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State v. Kim

Court of Criminal Appeals of Tennessee, Jackson

April 6, 2018


          Session November 7, 2017

          Appeal from the Circuit Court for Madison County No. 16-354 Donald H. Allen, Judge

         The 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part, Reversed in Part & Case Remanded

          C. Mark Donahoe (at appeal); and Gregory D. Gookin (at sentencing), Jackson, Tennessee, for the appellant, Andrew Young Kim.

          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.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Camille R. McMullen and Robert L. Holloway, Jr., JJ., joined.




         This 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.

         Pursuant 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 Defendant's plea:

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 closed.
. . . .
. . . 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.

         Despite 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."

         On 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.

         The 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.

         Mr. 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.

         Mr. 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."

         Mr. 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.

         According 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 burglaries.

         The 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.

         When 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.

         According 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 unit.

         Mr. 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."

         The 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 hearing.

         The 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."

         With 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.

         Additionally, 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[.]"[1] The second incident occurred "on a very isolated[, ] deserted road" in California. The Defendant was driving when "he came upon a person l[]ying 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.

         Dr. 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 ...

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