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State v. Boswell

Court of Criminal Appeals of Tennessee, Nashville

April 19, 2018

STATE OF TENNESSEE
v.
JOEY BOSWELL

          Assigned on Briefs April 18, 2018

          Direct Appeal from the Criminal Court for White County No. CR-7606-C Gary McKenzie, Judge No. M2017-01127-CCA-R3-CD

         The Defendant, Joey Boswell, pleaded guilty to theft of property valued between $2, 500 and $10, 000. The trial court sentenced him to serve eight years in the Tennessee Department of Correction. On appeal, the Defendant contends that the trial court erred when it sentenced him because it improperly enhanced his sentence based on enhancement factor (2), that "The defendant was a leader in the commission of an offense involving two (2) or more criminal actors[.]" T.C.A. § 40-35-114(2) (2014). He also contends that his sentence is excessive. After a thorough review of the record and the applicable authorities, we affirm the trial court's judgment.

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

          J. Patrick Hayes, Cookeville, Tennessee, for the appellant, Joey Boswell.

          Herbert H. Slatery, III, Attorney General and Reporter; Ruth Anne Thompson, Senior Counsel; Bryant C. Dunaway, District Attorney General; and Bruce A. MacLeod, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which John Everett Williams and Camille R. McMullen, JJ., joined.

          OPINION

          ROBERT W. WEDEMEYER, JUDGE.

         I. Facts

         This case arises from the Defendant and two co-defendants, Melinda Thompson and Elizabeth Bastian, stealing items from the victim's construction business located at his residence. For these offenses, a White County grand jury indicted the Defendant for theft of property valued between $1, 000 and $10, 000 and aggravated burglary. The Defendant pleaded guilty to theft of property valued at over $2, 500 and the aggravated burglary charge was dismissed. The following factual recitation is contained in the Defendant's presentence report:

On November 8, 2015 Officer Robert Thompson of the White County Sheriff's Office was dispatched to 2377 Lawrence Hudgens Rd, Sparta, TN, in reference to a theft report. Upon arrival, the victims indicated they had been burglarized again and that there were pictures of the suspects taking items from his home. The property removed from the residence included five oak doors, two oak bi fold doors, five rolls of aluminum coil siding, fourteen replacement windows for a house, one mail box and two steel antique anvils.

         At the sentencing hearing, the parties presented the following evidence: Melanie Cohen stated she was employed by the Tennessee Department of Correction. She drafted the Defendant's presentence report, which was admitted into evidence. She read from the presentence report the Defendant's statement about the crime: "I did it. I'm guilty. I can't justify a reason other than stupidity and being a follower. It sounded like easy money. I'm sorry, and I'm trying to pay it back. If given probation, I'm going to do it right. This is the first time I've even tried." Ms. Cohen testified regarding the Defendant's prior criminal record, and certified copies of his prior convictions were admitted into evidence. Those convictions included burglary of an auto in 2008; burglary of a non-habitation in 2011; burglary of a non-habitation in 2011; burglary in 2014; burglary of an auto in 2014; and burglary in 2014. She testified that the Defendant was on parole when he committed the crime in the present matter.

         The victim, James Hudgens, testified that he lived in White County and owned the property that the Defendant burglarized. The Defendant stole doors and windows Mr. Hudgens had purchased to replace in a home he was working on. He estimated the windows cost $300 each. He estimated that the doors cost $650 each. He stated that the Defendant also stole three anvils, costing $300 each, as well as six "house jacks" costing $250-$300 each, twelve or fifteen screw guns costing $120 each, twenty "log chains" costing $30-$40 each, four or five rolls of aluminum coil costing $160 per roll, $300 worth of trim, a dozen sets of old-fashioned drills costing $30 each, two bench grinders, and two or three "sawzalls." The Defendant broke into the building by tearing off two security doors, costing $400 each, as well as damaging the door jambs, resulting in a $500 replacement cost. Mr. Hudgens identified a photo taken by his deer camera, mounted on the building, of the Defendant holding a crow bar. Two additional photographs were introduced showing the Defendant and his co-defendants walking around the outside of the building on the day it was burglarized.

         The Defendant testified that he felt "worse" about his involvement in the crime after hearing the victim's testimony. He planned to pay the victim back by working and paying his fines. The Defendant acknowledged his lengthy criminal history but stated he wanted to make a change because he had a newborn son. He stated that he had a supportive family who could help him stay on a positive track. On cross-examination, the Defendant agreed that he ...


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