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State v. Vance

Court of Criminal Appeals of Tennessee, Nashville

August 8, 2017

STATE OF TENNESSEE
v.
COMER THOMAS VANCE

          Assigned on Briefs July 19, 2017

         Appeal from the Circuit Court for Bedford County No. 18192 F. Lee Russell, Judge

         The defendant, Comer Thomas Vance, appeals his Bedford County Circuit Court jury conviction of felony theft, claiming that the evidence was insufficient to support his conviction and that the prosecutor's closing argument was improper. Discerning no error, we affirm.

         Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

          James Ronald Tucker, Jr. (on appeal and at trial) and Brian Belden (at trial), Assistant District Public Defenders, for the appellant, Comer Thomas Vance.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Robert J. Carter, District Attorney General; and Michael D. Randles and Richard A. Cawley, Assistant District Attorneys General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which John Everett Williams and Timothy L. Easter, JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE.

         In January 2016, the Bedford County Grand Jury charged the defendant with one count of theft of property valued at $1, 000 or more but less than $10, 000. The trial court conducted a jury trial in November 2016.

         The State's proof at trial showed that in June 2015, the victim, Scotty Colwell, was a full-time student at Middle Tennessee State University and worked part-time for a construction company while living in Smithville. The victim owned a 2004 black Mazda 3 hatchback ("the Mazda") that he estimated to be worth between $4, 500 and $5, 000 in June 2015.

         At approximately 6:00 a.m. on June 22, 2015, the victim's foreman picked the victim up from his residence to drive him to work. Before leaving, the victim retrieved his tool belt from the Mazda, which was parked in his driveway, and he inadvertently left his car keys on the seat of the unlocked Mazda. About two hours later, the victim's girlfriend called him at work to inquire about the location of the Mazda because it was no longer parked in the victim's driveway.

         The victim's supervisor drove him to the police station so that he could file a report of the theft. The victim provided Detective Matthew Holmes with a full description of the Mazda, including the vehicle identification number ("VIN"). The victim also informed Detective Holmes that the Mazda contained a global positioning system ("GPS") as well as the victim's daughter's baseball equipment.

         Sometime later, a law enforcement officer contacted the victim to inform him that the Mazda had been located. The baseball equipment was recovered but the GPS was never recovered. The driver's side door had a large scratch, and the vehicle "was completely full of cigarette[] butts." The victim testified that he had never met or heard of the defendant and that he never gave him permission to take the Mazda.

         On June 23, 2015, Shelbyville Police Department Patrolman Bobby Peacock received a call about a suspicious vehicle parked behind a local church. When Patrolman Peacock arrived at the scene, he discovered a black Mazda, but when he checked the Mazda's license plate, he learned that the plate was registered to a Nissan Quest minivan that was owned by the family of Erica Gasbar, who resided across the street from the church. Upon running a search for the Mazda's VIN, Patrolman Peacock learned that the vehicle had recently been reported as stolen.

         Patrolman Peacock spoke with Ms. Gasbar, who informed him that the Nissan's license plate had recently been stolen and that she had seen a white male at the house next door driving a black vehicle. Ms. Gasbar identified the defendant as the man she had seen driving the black vehicle, explaining that she had seen him on approximately five prior occasions with Brandy Boyce, who resided next door. Ms. Gasbar testified that shortly after seeing the defendant driving the black vehicle, she noticed that the license plate was missing from the family's Nissan.

         Brandy Boyce, the Gasbars' next-door neighbor, testified that she and the defendant had been involved romantically but that the two had ended their relationship in May 2015. While the two were dating, Ms. Boyce would drive to Smithville to visit the defendant because he did not have a car. In June 2015, the defendant "showed up" at Ms. Boyce's residence driving a black Mazda. When Ms. Boyce asked the defendant whose car he was driving, the defendant responded that he had borrowed it from a friend. The defendant then gave Ms. Boyce a "little girl's bat bag" and baseball bat; he told her that "a friend" had given the items to him, and the defendant wanted Ms. Boyce's daughter to have them. Later that evening, the defendant and Ms. Boyce drove the Mazda to the grocery store, and when they returned, the defendant parked the Mazda "[b]ehind the church across the street."

         The following morning, June 23, Ms. Boyce was awakened by detectives knocking on her door. Shelbyville Police Department Detective Brian Crews asked Ms. Boyce if anyone else was present in the residence, and she informed him that the defendant was inside. Detective Crews asked to speak with the defendant and asked Ms. Boyce to locate the keys to the black Mazda. Ms. Boyce was unable to find the keys on the kitchen counter where she had placed them the previous night. After the detectives spoke with the defendant outside, the detectives located the car keys behind an artificial tree in the corner of Ms. Boyce's bedroom. Ms. Boyce also showed Detective Crews the pink baseball bag and bat that the defendant had given her; Detective Crews noticed that the victim's last name was on both the bag and the bat.

         Ms. Boyce testified that the defendant was a "[p]retty heavy" smoker, estimating that the defendant smoked a "[p]ack or more" per day. Ms. Boyce denied taking the Mazda from Smithville or ever seeing the Mazda before the defendant arrived at her residence.

         With this evidence, the State rested. Following a Momon colloquy, the defendant elected not to testify and presented no proof.

         Based on this evidence, the jury convicted the defendant as charged of theft of property valued at $1, 000 or more but less than $10, 000. Following a sentencing hearing, the trial court sentenced the defendant as a career offender to a term of 12 years' incarceration, to be served consecutively to the defendant's sentence in Warren County under docket number F14157 and "any other sentence." Following the denial of his timely motion for new trial, the defendant filed a timely notice of appeal.

         In this appeal, the defendant contends that the evidence adduced at trial was insufficient to support his conviction and that the prosecutor's closing argument ...


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