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State v. McCaig

Court of Criminal Appeals of Tennessee, Jackson

December 19, 2016

STATE OF TENNESSEE
v.
DANIEL McCAIG

          Assigned on Briefs April 12, 2016

         Appeal from the Circuit Court for Dyer County No. 14-CR-241 R. Lee Moore, Jr., Judge

         Following a jury trial in the Dyer County Circuit Court, Defendant, Daniel McCaig, was found guilty of misdemeanor theft. Defendant appeals this conviction. The theft charge was in Circuit Court by virtue of Defendant's appeal from a conviction for the offense following a bench trial in the Dyersburg Municipal Court. The Dyersburg Municipal Court also partially revoked Defendant's probation in an unrelated offense. Defendant appealed both judgments to the Circuit Court for de novo review. Defendant was sentenced by the Circuit Court to serve 11 months and 29 days in the Dyer County Jail for the theft conviction. The Circuit Court judge (hereinafter "trial judge") also revoked his probation on the other case and ordered him to serve that sentence concurrently with the sentence for theft. Defendant has also appealed to this court the revocation of probation. In this appeal, Defendant raises the following issues for our review: 1) the evidence was insufficient to support his theft conviction; and 2) his due process rights were violated by the State's failure to provide written notice of the allegation against him which was the basis for the trial court's revocation of probation. Having reviewed the record and the briefs of the parties, we conclude that the evidence was sufficient to support Defendant's conviction for theft. We also conclude that the written notice to Defendant of his probation violation did not include the theft charge, and therefore, that ground cannot be a basis to revoke probation. Furthermore, the trial court failed to base its decision on a de novo review. Therefore, we affirm Defendant's theft conviction and reverse the trial court's revocation of Defendant's probation, and dismiss the probation violation warrant.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part and Reversed in Part

          James E. Lanier, District Public Defender; Martin E. Dunn, Assistant Public Defender, and Sean P. Day, Assistant Public Defender (on appeal); and Martin Dunn, Dyersburg, Tennessee (at trial), for the appellant, Daniel Leon McCaig.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; C. Phillip Bivens, District Attorney General; and Charles Dyer, Assistant District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE

         Facts - Theft Offense

         Amber Brimm, a loss prevention employee of Walmart in Dyersburg, testified that she was working on March 19, 2014. She knew Defendant prior to that date. She saw Defendant walk past her, and he was holding two packages of Ear Pro earplugs. She testified that Defendant "had them like tucked under, like trying to hide them." Ms. Brimm watched Defendant walk to the drink aisle, select a drink, and then walk to another aisle, where he "squatted down to the floor, stretched out his left leg and put [the ear plugs] in his pocket." Defendant then proceeded to use the self-checkout to purchase a four-pack of Monster drinks. Ms. Brimm watched as Defendant checked out, and Defendant did not scan the earplugs.

         Ms. Brimm approached Defendant in the store vestibule, which she testified was past the "last point of sale." Defendant went back inside the store with Ms. Brimm. Ms. Brimm was walking through the store with Defendant headed to the store offices, and Defendant "started hollering about how we can't hold him against his will, can't do this to him." Defendant took the earplugs out of his pocket, threw them onto a store display, and ran out of the store. Ms. Brimm testified that the value of the ear plugs was $34.96.

         A store surveillance video was played for the jury. Ms. Brimm identified Defendant in the video recording, which showed Defendant in the sporting goods section of the store where the ear plugs were sold and in the drink aisle. She identified Defendant "carrying the Monster [drink] and the ear buds. They're in his left hand."

         Defendant testified that he went to Walmart on March 19, 2014, to buy drinks for work. Defendant worked at Dyersburg Pallet, building pallets. Defendant testified that he "was a little early for work, " so he walked around the store. Defendant was looking for safety glasses, but the store did not have what he was looking for. Defendant then picked out drinks and paid for them at the self-checkout. On cross-examination, Defendant testified that he saw the earplugs in the sporting goods section, but he did not take them off the rack. He testified,

Q. You say you didn't take anything off the rack?
A. No, sir.
Q. You also saw the video when you went over to the drink aisle over there and you squatted down on the ground, ...

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