possibility existed that it was “typical” to 

contact the retail task force by cell phone. He emphasized again that he “never had much 

contact with them.” Mr. Muenzer did not recall task force officers’ having called his cell 

phone to request that he investigate something. Mr. Muenzer did not remember how he 

obtained Detective Varner’s cell phone number or how he knew to call her in particular. 

Mr. Muenzer testified that when he called Detective Varner, he explained the situation but 

did not ask her for instructions about how to proceed. 

Mr. Muenzer affirmed that he had visited the Sheriff’s Office previously to “take 

out a warrant on” a person who had stolen from Belk. He denied that the retail task force 

provided him information about when certain officers were working or that he ever went 

to the office to “see who was working that day[.]” Mr. Muenzer stated that he was familiar 

with the names of two officers on the task force, Detective Varner and Brian Cole. Mr. 

Muenzer did not recall whether Ms. Lopez told him during their telephone call that she had 

the Defendant’s identification card. Mr. Muenzer similarly did not recall whether the 

Defendant ever asked him to return the cards; he agreed that the Defendant appeared to be 

agitated in the surveillance recording. Mr. Muenzer stated that he handed the Defendant’s 

cards to Mr. Stratton, and he agreed that he walked away from the cashier station while the 

Defendant was still standing there. Mr. Muenzer did not know whether he would have 

given the Defendant his cards had the Defendant asked for them. He acknowledged that 

he did not ask the Defendant for permission to walk away with his cards.

Mr. Muenzer testified that he was trained using the Belk policy manual, which was 

received as an exhibit. He agreed that the policy manual contained procedures to be 

followed if a customer attempted to make a purchase with a stolen or counterfeit form of 

payment. Mr. Muenzer disagreed that verifying the payment method was outside of the 

scope of his duties in this regard. 

In the event of a question regarding the legitimacy of a payment method, the relevant 

portion of the policy manual stated,“[The] ringing associate and/or store management 

should follow the established procedures for verifying the tender in question. Your Loss 

Prevention Manager and/or Regional Loss Prevention Manager will instruct you further on 

the subject of investigating and/or prosecuting individuals who present counterfeit or stolen 

forms of payment.” Mr. Muenzer stated that depending on the situation, it was his duty 

to verify payment as well as the sales associate’s and store manager’s. 

The policy manual also stated that in the event a customer was suspected of 

attempting a fraudulent return of merchandise, a loss prevention associate did not “have 

the authority to deny, detain, or devalue forms of payment” and that “[a] member of store 

management should become involved in processing returns that [were] characterized as 
17

being unusual or suspicious.” When asked about this provision, Mr. Muenzer responded 

that his authority “depend[ed] on whether [they had] proof . . . related to theft.”

Mr. Muenzer testified consistently with his trial testimony regarding his following 

the Defendant to the entrance to Belk after the encounter, calling Detective Varner and 

describing the Defendant’s car as he left the parking lot, and calling the credit card 

company. He stated that to his recollection, he remained near the door and did not return 

to the loss prevention office after the Defendant left. He estimated that about fifteen 

minutes elapsed before Detective Varner asked him to come to the location of the traffic 

stop, although he acknowledged that the period of time could have been longer. Mr. 

Muenzer noted that it took some time to be connected to the proper person at the credit 

card company; he stated that although he had contacted credit card companies previously, 

it was “a few and far between kind of thing.” 

The hearing was continued until October 28, 2019. At the second hearing, Captain 

Hubbs testified consistently with his trial testimony regarding Detective Varner’s receiving 

a call from Mr. Muenzer, Captain Hubbs’s responding to the Belk parking lot and seeing 

the Defendant walking quickly to his car, the circumstances preceding the traffic stop, and 

the Defendant’s movements inside the car as Captain Hubbs approached. Captain Hubbs 

stated that the Defendant parked his car in the middle of a driveway to one of the nearby 

shops and that traffic would have been blocked had the car remained there.9 Captain 

Hubbs recalled his concern that the Defendant had a weapon or drugs based upon the 

Defendant’s agitation and movement in the car. Captain Hubbs stated that the Defendant 

was uncooperative and did not wish to exit the car, although he handed Captain Hubbs a 

driver’s license and the car rental agreement through the narrowly-opened passenger-side

window. Captain Hubbs asked the Defendant why he would not open the window further, 

but because the Defendant was “very agitated,” Captain Hubbs was “not sure [he] wanted 

[the Defendant] out of the car at that point.” Captain Hubbs said that he informed the 

Defendant that he had been stopped for running the red light and that when Captain Hubbs 

checked the Defendant’s driver’s license, he located no record of it in the national crime 

information center (NCIC) database. He acknowledged that based upon this result, the 

validity of the license was unknown. Officer Strzelecki’s body camera footage was 

received as an exhibit; Captain Hubbs confirmed that his unmarked police cruiser did not 

have a dashboard camera. 

In the recording, Officer Strzelecki dismounted his motorcycle, which was parked 

behind the driver’s side of the Defendant’s car. Captain Hubbs was visible standing 

beside the front passenger’s side of the car, and the driver’s side front window was closed. 

Detective Varner spoke to Officer Strzelecki as he took off his helmet, at which point audio 

 

9

It was noted that although the business directly connected to the driveway was closed, drivers could access 

other businesses’ parking lots using that driveway.
18

recording commenced. Detective Varner noted that she had just arrived, and Officer 

Strzelecki asked whether they should remove the Defendant from the car. Officer 

Strzelecki ordered the Defendant to exit, but the Defendant did not move; Officer 

Strzelecki told the Defendant multiple times to “relax” and asked why he was nervous. 

Detective Varner told Captain Hubbs to unlock the car door, and after a moment, Officer 

Strzelecki opened the driver’s side door. The Defendant was sitting with his hands placed 

on the steering wheel, and Officer Strzelecki asked him multiple times to exit the car. The 

Defendant protested, commenting that he was nervous because the officers had entered his 

car in response to a red light violation, and noting that Captain Hubbs was “clutching” his 

gun. The Defendant asserted that the officers had violated his rights. Officer Strzelecki 

asked repeatedly whether the Defendant had just left Belk. The Defendant asked for an 

attorney, and Officer Strzelecki responded, “You don’t get to see a lawyer right now.”10 

The Defendant stated that he was “appalled” that an officer had reached inside the window 

to unlock the car doors and asked to speak to an officer in charge. Officer Strzelecki 

continued to ask questions about Belk and stated that he was trying to explain to the 

Defendant why he had been pulled over “besides the red light.” As the Defendant 

continued to object to officers’ entering the car for a red light violation, Officer Strzelecki 

interrupted that the stop was “not just for a red light” and stated that he was investigating 

an incident at Belk. 

In the recording, Officer Strzelecki stated that the Defendant could speak to an 

officer in charge after exiting the car. At about four minutes, fifteen seconds into the 

recording, the Defendant exited the car under Officer Strzelecki’s control. After 

handcuffing the Defendant because he was acting “irrational[ly]” and making Officer 

Strzelecki “nervous,” Officer Strzelecki walked the Defendant to the front of a police 

cruiser, where Captain Hubbs reemerged. Captain Hubbs asked Officer Strzelecki if they 

were discussing Belk, and Officer Strzelecki answered that he had asked the Defendant 

about Belk but that the Defendant was not answering his questions. Captain Hubbs 

addressed the Defendant and explained that he was following the Defendant when the 

Defendant ran the red light. Captain Hubbs added that the red light violation was “what 

[he was] writing the ticket for.” Captain Hubbs further explained that the Defendant’s

“rummaging” around in the passenger compartment concerned him and that the police had 

the right to search the area within the Defendant’s arm’s reach.11 The Defendant denied 

having rummaged or “lunged” in the car and claimed to have been holding food in his lap. 

The Defendant admitted that he ran the red light, but would not answer questions about 

whether his name was the one reflected on the driver’s license he gave to Captain Hubbs. 

Detective Varner was audible in the background and commented that the driver’s license 

 

10 The trial court excluded from evidence the remainder of the Defendant’s statements to police. 

11 Captain Hubbs spoke to the Defendant further, but their conversation was inaudible on the recording.
19

the Defendant presented at Belk reflected the name Will Andrews. Officer Strzelecki 

examined the other driver’s license and read the Defendant’s legal name. Detective 

Varner stated that the cards from Belk were on their way to the scene. Officer Strzelecki 

continued to ask the Defendant for his name; Captain Hubbs interjected again that “right 

now it’s a red light ticket” and that the officers “just wante[ed] to talk to [the Defendant] 

at this point.” 

Officer Strzelecki read the Defendant his Miranda rights at about nine minutes, 

fifteen seconds into the recording. About ten and one-half minutes into the recording, Mr. 

Muenzer was visible handing officers a credit card and driver’s license; Mr. Muenzer 

conveyed his conversation with the credit card company to the officers. Officer Strzelecki 

informed the Defendant that he was under arrest about eleven minutes into the recording. 

At about thirteen minutes, thirty seconds into the recording, Officer Strzelecki commented 

that they could search the Defendant’s car now, and he, Detective Varner, and Captain 

Hubbs leaned into the passenger compartment and began to search it.

Captain Hubbs continued his hearing testimony and stated that a wallet and a cell 

phone were found on one of the front seats inside the car. After the Defendant exited the 

car, Captain Hubbs again explained that he had been stopped because he ran a red light. 

Captain Hubbs noted that the Defendant acknowledged having run the red light. Captain 

Hubbs stated that the Defendant was “evasive” about his identity and that he was never 

“definitive” about who he was. Captain Hubbs acknowledged that the Defendant had not 

been read his Miranda rights at this time. Captain Hubbs identified Mr. Muenzer in the 

Belk surveillance recording as the person who brought the Defendant’s driver’s license and 

credit card to the traffic stop. 

Captain Hubbs testified that Mr. Muenzer told them that the credit card’s magnetic 

strip contained a number associated with a Y-12 Federal Credit Union account even though 

the card was labeled as a PNC Bank card. He agreed that such a discrepancy indicated 

that the card was fraudulent. Captain Hubbs affirmed that the driver’s license from Belk 

contained the name Will Andrews, whereas the driver’s license and rental agreement the 

Defendant provided to Captain Hubbs contained the name Aaron Perry. Captain Hubbs 

agreed that at that point in the encounter, he did not know the Defendant’s true identity. 

Captain Hubbs testified that the Defendant was alone in the car, that he did not ask 

the officers to make arrangements for someone else to take the car, that the car was a rental, 

and that the car was blocking traffic. As a result, the car was impounded after the 

Defendant’s arrest. A search of the car at the site of the traffic stop yielded the wallet in 

the front seat, a gym bag in the back seat, a card scanner that was capable of “cod[ing]” the 
20

magnetic strip on a credit card, a laptop computer, a cable, and Belk gift cards. No items 

were found in the car’s trunk.

On cross-examination, Captain Hubbs testified that he did not stop the Defendant in 

the Belk parking lot because he had no confirmation that a fraudulent credit card purchase 

occurred. He stated that when he initially approached the Defendant, the Defendant was 

agitated and told Captain Hubbs that he would not exit the car. Captain Hubbs 

acknowledged that one factor leading to Captain Hubbs’s concern for his safety was that 

the Defendant had possibly committed felony credit card fraud, but he noted that the 

Defendant was also moving around the passenger compartment to a suspicious degree. 

Captain Hubbs testified that when he initially approached the Defendant’s car, he

“may have” asked the Defendant where he was coming from and “what he was doing at 

Belk.” Captain Hubbs stated that he did not wish to “have a lot of engagement” with the 

Defendant until backup arrived. Captain Hubbs affirmed that checking a driver’s license 

with the NCIC database was the only method he had of verifying a driver’s license. 

Captain Hubbs testified that he ran the Defendant’s driver’s license before the other 

officers arrived, although he acknowledged his preliminary hearing testimony that he had 

not run the license at the time Mr. Muenzer arrived at the scene. Captain Hubbs clarified 

that he ran the Defendant’s information while waiting for backup. When asked whether 

he began paperwork for a traffic citation related to the Defendant’s running the red light, 

Captain Hubbs responded negatively and said that he did not have a “ticket book” and was 

waiting for the other officers to arrive. Captain Hubbs affirmed that he was also 

investigating the Defendant for “something . . . suspicious” at Belk. He stated that he 

“may have” mentioned Belk to the Defendant, although he did not recall the details of their

conversation. 

Captain Hubbs testified that after Detective Varner instructed him to unlock the 

Defendant’s car door, he reached through the passenger-side window and pressed the 

unlock button inside the car. Captain Hubbs noted that the Defendant was acting “erratic” 

and that the officers were preoccupied with trying to secure the Defendant. Captain Hubbs 

acknowledged that Officer Strzelecki questioned the Defendant repeatedly about what 

happened at Belk. Captain Hubbs agreed that after a certain point, the Defendant stopped 

conversing with the officers. 

Captain Hubbs testified that he did not discuss with the Defendant making 

arrangements for someone to take custody of the rental car. He estimated that in a usual 

case of a traffic stop based upon a person’s running a red light, it took between ten and 

fifteen minutes to issue a ticket and release the person. 
21

 

The trial court found that Mr. Muenzer was not acting as an agent for law 

enforcement at the time he took the Defendant’s credit card and driver’s license. The court 

found relative to the initial portion of the traffic stop that Detective Varner conveyed a 

description of the Defendant to law enforcement, that Captain Hubbs saw the Defendant 

walking rapidly to his car and leaving the parking lot, and that Captain Hubbs’s checking 

the Defendant’s identification was part of a valid inquiry into the red light violation. The 

court found relative to the search of the Defendant’s car that the search was incident to an 

arrest and “clearly . . . appropriate” because the car was “a natural repository for items 

associated with . . . someone who ha[d] . . . been engaged in credit card fraud, theft, or 

identity theft.” The court noted that the search was also permissible as an inventory search 

and that the search did not occur until after Mr. Muenzer had brought the Defendant’s false 

cards to the scene.

B. Analysis

A trial court’s findings of fact on a motion to suppress are conclusive on appeal 

unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217 

(Tenn. 2000). Likewise, questions of credibility, the weight and value of the evidence, 

and the resolution of conflicting evidence are matters entrusted to the trial court, and this 

court will not reverse the trial court’s factual findings unless the evidence preponderates 

against them. Id. (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). Both proof 

presented at the suppression hearing and proof presented at trial may be considered by an 

appellate court in deciding the propriety of the trial court’s ruling on a motion to suppress. 

State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). The evidence is to be viewed in the 

light most favorable to the prevailing party on a motion to suppress with all reasonable and 

legitimate inferences that may be drawn by the evidence. State v. Carter, 16 S.W.3d 762, 

765 (Tenn. 2000). However, our review of the application of the law to the facts is de 

novo. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998).

The Fourth Amendment to the United States Constitution and article I, section 7 of 

the Tennessee Constitution protect against unreasonable searches and seizures. Any 

warrantless search or seizure is presumed to be unreasonable and requires the State to prove 

by a preponderance of the evidence that the search or seizure was conducted pursuant to 

an exception to the warrant requirement. State v. Simpson, 968, S.W.2d 776, 780 (Tenn. 

1998). Two types of police-citizen encounters are considered seizures for constitutional 

analysis purposes: “(1) the full-scale arrest, which must be supported by probable cause; 

[and] (2) the brief investigatory detention, which must be supported by reasonable 

suspicion of wrong-doing[.]” State v. Day, 263 S.W.3d 891, 901 (Tenn. 2008) (citations 

omitted). 
22

i. Mr. Muenzer’s Agency Status

Although the Fourth Amendment applies only to government action, “a search by a 

private individual may transgress the protections of the Fourth and Fourteenth 

Amendments when an individual acts as an agent or instrument of the state.” State v.

Burroughs, 926 S.W.2d 243, 245 (Tenn. 1996). In order to determine whether a person 

acted as an agent of the state during a search or seizure, we must examine whether the 

person had a “legitimate independent motivation” aside from assisting the government. 

State v. Sanders, 452 S.W.3d 300, 308 (citing Coolidge v. New Hampshire, 403 U.S. 443, 

489 (1971)). The “critical factors” of the legitimate independent motivation test are “(1) 

the government’s knowledge and acquiescence, and (2) the intent of the party performing 

the search.” Id. (citing Burroughs, 926 S.W.2d at 246 (quoting United States v. Walther, 

652 F.2d 788, 792 (9th Cir. 1981)). 

Relative to the first prong of the test, our supreme court held in State v. Johnson, 

569 S.W.2d 808, 810-11 (Tenn. 1978), that an airline customer service agent did not act as 

an agent of the state when he inspected a suitcase, found drugs, and only then called the 

police; the court noted that the police had not been involved before the object of the search 

was “completely accomplished.” (quoting Lustig v. United States, 338 U.S. 74 (1949)). 

In contrast, if a government agent gives explicit or tacit approval to a search while the 

search is ongoing, the government becomes “party to the search.” United States v. Knoll, 

16 F.3d 1313, 1319-20 (2nd Cir. 1994) (noting that a federal prosecutor “tacitly suggested 

and condoned further searching” of materials obtained during a burglary by telling the 

informant who arranged the burglary that the prosecutor was disappointed with the 

evidence the informant provided); see United States v. Booker, 728 F.3d 535, 540-41 (6th

Cir. 2013) (holding that an emergency room doctor violated the defendant’s Fourth 

Amendment rights and acted as an agent of the state by performing rectal examinations 

without the defendant’s consent or an explicit request from the police to do such; the doctor 

had performed similar searches for the police in the past, the defendant was in the police’s 

physical control, “the police knew what [the doctor] was going to do, the police knew that 

[the defendant] did not consent, and a reasonable police officer would know that the doctor 

did not, independent of police direction, have the legal authority to intubate and paralyze 

the [defendant] without his consent”); Walther, 652 F.2d at 792 (holding that a baggage 

handler acted as agent of the state notwithstanding the state’s lack of knowledge of that 

particular search; the baggage handler had been monetarily rewarded previously for turning 

over luggage containing drugs to federal agents, he reasonably expected to receive such a 

reward in this instance, federal agents had encouraged him to engage in that type of search, 

and the federal agents “had knowledge of a particular pattern of search activity . . . and had 

acquiesced in such activity”). 
23

The second prong of the test “requires an examination of whether the private party 

who conducted the contested search acted ‘for a reason independent of . . . a governmental 

purpose’ such as an ‘investigative or administrative function.’ . . . If the party acted for an 

independent reason, the Fourth Amendment is not implicated.” State v. Wade McKinley 

Staggs, Sr., M2007-01228-CCA-R3-CD, 2009 WL 363323, at *7 (Tenn. Crim. App. Feb. 

13, 2009) (quoting Burroughs, 926 S.W.2d at 246.). In Staggs, the defendant’s son 

learned from his mother that the Tennessee Bureau of Investigation (TBI) was investigating 

the defendant; the son went to the defendant’s business and saved incriminating images 

from the defendant’s computer on a compact disc. Id. at *3. The defendant’s son 

eventually gave the disc to a TBI agent after the agent contacted him during the course of 

the investigation. Id. at *4. This court concluded that the son had an investigatory 

government purpose when he searched the defendant’s computer; however, he was not 

ultimately an agent of the state because the TBI did not know of the search and did not 

directly or indirectly request that the son obtain images from the defendant’s computer. 

Id. 

In the light most favorable to the State, the record supports the trial court’s 

conclusion that Mr. Muenzer was not acting as an agent of law enforcement when he took 

the Defendant’s credit card and identification. Mr. Muenzer received from Belk in 

Johnson City an email with attached photographs of a person matching the Defendant’s 

appearance; the email warned him about a person who was suspected of credit card fraud 

who had purchased large gift cards. The day before the incident in this case, Mr. Muenzer 

was informed that someone matching the given description made a similar purchase at the 

Knoxville Center Mall Belk; after examining the store’s surveillance recording, Mr. 

Muenzer concluded that it depicted the same person. On the day of the incident in the 

Turkey Creek Belk, Ms. Lopez responded to the cashier station after a sales associate 

reported to Mr. Muenzer that a customer was attempting to make a large gift card purchase; 

as part of the transaction, Ms. Lopez asked for the Defendant’s identification and credit 

card. Mr. Muenzer came to the cashier station and retrieved the cards from Ms. Lopez. 

Mr. Muenzer told the Defendant that he would need to verify the identification in the 

security office; the Defendant, in turn, left the store. Upon following the Defendant to the 

outside door, Mr. Muenzer called Detective Varner. 

Mr. Muenzer’s hearing testimony indicated that although loss prevention employees 

had some degree of contact with the retail task force, it was generally limited to an 

informational meeting during the holiday season and the task force’s providing additional 

officers during that time to respond to increased instances of theft. In addition, the task 

force and an unidentified number of loss prevention employees from various retailers 

communicated with one another about suspicious individuals in an email group. Although 

Mr. Muenzer did not recall how he obtained Detective Varner’s direct cell phone number, 
24

he denied having frequent or personal contact with members of the retail task force. He 

also denied that Detective Varner or any other officer ever instructed him how to conduct

an investigation. The Belk policy manual stated that in cases of suspected credit card 

fraud, sales associates or store managers should follow procedures set out by the regional 

loss prevention manager, but it did not specify what those procedures were. In any event, 

Mr. Muenzer believed that part of his duty as a loss prevention associate was to verify the 

payment method and identification in such scenarios.

Relative to the first prong of the test, no evidence indicated that law enforcement 

was aware of or encouraged Mr. Muenzer to confiscate the cards. The record does not 

reflect that a continuing relationship existed between Mr. Muenzer and the officers of the 

retail task force such that the officers could be said to have acquiesced or encouraged such 

a seizure. Cf. Knoll, 16 F.3d at 1319-20; Booker, 728 F.3d at 540-41; Walther, 652 F.2d 

at 792. In addition, we note that the seizure was complete before the police were informed 

about the situation. Cf. Lustig, 338 U.S. at 78 (holding that suppression was proper in a 

federal case when a federal officer arrived after local police began an unconstitutional 

search and the federal officer participated in examining and selecting evidence relevant to 

counterfeiting). Mr. Muenzer called Detective Varner after the cards were seized and the 

Defendant had left Belk. While waiting for Detective Varner to arrive, Mr. Muenzer took 

it upon himself to call the credit card company and confirm that the card the Defendant 

presented was forged. Mr. Muenzer denied that he communicated with Detective Varner 

before Ms. Lopez gave him the Defendant’s cards, and Detective Varner did not instruct 

Mr. Muenzer to seize the cards. 

Moreover, relative to the second prong of the test, Mr. Muenzer acted in his capacity 

as a loss prevention associate for Belk, which included mitigating losses to Belk as a result 

of external theft. Regardless of any provisions of the Belk policy manual to the contrary, 

the record reflected that Mr. Muenzer believed it to be his duty to verify a customer’s 

identification and payment method in possible cases of fraud. Mr. Muenzer testified that

two days before the incident, he was informed by the Johnson City Belk’s loss prevention 

manager that the Defendant committed credit card fraud in that store. The following day, 

Mr. Muenzer recognized the Defendant in the surveillance recording at the Knoxville 

Center Mall Belk, and Mr. Muenzer relayed his concerns to the store manager, who voided 

the Defendant’s gift card purchase. The day after that, Mr. Muenzer was alerted that the 

Defendant was attempting the same type of purchase at the Turkey Creek Belk. After 

speaking to the Defendant and obtaining his driver’s license and credit card from Ms. 

Lopez, Mr. Muenzer told the Defendant that he was taking the cards to his office to verify 

them. The Defendant walked out of the store. Although Mr. Muenzer relayed the 

situation to the police after the Defendant left the store, at no point did Mr. Muenzer express 
25

that he was acting at the police’s request or that he had been encouraged or instructed by 

police to handle similar cases in a certain manner. 

Therefore, we conclude that Mr. Muenzer had a legitimate independent motivation 

for seizing the Defendant’s identification and credit card and did not implicate the Fourth 

Amendment in this regard. The Defendant is not entitled to relief on this basis. 

ii. Traffic Stop

“Individuals do not lose their constitutional protections against unreasonable 

searches and seizures by getting into an automobile.” State v. Smith, 484 S.W.3d 393, 

400 (Tenn. 2016). However, if the officer has probable cause or a reasonable suspicion to 

suspect that a motorist has committed a traffic offense, a traffic stop will “pass 

constitutional muster.” Id. at 400-02. It is well-established that “the duration of an 

investigative detention,” including a traffic stop, “should last no longer than necessary and 

should generally end when there is no further reason to control the scene or the driver of 

the vehicle.” State v. Donaldson, 380 S.W.3d 86, 93 (Tenn. 2012) (citing Arizona v.

Johnson, 555 U.S. 323, 333 (2009)). “The proper inquiry is whether, during the detention, 

the officer diligently pursued a means of investigation that was likely to confirm or dispel 

suspicion quickly.” State v. Brown, 294 S.W.3d 553, 562 (Tenn. 2009) (citing State v.

Simpson, 968 S.W.2d 776, 783 (Tenn. 1998)). A reasonable traffic stop can become 

unreasonable “if the time, manner or scope of the investigation exceeds the proper 

parameters.” State v. Troxell, 78 S.W.3d 866, 871 (Tenn. 2002) (internal citations 

omitted). 

The authority for the roadside seizure ends “when tasks tied to the infraction

are—or reasonably should have been—completed.” Rodriguez v. United

States, 575 U.S. 348, 354 (2015). Those tasks include “checking the

driver’s license, determining whether there are outstanding warrants against

the driver, and inspecting the automobile’s registration and proof of

insurance.” Id. at 355. While an officer “may conduct certain unrelated

checks during an otherwise lawful traffic stop,” the officer “may not do so in

a way that prolongs the stop, absent the reasonable suspicion ordinarily

demanded to justify detaining the individual.” Id.

State v. Nicholas Ryan Flood, No. M2019-00525-CCA-R3-CD, 2020 WL 1888905, at *4 

(Tenn. Crim. App. Apr. 16, 2020) (emphasis in original removed).

In the light most favorable to the State, the record reflected that Captain Hubbs was 

informed that Detective Varner had gone to Belk in response to a call from Mr. Muenzer. 
26

Some minutes later, Captain Hubbs left the station to assist Detective Varner; he saw the 

Defendant walking briskly to his car and leaving the Belk parking lot. Captain Hubbs 

indicated that the Defendant matched a description given to police of the person at issue. 

Captain Hubbs followed the Defendant in his unmarked police cruiser and saw the 

Defendant run a red light, at which point he initiated the traffic stop. 

Although the Defendant argues that the reason for the stop was entirely pretextual,

Captain Hubbs testified that he told the Defendant twice that he had stopped the Defendant

because he ran a red light. After noting the Defendant’s putting his jacket underneath a 

seat and moving around in the passenger compartment to a suspicious degree, Captain 

Hubbs gathered the Defendant’s driver’s license and the rental car agreement, during which 

interaction the Defendant appeared to be agitated. Captain Hubbs became concerned for 

his safety and called for backup while he was running the Defendant’s driver’s license. 

In the brief period between his call for backup and Officer Strzelecki’s arrival, Captain 

Hubbs discovered no record associated with the Defendant’s driver’s license. The body 

camera recording reflects that Captain Hubbs mainly spoke to the Defendant about the red 

light violation.

12

 Moreover, the Defendant admitted to having run the red light. We note 

that an officer’s subjective intent in conducting a traffic stop does not render the stop 

unconstitutional when probable cause for the stop exists due to a defendant’s having 

committed a traffic violation. See Donaldson, 380 S.W.3d at 92 (citing State v. Vineyard, 

958 S.W.2d 730, 734 (Tenn. 1997)). 

Further, although the Defendant argues that Captain Hubbs impermissibly extended 

the traffic stop, the record reflects that upon stopping, Captain Hubbs saw the Defendant 

put a jacket underneath the passenger’s seat of the car. Captain Hubbs stated that the 

Defendant moved in the passenger compartment to such a degree that Captain Hubbs 

became concerned for his safety. In addition, when Captain Hubbs approached the front 

passenger-side window, the Defendant barely opened it and appeared to be nervous or 

agitated. Captain Hubbs testified that he wanted to wait for backup to arrive before he 

interacted with the Defendant further. Mr. Muenzer estimated that about fifteen minutes 

elapsed between the time the Defendant left the store and Detective Varner called him to 

ask him to come to the location of the traffic stop, although he acknowledged that more 

time might have passed; Mr. Muenzer was visible in Officer Strzelecki’s body camera 

recording about ten minutes after Officer Strzelecki arrived and began recording. 

The record did not reflect that Captain Hubbs impermissibly extended the traffic 

stop by waiting for backup to arrive. Captain Hubbs was within his rights to request 

 

12 We note that although Officer Strzelecki’s questioning indicated that he was primarily investigating the 

Belk incident, Captain Hubbs initiated the traffic stop. Captain Hubbs’s statements in the body camera 

recording were consistent with his suppression hearing testimony relative to the cause for the stop. 
27

additional support for safety reasons, and while waiting, he continued to perform tasks 

related to the red light violation, such as checking the Defendant’s driver’s license. 

In any event, reasonable suspicion existed for Captain Hubbs and the other 

responding officers to expand their investigation beyond that which would have been 

appropriate for a traffic violation. Captain Hubbs was aware that the Defendant matched 

the description of a person suspected of credit card fraud in Belk and had seen the 

Defendant walking in the Belk parking lot so quickly that he was almost jogging. When 

Captain Hubbs first talked to the Defendant, he was visibly nervous or agitated. “A 

defendant’s nervousness, combined with other suspicious factors, can support an officer’s 

reasonable suspicion of criminal activity so that the officer can expand the scope of a traffic 

stop to investigate further.” State v. Marc K. Eliazar, No. M2017-00757-CCA-R3-CD, 

2018 WL 4150879, at *7 (Tenn. Crim. App. Aug. 29, 2018) (citing State v. Eugene Taylor,

No. E2010-01817-CCA-R3-CD, 2011 WL 2120087, at *11 (Tenn. Crim. App. May 20,

2011)). Once Detective Varner arrived, she confirmed that the Defendant provided a 

driver’s license to Captain Hubbs that reflected a different name than the one he produced 

at Belk, which justified further investigation. The body camera recording reflected that 

after backup arrived, the officers spent about four minutes persuading the Defendant to exit 

the car, upon which they handcuffed him out of concern for their safety. The Defendant 

spoke with Captain Hubbs for about one minute, forty-five seconds about the red light 

violation and the officers’ right to search the passenger compartment for weapons; then,

Officer Strzelecki asked the Defendant to verify his identity over the course of the next one 

and one-half minutes. The Defendant declined to answer those questions. Captain 

Hubbs spoke to the Defendant again for a brief time. After Mr. Muenzer arrived, provided 

the cards to Detective Varner, and confirmed that the card the Defendant presented 

reflected a different bank than the one with which the account was associated, probable 

cause existed to arrest the Defendant. The officers did not impermissibly extend the 

duration of the traffic stop in this case. The Defendant is not entitled to relief on this basis. 

iii. Search of Car

In the light most favorable to the State, the record reflected that after the Defendant 

ran the red light, he was agitated when interacting with officers, moved around the 

passenger compartment, placed items beneath the passenger seat, refused to open his 

window more than a crack, and stated that he would not exit the car before any officer 

suggested he do such. After the officers removed the Defendant from the car out of 

concern for their safety, Mr. Muenzer arrived at the scene and confirmed to Detective 

Varner that the credit card the Defendant presented at Belk was associated with a different 

bank than the one displayed on the card. At this point, the officers had probable cause to 

arrest the Defendant, and it was reasonable to search for additional evidence of credit card 
28

fraud in the passenger compartment. In addition, the car was parked such that it was 

blocking traffic turning into one of the shopping complex’s driveways; given that no one 

else was in the car with the Defendant and the rental agreement only contained the 

Defendant’s name, it was reasonable for the car to be impounded and inventoried. Once 

again, the Defendant is not entitled to relief on this basis.

II. Sufficiency of the Evidence

The Defendant contends that the evidence is insufficient to support his convictions, 

arguing that no evidence established that he used any of the credit cards at issue. The 

State responds that in spite of the understanding of the trial court and both parties that the 

jury was being instructed on fraudulent use of a credit card as a lesser-included offense to 

identity theft, the jury was, in fact, instructed on the elements of illegal possession of a 

credit card; the State argues that as a result, the Defendant was properly convicted of illegal 

possession of a credit card. In a related argument, the State contends that because illegal 

possession and fraudulent use of a credit card are both Class A misdemeanors and the 

Defendant has served his sentence, the fact that he was convicted of a different offense 

than was “perhaps intended” by the parties is moot and should only be addressed by 

remanding for the entry of corrected judgments reflecting convictions for illegal possession 

of a credit card.

An appellate court’s standard of review when the defendant questions the 

sufficiency of the evidence on appeal 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). This court does not reweigh the evidence; rather, it presumes that the jury has 

resolved all conflicts in the testimony and drawn all reasonable inferences from the 

evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); 

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness 

credibility, conflicts in testimony, and the weight and value to be given to evidence were 

resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). 

A guilty verdict “removes the presumption of innocence and replaces it with a 

presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the 

evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; see also

State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based 

solely upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 

S.W.2d 125, 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the 

State’s proof be uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 

(Tenn. 1983). Put another way, the State is not burdened with “an affirmative duty to rule 
29

out every hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. 

at 326. 

Notwithstanding the State’s characterization of the erroneous jury instruction as a 

facet of sufficiency of the evidence, they are separate issues implicating different 

constitutional rights and must be addressed separately. We will discuss the State’s 

argument regarding the jury instructions below. 

Relative to sufficiency, as a preliminary matter, we disagree with the State’s 

assertion that this issue is moot due to the Defendant’s already having served his sentence. 

The Defendant is entitled to sufficient evidence underlying the convictions appearing on 

his criminal record notwithstanding the jail credit he received satisfying his sentence. We 

also disagree that the jury actually convicted the Defendant of illegal possession of a credit 

card and that the judgment forms simply contain a clerical error. Although the State cites 

caselaw addressing constructive amendment of the indictment, this case is distinguishable

as it pertains to the incorrect jury instruction because the Defendant did not consent to the 

jury’s being instructed on a different offense than requested. Cf. Demonbreun v. Bell, 226 

S.W.3d 321, 326 (Tenn. 2007) (concluding that when defense counsel actively requested a 

jury instruction on an offense counsel mistakenly believed was a lesser-included offense, 

the defendant consented to an effective amendment of the indictment). It is clear from the 

record that the parties and the trial court intended for the jury to consider fraudulent use of 

a credit card as a lesser-included offense, not illegal possession of a credit card. As we 

discuss below, were we to accept the State’s contention that by instructing the jury on the 

elements of an offense not requested by the parties, the jury was enabled to properly convict

the Defendant of a “perhaps unintended” offense, the Defendant’s right to a complete and 

correct instruction on the relevant law would cease to have meaning. 

In relevant part, “[a] person commits the crime of fraudulent use of a credit or debit 

card who uses . . . a credit or debit card or information from that card, for the purpose of 

obtaining property, credit, services or anything else of value with knowledge that . . . [t]he 

card is forged or stolen[.]” Tenn. Code Ann. § 39-14-118. In the light most favorable to 

the State, the record is devoid of evidence that the Defendant used any of the credit card 

numbers associated with the specific victims named in Counts 1, 2, and 4 of the 

indictment.13 

None of the victims recalled when fraudulent charges were made to their accounts, 

and the ones who recalled a general issue with account fraud also noted that their accounts 

had been compromised on various occasions. The portion of the bank records submitted 

 

13 We note that the credit card presented at Belk was not connected to any of the named victims.
30

to the jury did not indicate whether fraudulent charges were made to the accounts of Mr. 

Kibler, Mr. Clark, and Axis Autobody.14 Because the State failed to prove an essential 

element of the offense, the evidence was insufficient to support his convictions.

Generally, in a case of insufficient evidence, if the jury was instructed on a lesserincluded offense and the proof was sufficient to support a conviction on that offense, we 

direct the trial court to enter new judgments reflecting a conviction for the lesser offense. 

In this case, the jury was instructed on attempted theft, and the evidence is sufficient to 

establish the Defendant’s guilt of that offense. However, we do not intend to convey that 

attempted theft or fraudulent use of a credit card are lesser-included offenses of identity 

theft. See State v. Tehren Carthel Wilson, No. W2010-02613-CCA-R3-CD, 2012 WL 

12931582, at *5 (Tenn. Crim. App. May 11, 2012) (concluding that fraudulent use of a 

credit card was not a lesser-included offense of identity theft under a previous version of 

the identity theft statute); State v. Ronald Bowman, No. W2003-02389-CCA-R3-CD, 2005 

WL 94365, at *4 (Tenn. Crim. App. Jan. 13, 2005) (concluding that misdemeanor theft 

was not a lesser-included offense of identity theft under previous precedent and a previous 

version of the identity theft statute). Nevertheless, neither party has raised an issue on 

appeal relative to the propriety of the lesser-included offenses, and because the Defendant 

affirmatively requested that the trial court instruct the jury on both lesser offenses, he 

consented to an effective amendment of the indictment, and any issue he raised in this 

regard would be considered waived. See Demonbreun, 226 S.W.3d at 326; 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.”). Therefore, we remand the Defendant’s 

case for entry of new judgments reflecting three convictions for attempted theft.

III. Admission of Card Scanner

The Defendant contends that the trial court erred by admitting as exhibits the credit 

card scanner and the numbers it generated during Officer Hubbs’s testimony, arguing that 

the device was not properly authenticated because the State offered no testimony from an 

expert witness about how the device functioned; in addition, the Defendant argues that the 

proof at trial did not establish the card scanner’s reliability or accuracy. The State 

responds that its demonstration using two credit cards, one of which contained a false 

 

14 The original copies of the bank records were entered for identification only; in compliance with an 

evidentiary determination by the trial court, the photocopied records submitted as exhibits were redacted to 

remove Ms. Mioduski’s handwritten notations of the respective victims’ credit card numbers and whether 

fraudulent charges were made to the accounts, the victims’ social security numbers, and references to 

unrelated fraudulent charges to Mr. Kibler’s account made in March 2017. 
31

number, established that the device operated accurately and that Officer Hubbs’s testimony 

that the machine read and displayed information contained in a credit card’s magnetic strip 

was sufficient explanation of how the device worked.

Rule 901(a) of the Tennessee Rules of Evidence states as follows: “The 

requirement of authentication or identification as a condition precedent to admissibility is 

satisfied by evidence sufficient to the court to support a finding by the trier of fact that the 

matter in question is what its proponent claims.” Evidence may be authenticated, in 

relevant part, through “evidence describing a process or system used to produce a result 

and showing that the process or system produces an accurate result.” Tenn. R. Evid. 

901(b)(9). The Advisory Commission Comments to Rule 901 elaborate that subsection 

(b)(9) “treats authentication of computer documents. All that the lawyer need do is 

introduce evidence satisfying the court that the computer system produces accurate 

information.” Authentication issues are left to the discretion of the trial court. State v.

Cannon, 254 S.W.3d 287, 295 (Tenn. 2008) (citing State v. Scott, 33 S.W.3d 746, 752 

(Tenn. 2000); State v. Beech, 744 S.W.2d 585, 587 (Tenn. Crim. App. 1987)).

We do not agree with the Defendant that the State failed to provide evidence of the 

credit card scanner’s accuracy. According to the testimony at trial, when Detective Huff 

swiped the magnetic strip of a credit or debit card through the scanner, the scanner read the 

data encoded on the magnetic strip and displayed the sixteen-digit card number reflected 

therein. Detective Huff affirmed that the scanner in evidence was the one he used to verify 

the data produced by the credit cards confiscated from the Defendant. Detective Huff 

demonstrated the machine’s functionality for the trial court and the jury by scanning one 

of the Defendant’s legitimate credit cards, which reflected that the embossed and encoded 

numbers matched, and one of the forged credit cards, which showed that the embossed 

number did not match the number produced by the scanner. Given the demonstrative 

exhibit, Detective Huff’s confirmation that this was the machine he used, and his assertion 

that to his knowledge, the machine did not need calibration, the State provided the trial 

court sufficient information for it to be satisfied that the device produced accurate results. 

The trial court did not abuse its discretion by admitting the scanner and the card numbers 

it produced. 

Additionally, Tennessee Rule of Evidence 702 provides that “[i]f scientific, 

technical, or other specialized knowledge will substantially assist the trier of fact to 

understand the evidence or to determine a fact in issue, a witness qualified as an expert by 

knowledge, skill, experience, training, or education may testify in the form of an opinion 

or otherwise.” Tennessee Rule of Evidence 703 provides that 

the facts or data in the particular case upon which an expert bases an opinion 

or inference may be those perceived by or make known to the expert at or 
32

before the hearing. If of a type reasonably relied upon by experts in the 

particular field in forming opinions or inferences upon the subject, the facts 

or data need not be admissible in evidence.

Relative to the Defendant’s contention that it was necessary to have an expert 

witness explain the inner workings of the card scanner to prove its accuracy, we note that 

the Defendant cites to cases involving breathalyzers and the horizontal gaze nystagmus 

(HGN) test. Relative to the former, in State v. Sensing, 843 S.W.2d 412 (Tenn. 1992), 

our supreme court developed procedures to admit breathalyzer test results in light of their 

widespread use by patrol officers and the standardized nature of the devices; we do not 

think that the reasoning underlying Sensing applies to evidence obtained from credit card 

scanners, and we will not extend Sensing’s procedural requirements to this case. 

Relative to the latter, we find it informative to examine State v. Murphy, 953 S.W.2d 

200, 202-03 (Tenn. 1997), in which our supreme court compared the HGN test with other 

field sobriety tests and held that in order to admit results of an HGN test, it was necessary 

for an expert witness to testify. In Murphy, our supreme court explained that when 

assessing testimony about certain field sobriety tests like walking on a line, standing on 

one foot, or counting backwards, a juror could readily ascertain why the results were 

relevant to assessing a defendant’s condition because he or she could “rely upon his or her 

personal experience or otherwise obtained knowledge of the effects of alcohol upon one’s 

motor and mental skills to evaluate and weigh the officer’s testimony.” Id. at 203. In 

contrast, to present an officer’s observations about a defendant’s performance during an 

HGN test, “the witness must necessarily explain the underlying scientific basis of the test 

in order for the testimony to be meaningful to a jury . . . . In effect, the juror must rely 

upon the specialized knowledge of the testifying witness and likely has no independent 

knowledge with which to evaluate the witness’s testimony.” Id. Our supreme court also 

noted that the HGN test involved measurement of the angle at which nystagmus occurred 

and that the accuracy of an officer’s testimony in this regard “may be questionable in light 

of the officer’s non-scientific measurement of a scientifically measurable phenomenon.” 

Id.

In this case, the credit card scanner used by the police was described as a machine 

that read the number electronically encoded on a credit card and displayed the number on 

a screen. Credit and debit cards are sufficiently ubiquitous in our society that jurors can 

use their experience and knowledge to analogize the card scanner to other devices with 

which they are familiar—for example, a credit card terminal at a grocery store, bank, gas 

station, convenience store, or retail establishment—and are likely to be familiar with the 

concept of such a machine’s reading the number of the card. 
33

The trial court did not abuse its discretion by determining that Detective Huff was 

competent to offer testimony about the card scanner’s functionality and that the 

demonstrative exhibit was satisfactory proof of the machine’s accuracy. Likewise, the 

court did not abuse its discretion by determining that expert testimony was unneeded to 

substantially assist the jury in understanding what results the scanner produced or how the 

scanner’s readings were relevant to the case. The Defendant is not entitled to relief on 

this basis. 

IV. Jury Instructions

The Defendant contends that the trial court erred by instructing the jury on the 

elements of illegal possession of a credit card rather than the intended lesser-included 

offense of fraudulent use of a credit card. The Defendant acknowledges that no 

contemporaneous objection was made and requests plain error review. 

The State’s appellate brief does not directly respond to this issue, but rather 

characterizes the error as one involving the sufficiency of the evidence, arguing that the 

Defendant has waived any issue related to the jury instructions because his written request 

was “ambiguous” and he did not preserve the issue for plenary review; the State notes that 

the written request contained language for both fraudulent use and illegal possession of a 

credit card. Alternatively, the State argues that the Defendant consented to an effective 

amendment of the indictment by requesting jury instructions on fraudulent use of a credit 

card and attempted theft. 

The doctrine of plain error applies when all five of the following factors have been 

established: 

(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 must not have waived the issue for tactical reasons; and 

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

State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006) (quoting State v. Terry, 118 S.W.3d 

355, 360 (Tenn. 2003)) (internal brackets omitted). “An error would have to [be] 

especially egregious in nature, striking at the very heart of the fairness of the judicial 

proceeding, to rise to the level of plain error.” Id. at 231. Even if all five factors are 

present, “the plain error must be of such a great magnitude that it probably changed the 

outcome of the trial.” State v. Martin, 505 S.W.3d 492, 505 (Tenn. 2016).
34

A defendant is entitled to “a correct and complete charge of the law governing the 

issues raised by the evidence presented at trial.” State v. Brooks, 277 S.W.3d 407, 412 

(Tenn. Crim. App. 2008) (citing State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 

1995)). In determining whether a jury instruction correctly, fully, and fairly sets forth the 

applicable law, we review the instruction in its entirety. Id. (citing State v. Guy, 165 

S.W.3d 651, 659 (Tenn. Crim. App. 2004)). “Phrases may not be examined in isolation.” 

Id. (citing State v. Dellinger, 79 S.W.3d 458, 502 (Tenn. 2002)). An instruction results in 

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). 

The trial court discussed the proposed jury instructions during multiple trial recesses 

and gave the parties ample opportunity to discuss the proposed instructions and make 

objections. The Defendant requested that the jury be instructed on fraudulent use of a 

credit card as a lesser-included offense, as well as attempted theft. The trial court and the 

parties discussed fraudulent use of a credit card, not illegal possession of a credit card, as 

the first lesser-included offense. The Defendant’s written request for jury instructions 

included sections titled, “Request #1: Attempted theft,” and “Request #2: Fraudulent use 

of a credit card”; the document contained the full Tennessee Pattern Jury Instruction for

both lesser-included offenses. In relevant part, Pattern Jury Instruction 11.18 was listed 

as follows:

Any person who [illegally possesses][fraudulently uses] a credit or 

debit card 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:

[Part A:

(1) that the defendant took, exercised control over or otherwise used 

a credit or debit card or information from such card;

and

(2) that the defendant acted without the consent of the owner or issuer;

and

(3) that the defendant acted knowingly.]
35

or

[Part B:

(1) that the defendant used or allowed to be used a credit or debit card 

or information from such card;

and

(2) that the defendant’s purpose was to obtain property, credit, 

services or anything else of value;

and

(3) that the defendant had knowledge that:

(a) the card was forged or stolen;

or

(b) the card had been revoked or canceled;

or

(c) the card had expired and the person used the card with fraudulent 

intent;

or

(d) for any other reason the use of the card was unauthorized by the 

issuer or the person to whom such card was issued.]

As set forth above, the jury was instructed that if it found the Defendant not guilty of 

identity theft, it should consider whether the Defendant was guilty of “fraudulent use of a 

credit card.” However, the jury then heard the elements for illegal possession of a credit 

card. The jury’s verdict forms indicated that it found the Defendant guilty of “fraudulent 

use of a credit card” relative to Mr. Kibler, Mr. Clark, and Axis Autobody.

As a preliminary matter, the State’s argument relative to ambiguity in the written 

instruction request is not well-taken. The record is clear that fraudulent use of a credit 

card was the requested lesser-included offense and that the trial court and the parties shared 

this understanding. Moreover, the pattern jury instruction makes clear that the court was
36

meant to choose between the options delineated in brackets. The discrepancy in the jury 

instructions was a mistake that escaped the notice of the trial court and the parties, not a 

valid interpretation of an ambiguous request. 

The Defendant draws our attention to a panel of this court’s opinion in State v.

Walkington, No. M2019-01772-CCA-R3-CD, 2020 WL 6791248, at *7 (Tenn. Crim. App. 

Nov. 19, 2020), in which this court reversed the defendant’s conviction for child abuse for 

insufficient evidence and noted that reversible error also occurred in the jury instructions. 

In Walkington, the defendant was charged with aggravated sexual battery, and the trial 

court intended to instruct the jury on child abuse as a lesser-included offense. Id. 

Although the trial court issued an instruction purporting to contain the elements of child 

abuse, the elements set forth were, in fact, those for child neglect. Id. 

We agree with the Defendant that the procedural facts of his case are analogous to 

those in Walkington; although the Defendant requested an instruction on fraudulent use of 

a credit card as a lesser-included offense, the elements given to the jury were those for

illegal possession of a credit card. Because the instruction on the offense of conviction

contained the incorrect elements, we conclude that a clear and unequivocal rule of law was 

breached. No tactical reason existed to waive the error, and the Defendant’s substantial 

right to a correct and complete charge of the law was affected. Because the Defendant 

was convicted of the lesser-included offense (as improperly instructed) and the evidence 

was insufficient to support a conviction when applying the correct elements for fraudulent 

use of a credit card, we conclude that consideration of the error is necessary to do 

substantial justice and that plain error relief is warranted. 

We will, therefore, remand this case for the entry of amended judgments reflecting 

three convictions for attempted theft of property, the remaining lesser-included offense. 

Moreover, because the State identified no value for the objects of the attempted thefts, the 

judgments should classify each conviction as a Class B misdemeanor. See State v. Tyrone 

Ralph Wright, No. M2010-02096-CCA-R3-CD, 2012 WL 601332, at *14 (Tenn. Crim. 

App. Feb. 23, 2012) (concluding in a case involving stolen checks that “[w]hile this [c]ourt 

may not presume the range of value of an item, we can assume that the checks, as a means 

for an account holder to access funds, has a monetary value over zero” and classifying the 

offense as a Class A misdemeanor); State v. Jarvis Loverson, No. W1999-01750-CCA-R3-

CD, 2000 WL 1664276, at *3 (Tenn. Crim. App. Oct. 23, 2000) (reducing offense 

classification for attempted theft of property to Class B misdemeanor when the State 

offered no evidence of the property’s value); Tenn. Code Ann. §§ 39-12-107(a), -14-

105(a)(1) (criminal attempt of an offense is one class lower than the completed offense; 

theft of property valued at $1,000 or less is a Class A misdemeanor).
37

Relative to sentencing, no hearing was held in this case because the parties agreed 

upon maximum length, concurrent sentences for the Class A misdemeanor convictions

after the jury announced its verdict. We acknowledge that the agreement was reached 

because the Defendant had served two years in jail at the time of his convictions in this 

case; by extension, any new sentence imposed for attempted theft, a Class B felony, will 

already have been served. See Tenn. Code Ann. § 40-35-111(e)(2) (setting maximum 

Class B misdemeanor sentence at six months in confinement). Although the trial court 

made no findings of fact regarding sentencing, because any issue regarding the effective 

length of the Defendant’s sentence is moot, in the interests of judicial economy, we will 

adopt the parties’ logic at trial and impose maximum concurrent sentences of six months 

for each attempted theft conviction. 

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgments of the 

trial court are reversed and the case remanded for the entry of amended judgments 

reflecting three convictions for attempted theft and six-month, concurrent sentences.

_________________________________

D. KELLY THOMAS, JR., JUDGE