Assigned on Briefs April 12, 2016
from the Circuit Court for Dyer County No. 14-CR-241 R. Lee
Moore, Jr., Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in Part and Reversed in Part
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.
T. Woodall, P.J., delivered the opinion of the court, in
which Alan E. Glenn and Robert H. Montgomery, Jr., JJ.,
T. WOODALL, PRESIDING JUDGE
- Theft Offense
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.
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
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."
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,