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State v. Nielsen

Court of Criminal Appeals of Tennessee, Knoxville

February 9, 2015

STATE OF TENNESSEE
v.
EPHRAIM J. NIELSEN

Session October 21, 2014

Appeal from the Circuit Court for Sevier County No. 15983-III Rex H. Ogle, Judge

Bryce W. McKenzie, Sevierville, Tennessee, for the appellant, Ephraim J. Nielsen.

Robert E. Cooper, Attorney General and Reporter; Lacy Wilber, Senior Counsel; James Dunn, District Attorney General; and Patrick Harrell, Assistant District Attorney General, for the appellee, State of Tennessee.

Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

OPINION

ROBERT L. HOLLOWAY, JR., JUDGE

Factual and Procedural Background

On April 19, 2011, [1] the Defendant entered a guilty plea to robbery. On June 2, 2011, a Stipulation Regarding Sentencing ("the Stipulation") signed by the parties and the trial judge was entered. The Stipulation recites that the Defendant pleaded guilty to robbery in case number 15983 and to fraudulent use of a credit card and theft under the value of $500 in case number 15984. The Stipulation states the Defendant was "deferral eligible" which we interpret to mean a "qualified defendant" pursuant to Tennessee Code Annotated section 40-35-313. At a subsequent sentencing hearing, the trial court placed the Defendant on five years' supervised probation as a function of section 40-35-313 judicial diversion.[2] While on probation, the Defendant was arrested for burglary, vandalism over $1, 000, and theft of property valued over $1, 000 but less than $10, 000. The Defendant's probation officer filed a violation of probation warrant, alleging that the Defendant violated the conditions of his probation by, among other things, committing new offenses.[3]

Bifurcated Probation Revocation Hearing

On October 29, 2013 and December 10, 2013, the trial court conducted a probation revocation hearing. The hearing was bifurcated to allow the State to produce a fingerprint expert.

Michael Gulley had supervised the Defendant's probation for a little over two years and filed the violation of probation warrant against the Defendant. During that time, the Defendant regularly reported to the probation office and passed all drug screens. Additionally, he was making payments toward his fines and court costs, although those payments were sometimes minimal.

In February, 2013, Detective Tim Williams of the Gatlinburg Police Department responded to a report of a burglary at the Brookside Resort in Gatlinburg. Several items were reported stolen and the laundry room vending machine had been damaged in what appeared to be an effort to pry it open. Detective Williams took fingerprints from the area around the damaged locking mechanism and inside lip of the vending machine. Detective Williams subsequently sent the fingerprints to the Tennessee Bureau of Investigation ("TBI") for identification.[4]

Detective Williams interviewed the Defendant at the police department on June 27, 2013, after the Defendant came to the police station voluntarily. The Defendant denied involvement in the burglary. When Detective Williams asked if the Defendant had ever been inside the Brookside Resort's office or laundry room, the Defendant stated that he had never been on the Brookside Resort property. After Detective Williams' questioning, the Defendant left the police station.

TBI Special Agent David Howell testified that he analyzed the latent fingerprints sent by Detective Williams. Agent Howell determined that there were five identifiable fingerprints and two identifiable palm prints, none of which matched the owner of the Brookside Resort. After completing a fingerprint search in the Automated Fingerprint Identification System ("AFIS") database, Agent Howell determined that two of the latent fingerprints found at the scene matched the Defendant's fingerprints. Both fingerprints were found in the laundry room–one from the laundry vending machine[5] and the other from a washing machine. On cross-examination, Agent Howell stated that he had not been provided the Defendant's name before AFIS identified the Defendant as a "hit" for the fingerprints. Additionally, ...


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