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State v. Moore

Court of Criminal Appeals of Tennessee, Knoxville

November 28, 2017


          Assigned on Briefs October 11, 2017

         Appeal from the Criminal Court for Hamilton County No. 297629 Thomas C. Greenholtz, Judge

         Melanie C. Moore, the Defendant, entered an open plea of guilty to Class C felony theft of property valued at $10, 000 or more but less than $60, 000 (Count 1), Class D felony, theft of property valued at $1, 000 or more but less than $10, 000, (Count 2), Class E felony reckless endangerment (Count 3), and Class A misdemeanor escape (Count 4). The trial court sentenced the Defendant to four and one-half years on Count 1, three years on Count 2, two years on Count 3, and three months for Count 4. The trial court ordered Counts 2, 3 and 4 to be served consecutively to Count 1 but concurrently with each other for an effective sentence of seven and one-half years. The trial court ordered Count 1 to be served in the Department of Correction and suspended the other sentences. On appeal, the Defendant argues that the trial court abused its discretion in its sentencing decisions. After a thorough examination of the facts and applicable case law, we affirm the sentences except for the partial consecutive alignment of the misdemeanor escape. We remand for correction of the judgment sheets to provide for consecutive alignment of Count 4 with Counts 2 and 3.

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

          Steve Smith, District Public Defender, and Coty Wamp, Assistant District Public Defender, for the appellant, Melanie C. Moore.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Neal Pinkston, District Attorney General; and Ancharlene Davis, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Camille R. McMullen, JJ., joined.



         I. Factual and Procedural History

         The facts underlying the Defendant's guilty plea were set out in the Defendant's presentence report as the following:[1]

On October 1[4], 2015, at approximately [5:36 p.m., ] police were dispatched to [Camp Jordan Park][2] concerning a motor vehicle theft that had occurred. Dispatch advised that the victim[, ] Brittany Walston[, ] was following [the Defendant, who was driving the victim's] . . . vehicle. Police were given a vehicle description of a white 2010 Volkswagen Jetta and were advised that the vehicle had stopped at 400 Scruggs Road. Police located the vehicle and made contact with [the Defendant].
The vehicle was confirmed to be the stolen vehicle from Camp Jordan. [Ms.] Walston advised police that she had just parked at Camp Jordan Park when the [Defendant] jumped in the back seat and started yelling "Give me a f[***]ing ride." [Ms.] Walston got out of the vehicle and the [Defendant] then drove off with the vehicle. Upon further investigation[, ] it was found that the [Defendant] had also stolen a vehicle with two juvenile children inside in Catoosa County, Georgia. The description of the stolen vehicle from Catoosa County was a 2001 black Ford Escort. This vehicle and the two missing juveniles were also recovered at Camp Jordan Park. Witnesses advised that the [Defendant] drove the Ford Escort through the chain link fence, across the playground with children present, through a second section of the fence, across the field at the amp[hi]theater, an[d] then attempted to drive through a third section of the fence where the vehicle was disabled. [The Defendant] was taken into custody for two counts of theft and two counts of reckless endangerment. While police walked [the Defendant] into the East Ridge Police Department for booking[, ] [the Defendant] fled on foot from police. Police caught [the Defendant] in the parking lot and escorted her inside the building. Police stated [that] charges would follow in Catoosa County.

         The Defendant entered an open plea of guilty to theft of property valued at $10, 000 or more but less than $60, 000, theft of property valued at $1, 000 or more but less than $10, 000, reckless endangerment, and misdemeanor escape.

         Sentencing Hearing

         At the Defendant's sentencing hearing, Detective Tim Deal testified that he worked for the Catoosa County Sheriff's Department in Georgia and that he specialized in crimes against children. He stated that he became involved with the Defendant's case on October 14, 2015. Detective Deal responded to the scene where the two minor children were kidnapped in Ringgold, Georgia, and interviewed witnesses. He explained that the Defendant kidnapped the two children, ages seven and five, while the children's mother visited a family member. Approximately an hour and ten minutes later, Detective Deal was notified that the East Ridge Police Department had found the missing children and vehicle. On cross-examination, Detective Deal agreed that a witness stated that, at the Camp Jordan Park, the minor victims exited the vehicle and were playing on the playground while the Defendant was "on the cell phone." The witness also stated that the Defendant attempted to get one of the minor victims back into the vehicle and then drove in circles around the park and wrecked into a fence.

         H.P.[3] testified that she lived in Georgia with her five and six years old sons at the time of the offenses. On the day of the offenses, H.P. drove her brother-in-law to his house with her children in the backseat of her 2001 black Ford Escort. After arriving, H.P. ran into the house to pick up her gas money while her children slept in the backseat. She explained that she asked her brother-in-law to stand next to the vehicle while she ran inside, but he came inside. When H.P. exited the house, her vehicle and her minor children were gone. Approximately an hour and ten minutes after she called 911, H.P. learned that her vehicle and children had been located at Camp Jordan Park. H.P. stated that she did not know the Defendant and had not seen her before the offenses.

         L.P. stated that he was eight years old and in the second grade. L.P. stated that, on the day of the offenses, his mother picked him and his brother up from school; he got into the backseat of the vehicle and fell asleep. When he woke up, another woman was driving the vehicle, and his brother was still asleep in the backseat. L.P. stated that the woman drove the vehicle to a horse farm, where she stopped the vehicle. The woman got out of the vehicle and used her phone for approximately twenty minutes. The woman then drove to a playground, where L.P. and his brother got out of the vehicle and began playing. Then the woman restarted the vehicle and she "was backing up and then she came back and she almost hit [L.P.]." The woman drove the vehicle through a fence, and a man helped him get out of the way of the vehicle. The vehicle got stuck in the fence, and the woman "got out and ran."

         Kayla Clay testified that on October 14, 2015, she was walking at Camp Jordan Park when she "heard a really loud noise that sounded like tires squealing and then like metal scraping." Ms. Clay walked around the edge of the amphitheater and observed a "black car out in the field and it was just like the dirt was going everywhere." The black vehicle then attempted to drive through a fence but got stuck. Ms. Clay went to the playground and saw a man with several children who stated that "the lady had just dropped the kids off there." Ms. Clay asked the children if the woman driving the vehicle was their mother; they responded that they did not know her. Ms. Clay called 911 to report the incident and stayed with the children.

         The Defendant testified that she was originally from Georgia; she became pregnant at fifteen and moved out of her family's house. She stated that she had two adult children and one minor child. The Defendant explained that she cared for her minor child until she was incarcerated for the current offenses; her minor child was currently in foster care. She stated that she was "going to do everything in [her] power to get [her minor child] back." The Defendant stated that her father was currently incarcerated, and her mother was out on bond. She stated that she was employed at Bud's Sports Bar "[o]n and off for seven years" until May 2015. The Defendant admitted that she had used marijuana from the age of twelve and that she "took pills a lot." Regarding her mental health, the Defendant explained that, in 2015, her grandfather and best friend died; she was in a car accident; and she lost her job and apartment. The Defendant stated that she remembered that her cousin sexually assaulted her as a child and that she experienced paranoia. She stated that she heard voices that told her she needed to go to jail and that she "called the police on [her]self." She also heard Bible verses in her head, specifically that she needed to "lie down in green pastures, " and she believed that the "mafia" was following her.

         On October 14, 2015, the Defendant walked down the street, and she saw a black vehicle in a driveway. She saw a woman walk into a house next to the driveway, and a man "walked in right behind her." She stated that the man said "hey girl" to her, and she "thought [that] he was giving [her] a sign that [she] needed to walk over there." When she walked over to the vehicle, she saw that the keys were in the vehicle, and she "thought it was a good way to go [to] jail." She explained that she did not want to go to jail, but "the voices told [her] to." She got into the vehicle and began to back the vehicle out of the driveway when she realized that children were in the backseat. She stated that the children "started waking up and they were acting like they knew [her] and said they had their bags packed in the back." The Defendant continued to back the vehicle out of the driveway and drove off. While she was driving, the Defendant saw a sign with kissing sea horses and decided to pull over. She then drove to the playground at Camp Jordan Park. She stated that the children "told [her] that they had their scooter in the trunk so [she] popped the trunk and they rode their little scooters around." The Defendant observed a man and a little girl who were also at the park. The Defendant got back in the vehicle, did "doughnuts" in a field next to the playground, and then "parked the car into the fence[.]" She then "ran across [to] where [she] had done the doughnuts and opened the back door of the girl's Jetta and said will you give me a ride down the street." The Defendant drove off in the Jetta but later parked and waited for police to arrive. After she was taken to the police department, she explained that she "stumbled a couple of steps because [she] ha[d] . . . the rod in [her] leg . . . ." The Defendant asserted that she did not run from the police officer.

         The Defendant testified that she did not know what her intentions were when she took H.P.'s vehicle. She stated that she "thought [she] was doing something crazy to get into heaven like the letter said." She explained that she had never seen a mental health professional until she was incarcerated for the current offenses. She stated that, after she was incarcerated, she began taking an antipsychotic medication, a mood stabilizer, and a medication for "side effects." Her mental health symptoms lasted for about two months after the offenses while she was housed in solitary confinement. The Defendant believed that she could successfully complete probation, and she intended to continue taking her medications and obtain mental health treatment. The Defendant accepted responsibility for her actions.

         On cross-examination, the Defendant agreed that she had previously been convicted of other offenses, such as leaving the scene of an accident in 2015, driving under the influence in 2014, possession of marijuana in 2004, and forgery and theft in 2002. The Defendant agreed that, at the time of offenses, she was living with her mother in a house down the street from H.P.'s house. The Defendant denied that, on the day of the offenses, her family members offered to help her with her drug problem and that she refused assistance. She was also not aware that her minor child reported that the Defendant had used methamphetamine and heroin on the offense date.

         Jerry Presley stated that he had known the Defendant for approximately seven years. He stated that the Defendant was not dangerous and that he would support her if she received an alternative sentence. He believed that the Defendant was a smart and courteous person. On cross-examination, Mr. Presley testified that he was not ...

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