Tennessee Supreme Court Upholds Aggregation of Five Separate Theft Offenses

November 13, 2019

In an opinion released today, the Tennessee Supreme Court affirmed the felony theft conviction of the defendant, Denton Jones. 

Over a period of 15 days, Mr. Jones stole several fitness trackers from two Target stores in Knoxville on five visits to the stores.  In the indictment, the state aggregated the offenses from five separate misdemeanor thefts to one felony count.  Mr. Jones filed a motion to dismiss at trial, based on aggregation of the charges.  He contended that he, instead, should have been charged with five separate misdemeanor counts, which would have resulted in a lesser sentence. The trial court denied the motion. Mr. Jones ultimately was convicted by a jury of theft of $1,000 or more but less than $10,000, a Class D felony, and he received a sentence of six years’ incarceration.  The Court of Criminal Appeals affirmed Mr. Jones’ conviction.   

The Supreme Court granted review of the case to address whether the State properly indicted Mr. Jones for theft of property of $1,000 or more but less than $10,000, based on the total value of the property stolen from two different locations on five separate days. The Court also granted review to consider whether the evidence at trial was sufficient to establish that the separate instances of theft arose “from a common scheme, purpose, intent or enterprise” as required by statute.

The Supreme Court held that the State properly exercised its prosecutorial discretion in aggregating in the indictment Mr. Jones’ five separate theft offenses into one count of felony theft, according to the applicable aggregation of theft statute.  In determining whether the evidence at trial was sufficient for a jury to aggregate the theft offenses, the Court noted that the jury never received an instruction that it must determine whether the thefts arose “from a common scheme, purpose, intent or enterprise” under the aggregation of theft statute.  The Court also noted that Mr. Jones had not requested such an instruction.  Although the Court held that the trial court erred by not giving an instruction on this issue, Mr. Jones was only entitled to plan error review because he had not properly requested the instruction.

The Court further concluded that Mr. Jones was not entitled to plain error relief on this issue because the proof showed beyond a reasonable doubt that the jury would have determined that all five thefts arose “from a common scheme, purpose, intent or enterprise,” had the jury been properly charged.  The Supreme Court emphasized that a jury only undertakes an aggregation determination once the jury concludes beyond a reasonable doubt that the defendant committed two or more of the theft offenses that were alleged in the aggregated count of the indictment.  The Court urged the Tennessee Judicial Conference’s Committee on Pattern Jury Instructions for criminal cases to create an instruction for a jury to determine whether a defendant’s aggregated theft offenses arose “from a common scheme, purpose, intent or enterprise” as provided in the aggregation of theft statute.  In the interim, the Court provided language for trial courts to use to so instruct juries in cases involving aggregation of theft charges.  Accordingly, the Supreme Court affirmed Mr. Jones’ conviction of felony theft.

The Court heard oral arguments for this case on the campus of Tennessee Tech University in Cookeville as part of the American Legion Boys State SCALES (Supreme Court Advancing Legal Education for Students) program.  To read the unanimous opinion of the Supreme Court in State of Tennessee v. Denton Jones, authored by Chief Justice Jeff Bivins, go to the opinions section of TNCourts.gov.