Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs July 16, 2014.
Direct Appeal from the Circuit Court for Lewis County Nos. 2004-CR-71 (6549), 2004-CR-38 (6524) Timothy Easter, Judge.
Kenneth K. Crites, Centerville, Tennessee, for the appellant, Frank Kendale Sparkman, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; Kim R. Helper, District Attorney General; and Sean Duddy, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the Court, in which Thomas T. Woodall and Alan E. Glenn, JJ., joined.
NORMA McGEE OGLE, JUDGE.
I. Factual Background
On December 8, 2004, the appellant pled guilty to selling one-half gram or more of cocaine, a Class B felony, and possession of less than one-half gram of cocaine with intent to sell or deliver, a Class C felony, and the trial court sentenced him to consecutive sentences of eight and three years, respectively. The appellant completed a portion of his effective eleven-year sentence in a boot camp program and then began serving the remainder of his sentence on supervised probation. The appellant's probation was to expire on July 12, 2015.
On January 9, 2012, the appellant's probation officer filed a probation violation report, alleging that the appellant had violated probation by being arrested on January 5, 2012, for possession of cocaine for resale and theft of property. The trial court issued a probation violation warrant, and the appellant was arrested.
At the appellant's probation revocation hearing, the State advised the trial court that due to the complexity of the appellant's drug case, it was seeking to revoke the appellant's probation only for the theft charge. Jerry Grohowski testified that he was the appellant's probation officer and that someone would have gone over the rules of probation with the appellant when the appellant was released from boot camp. Rule number two required that the appellant obey the laws of this state. Grohowski filed a violation of probation report against the appellant for new charges of possession of a Schedule II controlled substance for resale and theft of property. The appellant had reported the new charges to Grohowski, but Grohowski already knew about them.
On cross-examination, Grohowski testified that the appellant never tested positive for cocaine or marijuana while on probation. The appellant tested positive for Lortab but had prescriptions for the drug. Allison Lacey Sisco testified that in October 2011, she allowed some friends, one of whom was Corey Anthony, to stay at her home while she had surgery. When Sisco returned home from surgery on October 12, her friends claimed that her house had been "robbed, " that they were gone when the incident occurred, and that they returned home to find "the whole place had been ransacked." Sisco went to her bedroom and discovered that $80 in cash, a new iPod Generation 4, a laptop computer, and a camera were missing. Sisco reported the stolen items to the police that same day.
Sisco testified that she owned an iPhone but had loaned it to Anthony. After Sisco learned about the thefts from her home, she and Anthony went to a convenience store. At that time, Sisco's iPhone was in Anthony's pocket. Sisco said that on the way home from the store, she asked Anthony if he had returned her phone to her and that he told her, "'[Y]eah, Lacey, I gave it to you when I got back in the car.'" Anthony suggested to Sisco that she had left the phone on the hood of her car and had driven away from the store without retrieving it. On October 13, 2012, Sisco reported to Officer Brent Bridges that her iPhone also was missing.
On cross-examination, Sisco testified that when she discovered the iPhone was missing, she and Anthony returned to the convenience store but could not find the phone. Sisco told Officer Bridges that her iPhone was either missing or had been stolen and gave him the phone's serial number. On January 5, 2012, Sisco learned from Deputy Chris Himes that her phone had been recovered. The police returned the phone to her in March 2012. Sisco said that the phone had been charged, that her information had been "cleaned off, " and that the phone contained music and a few pictures that did not belong to her. She said she never gave the appellant permission to possess her phone. Upon being questioned by the trial court, Sisco testified that she did not think Anthony returned the phone to her.
On redirect examination, Sisco testified that the phone was in her ex-boyfriend's name but that she paid for the phone. Sisco told the police that she did not know whether she left the phone on the hood of her car or Anthony stole it. She ...