Assigned on Briefs May 5, 2015.
Appeal from the Criminal Court for Shelby County No. 12-04743 W. Mark Ward, Judge.
Stephen C. Bush, District Public Defender; and Barry W. Kuhn (on appeal) and Jim N. Hale, Jr. (at trial), Assistant District Public Defenders, Memphis, Tennessee, for the appellant, Patricia Smith.
Herbert H. Slatery III, Attorney General and Reporter; Meredith DeVault, Senior Counsel; Amy P. Weirich, District Attorney General; and Omar Zia Malik, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.
ROGER A. PAGE, JUDGE.
This case concerns appellant's entry into a rental property under the guise of working for the bank responsible for the property. When the deception was discovered, appellant was arrested and indicted for aggravated burglary. Appellant's trial began on May 27, 2014.
At trial, Hunter Burks testified that on April 7 and 8, 2012, he was in the process of moving from a rental home on Colonial Road in Memphis, Tennessee, to a house that was located six to eight houses down the road from the rental home. On April 7, he arrived at the rental home and noticed an unfamiliar "light grayish silver" Oldsmobile Alero parked in the driveway. Mr. Burks noticed that his Nintendo Wii gaming system, "shop vac, " and bagged clothing were in the back of the car. When Mr. Burks went inside the home, appellant informed Mr. Burks that she had been hired by the bank to "clear the property." Mr. Burks informed appellant that there must have been a mistake and that he was authorized to be in the house that day. Mr. Burks told her that he should be finished moving that day and requested that she return the items in her car. Appellant complied, and Mr. Burks retrieved the items. Appellant told Mr. Burks that he needed to be finished moving by dark so that she could begin clearing the property, and appellant left. Approximately six hours later, while Mr. Burks was removing some ceiling fans that he had purchased, appellant returned and inquired why appellant was taking fixtures out of the house. Appellant informed Mr. Burks that the ceiling fans were part of the house and could not be removed. Appellant then told Mr. Burks that he would no longer be allowed entry into the house and that he would be arrested for trespassing if he returned, which Mr. Burks considered "a pretty big red flag . . . that now something wasn't right." Mr. Burks continued moving his property, disregarding appellant's assertion as untrue because he had until April 9 to vacate the property. Appellant finished moving about 3:00 or 4:00 a.m. on the morning of April 8. Appellant noticed that some more of his property was missing, specifically his 3D glasses for his 3D television, some clothing, a sports jacket with a letter from his deceased mother in the pocket, a deep freezer, and "a few big items." Mr. Burks valued the missing property at $3000 to $5000.
Mr. Burks further testified that after he noticed the missing items, he sent a text message to Carol Stout, the real estate agent handling the rental property, and requested that "the cleaning lady" return the missing items. Ms. Stout responded that she had not hired anyone to clear the property. Mr. Burks described appellant, and Ms. Stout indicated that such a person had not been hired by her or the bank. Due to this conversation, Mr. Burks watched from his new home and saw appellant return to the rental property on the morning of April 8. Mr. Burks drove his vehicle to the rental property and attempted to block appellant's car in the driveway. Appellant exited the house and began yelling at Mr. Burks. He informed her that he was calling the police because she was trespassing. Appellant got back into her car and exited the driveway around Mr. Burks' vehicle. Mr. Burks followed appellant in his own vehicle and informed the 9-1-1 operator about the situation and appellant's location. Shortly thereafter, Memphis police officers apprehended appellant. Mr. Burks explained that prior to April 7, 2012, he did not know appellant and that he did not give her permission to be inside the house.
During cross-examination, Mr. Burks stated that he only owned one deep freezer and that it was stolen. Mr. Burks agreed that while he was moving, the utilities to the house were turned off. Mr. Burks testified that he was moving due to a foreclosure on the property. Mr. Burks agreed that he did not tell appellant about the foreclosure but explained that foreclosures were listed in the Memphis Business Journal. Mr. Burks explained that he began noticing that items were missing throughout the process of his move and that after carrying items to his new home, he would return to the rental property and notice that items had been "shimmied around" and were missing. Mr. Burks also noticed that some of the doors were open when he returned to the property even though he locked the doors each time he left. Mr. Burks attempted to solve the problem by putting bungee cords on the doors at issue. Mr. Burks explained that he noticed the missing deep freezer in the early morning hours of April 8 because it was the last item that he intended to move. However, when he returned to the rental property, the freezer was missing. Mr. Burks asserted that he never had a personal conversation with appellant and that he did not ask her to go on a date with him. Mr. Burks estimated that the cost of the 3D glasses was $300, that the sports jacket was $500, and that the deep freezer was $1000.
Carol Stout testified that she was employed as a realtor and that she represented Regions Bank in the majority of their foreclosures in Memphis because the bank did not have an office in Memphis. When the bank informed her of a foreclosure, she notified the bank as to the property's occupancy status, and once the property was vacated, she hired a crew to change the locks, clean the property, make minor repairs, and prepare the property for the real estate market. Ms. Stout explained that she had been working with the same crew in this capacity for about five years. Ms. Stout recalled Mr. Burks' calling her about a woman removing his belongings from the rental property. Ms. Stout testified that she informed Mr. Burks that no one should be at the property. Ms. Stout explained that she was not taking possession of the property until April 9 and that if someone had been authorized to come onto the property, she would have sent them, which she did not. Ms. Stout did not know appellant, and she did not give appellant permission to enter the rental property.
Robert Brown, an investigator with the Memphis Police Department, testified that on April 8, 2012, he was working as a patrol officer. Investigator Brown explained that while on patrol, he received a call from dispatch reporting the incident and giving a description of appellant. Investigator Brown, along with another officer, stopped appellant's vehicle, and Mr. Burks informed Investigator Brown that appellant had entered his house and was removing property from the home. The officers observed a chainsaw and some lawn equipment in the back of appellant's car, and in response to questioning, appellant asserted that she worked for the bank and that she was clearing out the property. She even provided the officers with the address of the rental property. Appellant was arrested and charged with aggravated burglary.
During cross-examination, Investigator Brown could not recall if Mr. Burks told him that some of his property was still missing or if appellant had returned all of the items. Investigator Brown stated that he did not think that the chainsaw and other equipment belonged to ...