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State v. Kiser

Court of Criminal Appeals of Tennessee, Knoxville

June 6, 2019

STATE OF TENNESSEE
v.
JUSTIN PATRICK KISER

          Session February 26, 2019

          Appeal from the Criminal Court for Knox County No. 105153 Steven W. Sword, Judge

         The defendant, Justin Patrick Kiser, appeals his Knox County Criminal Court jury convictions of facilitation of aggravated burglary and theft of property valued at $500 or less, arguing that the trial court erred by permitting the State's fingerprint expert to testify that another examiner had verified his conclusions; by admitting into evidence a document showing the work performed by the second, non-testifying analyst; and by denying his motion for a mistrial after the prosecutor relied on the verification of the non-testifying analyst during closing argument. He also claims that the evidence was insufficient to support his conviction of facilitation of aggravated burglary because the State failed to establish that he did not intend to promote or assist in the burglary or to benefit from its proceeds and that the trial court erred by denying his bid for judicial diversion. Discerning no reversible error, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

          Mark E. Stephens, District Public Defender; and Jonathan Harwell (on appeal) and Melissa Dirado (at trial), Assistant District Public Defenders, for the appellant, Justin Patrick Kiser.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Charme P. Allen, District Attorney General; and Randall Kilby, Assistant District Attorney General, for the appellee, State of Tennessee.

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

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         The Knox County Grand Jury charged the defendant with aggravated burglary and theft of property valued at $1, 000 or more but less than $10, 000 in relation to the burglary of and theft of items from the home of Phillip Crye on May 29, 2014.

         At the June 2016 trial, Mr. Crye testified that his wife telephoned him on the day of the offense to let him know "that there had been a break-in at" their Knoxville residence. When he arrived home shortly thereafter, he saw that "the kitchen window had been broken open, and someone or some persons had come in through the kitchen window from a patio area into the kitchen and rummaged and rifled around through the house and took various items." He said that the perpetrator or perpetrators "had put a utility bar from the outside underneath the bottom sash and pried [the window] open which broke the lock off the sash." The perpetrator left through the back door.

         Mr. Crye determined that three shotguns, jewelry that had belonged to his mother, a Bose CD/radio, a bag of foreign currency, a souvenir whiskey flask, his grandfather's pocket watch, and a Nook electronic reader had been taken during the burglary. He also noticed that a partially full box of wine and three or four beers had been taken from the refrigerator. Mr. Crye estimated the total value of the property taken to be $4, 000.

         Mr. Crye recalled that, during the initial investigation, he and the investigating officer saw handprints on the window that had been used as the point of entry. While the evidence technician lifted prints from the window, Mr. Crye "looked around some more, and to the end of the patio out from the kitchen window," he observed "a path beat down in some ivy where" it appeared that someone had entered his lot "from the back area of the Sharp house next door." Mr. Crye said that he thought he might have seen the defendant in the company of the Sharp's oldest son before the burglary and that he had definitely seen the defendant at the Sharp residence following the burglary. Mr. Crye said that he did not give the defendant or any other person permission to enter the house and take the items.

         On the day after the burglary, Mr. Crye's wife telephoned Barnes and Noble to report that the Nook had been stolen. She telephoned the company again two days later and asked whether the device could be tracked. After that conversation, Mrs. Crye told Mr. Crye "that it had been registered on Friday, the day after the break-in, to some person named Justin in Knoxville" after an unsuccessful attempt to register it on the Thursday evening of the burglary.

         During cross-examination, Mr. Crye said that he did not know the Sharp children well, and his only direct interaction with them had occurred approximately two weeks before the burglary when he helped the youngest boy catch his wayward puppy. Mr. Crye admitted that he told the police that he suspected that the Sharp boys had committed the offense, noting "the evidence [he] saw on the ground that went directly to the back of their house." He said that it was his understanding that the police had attempted to speak to the Sharps or their mother "but that she or they were not very cooperative."

         Beth Goodman, who had previously worked as an evidence technician for the Knoxville Police Department ("KPD"), testified that she attempted to collect prints from the point of entry in the kitchen, in the bedrooms, and in a bathroom. Ms. Goodman "recovered latent prints from the exterior kitchen window, and there were no useable latent prints inside." She recovered a total of three usable palm prints from the exterior "bottom part of the window" and submitted those to the KPD fingerprint examiner.

         KPD Investigator David Ogle, who investigated the burglary of the victim's home, testified that "it was pretty obvious that someone had at some point walked back and forth through the . . . decorative ivy right close to the point of entry." He said that the path through the ivy led directly from the victim's house to "the adjacent house where two young boys lived." Investigator Ogle obtained information about the Nook from the Cryes and then contacted Barnes and Noble. He learned that the defendant had registered the Nook using his own name, address, and bank card information. Investigator Ogle went to the defendant's residence and "asked him if he had possession of a Nook." The defendant admitted that he had the device and immediately turned it over to Investigator Ogle. Investigator Ogle confirmed that the device given to him by the defendant had the same serial number as the device taken from the Crye residence.

         The defendant initially told Investigator Ogle "that he had found it on Craigslist and had met two individuals that were driving a small SUV in the Walmart parking lot of Halls and had paid $60 for the item." Investigator Ogle said that, based upon this information, he did not initially consider the defendant a suspect in the burglary. Investigator Ogle contacted the defendant again a few days later to come into the station to look at a photographic array. He said that, at that point, he believed that the Sharp boys had committed the burglary, and he wanted to see if the defendant would identify any of them as the person from whom he had purchased the Nook. Upon viewing two separate arrays, the defendant identified an individual named Lucas Kiley and the younger Sharp boy, Graham Sharp, as the individuals who sold the Nook to him.

         After making the identifications, the defendant admitted that he had lied in his first statement to the police and apologized to Investigator Ogle. At that point, the defendant prepared a written statement wherein he stated that he had purchased the Nook for $60 from "Lucas and Graham" and that he did not know it was stolen. The defendant said that he called Mr. Kiley and Graham Sharp after the police confiscated the Nook and that Mr. Kiley had told the defendant "that he had a gun and not to say anything." The defendant insisted that he lied in his original statement because he feared for his life.

         Investigator Ogle testified that he still did not suspect the defendant and asked him to provide palm prints "so we could exclude him." The defendant agreed. After he received the report from the fingerprint examiner, Investigator Ogle attempted to contact the defendant several times, but the defendant did not answer his telephone and did not return Investigator Ogle's calls. During that time, Investigator Ogle also spoke with Ms. Sharp, who agreed to bring her sons in for questioning. When she did not arrive as scheduled for the interview, Investigator Ogle called her again, and she told him that "she was unable to get her sons to come to the police department, and that she couldn't do anything about it." When Investigator Ogle went to the Sharp residence in an attempt to speak to the boys, no one would answer the door.

         During cross-examination, Investigator Ogle testified that shortly after the burglary, the victim sent him an email that contained the first and last names as well as the dates of birth and social security numbers for the Sharp boys. When asked whether he had told the defendant that a neighbor had identified him as having been at the Sharp residence, Investigator Ogle replied, "I said that someone had seen a red-headed boy at the Crye house, yes." He explained that it was his recollection that the victim had told him "that there had been a red-headed, orange-colored haired boy there at the house" and "that the next door neighbor had told [him] the same thing, that she'd seen [an] orange-haired boy there at the house, but nobody could identify him."

         Certified fingerprint examiner Tim Schade testified as an expert in the area of fingerprint examination. Investigator Schade, a member of the KPD Forensics Unit, testified that he utilized a methodology called ACE-V, which stands for "analysis, comparison, evaluation, and verification," to make identifications in this case. In this case, Investigator Schade manually compared the palm prints collected by Ms. Goodman with the known palm prints obtained from the defendant on July 24, 2014, and he "was able to identify all three cards to [the defendant's] palm print." Investigator Schade identified coordinating yellow dots on the digitized copies of the palm prints collected from the scene and the defendant's known palm prints as "minutia points," explaining, "They're just corresponding points for each -- where the latent palm and the known palm [match]." He said that he found no dissimilarities between the recovered prints and the known prints that would have caused him to conclude that the prints did not belong to the defendant. Investigator Schade said that, based upon his examination, he concluded that the palm prints collected from the exterior of the kitchen window of the victim's house belonged to the defendant. Investigator Schade testified that his conclusions were verified as part of the standard process followed by the KPD.

         During cross-examination, Investigator Schade testified that no standard number of "minutia point" matches was required to make a positive identification. He added, "False positives [are] extremely rare, and it's incredibly rare whenever you have two competent fingerprint specialists looking at it to be able to verify it."

         During redirect examination, Investigator Schade reiterated that the KPD took "the verification process very seriously," having "two or three people that verify those." He added that the quality of the palm prints obtained by Ms. Goodman was "really high."

         The 20-year-old defendant testified that at the time of the offense, he was 18 years old and attending Central High School. He said that he was a friend of Peyton Sharp's and that on May 29, 2014, he visited Peyton Sharp at his residence. The defendant recalled that while he was visiting with Peyton Sharp, Graham Sharp and Mr. Kiley approached him and asked if he knew anyone who would like to buy a tablet. After the boys showed the defendant "a white Nook that had a case, charger, and had been wiped," he offered to buy the device. The defendant said that he looked on Craigslist to determine a fair value and that he paid $60 to Mr. Kiley for the device. The defendant said that when he received the Nook from Mr. Kiley, "[e]very bit of the data had been erased off of it. It was in factory reset. It was ready to be set up for a new user." The defendant testified that, after buying the Nook from Mr. Kiley, he charged the device overnight and then, on the following morning, he registered the device by putting his information on it and attaching his bank card information to the device for purchases. He said that he purchased and downloaded "one or two of the Harry Potter books."

         The defendant said that he did not suspect "that there was anything wrong with" the Nook until "the investigator showed up at [his] house." He said that immediately after Investigator Ogle asked about the Nook, he "unplugged the Nook, grabbed the charger and everything [he] had for it, and . . . handed it straight to them." The defendant testified that he telephoned Peyton Sharp immediately after Investigator Ogle left his house with the Nook. Peyton Sharp put Graham Sharp on the telephone; Mr. Kiley was with them. The defendant said that after he "told them what all was going on and everything," Mr. Kiley told him that if he implicated them in the theft of the Nook, Mr. Kiley "had a .38 special, and then he also had other guns." The defendant claimed that he thought he had previously seen Mr. Kiley with a gun, and he "knew that Graham and Lucas both liked to fight a lot."

         The defendant testified that Investigator Ogle called him to come to the police department to view a photographic lineup. He said that he identified a photograph of Graham Sharp from that first lineup. Investigator Ogle asked him to view another lineup on a later date, and he identified a photograph of Mr. Kiley from that second lineup. The defendant said that he told Investigator Ogle that he had purchased the Nook from Mr. Kiley. At that point, the defendant admitted to Investigator Ogle that he had previously lied about where he got the Nook, saying that he did so because he was scared. The defendant claimed that when he eventually expressed his fear of Graham Sharp and Mr. Kiley to Investigator Ogle, the investigator told the defendant that he would not have let somebody around that size threaten him. The defendant said that, on their last meeting, Investigator Ogle took him to be fingerprinted, and he "thought it was to try and clear" him. He maintained that he had never been to the Crye residence and that there was no reason his palm print should have been on the window.

         Based upon this evidence, the jury convicted the defendant of the lesser included offenses of facilitation of aggravated burglary and theft of property valued at $500 or less. The defendant filed a timely but unsuccessful motion for new trial followed by a timely notice of appeal. In this appeal, the defendant challenges the admission of certain evidence, the sufficiency of the convicting evidence, and the propriety of the sentence imposed.

         I. Fingerprint Evidence

         The defendant first asserts that the trial court erred by admitting Investigator Schade's testimony regarding the verification of Investigator Schade's conclusion that the palm print obtained from the exterior window of the Crye residence belonged to the defendant and by admitting into evidence documents prepared by the verifying examiner who did not testify at trial. The defendant argues that both the testimony and the documents were inadmissible hearsay and that both violated the Confrontation Clause. The State avers that Investigator Schade's testimony was not hearsay and did not violate the Confrontation Clause. The State ...


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