State of Tennessee v. Aaron Evan Perry

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.