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State v. Petty

Court of Criminal Appeals of Tennessee, Nashville

October 5, 2017

STATE OF TENNESSEE
v.
DAVID ROGER PETTY Conviction Offense County & Docket # Felony Class per T.C.A. 40-35-118 Date of Judgment

          February 14, 2017 Session

         Appeal from the Criminal Court for DeKalb County No. 2015-CR-12 Gary McKenzie, Judge

         Defendant, David Roger Petty, was indicted for aggravated burglary and theft of property valued at $1, 000 or more, but less than $10, 000. Following a jury trial, Defendant was convicted as charged. The trial court ordered concurrent sentencing for an effective sentence of 15 years in confinement. In this appeal as of right, Defendant contends that: 1) the evidence was insufficient to support his convictions; 2) the trial court erred in sentencing him; 3) the trial court erred by allowing a State's witness to testify last despite having been present during the testimony of the two preceding witnesses; and 4) the trial court erred by allowing the State to use evidence of Defendant's prior theft convictions for impeachment purposes. Having reviewed the entire record and the briefs of the parties, we affirm the judgments of the trial court.

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

          Craig P. Fickling, District Public Defender; and Allison R. West, Assistant Public Defender (on appeal) and Michael Auffinger, Smithville, Tennessee (at trial) for the appellant, David Roger Petty.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Bryant C. Dunaway, District Attorney General; and Stephanie Johnson, Assistant District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE

         Facts

         On July 8, 2014, Jonathan Walls left his house about 11:30 a.m. and returned approximately one hour later. When he returned home, he found that a door had been kicked in and his wife's jewelry box was missing. Mr. Walls called the police to report the incident. Mr. Walls did not see the perpetrator at the residence.

         Tracy Ann Walls, Mr. Walls' wife, returned home from work after Mr. Walls called her and told her about the break-in. She saw that the side door was "smashed in." She observed that her jewelry box had been taken from their bedroom. She testified that her jewelry box contained approximately eight to ten necklaces, valued at approximately $1, 000; a wedding ring set, valued at approximately $800; a diamond pendant, valued at approximately $250; "numerous silver earrings, " valued at approximately $300; an amethyst bracelet, valued at approximately $75; and "numerous silver rings, " valued at approximately $60. The value of these items was $2, 485. Ms. Walls estimated that the total value of all the stolen jewelry was over $3, 000. After the burglary, Mr. and Ms. Walls looked for her jewelry in local pawn shops. They found some of Ms. Walls' jewelry at a pawn shop in McMinnville and reported it to the lead detective in the case.

         Detective Robert Patrick, of the DeKalb County Sheriff's Office, investigated the burglary of the Walls' residence. Detective Patrick testified that Ms. Walls identified some of the items of jewelry stolen from her home at First Choice Pawn Shop. Some of Ms. Walls' jewelry was recovered from the pawn shop. Detective Patrick also discovered that Defendant sold some of Ms. Walls' jewelry to Granny's Gold Mine, a jewelry store in DeKalb County. When Detective Patrick questioned Defendant, Defendant denied that he stole jewelry from Ms. Walls' home. Defendant stated that his co-defendant, Anthony Colwell, stole the jewelry. Defendant stated that he pawned the jewelry because his co-defendant did not have identification. Detective Patrick testified, "that's ironically the same thing the co-defendant said." There was no further testimony about what "the co-defendant said, " thus it is not clear whether the co-defendant admitted to committing the burglary and taking the jewelry by himself, or whether the co-defendant was denying his own involvement in the burglary and taking of the jewelry. Defendant also stated that he stole some of the items of jewelry from his co-defendant and sold them by himself "to make him a little extra money."

         Lori Doublestein testified that she had been the manager at First Choice Pawn and Jewelry for five years. She testified that she knew Defendant and that he was "one of [her] customers." On July 8, 2014, the same day the Walls' home was burglarized, Defendant and another man entered the store. Ms. Doublestein testified that Defendant brought in "quite a bit of jewelry." The jewelry included a necklace with a mariner's cross, which Ms. Walls identified as one of the necklaces missing from her home. Ms. Doublestein testified that Defendant told her not to "be loud" when she gave him the total payment for the jewelry, because he did not want the man who was with him to hear her. Ms. Doublestein made a copy of Defendant's driver's license and paid him for the jewelry. Ms. Doublestein testified that Defendant had been in the store again the week prior to trial, and he asked if she remembered how much she had paid him "because he wanted to make things right." Ms. Doublestein did not accept any money from Defendant.

         Sandra Kay Petty, Defendant's wife, testified that Anthony Colwell, the co-defendant, came to her house on July 8, 2014, and Defendant left with him.

         Defendant did not testify or present any other evidence at trial.

         Sentencing hearing

         Bradley Gabbert, an employee of the Tennessee Department of Correction (TDOC), testified that he prepared the presentence report. Mr. Gabbert testified that Defendant had "a very extensive criminal history." He testified that Defendant's prior convictions included shoplifting, misdemeanor theft, DUI, disorderly conduct, assault with intent to commit a felony, kidnapping, sale of marijuana, and burglary. Defendant had previously violated parole twice, and he violated probation five times. Mr. Gabbert testified that Defendant had 11 prior convictions, including six prior felonies.

         Megan Stone, another TDOC employee, met with Defendant during the preparation of the presentence report. Ms. Stone testified that Defendant stated that he had been using drugs for "about 30 years." Ms. Stone asked Defendant to submit to a drug screen, and Defendant initially refused, stating that he was not on probation or parole. Ms. Stone explained that the trial court had ordered a drug screen, and Defendant submitted to the drug screen. Defendant tested positive for marijuana, benzodiazepines, and multiple opiates. Defendant stated that he did not have any prescriptions and that he bought pills from friends.

         Detective Patrick testified that he recovered some of Ms. Walls' jewelry at a pawn shop in Warren County. He testified that the pawn shop had paid "roughly" $175 for the jewelry. He testified that he recovered more of Ms. Walls' jewelry at Granny's Gold Mine, and he was "not quite sure on the amount of restitution owed to Granny's Gold Mine." He testified that the value of the property taken from Mr. and Mrs. Walls was $2, 000.

         Defendant testified that he fully cooperated with the investigation. Defendant testified that Colwell asked him to go with him to sell some jewelry. He stated that Colwell did not tell him where he got the jewelry. Defendant added that he had been to the emergency room the week prior to sentencing and was diagnosed with pancreatitis. He testified that his "aorta needs cleaned out, and they took [his] gallbladder." Defendant claimed that he had "four holes in [his] stomach." He was scheduled to return to the hospital the following week. He said that if doctors did not clean out his aorta, it was going to kill him.

         Defendant testified that he received food stamps and that he had no other source of income. He said that he had "filed for disability two or three times in the past" and that he had been "waiting on a decision for four years now." He testified that he had been living with his sister "[o]n and off" since 2003.

         On cross-examination, Defendant acknowledged that he had an extensive criminal history. He also acknowledged that his drug use "probably caused some of" his health conditions. Defendant testified that he believed the jewelry Colwell asked him to pawn came from Colwell's girlfriend.

         At the conclusion of the sentencing hearing, the trial court stated that it had considered the evidence at trial, the presentence report, the principles of sentencing and argument as to sentencing alternatives, the nature of the criminal conduct, and the statutory mitigating and enhancement factors. The trial court found that Defendant had seven prior felony convictions and classified Defendant as a career offender. The trial court considered Defendant's extensive criminal history as an enhancement factor, but noted "I don't think it really matters, because I've classified him as career. . . . But I do, just for the record, say the prior criminal history and the multiple convictions certainly weigh strong for the state." The trial court gave little weight to the mitigating factor that Defendant's conduct did not cause serious bodily injury. The trial court noted, "[w]hen you commit that type of behavior, you are opening yourself up to a confrontation in an individual's home, which could lead to violence." The trial court also considered the mitigating factor that Defendant was motivated by a desire to provide necessities for himself or his family and that Defendant "did attempt to, I guess, make good on the debt . . . but that did occur after detection." The trial court determined that those factors were not entitled to much weight. The trial court found that confinement was necessary to avoid depreciating the seriousness of the offense and to protect society from a criminal with a long criminal history. The court concluded that measures less restrictive than confinement had frequently been applied unsuccessfully.

         The trial court sentenced Defendant to serve 15 years for aggravated burglary and 12 years for theft, to be served concurrently, which the court noted was the "maximum sentence allowable by law, " because the two convictions "will merge." The merger analysis was misplaced. During the sentencing hearing, the trial court, with the explicit approval of and agreement by the prosecutor, concluded that theft is a lesser included offense of aggravated burglary, based on the reasoning that theft is a lesser included offense of robbery. "Robbery is the intentional or knowing theft of property from the person of another by violence or putting the person in fear." T.C.A. § 39-13-401(a). Robbery cannot be committed unless a theft is committed. Thus, theft is a lesser included offense of robbery. As charged in the indictment in this case, aggravated burglary is the entering of a habitation, without the effective consent of the owner, with the intent to commit theft. No theft is necessary to prove aggravated burglary. The State was only required to prove the intent to commit a theft. T.C.A. ยงยง 39-14-402, -403. In any event, judgments were properly entered without merger of the theft conviction with the aggravated burglary conviction. The trial court ultimately sentenced Defendant as a Range III ...


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