Assigned on Briefs April 14, 2015
Appeal from the Criminal Court for Shelby County No. 13-04615 J. Robert Carter, Jr., Judge
Phyllis Aluko (on appeal) and Alicia Kutch (at trial), Assistant District Public Defenders, for the appellant, Shelton Pope.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Meghan Fowler, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Norma McGee Ogle, J., joined.
JAMES CURWOOD WITT, JR., JUDGE
The defendant was originally charged with theft of property valued at $1, 000 or more but less than $10, 000, a Class D felony. See T.C.A. §§ 39-14-103(a), -105(a)(3). The jury convicted him of the lesser included offense of theft of property valued at more than $500 but less than $1, 000, a Class E felony. See id. § 39-14-105(a)(2). The trial court sentenced the defendant to serve six years in the workhouse as a career offender. Following the denial of the defendant's timely motion for new trial, he filed a timely notice of appeal.
At trial, Mark Bassett, the victim, testified that his 1995 green Toyota 4Runner truck was stolen on March 9, 2013. The victim testified that on that date the truck had an electrical problem; sometimes it would not start. On March 9, he drove the truck to a Kroger store, and thinking his visit inside the store would be brief and being unsure whether he could restart the truck if he turned off the ignition, he left the motor running and the door unlocked. He was in the store 15 to 20 minutes, and while standing in the checkout line, he noticed the truck was gone and called the police. After police officers arrived, the victim gave the truck's description and license number and his insurance information to Officer Smith. The victim testified that his cellular telephone was inside the truck.
The victim testified that he heard on April 8, 2013, that the truck had been found. Upon retrieving the truck, the victim found it to be in "awful, " "disgusting" condition. The truck contained a man's soiled clothing, "drug paraphernalia, " and a small "baggie" that contained a "rock type substance." He also found a job application bearing the defendant's name. The victim did not recover his telephone.
The victim testified that the value of the truck at the time of the theft was $1, 200 to $1, 300 and that he had recently invested about $1, 500 making repairs and installing new tires, a new battery, and a new starter.
Gregory Manning testified that he and his wife went to the Kroger store on March 9, 2013, and parked directly behind the victim's truck. Mr. Manning remained in his car while his wife went into the store. When the victim came out of the store with groceries in hand and started looking around, Mr. Manning asked whether there was a problem. The victim said his truck was missing, and Mr. Manning let the victim use Mr. Manning's telephone to call the police. Mr. Manning said he saw the victim's truck being driven away by a "black guy."
On cross-examination, Mr. Manning testified that the victim's truck and his own car had been parked "behind each other" with a drive lane separating them. He said he noticed the truck's driver because the truck nearly hit Mr. Manning's vehicle as it was quickly backing out of the parking space.
Memphis Police Department ("MPD") Officer Reginald Smith testified that he answered a call to go to the Kroger on March 9, 2013, to investigate a complaint about a stolen truck and that he entered the information on the truck into the department's stolen vehicle database. MPD Officer Timothy Shaw testified that at approximately 11:50 p.m. on April 6, 2013, he saw a Toyota 4Runner parked at Rodney Baber Park, which was closed at that hour. Officer Shaw "ran the plates" and learned that the Toyota was stolen and that the owner was not the defendant, who was sitting in the driver's seat. A woman sat in the passenger seat.
Inside the Toyota truck, the officer found clothing, papers bearing the defendant's name, and a "crack pipe." The defendant told the officer that the clothing in the truck was his. The officer had the truck towed to the city impound lot. On cross-examination, Officer Shaw ...