Session November 7, 2017
from the Circuit Court for Madison County No. 16-354 Donald
H. Allen, Judge
Defendant, Andrew Young Kim, pled guilty to six counts of
burglary, seven counts of theft of property in varying
amounts, and one count of vandalism. Following a sentencing
hearing, the trial court imposed an effective sentence of
fourteen years' incarceration. In this direct appeal, the
Defendant contends that the trial court improperly sentenced
him to continuous confinement for a non-violent property
offense and erred in setting the length of his sentences, in
denying all forms of alternative sentencing, and in imposing
partially consecutive sentences. Upon a thorough review of
the record below and applicable law, we affirm the trial
court's order as to the length of the Defendant's
sentences, the denial of any alternative sentence, and the
partial consecutive sentence alignment, but reverse the trial
court's order of continuous confinement for the
Defendant's Class E felony conviction for theft of
property (Count 14), an enumerated non-violent property
offense in Tennessee Code Annotated section 40-35-122(c)(11).
Upon our de novo review of Count 14, we order that the
Defendant's two-year sentence on that count be served on
supervised probation with the imposition of $1000 fine.
Moreover, for reasons stated herein, Counts 7 through 10 are
remanded for correction of clerical errors in the judgment
forms. In all other respects, the judgments are affirmed.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
Court Affirmed in Part, Reversed in Part & Case Remanded
Mark Donahoe (at appeal); and Gregory D. Gookin (at
sentencing), Jackson, Tennessee, for the appellant, Andrew
Herbert H. Slatery III, Attorney General and Reporter;
Jonathan H. Wardle, Assistant Attorney General; James G.
("Jerry") Woodall, District Attorney General; and
Shaun A. Brown, Assistant District Attorney General, for the
appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Camille R. McMullen and Robert L. Holloway, Jr., JJ.,
KELLY THOMAS, JR., JUDGE
case arose from multiple incidents of burglary and theft
perpetrated by the Defendant on five different businesses in
the Jackson, Tennessee area. The Defendant was eventually
indicted on August 1, 2016, for the following fourteen
offenses: Counts 1 and 2-burglary, a Class D felony, and
theft of property valued at $500 or less, a Class A
misdemeanor, for events occurring on December 21, 2015, at
Outdoor, Inc.; Counts 3 and 4-burglary and theft of property
valued at $1000 or more but less than $10, 000, a Class D
felony, for events occurring on January 5, 2016, at Outdoor,
Inc.; Counts 5 and 6- burglary and theft of property valued
at $1000 or more but less than $10, 000 for events occurring
on January 30, 2016, at Office Max; Counts 7 and 8-burglary
and theft of property valued at $1000 or more but less than
$10, 000 for events occurring on January 30, 2016, at Best
Buy; Counts 9 and 10-burglary and theft of property valued at
$1000 or more but less than $10, 000 for events occurring on
February 19, 2016, at Best Buy; Counts 11, 12, and
13-burglary, theft of property valued at $1000 or more but
less than $10, 000, and vandalism of property valued at $1000
or more but less than $10, 000, a Class D felony, for events
occurring on April 22, 2016, at Coffman's; and Count 14-
theft of property valued at more than $500 but less than
$1000, for events occurring on June 16, 2016, at Dick's
Sporting Goods. See Tenn. Code Ann. §§
39-14-103, -105, -402, -408.
to a plea agreement with the State, the Defendant sought to
enter a guilty plea on October 31, 2016, as a Range I,
standard offender, to six counts of burglary, one count of
vandalism, and one count of Class E felony theft, and the
remaining six theft counts were to be dismissed. The State
proffered the following factual basis in support of the
In Count 1, December the 21st of 2015, the victim was
Outdoor, Inc. Their alarm went off and when they arrived they
discovered the glass had been broken out and there had been a
Yeti cooler that was taken. I believe that was valued at
under $500 in that matter, but it had been taken and so
[there was] an investigation to look into that incident. [The
Defendant] later admitted to his involvement . . . .
. . . .
Your Honor, in Count 3 it is the same victim, Outdoor, Inc.
On January the 5th of 2016, their alarm again went off. They
thought it was a mistake and so they told the alarm company
not to call the police because they had just closed and the
owner went to the location and did discover that the glass
had been broken out again to gain entry into the door and
that there had been watches and GoPro cameras close to that
door and that's what had been taken this time. It was
valued at over $1000. . . . [The Defendant] did later admit
that he had taken those items . . . .
. . . .
Count 5, if it please the [c]ourt, is January 30th of 2016.
The victim i[s] Office Max on Stonebrook Place. . . . Again,
entry was made to that business. An alarm notified them at
about 4:19 in the morning. Officers made entry to discover if
anybody was in there. They did not find anybody in there, but
unlawful entry had been made and there was three memory cards
that were taken. A printer and a case of paper had been
taken. They did review the video and they observed a male
wearing a blue coat, dark blue hat and dark gloves and dark
pants. That was the person that had entered the business on
that occasion. They did not find anybody else there, but the
property that was taken was over the value of $1000 for
everything that was taken. . . . [The Defendant] was later
interviewed and he did admit to entering Office Max and
stealing the printer and the case of paper and the items that
had been taken during the burglary. . . . [The Defendant] had
confirmed that the printer was in his home. . . .
. . . .
Your Honor, may it please the [c]ourt, Count 7 is January the
30th of 2016. The burglary victim in this matter is Best Buy
on Vann Drive. They had an alarm call. They responded to that
alarm call while the business was closed. I believe that was
at about 5:25 in the morning. They responded. They did find
some damage to the box on the back of the building that
controls the alarms. At first the manager did not think that
there was anything that was taken. He later reviewed footage
and later went through the store and did discover that there
was some damage to a back door and that there were some items
taken. A television, an Apple [i]Mac and another laptop that
were taken. All of that totaled more than $1000 in this
matter. At the time they did review the video footage to see
if they could determine who this individual was. [The
Defendant] was developed as a suspect in this matter. He did
cooperate with law enforcement . . . . They did find some
electronics in his home from this and he did admit to
breaking into Best Buy and stealing the computers and TV. . .
. . . .
. . . They did not have the amounts in the offense report and
I'm looking on the victim impact statement and I believe
that that was about $2600.
. . . If it please the [c]ourt, Count 9 is February 19th of
2016. Again, the victim is Best Buy. [The Defendant] did
burglarize and get into that building and commit that
burglary. . . . They reviewed video cameras once law
enforcement got there and they did show an individual that
was taking computers. There was about four that were taken
and they totaled over $2000 . . . . [The Defendant] did admit
that he did take those items, those computers, from Best Buy.
. . .
. . . .
. . . [Officers] initially responded at 11:59 that night.
They went back at 3:15 because they took in the report
exactly what was stolen after they discovered things were
stolen. The initial one was around midnight. The store was
. . . .
. . . If i[t] please the [c]ourt, Count 11 is [April] the
22nd of 2016. It's a burglary with the victim as
Coffman's on the Highway 45 [B]ypass. On that night, . .
. I believe it was around 12:45 a.m. The Jackson Police
Department responded to a burglary call at Coffman's.
When they arrived, they found that a large window was broken
in the front of the store and that there had been some
furniture taken. I believe that furniture and items were over
$6000 that were taken. . . . There was a search warrant in
which items stolen from the Coffman's burglary were
recovered from [the Defendant's] home . . . .
. . . Count 13 is that he did knowingly cause damage over the
value of $1000 to Coffman's. That is for the large
window, to replace and to repair that window that was
damaged. . . .
. . . .
Your Honor, [Count 14] is actually [a] theft that [the
Defendant committed] on June the 16th of 2016[, ] . . . the
owner being Dick's Sporting Goods . . . . On that day the
store was open and he went in at about 12:41 p.m. carrying
nothing but a cell phone in his hands. He picked up a cart
and began selecting miscellaneous merchandise in the store.
He then walked up to the register and conducted a return of
those items. All that they would give him was a gift card for
$344.62. He then-that was a fraudulent return. He then took
that card and reentered the shopping area and selected a
shirt and a Yeti cooler with that gift card and then exited
the business with the shirt and the Yeti cooler. They are
valued at over $300 . . . . That was captured on video camera
at Dick's Sporting Goods.
the prosecutor's averments that it was customary practice
in the jurisdiction to proceed on the burglary counts and
dismiss the corresponding theft counts, the trial court
declined to accept the Defendant's plea, stating that to
do so was not "in the interests of justice."
November 7, 2016, the Defendant entered a "blind
plea" to the indictment with sentencing to be determined
by the trial court at a later time. The trial court accepted
the Defendant's plea of guilty to all charges. However,
no transcript of the November 7, 2016 plea acceptance hearing
is included in the record on appeal.
Defendant's sentencing hearing was held on December 20,
2016. Four witnesses representing their respective businesses
testified about the break-ins and the damage done to their
stores. Each of the four witnesses requested restitution.
George Hazelhurst from Outdoor, Inc., testified that his
store was burglarized on December 21, 2015, and again January
5, 2016, and that Yeti coolers, GoPro cameras and Garmin
watches were stolen during the burglaries. Mr. Hazelhurst
estimated that the total amount of damage done to his store
"was a little over $1000" and that the total value
of the merchandise taken was "[a]round $3000." Mr.
Hazelhurst testified that he knew the Defendant's family
and that he had forgiven the Defendant. However, Mr.
Hazelhurst opined that the Defendant needed to "get his
act together" and "serve his time[.]"
Additionally, Mr. Hazelhurst recalled that the Defendant came
into the store the day after the first robbery "and
shopped and was asking" about the burglary.
Ronald Noel, representing Office Max, testified that a front
window was "shattered" during the burglary on
January 30, 2016, and that the window cost was about $1200.
According to Mr. Noel, a large printer worth "about
$700" was stolen, in addition to "[s]ome other
assorted smaller goods."
Robert Rains from Best Buy testified that the Jackson
location was burglarized twice after hours-first on January
30, 2016, and then again on February 19, 2016. According to
Mr. Rains, the Defendant "pried the door open on both
occasions[.]" Mr. Rains averred that, during these
burglaries, the Defendant took some computers, televisions,
and MacBooks. Mr. Rains valued specific stolen items-an iMac
computer at $2138, an "HP Spectrum" computer at
$1050, a Samsung fifty-five-inch television at $1124, an ASUS
computer at $644, a "Yoga computer" at $560, and
"two Lenovo Edge" computers at $1396. Mr. Rains
placed the total amount of loss at $6, 913.83.
to Mr. Rains, the Defendant "first came [in] to Best
Buy" last November and introduced himself, seeming
"like a really nice guy." In addition to requesting
restitution and banning the Defendant from the store, Mr.
Raines also wanted the Defendant to be banned from shopping
online with Best Buy because the Defendant's frequent
returns had cost the store time and money. Moreover,
according to Mr. Rains, the Defendant made a false report to
the police about Best Buy fraudulently keeping his computer,
and the Defendant tried to steal a new computer by putting a
return sticker on it while hiding the one he brought into the
store inside an oven. Mr. Rains testified that the Defendant
had already been banned from Best Buy before these
last witness from the State was Mr. Bobby Coffman, the owner
of Coffman's Furniture. Mr. Coffman testified that he
personally responded to the alarm at his store on April 22,
2016, sometime between 12:30 and 1:00 a.m. According to Mr.
Coffman, "[t]he window unit on the front of the building
was broken out[, ]" which cost $1, 091.25 to replace.
Mr. Coffman said that there was also "some merchandise
that was damaged in and around where the window was broken
out[, ]" and he valued this damage "close to
$4000." He then specified the damage to certain items-a
Tempur-Pedic mattress that was later recovered, but because
they were unable by law to resell the mattress, Mr. Coffman
valued the loss for the mattress at $1665; a "Big Green
Egg" grill that had been "flipped over and broken
in an attempt to carry it out of the store[, ]" which
Mr. Coffman valued at $740; a damaged chair worth $469; and a
damaged rug worth $279.
asked what items were stolen from the business, Mr. Coffman
stated that "it was about [fourteen] items all
together"-"[f]urniture items, accent chest, oil
painting, rug, [and] miscellaneous accessory items." Mr.
Coffman valued these items at approximately $5200.
Furthermore, Mr. Coffman confirmed that several of the stolen
items were large and would have likely taken more than one
person to remove them from the store.
to Mr. Coffman, they were able to recover the stolen items,
selling "[m]ost of those items . . . at a significant
discount" or giving them to charity. Mr. Coffman
confirmed that he filed an insurance claim for "around
$4400" and that he "recovered between $1900 and
$2000" from the insurance company, after paying his
deductible of $2500. He confirmed that the insurance claim
covered the damage and stolen items and the store window
Coffman stated that he knew the Defendant's family,
although he did not know the Defendant personally. Mr.
Coffman relayed that the Defendant came into Coffman's
the day before the burglary and "spent a significant
amount of time going around [the] store making notes and
taking pictures of different items and so forth."
Furthermore, according to Mr. Coffman, the Defendant came
into the store the day after the burglary and talked with
some of the sales people. He conveyed that some of the sales
people knew the Defendant and that they were afraid when they
found "out what had happened and knowing that he had
been in the store twice before and after." Also,
according to Mr. Coffman, "It put our family under a lot
of duress just dealing with all of this as well."
State did not present a witness from Dick's Sporting
Goods. The presentence report was entered into evidence and
was accompanied by victim impact statements from Outdoor
Inc., Best Buy, and Coffman's. The Defendant only had one
speeding ticket on his record at the time of the sentencing
Defendant presented testimony from Dr. Lynn Zager, an expert
in "psychological evaluation/forensic psychological
evaluation." Dr. Zager evaluated the Defendant and
diagnosed him with a "mood disorder, not otherwise
specified, post-traumatic stress disorder, benzodiazepine use
disorder, [and] antisocial personality disorder."
regard to the Defendant's mood disorder, Dr. Zager stated
that depression was a "significant issue" for the
Defendant and noted that the Defendant had received treatment
for depression in the past. However, the Defendant's
taking of medication hindered Dr. Zager's ability to make
a more specific diagnosis.
Dr. Zager believed that post-traumatic stress disorder was
also a "very significant" issue for the Defendant
because he had suffered "two very serious
traumas[.]" First, the Defendant was a manager at a
bowling alley where he witnessed a shooting. The person
attempted to shoot the Defendant, but the "gun
misfired." The Defendant claimed that he had a gun
himself "but elected not shoot at the perpetrator
because there were so many innocent people around[.]"
The Defendant used his car to block the perpetrator in until
the police arrived. A person died, and the Defendant
"was involved with the cleanup[.]" The Defendant
also had to testify in court, which "was a continuation
of the trauma" for him by causing "very significant
anxiety[.]" The second incident occurred "on a
very isolated[, ] deserted road" in California. The
Defendant was driving when "he came upon a person
lying in the middle of the street" due to a car
accident. He stopped to assist the person in the street who
was still alive and waited for the first responders to
arrive. However, "apparently there was another person in
one of the cars who was still alive unbeknownst to him or the
first responders[, ] and [the Defendant] heard that last
breath as that person expired." According to Dr. Zager,
the Defendant had never received needed treatment for
"those traumas[, ]" which would have included
medication and counseling.
Zager relayed that the Defendant also had "an antisocial
personality disorder." However, Dr. Zager relayed that
antisocial personality disorder was not treatable with
medication and was, on the ...