Court of Criminal Appeals of Tennessee, Knoxville
Session Date: December 20, 2016
from the Criminal Court for Scott County No. 10113A E. Shayne
Michael Dean Sexton, was convicted of one count of theft over
$10, 000 and one count of vandalism over $10, 000. He
received concurrent sentences of nine years for each count to
be served on supervised probation. On appeal, Defendant
raises the following issues: (1) Whether the trial court
properly discharged a juror (Defendant's Issues I and
II); (2) Whether the State was required to make an election
of offenses and whether the trial court properly declined to
issue a jury instruction (Defendant's Issues III and IV);
and (3) Whether the trial court erred by permitting the name
of the co-defendant to be redacted from the indictment and
whether the trial court refused to allow Defendant to
introduce a copy of the unredacted indictment into evidence.
(Defendant's Issues V and VI). After a thorough review of
the record, we affirm the judgments of the trial court.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
A. Stuart, Clinton, Tennessee, for the appellant, Michael
Herbert H. Slatery III, Attorney General and Reporter; Robert
W. Wilson, Assistant Attorney General; Jared Ralph Effler,
District Attorney General; and David Michael Pollard, Jr.,
Assistant District Attorney General, for the appellee, State
T. Woodall, P.J., delivered the opinion of the court, in
which James Curwood Witt, Jr., J., joined. Norma McGee Ogle,
J., concurs in results only.
T. WOODALL, PRESIDING JUDGE
Reed is a "registered land surveyor" with the State
of Tennessee and has been registered as such since 1981. He
does mostly boundary surveys and a few commercial surveys.
Mr. Reed estimated that he has conducted "several
thousand" surveys since 1981.
Reed testified that he was familiar with Denzil Stephens'
residence located on Buffalo Creek Road, and he completed the
original survey of the property in 2003 for Ayers Real Estate
when Mr. Stephens purchased the property. Mr. Reed testified
that Mr. Stephens' property had a total of thirty acres
with timber and "bottom land." Buffalo Creek also
runs through the property. Mr. Reed testified that on May 14,
2010, he also surveyed a tract of the "Virgie Babb"
(Babb) property, located next to Mr. Stephens' property.
The survey was recorded in the Register of Deeds Office. Mr.
Reed testified that that particular tract of the Babb
property consisted of 109.5 acres, most of which was timber.
He said that Mr. Stephens lived in a mobile home near the
property line. Mr. Reed testified in detail concerning the
boundary line between the two properties. He noted that there
was a red painted boundary line that had been painted by the
Babb family, and some of the trees near the line had been
painted to identify the line. Mr. Reed also placed red caps
on the boundary pins that he used to mark Mr. Stephens'
property line in 2003.
Reed testified that he was later contacted by the Babb family
for a third partial survey of the property line. He
resurveyed the common line between the Stephens and Babb
property in January or February of 2012. Mr. Reed found that
one of his survey pins had been "bulldozed out."
Also, a "20-inch" popular tree that had been
previously painted red and identified as a boundary marker
had been cut and removed.
Stephens testified that he met Defendant when Defendant came
to his house asking to cut timber on Mr. Stephens'
property. He said that Defendant approached him several more
times about cutting the timber, and Mr. Stephens finally
agreed. Mr. Stephens testified that Cecil Babb walked the
property line with Defendant, and Mr. Stephens walked around
with them a "little bit." Shannon Chitwood was also
present. Mr. Stephens said that he gave Defendant a map to
use, and Defendant told him that white oak trees were the
most valuable. He was present when Mr. Babb instructed
Defendant to stay on the right or "westerly" side
of the branch that separated the properties when cutting
timber. He said that Mr. Babb was in the area almost every
day. Mr. Stephens testified that Defendant once told him to
"run Babb off because he was - he was afraid that he
would - - a tree would fall on him or something, that I had
to run him off." He said that Defendant stopped cutting
timber when Mr. Babb told Mr. Stephens that Defendant was
cutting all of the white oak trees on the Babb property. Mr.
Stephens testified that Defendant immediately left without
cleaning "all the mess up, and the branch[es], it was
supposed to be cleaned out and all that."
Babb testified that he lives on Buffalo Creek Road in Oneida.
Virgie Babb was his mother and is now deceased. Mr. Babb
testified that after his mother's death, he and his two
sisters hired Jim Reed to survey her property for the purpose
of dividing up the estate. Mr. Babb's sister, Judy Babb
Garner, was the executor of the estate and had control of the
property when Defendant began logging. In November 2011, Ms.
Garner became the sole owner of the land. Mr. Babb testified
that Defendant called him in 2011 and asked if Ms. Garner
wanted the timber cut on the property. He said that Defendant
mentioned a white oak tree that he had looked at. Mr. Babb
then placed a call to his sister. Mr. Babb testified that he
did not give Defendant permission to cut logs on the
property. He was aware that Defendant had permission to cut
logs on Mr. Stephens' property. Mr. Babb testified that
he later told Defendant face-to-face that his sister did not
want any logging done on the property. Mr. Babb testified
that he told Defendant at least two times where the property
line was located, and he had also told Defendant that he was
getting near the property line.
Babb testified that he walked up to the area where Defendant
was logging a few times, and he looked for the property line.
Defendant again mentioned the white oak tree and said that
there was some nice timber on the property. Mr. Babb said,
"I went up there with them for awhile, but I - we never
did find any markers. We never did find the point. That
wasn't the point anyway. It was above that." When
asked if Mr. Babb told Defendant to stay on the right side of
a stream that ran between the properties, Mr. Babb testified:
Well, the property marker at the end of his yard there where
it was originally surveyed was missing; the property marker
wasn't there. And that's where they claim they found
the iron bar by the locust post over there and went over
there and went up through that. And Shannon Chitwood - - I
went up there on[e] day, and he took me over there and showed
me there was a locust post with a bar by it. And so, I - -
there was no markings up through there anywhere. I
couldn't' see any other markings, and I - - so I did
give him a benefit of a doubt on that. At that time, they
were across the property line definitely, because the
property line runs right up the branch right in front of - -
right at the edge of his yard there. That's where it was
Babb testified that he saw Defendant, his employees, and
equipment on the Babb property. He said,
Well, I seen them dragging the logs in and out. I seen them
with their equipment over there, and they were over there
cutting trees. I could hear the power saws and see the dozer
dragging the trees out after they sawed the limbs off of
Babb testified that he never confronted Defendant because he
was not present "about the last week or week and a half
[Defendant] was up there. . ." He thought that Defendant
was going to "go up where he said the iron bar was by
the locust post and cut a little ways up there, then I
thought they were gonna leave." When Mr. Babb later
returned to the Babb property and discovered that Defendant
had expanded his logging operations onto the Babb property,
Mr. Babb contacted Mr. Reed about having the property
resurveyed to make certain of the property line. Mr. Babb
said that a bull dozier had been over the Babb property line,
and the property had been "devastated." He called
Ms. Garner to let her know what happened.
Babb Garner testified that she did not give Defendant
permission to cut timber on the property. She said that she
was asked about logging on the property, and her response was
"no." On January 11, 2012, Ms. Garner received a
voice mail from Mr. Babb, who sounded "distressed"
because Defendant had cut a "stand of timber" on
her property. Ms. Garner called Defendant and told him that
he was cutting timber on her property and that he was not to
cut any further. Defendant then indicated that he did not
know it was her property. Ms. Garner and her husband,
Charles, drove to the property the following weekend and took
pictures of the area. She said that there were "heaps of
trash there, and a big - - a bull dozer had come in and cut
down a road down the side of the mountain and stumps, you
know." She thought that Defendant left the area the
Shayne Ratliff of the Tennessee Department of Agriculture,
Crime Unit, testified that he investigated the timber theft
on the Babb property. He was contacted by Mrs. Garner in
March 2012, and she told him what had occurred on her
property. Investigator Ratliff advised her to file a police
report, which she did in April 2012. On May 1, 2012,
Investigator Ratliff met Mrs. Garner and her husband at the
property, and they walked the property line, which had been
recently surveyed. He could see both the old and new boundary
markers. Investigator Ratliff looked at the recent survey
prepared by Mr. Reed, and he also took a statement from Cecil
Babb and Mr. Stephens. On May 31, 2012, Investigator Ratliff
took a written statement from Defendant, and Defendant said
that Mr. Stephens walked the property line with him.
Investigator Ratliff testified that Mr. Stephens showed him
one of the survey pins on the property during his interview
of Mr. Stephens. He said that it was located approximately
twenty yards from Mr. Stephens' front door. Investigator
Ratliff then turned his findings over to the District
Attorney General. He was aware that the case against Mr.
Stephens was dismissed.
cross-examination, Investigator Ratliff agreed that he
testified to the Grand Jury and requested that Defendant and
Mr. Stephens both be charged with theft of property and
vandalism. The grand Jury then returned an indictment against
both men. Investigator Ratliff testified that he initially
intended to charge only Defendant but added Mr. Stephens
after speaking to the District Attorney General. He was aware
that Attorney Howard Ellis had written a letter on behalf of
Mrs. Garner with a sentence that read, "[I]t is well
established that [Defendant] cut the timber at the direction
of Mr. Stephens." Investigator Ratliff did not know if
that was why Mr. Stephens was also charged.
Ratliff testified that Defendant told him that he did not
knowingly cut any timber from the Babb property and that the
only timber he cut was from Mr. Stephens' property.
Investigator Ratliff could not say for certain if Defendant
cut any trees on the Babb property before or after November
11, 2011, because Investigator Ratliff was not there.
However, it was clear to him that some logging had been done
on the Babb property.
Owens was employed by American Forest Management at the time
of the offenses in this case. The company prepared a damage
appraisal report for Mrs. Garner in February 2012. Mr. Owens
went to the Babb property and used a handheld GPS device to
map the area where timber had been cut. He testified that
they counted each stump, and there were a total of 394
"hardwood" trees and 267 "pulpwood" trees
cut down and removed.
Almond is a regional forester and co-owner and vice-president
of American Forest Management. He was qualified as an expert
in timber valuation. Mr. Almond prepared a damage appraisal
for Mrs. Garner, and he determined that the value of the
timber taken from the Babb property was $12, 856.00.
Chitwood testified that he and Defendant are friends, and he
previously worked for Defendant for approximately two years.
He was working for Defendant from the fall of 2011 through
January 2012 when the present offenses took place. Mr.
Chitwood testified that he told Cecil Babb that Mr. Stephens
had found a survey pin, and he and Mr. Babb walked over to
the pin, and Mr. Babb tied a string around it. The pin was
beside a locust pole near the "branch." Mr.
Chitwood also noted that the pin was covered in soil when Mr.
Stephens found it. He said that Mr. Babb told him "long
as we stay on this side of the branch, we'd be
fine." Mr. Chitwood testified that neither he nor
Defendant crossed over onto the Babb property while logging.
He testified that Mr. Babb came to the property "every
other day." He never heard Mr. Babb say that they were
on the Babb property. Mr. Chitwood testified that the last
property marker between the Babb property and Mr.
Stephens' property was a metal pipe. He also recalled
seeing a couple of trees with red paint on them.
cross-examination, Mr. Chitwood did not recall Defendant
calling Mr. Babb and asking for permission to log the
property. He also said that Mr. Babb did not tell Defendant
that Mr. Babb would have to ask Mrs. Garner for permission to
log the property. Mr. Chitwood testified that he obtained a
survey and map of Mr. Stephens' property from the
Register of Deeds' office before he began logging. He
said that he never crossed the branch with the bulldozer.
However, Mr. Chitwood admitted that he cut a road with the
dozer. He denied cutting a tree with red paint on it or
finding any other property markers listed on the survey. Mr.
Chitwood testified that Mr. Stephens never told him that he
could cross the branch where the survey pin was found.
Whether the Trial Court Properly Discharged a Juror
(Defendant's Issues I and II).
contends that the trial court erred by dismissing a juror
before deliberations without randomly selecting one of the
thirteen impaneled jurors as an alternate. He further argues
that the trial court committed reversible error "when it
decided to excuse one of the 13 trial jurors based upon
unsworn ex parte communications between the juror
and the bailiff and a court officer."
jury is impaneled, jurors may be discharged from further
service prior to deliberations only if found by the trial
court to be "unable or disqualified to perform their
duties." Tenn. R. Crim. P. 24(f); see T.C.A.
§ 22-5-312. The decision to discharge a juror is left to
the discretion of the trial judge. State v.
Millbrooks, 819 S.W.2d 441, 445 (Tenn. Crim. App. 1991).
The defendant has the burden of showing prejudice by the
trial court's seating of an alternate juror. State v.
Max, 714 S.W.2d 289, 294. The defendant has a right to a
fair trial at the hands of an impartial jury, but such a
right does not include the right to any particular jurors.
See State v. Smith, 857 S.W.2d 1, 20 (Tenn. 1993).
that technically, the trial court did not excuse a juror
tentatively designated to deliberate at the conclusion of the
proof and substitute a juror tentatively designated as an
alternate juror. The jury was comprised of thirteen members
throughout the trial until just before deliberations, when
the "alternate" would have been selected by random
draw and immediately excused. Tenn. R. Crim. P. 24(f)(2)(A).
The purpose in starting a trial with more than twelve persons
in the jury "box" is to enable the trial to
continue to the deliberations stage in the event a juror can
no longer serve due to a situation that arises during the
trial. If the excused juror's problem had arisen in the
middle of the proof, we conclude it would be highly unlikely
that there would ...