Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs December 9, 2014 at Knoxville
Appeal from the Circuit Court for Maury County Nos. 21108, 21198 Stella L. Hargrove, Judge.
Ronald G. Freemon, Columbia, Tennessee, for the appellant, Leon Booker.
Herbert H. Slatery, III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Mike Bottoms, District Attorney General; and Brent A. Cooper, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Timothy L. Easter, J., joined.
ALAN E. GLENN, JUDGE
In Case No. 21108, the defendant was indicted for theft of property valued at $500 or less as the result of his obtaining bush hogs belonging to Wayne Romesburg. In Case No. 21198, the defendant was indicted for theft of property valued at $1000 or more but less than $10, 000, a Class D felony, based on his obtaining or exercising control over eight tractor trailer tires belonging to David Harris. Subsequently, the State filed a notice of intent to seek enhanced punishment as a Range III offender based upon the defendant's prior convictions for four counts of aggravated burglary, two counts of burglary, three counts of theft of property, and one count of auto burglary. On December 17, 2013, the defendant entered guilty pleas in Case No. 21198 to Class E felony theft and in Case No. 21108 to Class A misdemeanor theft.
At the March 28, 2014 sentencing hearing, the State introduced the defendant's presentence report, which revealed a substantial criminal history, including "13 felonies and 15 misdemeanors." Victim David Harris testified that he owned a farm and a trucking business and that he was acquainted with the defendant but "just knew . . . his name and his face, . . . that's pretty much it." In September 2011, Harris discovered that the lock to the gate on his property had been cut and some tires were missing. The tires had been in an open hay barn behind two gates. He described the tires: "They were for a semi. They're – 245 is their size. They're twenty-four-inch tubeless tires. . . . And they go on a tractor-trailer." He called the sheriff's department, and a report was filed. He also called his mechanic, R.P. Williams, and other trucking companies and asked them to "be on the lookout, because when stuff is stolen, people try to sell it." He subsequently recovered four of the missing tires from Williams, after the defendant sold the tires to Williams for $340. Harris also recovered four more tires from Mike Gibson, the owner of a scrap metal and recycling business.
Mike Gibson testified that he had dealt with the defendant for years at his scrapyard and recycling business. In September 2011, the defendant brought "two 1125 tires and one of the twenty-four-inch, the 1, 124 inch tires" to his business, and Gibson purchased the tires for $625. Gibson said that the defendant's mother had been making periodic payments to reimburse him for his $625 loss and that the amount had been paid in full.
The defendant testified that he wrote letters of apology to Harris and Gibson and gave them to his mother, who hand-delivered them. He said that restitution to Harris and Gibson had been paid from his bank account. He acknowledged that drugs were "a contributing factor" in his committing the offenses. Asked if he could be a productive citizen going forward, the defendant responded, "I will to the best of my ability." He said he previously had successfully completed probation and parole.
On cross-examination, asked if he had been placed on probation on February 22, 2011, following his guilty pleas to criminal trespass, theft, and vandalism, the defendant responded, "Yeah, I think so." He admitted that he was on probation when he committed the offenses in the present case and that he previously had been incarcerated for aggravated burglaries and thefts.
At the conclusion of the hearing, the trial court determined:
The prior record of [the defendant] is terrible. He has been a long thief [sic] since 1977, sir. He has a record that expands some 37 years of criminal activity, resulting in 13 ...