Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs February 19, 2015
Appeal from the Criminal Court for Knox County No. 98236 Steven W. Sword, Judge
Liddell Kirk (on appeal) and Keith Lowe (at trial), Knoxville, Tennessee, for the appellant, Alfred Ward.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Charme Allen, District Attorney General; and Ta Kisha Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.
NORMA McGEE OGLE, JUDGE
I. Factual Background
In November 2011, the Knox County Grand Jury indicted the appellant for two counts of aggravated burglary based on alternative theories and one count of felony theft. At trial, Edward Clabo testified that on December 23, 2009, he lived in a trailer on Kodak Road in East Knoxville. That afternoon, Clabo left home to check on a neighbor. When he returned, he saw a small hatchback station wagon backed up to the deck of his trailer. The hatchback was open, and Clabo drove up to the car and blocked it with his vehicle. He noticed that his television and some of his Christmas presents, with a total value of about $500, were in the station wagon. As Clabo walked up the steps to the door of his trailer, the door opened, and two men came outside. Clabo said that he did not know the men or why they were in his home, that they jumped over the rail of his deck, and that they "[took] off running." Clabo identified the appellant in court as one of the two men.
Clabo testified that he chased the appellant and the second man but was unable to catch them and returned to his trailer. The inside "was just tore up." The kitchen trash can had been turned upside down, and trash was all over the floor. The refrigerator door was open, and food from the refrigerator was in the trash can as if the men had been planning to take the trash can with them. The bedroom mattresses had been turned upside down, the dresser drawers had been pulled out, and the drawers had been turned upside down. He said that "stuff [was] everywhere."
On cross-examination, Clabo acknowledged that he did not see the station wagon arrive and did not know if the appellant and the second man arrived at the trailer together. He also did not know how long they were in his home, who put the items into the station wagon, or who caused the damage inside the trailer.
Officer Steven Ballard of the Knox County Sheriff's Office (KCSO) testified that about 4:30 p.m. on December 23, 2009, he went to Kodak Road in response to a call about two burglary suspects. Earlier that day, officers had responded to a burglary in the area. Some citizens flagged down Officer Ballard and told him that the suspects were at Kodak Road and Thorngrove Pike. The Knox County Sheriff's Air Watch Division flew over the area and located the suspects, one of whom was the appellant, and Officer Ballard took them into custody. Officer Ballard said the two men were wet "from head to toe where it appeared that they had been either in a creek or a river nearby." The men claimed to have been fishing, but Officer Ballard noticed that they did not have any fishing equipment. On cross-examination, Officer Ballard testified that after the appellant's arrest, the appellant complained of chest pain and was transported to a hospital.
Officer Mackenzie Alleman of the KCSO testified that he processed the station wagon found at the trailer and that a red folder was in the hatchback of the car. The appellant's birth certificate was in the folder. The officer also found a bottle of prescribed nitroglycerin, and the appellant's name was on the prescription label.
At the conclusion of the proof, the jury convicted the appellant as charged of two counts of aggravated burglary and one count of misdemeanor theft as a lesser-included offense of theft of property valued more than $500 but less than $1, 000. The trial court merged the aggravated burglary convictions and sentenced the appellant as a Range III, persistent offender to concurrent sentences of eleven years for ...