Court of Criminal Appeals of Tennessee, Knoxville
Session Date June 24, 2014
Appeal from the Criminal Court for Knox County No. 97434 Steven Sword, Judge
Keith Lowe, Knoxville, Tennessee (at trial); and Robert L. Vogel, Knoxville, Tennessee (on appeal), for the appellant, Jerry Kirkpatrick.
Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and Kenneth F. Irvine, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Joseph M. Tipton, P.J., and Robert W. Wedemeyer, J., joined.
D. KELLY THOMAS, JR., JUDGE
Arthur Harvey Bell testified at trial that he was the president of U.S. Golf and that the company had six stores in Tennessee. Mr. Bell testified that in the early morning of November 25, 2008, U.S. Golf's Knoxville store was burgled. According to Mr. Bell, the burglars cut the telephone line and "tore [the alarm system] to pieces." Mr. Bell testified that the building was "metal" and that the burglars "pried open the metal to get through the back of the building." Mr. Bell also testified that the burglars tracked mud and straw throughout the store.
According to Mr. Bell, the burglars caused a lot of damage to the inside of the store and took "quite a bit of property." Mr. Bell testified that the burglars took "[m]ostly [golf] clubs." They also took the cash register and "literally ripped apart" a vending machine to access the money stored inside. Mr. Bell further testified that the merchandise counters "were completely trashed" and that money was taken "from different places" throughout the store. Mr. Bell estimated that the value of the items taken and the damage to his property was "over $50, 000."
Mr. Bell testified that the clubs that were taken were expensive and some of them had serial numbers on them. Mr. Bell testified that he was only able to recover two of the stolen clubs. According to Mr. Bell, a week after the burglary, a man named William Lewis brought Mr. Bell a golf club that had been purchased on eBay. Mr. Bell testified that the serial number on the golf club matched the serial number for one of the stolen clubs. Mr. Bell admitted on cross-examination that the club was not shipped to Mr. Lewis by the Defendant and that he did not know the Defendant.
Paula K. Gonzalez testified that she sold the golf club to Mr. Lewis on eBay. Ms. Gonzalez claimed that she did not know that the golf club was stolen when she sold it. Ms. Gonzalez testified that her boyfriend at the time, Ronald Kent Mabry, had purchased some golf clubs from a man named Leonard. According to Ms. Gonzalez, Mr. Mabry asked her to sell the clubs he did not want to keep on eBay.
Mr. Mabry testified that in November 2008, his friend Leonard Freeman approached him about buying some golf clubs. Mr. Mabry testified that he was interested in Mr. Freeman's offer because Mr. Freeman was asking $2, 000 for golf equipment he believed to be worth approximately $6, 000. According to Mr. Mabry, Mr. Freeman assured him that the clubs were not stolen and that Mr. Freeman was able to get the clubs discounted in Atlanta.
Mr. Mabry testified that he met Mr. Freeman at a local drug store and that they drove together to a house to look at the golf clubs. Mr. Mabry testified that he believed Mr. Freeman was staying at the house and that Mr. Freeman had previously taken him to the same house. According to Mr. Mabry, when he got to the house, he saw the Defendant. However, Mr. Mabry testified that he did not speak to the Defendant that day.
Mr. Mabry testified that Mr. Freeman took him to a room upstairs to look at the golf clubs. Mr. Mabry also testified that the room had a "bolt lock" on the door. According to Mr. Mabry, the golf clubs appeared to be "brand new." A few days later, Mr. Freeman brought the clubs to Mr. Mabry's apartment, and Mr. Mabry paid cash for them. Mr. Mabry then asked Ms. Gonzalez to sell the clubs he did not want on eBay. Mr. Mabry testified that ...