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Osborne v. State

Court of Criminal Appeals of Tennessee, Nashville

February 26, 2015


Assigned on Briefs December 16, 2014

Appeal from the Criminal Court for Sumner County No. 277-2013 Dee David Gay, Judge

Jon J. Tucci, Nashville, Tennessee, for the appellant, William A. Osborne.

Herbert H. Slatery, III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Lawrence Ray Whitley, District Attorney General; Lytle A. James, Assistant District Attorney General, for the appellee, State of Tennessee.

Robert W. Wedemeyer, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and John Everett Williams, J., joined.



I. Facts

A. Trial

This case arises from the Petitioner's burglary of the home of the victim, Lauren Stewart, in Sumner County, Tennessee. On direct appeal, this Court summarized the underlying facts of the case as follows:

Lauren Stewart testified that her home was burglarized on March 4, 2009. Ms. Stewart recalled that, on this day, she went to work in downtown Nashville, and, at about 10:00 a.m., she received a phone call from her uncle, Dewayne Sircy, who lived approximately a half a mile behind her house. Ms. Stewart's uncle notified her that her home had been burglarized. Ms. Stewart left work and drove home where police officers were already investigating the burglary. The front door of the house was "busted open, " and the entire living room was in disarray. Ms. Stewart described her living room as "shocking, " saying, "It looked like something out of a movie, like when you see someone's house ransacked in a movie." In Ms. Stewart's bedroom, the bed mattress was flipped over and the contents of her dresser drawers were dumped on the floor.
Ms. Stewart testified that her DVD collection, CDs, DVD player, two laptop computers, her digital camera, and jewelry were stolen. She estimated that eighty DVDs were stolen for which she paid an average of $10 each. She testified that her Apple laptop computer was worth $1900, and she had purchased about $1000 worth of graphic design software programs for school that were downloaded onto the computer. Ms. Stewart testified that her other laptop computer was "older" and purchased for "around [$]2000, " but she estimated the worth of an equivalent laptop now at $850 to $1000. Ms. Stewart valued the digital camera at $300 and the total value of the jewelry stolen at $2000. In addition, Ms. Stewart said that a bottle of washing detergent, Clorox, and two cases of Coke were stolen from her home that day.
Ms. Stewart testified that, several days later, she received a phone call regarding her missing items. She drove to Franklin, Kentucky, and was able to identify some of the items stolen from her home. Ms. Stewart testified that the aggregate value of the property stolen was over $500.
Dewayne Sircy, Lauren Stewart's uncle, testified that he lived about 1400 feet directly behind Ms. Stewart's home. On March 4, 2009, he was upstairs in his home when he heard his dog barking. He looked out the window and saw a car parked in Stewart's driveway. He continued to watch as three individuals got out of the car and walked to the back of Stewart's house. One of the individuals went to the door while the other two went to windows. Sircy thought this was odd, so he decided to go to Stewart's to see if she was having work done to her house. It was early in the morning, so Sircy dressed, went outside, and got in his car. As he started down the driveway, he saw the car leaving Stewart's house.
Mitchell Curry testified that his home had been burglarized on March 2, 2009. He recalled that, on that day, he had returned home from work when he noticed the front door was open. He assumed his roommate had left the door ajar, so Curry went inside. Once inside, he saw that his computer was missing, so he began going from room to room in the trailer. He described the rooms as "ransacked, drawers thrown everywhere, cabinets ripped out, clothes, bed sheets ripped off the beds, beds tossed in the floor." Curry said that he owned three guns that he kept in a locked gun cabinet in his bedroom closet. He found the gun cabinet lying on his bed, pried open, with the three guns missing. The replacement cost of the gun cabinet was $150, and he estimated a $900 total value for the three stolen guns: a Remington 870 shotgun, a Marlin 336 rifle, and a Glock 22 pistol. Ammunition and a gun cleaning kit, worth $60 in total, were also taken during the burglary. Curry estimated the value of his laptop computer at $800. Curry agreed that the aggregate value of the property stolen was "easily over $1000." Curry denied giving anyone permission to enter his house or take any of the missing items.
James Jones, Matthew Curry's roommate, testified that he owned a .22 rifle, a 16-gauge shotgun, a knife case with multiple knives, a circular saw, and a class ring, all of which were stolen during the burglary. He estimated that the guns were worth $150 each, the class ring between $250 and $300, and the circular saw about $60. He could not place a value on the knives because he had been collecting them for "several years." Jones said that he recovered some of the items from the Franklin Police Department. Jones testified that he did not give anyone permission to enter the trailer or take any of the missing items.
Josephine Shuler testified that, when she and her husband entered their home after returning from lunch with their son, she noticed a drawer from a washstand that sits near the back door was set on the floor. When her husband denied any knowledge of moving the drawer, Ms. Shuler called the police, believing they had "been robbed." She followed her husband upstairs to the bedrooms and found two of the bedrooms in complete disarray. She recalled that the rooms "looked like a hurricane had hit [them]." Drawers were pulled out of the dressers and dumped on the floor, mattresses thrown off the beds, and houseplants dumped on the floor. The master bedroom appeared undisturbed except for the dresser drawers which were opened. Ms. Shuler testified that approximately $3500 worth of her jewelry and some pistol and shotgun shells were missing. She identified and recovered some of the items from the Franklin Police Department. Ms. Shuler denied giving anyone permission to enter her home or take her jewelry and the gun ammunition.
Ivan Pyne, an Academy Sports store manager, testified that he provided police with video surveillance footage that depicted the [Petitioner], on March 3, 2009, purchasing a box of 40 Smith & Wesson 180-grade ammunition from the gun counter at the Rivergate Academy Sports store.
Nathan Oakes, an associate at Berry's Jewelry & Loan in Madison, Tennessee, provided transaction documents for March 4 and 5, 2009. The documents showed that Timothy Peden, a co-defendant in this case, pawned four jewelry items and eighty-three DVD movies. Oakes explained that, subsequently, these items were placed on hold and confiscated by the police.
Timothy Peden testified that he was prepared to participate in the trial as a co-defendant, but he had changed his mind and entered into an agreement with the State as to the disposition of the charges against him. The agreement required that Peden "tell the truth" in exchange for a fifteen-year sentence to be served at 60%. Peden admitted that he lied to police during previous interviews. Peden agreed that he had a "very long" criminal history including numerous aggravated burglaries and theft convictions. Peden agreed that he had additional outstanding warrants for burglaries in other counties.
As to the general approach taken to the burglaries, Peden explained that he, the [Petitioner], and Biggs would find a "suitable home" where there were no cars in the driveway. Someone would knock on the door and if no one answered, they would "bang" on the back door and windows. If still no one answered, the group would "kick in" or pry open the door. Once inside, they would move quickly, ransacking the house to find valuable items, put those items in a bag, and leave. After burglarizing the home, Peden said that they would split up the stolen items. At the time of these burglaries, Peden was actively using cocaine, and he would sell his items to drug dealers in exchange for cocaine.
Peden testified that the three homes burglarized were all located in Sumner county. After burglarizing a home, they took the stolen items to Franklin, Kentucky, where the [Petitioner] and Biggs lived. Peden said that he went to the Kentucky house on two occasions. While there, he said they would drink beer, he would smoke crack cocaine, and the group would sift through the stolen items to determine what was of value.
Peden testified that on March 2, 2009, he, the [Petitioner], and Biggs burglarized a trailer in Sumner County. Peden recalled that they found a gunsafe in one of the bedrooms. He said that they laid the gunsafe on the bed and broke it open to reveal a .40 caliber gun, rifles, and a gold class ring. While opening the safe, a shelf fell and hit Peden in the face leaving a cut. Peden said that he put a T-shirt on the wound to keep any blood, which might be traceable, from falling onto the floor. Peden said that he did not wear gloves during that burglary but that the [Petitioner] and Biggs wore gloves.
Peden testified that on March 3, 2009, he, the [Petitioner], and Biggs went to an Academy Sports store. The State played surveillance video footage from the store, and Peden identified Biggs, the [Petitioner], and himself. Peden also identified the [Petitioner] as the person buying ammunition for the .40 caliber gun stolen from the trailer at the checkout counter of the store.
Peden testified that on March 4, 2009, he, the [Petitioner] and Biggs burglarized two more homes. He could not recall in which order they burglarized the homes but described finding a home with no car in front. He said they ran around the back, knocked on the door, and, when no one answered, they entered the unlocked back door. Peden said that they found what they assumed to be gold jewelry in a black case, but later learned that it was "fake."
After learning the jewelry was not real, they threw it away because it was worthless. The other burglary was of Stewart's home. Peden recalled that he "stole a bunch of gold and went and pawned" it that same day. Peden said that they also stole laptop computers, jewelry, and numerous DVDs. On the following day, he took the stolen DVDs to the same pawn shop where he had taken the jewelry. Peden identified his signature on the bottom of a pawn ticket.
Brandy Biggs, a co-defendant in this case, testified that she lived in Nashville. At the time of the [Petitioner's] trial, Biggs had already pled guilty for her role in these crimes and received an eight-year sentence to be served on community corrections. As a condition of her plea agreement with the State, Biggs agreed to testify truthfully against her co-defendants. Biggs agreed that her criminal record consisted of shoplifting, assault, and simple possession misdemeanor convictions.
Biggs identified the [Petitioner] in the courtroom and testified that she and the [Petitioner] were involved in a romantic relationship for "about five years." Biggs said that, in March 2009, she, the [Petitioner], and Peden burglarized three homes in Sumner County. On March 2, they burglarized a trailer where they found a gun safe. Biggs said that the [Petitioner] and Peden forced open the gunsafe and found shotguns and pistols, which they took from the trailer. Biggs recalled that while attempting to open the gunsafe, Peden cut his eye. ...

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