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State v. Sexton

Court of Criminal Appeals of Tennessee, Knoxville

August 17, 2017


          Session Date: December 20, 2016

         Appeal from the Criminal Court for Scott County No. 10113A E. Shayne Sexton, Judge

         Defendant, 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

          David A. Stuart, Clinton, Tennessee, for the appellant, Michael Dean Sexton.

          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 of Tennessee.

          Thomas 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.




         State's Proof

         Jim 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.

         Mr. 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.

         Mr. 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.

         Denzil 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."

         Cecil 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.

         Mr. 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 surveyed.

         Mr. 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 them.

         Mr. 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.

         Judy 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 following day.

         Investigator 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.

          On 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.

         Investigator 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.

         Neal 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.

         Jake 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.

         Defendant's Proof

         Shannon 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.

         On 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.


         I. Whether the Trial Court Properly Discharged a Juror (Defendant's Issues I and II).

         Defendant 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."

         Once a 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).

         We note 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 ...

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