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State v. Small

Court of Criminal Appeals of Tennessee, Knoxville

May 25, 2018

STATE OF TENNESSEE
v.
FRANK EDWARD SMALL

          Session February 27, 2018

          Appeal from the Circuit Court for Sullivan County No. S60656 R. Jerry Beck, Judge

         The Defendant, Frank Edward Small, was convicted by a Sullivan County Circuit Court jury of robbery, a Class C felony, and home improvement fraud, a Class D felony. See T.C.A. §§ 39-13-401 (2014) (robbery), 39-14-154 (2010) (amended 2012, 2017) (home improvement fraud). He received a Range I, effective five-year sentence to be served in the Department of Correction. On appeal, he contends that (1) the evidence is insufficient to support his convictions and (2) the trial court erred in denying his motion to review the victim's medical records. We affirm the judgments of the trial court.

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

          G. Todd East, Kingsport, Tennessee, for the appellant, Frank Edward Small.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine G. Redding, Assistant Attorney General; Barry P. Staubus, District Attorney General; Amy L. Hinkle, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         The Defendant's convictions relate to the circumstances surrounding a transaction in which he partially covered Joseph Beverly's driveway with asphalt. At the trial, the victim, who was eighty-four at the time of the trial and had been seventy-nine at the time of the relevant events, testified that he was at a gas station on January 31, 2011, when the Defendant got into the victim's car and offered to shake the victim's hand as if the victim should have known the Defendant. The victim said he told the Defendant that he did not know the Defendant. The victim said the Defendant began talking about having leftover asphalt that he would sell for $6 per foot, rather than his usual price of $18 per foot. The victim said that he agreed to buy three feet of asphalt for a total of $18, that he offered a $20 bill to the Defendant, and that the Defendant told the victim to wait to pay him. The victim said that after he pumped his gas, the Defendant followed the victim to a parking lot near the victim's house. The victim said he understood that the Defendant would pave three feet at the end of the victim's driveway to connect the driveway to the road. The victim denied that he and the Defendant walked the driveway together and that he showed the Defendant any cracks in the driveway. The victim said he told the Defendant that the victim's wife was out of town and that the victim was going to Walmart and would be gone for about two hours. The victim said the Defendant was in a gray pickup truck with a dented back fender and that a woman the Defendant identified as his sister was inside.

         The victim testified that when he returned from Walmart, he drove into the carport. He said the Defendant drove the Defendant's truck from a nearby parking lot and parked the truck "right behind" the victim's car. The victim said that he did not see a worker picking up tools and that the woman he had seen earlier was not inside the Defendant's truck. The victim said that the Defendant had paved about three-fourths of the victim's concrete driveway with a thin layer of asphalt and that the concrete was visible through the asphalt in places. The victim said he had not agreed to the extent of the paving the Defendant had done. The victim said the Defendant took a piece of paper from the Defendant's truck, that the paper "[h]ad 9, 000 on it, " and that he and the Defendant had not agreed on a price of $9, 000 before the victim went to Walmart. The victim said he would not have agreed for the Defendant to do any paving if the victim had known the price would be so high.

         The victim testified that the Defendant asked if the victim had a savings account and that when the victim said he did not, the Defendant asked if the victim had a checking account. The victim said that he took some cold groceries inside while the Defendant waited in the carport and that when the victim returned outside, the Defendant "was right up in [the victim's] face about a foot away[.]" The victim said the Defendant stated, "It's already on the ground. I want my money now." The victim said that the Defendant "was looking real mean" and that the victim was scared of what the Defendant might do. The victim stated that he walked inside to look at his home equity paperwork to determine how much he had available to write a check and that the Defendant followed him into the victim's house. The victim said the Defendant followed him inside without invitation. The victim said that he showed the Defendant that the victim had $6, 600 available in the home equity account and that the Defendant said, "Well, 6500 will do." The victim said he wrote a check for $6, 500 to the Defendant and that, at the Defendant's instruction, the victim wrote on the memorandum line that the check was for "Construction." The victim said that when he handed the Defendant the check, the Defendant "was looking real mean" and that the victim was "afraid of what . . . [the Defendant] might try to do" to the victim. The victim said he felt "under pressure" but acknowledged that the Defendant had not touched him or used "bad language." The victim did not recall giving the Defendant a pamphlet from the victim's church. The victim said that he had worked as a bookkeeper "for a number of years."

         The victim testified that after he gave the check to the Defendant, the Defendant wanted the victim to sign a contract. The victim identified his signature on a document, which was received as an exhibit. The victim said he did not see the document until after he returned from Walmart and gave the check to the Defendant. The victim said that after the Defendant left with the check, he took the rest of the groceries inside and called his wife. The victim said the Defendant left around 2:15 or 2:20 p.m. and agreed that he called his wife around 3:50 p.m., but he later said he did not think that much time elapsed between the Defendant's departure and the call. The victim said that his wife was upset and instructed him to stop payment on the check but that the check had already been cashed when he attempted to stop payment. The victim said the Defendant had mentioned returning to finish paving the driveway but never returned.

         The victim testified that he had the asphalt removed a week later. He said he had not had any intention of paving the concrete driveway. He said the Defendant had not paved the three-foot area between the concrete driveway and the road, which was the area the victim intended for the Defendant to pave.

         When asked if he had suffered a stroke, the victim testified that a blood clot "hit" his brain and that he was given medication which dissolved the clot. The victim agreed that he had been living in an assisted living facility at the time he had a stroke and said he currently lived in a different assisted living facility. When asked if he had residual memory problems from the stroke, the victim responded, "Well, not - not so much about that." He said he had suffered pneumonia "some time back" and had fallen about three years earlier and had two screws put into his hip. He said he had to be careful about what he ate because he only had seven or eight teeth. The victim disagreed that he had memory problems and stated that he had a "pretty ...


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