Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs April 28, 2015
Appeal from the Circuit Court for Sevier County No. 14972-II Richard R. Vance, Judge
Heather N. McCoy, Sevierville, Tennessee, for the appellant, David Louis Way.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; James Dunn, District Attorney General; and George Ioannides, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the Court, in which D. Kelly Thomas, Jr. and Timothy L. Easter, JJ., joined.
ROBERT W. WEDEMEYER, JUDGE
This case arises from the Defendant's arrest while serving a probationary sentence. On August 24, 2010, the Defendant pleaded guilty to burglary and misdemeanor theft. The trial court ordered a probationary sentence of eleven months and twenty-nine days for the theft charge and a probationary sentence of four years for the burglary charge. One of the conditions of the Defendant's probationary sentence required him to "obey the laws of the United States, or any State in which [he] may be, as well as any municipal ordinances."
In August 2012, the Defendant was arrested in Sevier County, Tennessee, on charges of burglary and possession of burglary tools. Millard Spurgeon, a co-defendant, was also charged for these offenses. A probation violation warrant was issued, and the trial court held a consolidated probation revocation hearing wherein the parties presented the following evidence: Stephanie Randles, a Tennessee State Bank employee, identified a photograph of an ATM that she installed at Gatlinburg-Pittman High School. Ms. Randles confirmed that the machine was at that location on August 19, 2012, and in good working order. Following the burglary, Ms. Randles found the ATM "completely destroyed" and "beyond repair." She stated that the ATM was replaced at the cost of $3, 044.15. She noted that $1, 540 was removed from the ATM during the burglary as an additional loss to the bank. On cross-examination, Ms. Randles agreed that she was not present during the burglary, but she stated that she went to check on the machine after notification of the robbery.
John Ogle, the Gatlinburg-Pittman High school principal, testified that he was notified by "the monitoring company" that the school alarm was engaged. Mr. Ogle consented to the company requesting the police and then drove to the school. When he arrived, the police were already present, and he found that the ATM, "a couple" vending machines, and a change machine had been broken into as well as some storage areas and a few closets. Mr. Ogle stated that the closed-circuit television system was used to determine that the perpetrators had entered through a window in the teacher's lounge.
Mr. Ogle testified that the ATM belonged to Tennessee State Bank and that the school received a fee for allowing the placement of the ATM. He noted damage to the ATM and damage to several doors in the facility. He said that the school maintenance department informed him that the damage was "a few hundred dollars." Mr. Ogle identified photographs taken from the surveillance footage. In the photographs, two men with their heads and faces covered were seen walking throughout the building. One of the men carried a crow bar and approached the ATM. In one photograph, various pieces of debris were lying on the floor around where the man leaned over the ATM.
The State played a clip of the surveillance video from August 19, 2012, at 2:40 a.m. Mr. Ogle observed that the suspect walking had a distinctive gait, a "high lift of the heel." Mr. Ogle identified the same gait at other points in the footage. One suspect was carrying a crow bar and wearing a dark-colored "hoodie, " camouflage pants, and gloves. The other suspect, with the distinctive gait, wore a camouflage coat, a red backpack, gloves, a toboggan to cover his face, and "darker-colored bottom wear." In the video footage, time stamped 2:42 a.m., Mr. Ogle stated that it appeared the man with the distinctive gait was carrying "some sort of prying device."
Mr Ogle testified about a portion of the video footage as follows:
The first individual had the crowbar wedged between the door of the ATM and the body of the unit. He placed his feet on the crowbar and his hands behind him to grant himself leverage trying to pry the door open. Now he's moved up the machine and is working on the top portion where the user interface is.
The other suspect then entered the area and laid down his backpack, from which he produced another device to work on opening the machine. The two suspects left the building at 2:43 a.m. and returned at 3:00 a.m. A portion of the ATM was open at this point, and one of the suspects began working in an area around the "cash receptacle." The surveillance footage then showed both suspects using a variety of tools to open the ATM. Approximately forty minutes later, "a large container c[a]me out, " and the suspects begin chiseling at it with a hammer and a prying device. Once this container was opened, the suspect with the distinctive gait removed the cash from the container.
On cross-examination, Mr. Ogle testified that the suspects were inside the school from approximately 2:30 to 4:30 a.m. Mr. Ogle stated that he could not identify the Defendant or his co-defendant based upon surveillance footage.
Jamila Byrd testified that in August 2012, she worked at McKinney's Market. She recalled that on the morning of August 19, 2012, Officer Gary McCarter came into the store for a cup of coffee. While there he provided her with a description of two men the police were looking for, "a taller [man who] . . . had a lazy eye, and then the other gentleman was kind of short and did some kind of walk." Ms. Byrd told Officer McCarter that she had not seen two men meeting that description. Later that same morning, between 10:30 and 11:00 a.m., a "tall gentleman" came into the store and bought lottery tickets. Ms. Byrd identified the Defendant in court as the man who bought the lottery tickets on August 19, 2012. Ms. Byrd said that the Defendant produced a "wad of money" from his front right pocket and spent approximately a "couple of hundred dollars" for lottery tickets. Fifteen to twenty minutes later, the other suspect with ...