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State v. Mooneyhan

Court of Criminal Appeals of Tennessee, Nashville

May 16, 2018

STATE OF TENNESSEE
v.
DANIEL LEE MOONEYHAN

          Assigned on Briefs April 3, 2018 at Jackson

          Appeal from the Circuit Court for Bedford County No. 18027 Franklin L. Russell, Judge

         The Defendant, Daniel Lee Mooneyhan, appeals his Bedford County convictions for Count 1: aggravated burglary, and Counts 2 and 4: theft of property between the value of $1, 000 and $10, 000, for which he received an effective sentence of five years with a 30% release eligibility, to serve in the Department of Correction. The Defendant contends that the evidence presented at trial was insufficient to support his convictions in Counts 1, 2, and 4 because the State offered no independent evidence to corroborate an accomplice's testimony about the Defendant's involvement in the offenses. The Defendant does not appeal his conviction in Count 3, felon in possession of a handgun. Upon review, we affirm the judgments of the convictions, but remand for merger of Counts 2 and 4.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed and Remanded

          Jeremy W. Parham, Manchester, Tennessee, for the appellant, Daniel Lee Mooneyhan.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Robert J. Carter, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

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

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         I. Factual and Procedural Background

         In March 2015, the Bedford County Grand Jury indicted the Defendant on charges of aggravated burglary, two counts of theft of property between the value of $1, 000 and $10, 000, felon in possession of a handgun, simple possession of a Schedule VI drug, and possession of drug paraphernalia. The Defendant filed a motion to sever the charges of simple possession of a Schedule VI drug and possession of drug paraphernalia from the remaining offenses, which the trial court granted before trial.

         A. Jury Trial

         At trial, Jamie Blankenship testified that, prior to March 2013, he lived on Temple Ford Road in Bedford County with Kisha McGowan and their two children. However, he and Ms. McGowan ended their relationship in March 2012, and she no longer lived with him in March 2013. Mr. Blankenship testified that he had known the Defendant for over twenty years. He stated that the Defendant had been to his home on numerous occasions. Mr. Blankenship explained that he and Ms. McGowan dated for over eighteen years. He explained that, after their relationship ended, Ms. McGowan continued to visit his residence to see their children. Mr. Blankenship stated that Ms. McGowan was dating the Defendant at the time of the offense.

         Mr. Blankenship worked at Nissan in Smyrna. He explained that the first few days of March 2013, he had car trouble, which caused him to have to stay in Smyrna at a friend's residence for three or four days. When he returned home on March 10, he saw that his front door was "wide open." He stated that the door had been closed and locked when he last left the residence. Mr. Blankenship did not notice any new damage to the door. When he entered the residence, Mr. Blankenship noticed that his 50-inch Toshiba LED television was gone, and he began looking to see if anything else had been stolen. He testified that the television was worth about $650. Mr. Blankenship recalled that two gas-powered remote-controlled trucks worth "[a]lmost $700 a piece" were also missing. Additionally, he found that his handgun had been taken, along with his PlayStation 3 and four to five PlayStation video games. He testified that the PlayStation 3 was worth $399 and that the videogames were worth about "$49, $59 a piece." Regarding his missing handgun, Mr. Blankenship stated that the gun was a "high-point 9 millimeter pistol[, ]" which was worth "$179 plus tax." He further stated that a 50-round box of ammunition had been stolen and that it was worth about $40. Mr. Blankenship testified that, during the time period of March 6 to March 10, he had not given permission to anyone to enter his home and take his property.

         After discovering that the items had been taken from the residence, Mr. Blankenship called the Bedford County Sherriff's Office ("BCSO") to report the crime. About a month later, the BCSO asked him to identify some items that had been recovered. Mr. Blankenship was able to identify his television, PlayStation 3 and video games, and two gas-powered remote control vehicles. Mr. Blankenship testified, however, that the recovered items were not in as good of a condition as they had been before they were stolen. The sheriff's department did not recover Mr. Blankenship's handgun.

         On cross-examination, Mr. Blankenship testified that his children stayed with Jeremy and Jennifer Jones while Mr. Blankenship was in Smyrna. Mr. Blankenship called Ms. McGowan and explained that he was having car trouble and would not be home. Mr. Blankenship asked Ms. McGowan if he could borrow some money to "get a starter for [his] car." He agreed that he saw no signs of a forced entry into the residence. Mr. Blankenship testified that Ms. McGowan had a key to his residence. He explained that Ms. McGowan came to his residence two or three times a month to visit with their children.

         Kisha McGowan testified that, after she and Mr. Blankenship ended their relationship in 2012, she dated the Defendant. Ms. McGowan and the Defendant lived together with a friend, Frank Veal, during this time period. Ms. McGowan and the Defendant have one child together, who was born in February 2013. She had previously dated Mr. Blankenship for about eighteen years, and they had two children. After her relationship with Mr. Blankenship ended, she continued to visit Mr. Blankenship's residence to see her children, wash clothes, and clean the house. She testified that she had not been promised anything in exchange for her testimony against the Defendant. Prior to March 6, 2013, the Defendant asked her to "write a list of things" that he wanted Ms. McGowan to steal from Mr. Blankenship's residence, such as the gas-powered trucks, PlayStation 3, 50-inch television, and a handgun. One night in March 2013, the Defendant instructed Ms. McGowan to go to Mr. Blankenship's residence, and she took the list that the Defendant had dictated to her. The Defendant told Ms. McGowan that, if she wore her shoes when she committed the burglary, she should throw them away because "it had been raining[, ]" and Mr. Blankenship could "look[] for shoe prints." Ms. McGowan said that she was not throwing her shoes away, so the Defendant gave her his shoes to wear during the crime. The first night the Defendant sent her out to Mr. Blankenship's residence, she instead went to the river and sat for a while. She returned to the Defendant, explaining that she "couldn't go in." When she returned to their residence without Mr. Blankenship's property, the Defendant was angry and "[p]ut[] his hands on [her]." The Defendant "raised his voice and told [Ms. McGowan] that [she] needed to go back the next night, and [she] didn't need to come back empty handed."

         The following night, the Defendant accompanied Ms. McGowan to Mr. Blankenship's residence, and they entered the residence with Ms. McGowan's key. The Defendant helped her carry the 50-inch television out to her car, and he carried out one of the gas-powered trucks.[1] Ms. McGowan saw the Defendant take Mr. Blankenship's handgun. After leaving Mr. Blankenship's residence, the Defendant and Ms. McGowan returned to their residence. The Defendant put the 50-inch television in a detached garage in front of his truck; he put the remaining items in a "pink tote" and placed it in the attic. Ms. McGowan stated that the "pink tote" belonged to the Defendant rather than to her. She recalled that, a few days after the burglary, the Defendant bragged to a friend, Jason Bryan, about "all the stuff he had and show[ed] [Mr. Bryan] the stuff in the tote and the gun was also there." Subsequently, the Defendant told Ms. McGowan of an encounter he had with Mr. Bryan. The Defendant said he had taken the gun to Mr. Bryan to trade for some marijuana, but Mr. Bryan did not have any. Therefore, the Defendant kept the gun. Sometime later, Ms. McGowan overheard the Defendant on the telephone saying that he had sold the gun to one of his uncles.

         In March 2013, prior to the offenses, Ms. McGowan leased an apartment at Bedford Manor. In early April 2013, Ms. McGowan took her son to the hospital to be treated for RSV. Ms. McGowan testified that while she was at the hospital with their son, the Defendant moved the stolen items from their former residence to her new apartment. The apartment had been empty for approximately a month since she first leased it and received the keys. The Defendant and their son lived with her, and stayed at her apartment as much as she did. Ms. McGowan confirmed that the 50-inch television in her apartment, as well as the PlayStation 3, games, and remote controlled cars, were the same ones taken from Mr. Blankenship's home during the burglary.

         Ms. McGowan testified that BCSO Detective-Sergeant Scott Jones called her while her son was in the hospital and asked her to come in to the BCSO as soon as she was able. Later that same day, she received a call from the Defendant. He told Ms. McGowan that he was in custody at the BCSO and instructed her to "say he didn't have nothing [sic] to do with" breaking into Mr. Blankenship's home. He also instructed her not to say anything about the gun. The BCSO charged Ms. McGowan with aggravated burglary and theft of property between the value of $1, 000 and $10, 000.

         On cross-examination, Ms. McGowan stated that she would spend the night at Mr. Blankenship's home whenever the Defendant "kicked [her] out" and she had nowhere else to go. She also testified that, although she had a key to her new apartment a few days before the burglary, they had not taken the stolen items to her apartment but instead stored the items at their former residence. She explained that she did not give the Defendant a key to her new apartment until their son was hospitalized, at which point the Defendant began moving the stolen items from their former residence to her new apartment. Ms. McGowan stated that Mr. Blankenship purchased the television, PlayStation 3, and games after they ended their relationship; they had not purchased them together. She testified that, even though the Defendant had not been inside Mr. Blankenship's house since Mr. Blankenship had purchased the items, the Defendant told her to write out a note of the things he wanted her to steal. Ms. McGowan explained that the Defendant must have heard about those items through mutual friends of Mr. Blankenship. Ms. McGowan had no explanation for why she did not go to her new apartment with her son when the Defendant was violent with her and demanded she steal from Mr. Blankenship. She testified that the night she and the Defendant burglarized Mr. Blankenship's home, they brought their two-month-old son along with them and left him in the back seat of the car in his infant carrier. Ms. McGowan said they slid the 50-inch television into the floor of the back seat with him. They placed all the other ...


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