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State v. Aborizk

Court of Criminal Appeals of Tennessee, Nashville

January 20, 2015

STATE OF TENNESSEE
v.
ANDREW JOSEPH ABORIZK

Assigned on Briefs July 16, 2014

Appeal from the Criminal Court for Davidson County No. 2011D2902 Cheryl A. Blackburn, Judge

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Andrew Joseph Aborizk.

Herbert H. Slatery, III, Attorney General and Reporter; David H. Findley, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Megan King, Assistant District Attorney General, for the appellee, the State of Tennessee.

Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Norma McGee Ogle and Alan E. Glenn, JJ., joined.

OPINION

THOMAS T. WOODALL, PRESIDING JUDGE

I. Background

In March of 2011, Larry Kendall was living at 98 South Graycroft Avenue in Madison with his sister, Linda Kendall. The victim, George Hall, owned the house next door located at 100 South Graycroft Avenue. At the time, the victim's house was being renovated due to a fire that occurred shortly after the victim had moved in.

On Saturday March 26, 2011, at approximately 11:30 a.m. to 12:00 p.m., Mr. Kendall walked outside to smoke a cigarette and noticed someone driving up the victim's driveway in a late-model "silver gray Pontiac, " possibly a Grand Prix. The car was driven around to the back of the house. Mr. Kendall walked back inside the house and returned approximately thirty minutes later to smoke another cigarette. He noticed that the "car was turned around then headed out the driveway, but it was backed up to a [storage container]." Mr. Kendall testified that the victim had belongings stored in the container after the fire, and Mr. Kendall saw Defendant taking boxes out of the container and loading them into the trunk, back seat, and passenger seat of the car. Mr. Kendall recognized Defendant because he had previously seen Defendant at the victim's house on two or three occasions hauling scrap metal away from the property. Therefore, Mr. Kendall did not believe that it was unusual for Defendant to be at the victim's house on March 26, 2011. He did not know Defendant's name. Defendant waved at Mr. Kendall while he was loading the boxes, and Mr. Kendall waved back. Mr. Kendall testified that he could clearly see Defendant, and there was nothing blocking Mr. Kendall's view of Defendant. Defendant was wearing blue jeans, a "bluish green" jacket, and a "hat that was flat like the marines used to wear." Mr. Kendall then told his sister, Linda Kendall what he saw, and she began watching Defendant out her bedroom window. Mr. Kendall estimated that Defendant was at the victim's house for more than an hour. He said that Defendant filled up the car except for the driver's seat and drove away. Mr. Kendall had never previously seen Defendant in the silver or gray Pontiac.

Mr. Kendall saw police at the victim's storage container the following Monday, and he walked over and talked to the officers. He told them about the silver car and that he had previously seen Defendant on the property driving a white truck. At that time, Mr. Kendall realized that the lock to the storage container had been cut. Several days later, Detective James Bledsoe of the Metropolitan Nashville Police Department visited the Kendall residence and showed Mr. Kendall a photographic line-up. Mr. Kendall identified Defendant as the person that he saw taking boxes from the victim's storage container. Mr. Kendall testified at trial that he was "one hundred percent sure" that Defendant was the person he saw taking the victim's property on March 26, 2011.

Linda Kendall testified similarly to that of her brother, Larry Kendall. She watched Defendant through her bedroom window from her "power chair" on March 26, 2011. Ms. Kendall also estimated that Defendant spent approximately one hour loading boxes from the victim's storage container into a silver car. She noted that she had previously seen Defendant at the victim's house; however, Defendant was not wearing a hat at the time, and he drove a white truck. Ms. Kendall did not know Defendant's name. She testified that she could clearly see Defendant loading the boxes into the car. Ms. Kendall testified that Detective James Bledsoe later came to her residence, and she identified Defendant from a photographic line-up. She also identified Defendant at trial.

The victim, George Hall, testified that on March 26, 2011, he was in the process of renovating his house located at 100 South Graycroft Avenue due to a fire that occurred on June 13, 2010. Through an ad on Craigslist, the victim contacted Defendant to remove scrap metal and debris from the property during the renovation. The victim noted that he did not pay Defendant to remove the items but that Defendant earned money from removing the scrap metal from the property and selling it. The victim estimated that Defendant made three to five trips hauling items away from the property. He confirmed that Defendant was no longer working for him on March 26, 2011, and that Defendant had made his last haul of debris six to eight months prior to the theft. The victim testified that he had always been present when Defendant hauled scrap items away from the house.

The victim testified that at the time of the theft he had two storage containers on his property. He said that the storage container in the back yard contained items that had been salvaged from the house as well as new items that the victim had purchased to go in the house. The victim testified that he always locked both storage containers with a padlock. He never gave Defendant permission to take anything from the storage containers.

The victim noted that he had stopped by his property on Graycroft Avenue on the morning of March 26, 2011. He either placed something in the back yard storage container or took something out and then made certain that the container was locked before he left. He did not notice anything unusual about the storage container. The victim testified that he pulled up to his house on Monday morning, March 28, 2011, and looked around the outside of his house and initially did not notice anything unusual. He retrieved his keys to unlock the storage container and noticed that the door was six to eight inches open. The ...


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