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State v. Firestone

Court of Criminal Appeals of Tennessee, Jackson

February 16, 2017

STATE OF TENNESSEE
v.
DAVID TROY FIRESTONE

          Assigned on Briefs December 6, 2016

         Appeal from the Circuit Court for Madison County No. 15-473 Donald H. Allen, Judge.

         David Troy Firestone ("the Defendant") pled guilty to burglary and theft of property. At a bench trial, the trial court found that the value of the stolen property was over $10, 000. The trial court sentenced the Defendant to concurrent sentences of four years for the burglary conviction and to five years for the theft of property conviction as a Range I standard offender. On appeal, the Defendant argues that the evidence was insufficient to establish that the value of the stolen property exceeded $10, 000, that he was improperly sentenced, and that the trial court erred in ordering the Defendant to pay $5, 000 in restitution to Storage Town of America. After a thorough review of the record and case law, we affirm the Defendant's convictions and sentences but reverse and vacate the trial court's order of restitution to Storage Town of America.

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

          Gregory D. Gookin, Jackson, Tennessee, for the appellant, David Troy Firestone.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Jerry Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE.

         I. Factual and Procedural Background

         Guilty Plea Proceeding

         On December 21, 2015, the Defendant pled guilty pursuant to a plea agreement to burglary and theft of property. Under the plea agreement, the value of the stolen property relating to the theft charge would be determined at a bench trial, the Defendant's sentences would run concurrently, and the State would not seek a fine.

         The State offered the following recitation of facts supporting the Defendant's guilty plea:

Your Honor, April 30th, 2015, [the Defendant] did unlawfully enter a building being Storage Town of America without the effective consent of the owner with the intent to commit theft of property and on that same day he did knowingly obtain or exercise control over property. The State contends it was equal to or over the value of $10, 000 and [the Defendant] admits at least $1[, ]000 without the effective consent of the owner being Alma Cole with intent to deprive the owner of the property.
Ms. Cole went to her storage unit at Storage Town of America on Wiley Parker which was No. 88[] [and] noticed it had been burglarized. They suspected the person next door in No. 87. [Ms. Cole] [f]ound that [the Defendant] had gained entry through the wall and had stolen the items. [The Defendant] did admit to doing that at least $1[, ]000 worth of property. All of that was without the consent of Storage Town of America as well as Ms. Cole. . . . [The Defendant] did admit he took screws out of the metal wall between the two storage units to gain entry into her unit. Some empty boxes of things that were in her unit were found in his unit next door when they went and looked inside of his unit because he was delinquent on that unit. The owner went and looked inside and it all occurred in Madison County, Tennessee.

         Bench Trial

         At the bench trial, Ms. Alma Cole testified that she rented a storage unit at Storage Town of America in April 2015. Ms. Cole stated that she stored "[a]ll [her] clothes, gym shoes, Under Armo[u]r gym shoes, Nike Air Max, [and] leather jackets[]" in her storage unit. Ms. Cole stated that she "pretty much lived in and out of the storage [unit]." Ms. Cole testified that in May 2015 she visited her storage unit and realized someone had broken into her unit and stolen items. Ms. Cole stated that the Defendant "had [taken] the screws out of a unit next to [hers] that was empty" to gain access to her unit. Ms. Cole reported the theft to Storage Town of America as well as the police. Ms. Cole testified that the Defendant stole a white basket, a black box with jewelry, Under Armour shoes, Nike Air Max shoes, Michael Kors shoes, clothing, leather belts and key chains, and personal items such as a photograph album and letters. Ms. Cole stated that the Defendant also stole a bag of receipts for items that were stored in the unit. Ms. Cole also testified that the only items in her unit that were not stolen were her Nine West shoes. Ms. Cole was unable to produce receipts for many of the gym shoes because she kept the receipts for the shoes in the shoe boxes, which were also stolen. Ms. Cole paid $200 and $160 to replace two of the pairs of stolen gym shoes. She estimated that the Defendant took between 110 and 115 pairs of gym shoes and fourteen pairs of boots. Ms. Cole testified that the gym shoes cost approximately $180-$200 a pair when she purchased them, and she stated that the boots were valued between fifty and sixty dollars a pair. Ms. Cole testified that two leather jackets were stolen and estimated their value to be $500 for both. Ms. Cole also stated that a Nine West orange pantsuit valued at $140 was stolen, along with several swimsuits valued at a total of $200. Ms. Cole testified that the value of all of the items taken by the Defendant was between $12, 000 and $13, 000. Ms. Cole stated that Storage Town of America gave her $5, 000 to cover the loss of her property from the storage unit, but she had not been compensated for $5, 000-$6, 000 of property.

         On cross-examination, Ms. Cole testified that her contract with Storage Town of America stated that Storage Town of America would only reimburse customers whose property was stolen up to $5, 000 because it assumed that individuals would not store more than $5, 000 of property in a unit. Ms. Cole agreed that her contract with Storage Town of America stated that "the occupant agrees not to store irreplaceable property or property having special or sentimental value and specifically waives the right to make claims for special or emotional value to a stored property[.]" Ms. Cole agreed that she told the police on May 13, 2015, that only forty pairs of Nike Air Max shoes had been stolen based on a previous estimate of the number of shoes in her unit, but she stated that she knew that she had more than forty pairs of gym shoes in her storage unit before the theft. Ms. Cole agreed that, in her victim impact statement, she stated that 140 pairs of gym shoes were stolen. Ms. Cole explained that she kept her property in her storage unit because she moved in with her sister after her sister had suffered a stroke, and she was renting her house to other people.

         The Defendant testified that he rented an empty storage unit next to Ms. Cole's unit on the same day as the theft. After he stole the property, the Defendant took the items to Memphis and sold them to a consignment store for $185, which he split with another individual who assisted with the burglary and theft.[1] The Defendant testified that he stole approximately twenty pairs of gym shoes, two or three pairs of boots, two leather jackets, and a basket with fragrances and bath products from Ms. Cole's storage unit. The Defendant stated that because he "had a bunch of stuff in the back of the truck, " he "couldn't fit much" else in the truck. The Defendant agreed that the value of the stolen property exceeded $1, 000 and estimated the total value of the stolen property to be $5, 000-$6, 000. The Defendant testified that he did not steal personal items such as photographs, letters, or a bag of receipts. On cross-examination, the Defendant stated that he was under the influence of methamphetamine during the burglary and theft. The Defendant testified that he used his share of the money earned from the theft to purchase insulin, gas, food, and drugs. The Defendant also apologized to Ms. Cole for the theft. The trial court credited Ms. Cole's testimony regarding the number of pairs of shoes that were stolen and the approximate total value of the stolen property. The trial court found that the value of the stolen property was greater than $10, 000 and determined that the Defendant was guilty of theft of property over $10, 000, a Class C felony.

         Sentencing Hearing

         At a subsequent sentencing hearing, the trial court stated that it had considered the evidence presented at the guilty plea, the evidence and testimony presented at the bench trial, and the presentence report. The trial court also stated that it had considered "the nature and characteristics of the criminal conduct involved." The trial court found that the Defendant was a Range I standard offender. As to enhancement factors, the trial court found that the Defendant had "a previous history of criminal convictions or criminal behavior in addition to that necessary to establish the appropriate range[]" and gave "great weight" to that factor. The trial court noted that the Defendant was charged with "a weapons offense" in Galveston County, Texas, in 1998 and that the Defendant had active arrest warrants from Copiah County, Mississippi for "'taking possession of or taking away a vehicle'" and for grand larceny, at the time of the sentencing hearing. The trial court also noted that the Defendant had an outstanding bench warrant from Hines County, Mississippi for burglary of a storage unit and that the Defendant had been arrested in Louisiana as a "fugitive from justice." The trial court noted that the Defendant had "absolutely no ties to Jackson, Madison County, Tennessee[, ] other than the fact that he came here at some point and rented a storage unit at Storage Town of America[]" and used that storage unit to break into Ms. Cole's unit. The trial court also noted that the Defendant admitted in the presentence report to using methamphetamine "on an almost daily basis for almost 21 years . . . ." The trial court found that the Defendant "was a leader in the commission of an offense involving two or more criminal actors[]" and gave this factor "moderate weight."

         Regarding mitigating factors, the trial court found that "the [D]efendant's conduct neither caused nor threatened serious bodily injury[]" and that the Defendant had pled guilty and "accepted responsibility for his actions" and gave these factors slight weight for mitigation purposes. The trial court noted that the Defendant's work history was "very sporadic." The trial court sentenced the Defendant to four years for burglary and to five years for theft of property over the value ...


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