Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs at Jackson May 5, 2015.
Appeal from the Circuit Court for Stewart County No. 2011-CR-2346 Larry J. Wallace, Judge.
James Roberts Potter, Clarksville, Tennessee, for the appellant, Tarojee M. Reid.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Dan Mitchum Alsobrooks, District Attorney General; and Suzanne M. Lockert-Mash and Sarah Whitney Wojnarowski, Assistant District Attorneys 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.
A. Guilty Plea Submission Hearing
The circumstances of this offense are unclear. At the guilty plea submission hearing, the State did not offer a factual basis for the offense. Defense counsel announced that appellant was entering a plea to theft of property valued at $1, 000 or more but less than $10, 000 and that the four-year sentence would be suspended to probation by agreement of the parties. As relevant to this case, the trial court asked appellant if he was guilty, and appellant answered that he was "accused of taking some Hummel figurines." He said that he delivered the figurines to a pawn shop. The trial court scheduled a restitution hearing but did not order a presentence report.
B. Restitution Hearing
The victim, James McKinstry, testified at the restitution hearing that appellant, appellant's girlfriend, and her daughter needed a place to stay for approximately two weeks. The girlfriend's parents had asked them to move out of their home, and appellant said that he was trying to find a job and "better himself." They stayed in the victim's basement, which had a living area and two bedrooms, for over two weeks. The victim said that when they left, "[his] stuff [was] gone[;] they never came back and got their own belongings. He even left his three dogs." The victim stated that several Hummel figurines, valued at $5, 552, were taken from his home during that period in June 2010. He also added that some DVDs and firearms were taken and that a gun cabinet had been damaged in the process, which required him to replace the door and the lock. The victim valued the firearms at $2, 824, the DVDs at $15 each ($375), the Blu-Ray discs at $25 each ($500), and the damage to the gun cabinet at $150. Defense counsel lodged an objection to this testimony because the indictment charged theft of Hummel figurines and nothing else and because appellant pleaded guilty to the same. The victim testified that he received a $3, 000 check from his insurance company but had to pay his $500 deductible out-of-pocket when he initiated the claim. The victim asserted that the insurance company denied his claim with respect to the figurines because antiques or "collectibles" were not included in his insurance coverage.
On cross-examination, the victim acknowledged that his insurance company provided him with a settlement statement concerning their payment of his claim but that he did not bring it to the hearing.
The trial court questioned the victim and ascertained the following facts: (1) the damage to the gun cabinet was valued at $150; (2) the insurance company compensated the victim $2, 500 "net, " or after prepayment of the $500 deductible; (3) the $6, 895 claimed by the victim included the value of the DVDs and Blu-Ray discs; and (4) the victim mistakenly listed one of his firearms twice.
During closing argument, defense counsel noted that the State had not provided discovery and that he had not requested it because appellant had already admitted to him that he stole the figurines and because they were working on a "plea deal." Thus, appellant had no notice that the victim was seeking restitution for other property. Counsel also noted that ...