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State v. Demling

Court of Criminal Appeals of Tennessee, Nashville

January 30, 2018


          Assigned on Briefs January 17, 2018

         Appeal from the Circuit Court for Bedford County No. 18229 Franklin L. Russell, Judge

         The Bedford County Grand Jury indicted the Defendant, Ricardo Antonio Demling, for theft of property valued between $10, 000 and $60, 000. The jury found the Defendant guilty as charged, and the trial court sentenced him to fifteen years as a Range III persistent offender and ordered this sentence to be served consecutively to any unexpired sentences. On appeal, the Defendant contends that the evidence was insufficient for a rational juror to have found him guilty beyond a reasonable doubt of theft of property between the value of $10, 000 and $60, 000. He also argues that his sentence was excessive and asks this court to conduct a plain error review of "all objections" and "all issues regarding venue and jurisdiction[.]" After a thorough review of the facts and applicable case law, we affirm.

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

          M. Wesley Hall, IV, Unionville, Tennessee, for the appellant, Ricardo Antonio Demling.

          Herbert H. Slatery III, Attorney General and Reporter; Richard D. Douglas, Assistant Attorney General; Robert J. Carter, District Attorney General; and Mike Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

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



         I. Factual and Procedural History

         Jury Trial

         Roger Dale Smith testified that he owned Smith Equipment in Bedford County. Mr. Smith stated that, in 2009, Smith Equipment's main business was selling lawn mowers, lawn equipment, equipment parts, and utility vehicles. Smith Equipment was an authorized dealer for Cub Cadet Utility Vehicles. On September 27, 2009, Mr. Smith worked late at Smith Equipment and left around 10:30 p.m. The next morning, Mr. Smith arrived at his business around 7:30 a.m. and noticed that a yellow utility vehicle owned by Smith Equipment that had been parked in front of the business was missing. Mr. Smith testified that Smith Equipment purchased the utility vehicle for $7, 600 and that the retail value of the utility vehicle was between $9, 000 and $9, 500. Mr. Smith and his employees checked the inventory of the business and discovered that a second utility vehicle had been stolen. Mr. Smith stated that the second utility vehicle "was parked on the back side of the building where it was[] basically . . . waiting to be serviced." Mr. Smith explained that a customer, Nathan Walker, owned the second utility vehicle, a green and black utility vehicle with accessories. Mr. Walker did not give anyone permission to remove his utility vehicle from the Smith Equipment property. Mr. Smith testified that Mr. Walker purchased his utility vehicle from Cub Cadet for $11, 950 and that the utility vehicle retailed for between $14, 000 and $15, 000. Mr. Smith explained that the utility vehicles required keys to start and that Mr. Walker kept the key to his vehicle but that the key to the other vehicle was inside Smith Equipment.

         Mr. Smith testified that each utility vehicle weighed approximately two thousand pounds and that two people could push a utility vehicle onto a trailer or that one person could use a winch to move a utility vehicle onto a trailer. When shown a photograph of the trailer on which the stolen utility vehicles were found, Mr. Smith noted that the trailer did not have a winch. Mr. Smith stated that he did not give the Defendant or co-defendant Marvin Summers permission to remove a utility vehicle from Smith Equipment. On cross-examination, Mr. Smith testified that Smith Equipment filed a claim for the stolen utility vehicles on its insurance policy and paid a $1, 000 deductible. The insurance company reimbursed Smith Equipment for the cost of replacing Mr. Walker's utility vehicle. The insurance company later contacted Mr. Smith to inform him that law enforcement had found the stolen utility vehicles, which Mr. Smith turned over to the insurance company.

         Benjamin Burris testified that he had worked for the Bedford County Sheriff's Office ("BCSO") for approximately ten years as a patrol officer. On September 28, 2009, Deputy Burris responded to Smith Equipment to fill out an incident report. Mr. Smith informed Deputy Burris that two utility vehicles had been stolen from Smith Equipment. After Deputy Burris obtained the vehicle identification numbers ("VINs") of the stolen utility vehicles, he gave his report to the Criminal Investigation Division of the BCSO. The VINs were later entered into the National Crime Information Center ("NCIC") database[1] as stolen property.

         Trooper Willie Allison testified that he had worked for the Tennessee Highway Patrol ("THP") for approximately ten years. On September 28, 2009, Trooper Allison conducted a traffic stop in Clay County at 4:45 p.m. Trooper Allison stopped "a greyish and pink Suburban" with a trailer carrying a green utility vehicle and a yellow utility vehicle. He explained that he stopped the Suburban because the trailer lights were not operating correctly. As Trooper Allison approached the Suburban, he noticed that the vehicle had expired "dealer tags." Trooper Allison checked to see if the dealer tag belonged to the Suburban, and he found that Bridgett Allison owned the Suburban and that the dealer tag originated from a dealership in Nashville. Trooper Allison testified that co-defendant Summers was driving the vehicle and that the Defendant was in the passenger seat. Trooper Allison separated the Defendant and co-defendant Summers and asked them about the utility vehicles. Both individuals informed Trooper Allison that they had been hired to transport the utility vehicles from Shelbyville to Kentucky; however, they could not identify the individual who hired them to transport the items or where in Kentucky they were supposed to transport the vehicles. Trooper Allison noted that individuals who hauled vehicles for hire needed special tags on their vehicle and trailer and that the Defendant and co-defendant Summers did not have the required tags on their vehicle or their trailer. Trooper Allison also stated that the Defendant and co-defendant Summers did not have keys for the utility vehicles, bills of sale, or other proof of ownership.

         On cross-examination, Trooper Allison explained that the Defendant and co-defendant Summers did not tell him that they had been hired to transport the utility vehicles to Celina after the owner's vehicle broke down in Lebanon. Trooper Allison checked the traffic log and did not find any log entry for a "motorist assist" for that day. Trooper Allison testified that he arrested co-defendant Summers for driving on a revoked license and transported him to the Clay County Jail. He was unsure of how the Defendant was transported to the jail.

         Deputy Brian Ferris testified that in 2009, Deputy Ferris was a detective for the BCSO and was assigned to investigate the case against the Defendant and co-defendant Summers. He examined Deputy Burris' report on the incident and then began "looking in familiar places for [the stolen utility vehicles]." He explained that his normal procedure was to contact investigators working in other counties to see if they were investigating any similar offenses. On November 9, 2009, THP informed the BCSO that the VINs of the stolen utility vehicles had been matched in a search on the NCIC database. Deputy Farris contacted Trooper Allison. Deputy Farris ...

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