Assigned on Briefs February 03, 2015.
Appeal from the Criminal Court for Shelby County No. 1203950 James C. Beasley, Jr., Judge
Stephen C. Bush, District Public Defender; Lawrence White (at trial) and Barry W. Kuhn (on appeal), Assistant District Public Defenders, for the appellant, Glen Sewell.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Jose Leon, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Alan E. Glenn and Camille R. McMullen, JJ., joined.
JOHN EVERETT WILLIAMS, JUDGE
FACTS AND PROCEDURAL HISTORY
This case arose after Suzie Doyle's 1994 black Chevrolet Silverado pickup truck was stolen. Ms. Doyle testified that on February 14, 2012, she parked her truck in a Kroger parking lot before going to work. When she finished work and returned to the parking lot, she discovered that her truck was not there. Ms. Doyle had one set of keys to the truck, and her husband had the spare set. She did not leave the keys in the ignition of the car, and her husband did not use his spare set of keys to take the vehicle. She called police to report the truck as stolen.
Officers of the Shelby County Sheriff's Office in the "Alert Unit, " which dealt with retail and other types of theft, developed the defendant as a suspect and began to investigate various locations where the defendant was either known to frequent or had family members. Detective Raoul Gonzalez testified that when he drove by an address on Beowolf Glade Cove, he spotted the stolen pickup truck in a driveway. Detective Gonzalez immediately notified members of the Alert Unit that he had located the vehicle. Officers arrived at the scene to set up surveillance of the vehicle and to arrest the defendant once he entered the vehicle. Detective Gonzalez, along with Detective David Ballard, Sergeant Barry Clark, and other officers, parked on Glen Birnie, a street perpendicular to Beowolf Glade Cove. Sergeant Clay Akin parked at the end of Beowolf Glade Cove to observe the vehicle. Detective Gonzalez was driving a silver Chevrolet Silverado truck, and Sergeant Akin was driving a black Chevrolet Silverado truck.
When Sergeant Akin observed the defendant walking toward the vehicle, he issued the "take-down signal." Detectives Gonzalez and Ballard testified that the plan was to use their own vehicles to box the defendant into the driveway and prevent him from fleeing, with Detective Ballard to pull in behind the truck and Detective Gonzalez to pull in front of the truck. Detective Gonzalez began driving across the yard to get in front of the defendant's vehicle once he received the take-down signal. He saw the defendant get into the stolen vehicle, made eye contact with the defendant while he was in the truck, and heard "the engine at wide open throttle." Detective Gonzalez testified that once he pulled in front of the defendant, the defendant accelerated forward, hitting Detective Gonzalez's driver's side door with Ms. Doyle's vehicle.
Detective Ballard testified that once he received the take-down signal, he pulled into the driveway behind the stolen pickup truck, stopping about "three inches from the bumper" of the pickup. Detective Ballard exited his vehicle and began to give commands to the defendant, at which point the defendant gave Detective Ballard "kind of a grin" and "jumped in the truck." Detective Ballard got back into his vehicle and applied the brake, believing that the defendant was going to strike his vehicle. Instead, the defendant placed the truck in drive and started toward the house before making a sharp left turn to cut across the yard. Detective Ballard testified that Detective Gonzalez had not arrived in front of the defendant's vehicle before the defendant started driving but that he was instead pulling along side of the truck when his car was hit. Although Detective Gonzalez testified that he had driven in front of the defendant's vehicle before the defendant began driving, both detectives agreed that the defendant struck Detective Gonzalez's vehicle.
After striking Detective Gonzalez's truck, the defendant continued driving, proceeding through the yard of James Smithmier and toward the street. Detectives Ballard and Gonzalez drove through the yard as well in pursuit of the defendant. The defendant hit Mr. Smithmier's mailbox before driving onto Beowolf Glade Cove, where Sergeant Akin had initially set up surveillance. Both detectives testified that the defendant struck Mr. Smithmier's mailbox.
When the defendant began his flight, Sergeant Akin had started to drive toward the defendant from the end of Beowolf Glade Cove. As a result, the two vehicles were on a collision course once the defendant drove his truck onto the street. Sergeant Akin swerved his vehicle to avoid a head-on collision, but the defendant struck the side of Sergeant Akin's vehicle.
After striking Sergeant Akin's vehicle, the defendant proceeded to drive through the yard of James Walker. He smashed through a ten-foot section of Mr. Walker's fence and caused damage to the side of the house, the gutter, flower beds, and a wooden swing before crashing the pickup truck into a tree and attempting to flee on foot. Officers apprehended the defendant shortly after he exited his vehicle.
After the defendant's arrest, officers contacted Ms. Doyle to inform her that they had recovered her pickup truck. She testified that she paid "about $5, 400" for the pickup truck and estimated that she spent "at least $3, 000" repairing the truck after it was stolen and damaged.
Both Mr. Smithmier and Mr. Walker testified regarding the damage to their property. Mr. Smithmier testified that on the day of the incident, he viewed his mailbox in the street with mail strewn everywhere. Mr. Smithmier spent $98 on a new mailbox, and he purchased concrete and dug a hole for the mailbox. Mr. Walker testified that a photograph of Ms. Doyle's truck wrecked into a tree was taken in his backyard. He estimated that the cost of repairs to his damaged property was "roughly" $3, 250. The State introduced an invoice showing that the total cost of the repairs to Mr. Walker's property was $3, 215.64.
Tim Albin testified that he worked for the Shelby County Sheriff's Office Fleet Operations. He testified that the vehicles driven by Detective Gonzalez and Sergeant Akin were fairly new vehicles that did not have any prior wrecks or dents. The State introduced an itemized bill showing that the cost of the parts, labor, and paint supplies to repair Detective Gonzalez's vehicle was $1, 870.53. The State also introduced an itemized repair bill for Sergeant Akin's vehicle, and the total cost of the parts, labor, and paint supplies was $1, 497.78.
At the conclusion of the trial, the jury found the defendant not guilty of aggravated assault of Detective Gonzalez and Sergeant Akin in Counts 1 and 2. The jury found the defendant guilty in Count 3 of vandalism of $500 or more in regards to Detective Gonzalez's truck; guilty in Count 4 of vandalism of $1, 000 or more in regards to Sergeant Akin's truck; guilty in Count 5 of theft of property of $1, 000 or more but less than $10, 000 in regards to Ms. Doyle's truck; guilty in Count 6 of vandalism of less than $500 in regards to Mr. Smithmier's ...