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State v. Swinford

Court of Criminal Appeals of Tennessee, Knoxville

April 17, 2018


          Assigned on Briefs March 28, 2018

          Appeal from the Criminal Court for McMinn County No. 16-CR-262 Andrew M. Freiberg, Judge

         The defendant, Steven Swinford, pled guilty to vandalism of property in the amount of $1, 000 or more but less than $10, 000 (Count 1), vandalism of property in the amount of $10, 000 to $60, 000 (Count 2), burglary (Count 3), and vandalism of property in the amount of $60, 000 to $250, 000 (Count 4), for which he received an effective twelve-year sentence. The defendant now appeals the twelve-year sentence imposed by the trial court for his conviction in Count 4, arguing it to be excessive. Separately, the State challenges the trial court's application of the criminal saving's statute of Tennessee Code Annotated section 39-11-112 to the defendant's vandalism conviction of Count 1 through the amended version of the theft statute of Tennessee Code Annotated section 39-14-105. Following our review, we affirm the trial court's application of the criminal saving's statute to Count 1 and the trial court's sentencing in Count 4, but remand the case to the trial court for a hearing on the matter of sentencing as to Counts 1, 2, and 3.

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

          Judith Hamilton, Athens, Tennessee, for the appellant, Steven William Swinford.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Stephen D. Crump, District Attorney General; and Emily Petro, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which John Everett Williams and Robert L. Holloway, Jr., JJ., joined.


          J. ROSS DYER, JUDGE


         Over the course of two days in February 2016, the sixteen-year-old defendant vandalized numerous vehicles across McMinn County, Tennessee. The defendant was transferred to criminal court where he entered open guilty pleas for his crimes and agreed to be sentenced subsequently by the trial court. Specifically, on December 5, 2016, the defendant pled guilty to three counts of vandalism and one count of burglary. Tenn. Code Ann. § 39-14-402, -408. At the guilty plea hearing, the State read the following facts surrounding the defendant's criminal activity into the record:

Your Honor, beginning with Count One of the indictment: On February 20th of 2016, officers with the Etowah Police Department responded to a vandalism call on Willard Memorial Highway. When they arrived, officers came into contact with a Rovanda Davis who stated that someone had broken the windows out of her van. She was an employee at the Aztec in Etowah and stated that young white males approximately 16 years of age had come into her store. One of them had tried to buy a can of tobacco. And when they didn't have -- neither could produce and (sic) ID, she sent them away. And she further stated that she was closing the store that night, and after she had closed the store, she heard a loud noise outside, like someone was beating on the walls of the store. She went outside and found the passenger side window of her car and the sliding back window of her car had been broken out, apparently with a brick that was nearby. And that there was a large dent under the window in [the] sliding glass door of her car as well, that all of the windows on the van that were remaining had been scratched with what appeared to be a piece of brick. And while she didn't see the actual vandalism take place, shortly before that had happened, she had seen two juvenile males that appeared to be the same two from the store that were in the vicinity of where her car was at the Aztec.
The out-of-pocket damage -- the damage was several thousand dollars. The out-of-pocket damage that [Ms. Davis] had to pay was $1, 000.
Count Two, Your Honor: On February 21st of 2016, deputies with the McMinn County Sheriff's Office responded to a call regarding a vandalism to a tractor belonging to the Etowah Utilities Board that was parked about a quarter mile past the Wesleyan Church on County Road 607 coming from Highway 30 in McMinn County. The caller, Marty Aderhold, an employee of the Utilities Board, stated that there were glass and lights busted out of the tractor and it appeared to be, by vision, almost entirely destroyed. It was taken for an estimate of the repairs to the Ritchie Tractor Company, showing a total of $21, 427 in damage to the tractor.
. . .
The total amount that [Etowah Utilities Board] paid out of pocket was $1200.
. . .
Okay. And then Count Three and Count Four arise out of the same incident where on the 21st day of February of 2016 detectives with the McMinn County Sheriff's Office received a phone call from Scott Cass, who's the owner at East Tennessee Auto Outlet, regarding damage to several vehicles on his car lot. And he asked if deputies could be en route.
When the detective arrived, he observed numerous vehicles on the car lot that had [been] vandalized and also a building on the lot that had been broken into, which had several antique vehicles that were inside that had also been, essentially, completely destroyed. There was video surveillance at the property that Mr. Cass supplied to the detectives where upon reviewing the surveillance from the night prior, you can see two white, apparently, juveniles that are walking around the car lot, essentially, busting out windows, kicking vehicles, taking tires and rolling them down across the parking lot, and using some sort of an object to strike the windows of vehicles, and the sides of vehicles as well.
This surveillance footage was put up on Facebook and used through multiple law enforcement channels. Later identified where (sic) [the defendant] and [co-defendant] as the two individuals in the video. Detective Witt reached out to the guardians for [the defendant] and [co-defendant]. And [the defendant] was interviewed with his guardian present at the McMinn County Sheriff's Office, advised of his Miranda Rights, and agreed to speak further.
At that time, [the defendant] did admit to his participation in the vandalism at the East Tennessee Auto Outlet. Knocking out windows, knocking off mirrors, dumping motor oil on the cars, using a pole with [his co-defendant] to destroy cars, and that it is the East Tennessee Auto Outlet on Highway 30, that it was done. [The defendant] and [co-defendant] were pretty much just bored. But they had also gone into the shop on the car lot, found older cars in the building, and messed up on them. And he identified himself on surveillance video.
[The defendant] was asked also about the Etowah tractor also identified as an incident that happened on the 20th of February, but it was not at the same time as the car lot and that he and [his co-defendant] had busted out windows, and essentially tore up the tractor that was on County Road 607. [The defendant] recalled that it was a green tractor, which is consistent with the tractor that was called in by Mr[.] Aderhold with the Utilities Board.
And then finally [the defendant] was asked about Ms. Davis's vehicle that was identified as an incident that occurred on the 19th where [the defendant] and [his co-defendant] had gone to the gas station in Etowah. That they busted a van window out, and that one of the two individuals -- I don't believe [the defendant] identified it as himself. But that one of the two individuals were (sic) trying to get dip and it didn't work, so they got mad and busted the van windows. And this all did occur in McMinn County, Tennessee.
The estimated damage to Mr. Cass's car lot is kind of -- it's kind of a fluid situation because he continues to have vehicles that are brought in with what he believes to be damage that occurred in this original incident, it just wasn't discovered at the time. But that the estimated damage at the time of the transfer hearing was approaching $250, 000. It was originally charged as an A felony, but because of that language, approaching $250, 000, it was bound over as a B felony, 60 to 250.

         The defendant admitted guilt to the crimes as described by the State, and the trial court entered convictions for vandalism (Counts 1, 2, 4) and burglary (Count 3) against the defendant.

          The defendant's three victims testified at the subsequent sentencing hearing on May 12, 2017. Scott Cass, the owner of East Tennessee Auto Outlet, stated he had to put his business "on hold" after the defendant burglarized and vandalized his property. Mr. Cass closed his business for "a week or so, " noting "[i]t was at least a week" before people could safely walk on the property due to the amount of glass left in the defendant's wake. Regarding the amount of damages Mr. Cass suffered, he explained, "right now it stands at somewhere around at $230, 000 range. . . . But like I said earlier, we've still got stuff that's not completed at this point." Mr. Cass explained the "fluid" nature of his damages further, stating some of the damage is not identified until a customer "drives a car and then has it three or four days and then you've got the problem that you never had before." Mr. Cass's insurance policy covered approximately $148, 000 worth of damage. A copy of the insurance check was entered into evidence.

         Mr. Cass then explained the damage the defendant caused after burglarizing the building on his property. Specifically, the building housed his collection of ten antique cars. The defendant damaged the "[c]hrome, paint, [and] windows" of the antique cars, destroying the "originality" of the vehicles. Mr. Cass described his property as "a war zone" after the defendant's crimes. A surveillance video documenting the defendant's criminal activity on Mr. Cass's property was entered into evidence.

         On cross-examination, Mr. Cass testified that in addition to the $230, 000 in losses already described, he also paid his employees $22, 000 for loss of work while the business was closed for cleaning. In response to questions from the trial court, Mr. Cass stated 71 cars were damaged on his lot of 150 cars, and he believed his total damages to be approximately $250, 000.

         Ravonda Davis then detailed the damage the defendant caused to her van after she refused to sell him and his co-defendant tobacco. She stated her van "had a dent in the sliding door that opened. The glass -- the glass in the passenger door was broke (sic). And the glass in the sliding door was broke (sic). And it had scratches around it on the windows and had a bad word on the windows." The damages totaled approximately $2, 000. Ms. Davis explained she "got scared and terrified" as a result of the ...

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