State v. Bise

• Decision Date: 26 September 2012
• Docket Number: No. E2011–00005–SC–R11–CD.,E2011–00005–SC–R11–CD.
• Citation: 380 S.W.3d 682
• Parties: STATE of Tennessee v. Susan Renee BISE.
• Court: Tennessee Supreme Court

380 S.W.3d 682

STATE of Tennessee

v.Susan Renee BISE.

No. E2011–00005–SC–R11–CD.

Supreme Court of Tennessee, at Knoxville.

May 9, 2012 Session.

Sept. 26, 2012.

Prior Version Recognized as Unconstitutional

N.J.S.A. 2C:44–3(e)

18 U.S.C.A. §§ 3553(b)(1), 3742(e)

West's RCWA 9.94A.120(2)

(now codified at 9.94A.505)

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Amy L. Tarkington, Deputy Attorney General; C. Berkeley Bell, District Attorney General; and J. Chalmers Thompson, Assistant District Attorney General, for the appellant, the State of Tennessee.

Jonathan D. Cooper, Knoxville, Tennessee (on appeal before the Supreme Court) and Charles C. Harrison, Jr., Pigeon Forge, Tennessee (at trial and on appeal before the Court of Criminal Appeals) for the appellee, Susan Renee Bise.

OPINION

GARY R. WADE, J., delivered the opinion of the Court, in which CORNELIA A. CLARK, C.J., JANICE M. HOLDER, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

GARY R. WADE, Justice.

Following a burglary in Greene County, the defendant was charged with two counts of aggravated burglary and two counts of theft of property. At the conclusion of the trial, the jury returned verdicts of guilt for one count of facilitation of aggravated burglary and for two counts of theft of property. After finding the presence of one enhancement factor, the trial court imposed concurrent three-year sentences for each offense. The Court of Criminal Appeals found that the enhancement factor did not apply and reduced each of the sentences to two years. Because we find that a sentence imposed by a trial court should be upheld so long as it is within the appropriate sentencing range and is otherwise in compliance with the purposes and principles of the sentencing statute, we reverse the sentence modification by the Court of Criminal Appeals and, upon review under an abuse of discretion standard with a presumption of reasonableness, reinstate the sentence imposed by the trial court.

Facts and Procedural History

In September of 2008, a burglary took place at the Greene County residence of James McElroy. A number of items were stolen. During the course of the investigation, the Greene County Sheriff's Department (the “Sheriff's Department”) received information that Susan Renee Bise (the “Defendant”) was involved in the crime. She was eventually charged with two counts of aggravated burglary and two counts of theft.

At trial, McElroy testified that his work required travel for “about six to nine months out of the year” and that he spent an equal amount of time at his Greene County residence and his residence in Virginia. He described his Greene County residence, which was located on a mountain top and surrounded by foliage, as “a dream house,” and estimated that it was “probably eighty percent complete” at the time of the burglary. Because the residence was still under construction, he kept “a lot of tools” on the premises and had secured the metal gate at the driveway entrance to the property with a “double chain padlock.” McElroy was out of town when the burglary took place. Upon his return, he discovered his gate lying in the driveway. Four-by-four posts on either side of the gate had been snapped off near ground level. As he entered the basement, McElroy noticed that there were a number of items missing. He then found a pile of his tools upstairs that “looked like they had been gathered to be loaded.” After contacting the Sheriff's Department, McElroy provided the investigating officer with a list of the missing items, which amounted to approximately $7,500 in value. Because several of the stolen items, including a table saw, ladders, “a fifteen foot pole saw,” and an air compressor, were quite large, McElroy believed that more than one trip would have been required for their removal.

On February 13, 2009, James Gammons discovered a saw, vise, drill press, and table saw on the side of a road. He placed the items in his vehicle, returned them to his residence, and contacted the Sheriff's Department. Afterward, McElroy identified the items as among those taken from his home and, upon inspection, determined that only one of the items, the saw, was usable.

Chad Warner testified at the Defendant's trial on behalf of the State. ¹ He first acknowledged that in February of 2009, some five months after the burglary, he had assaulted the Defendant and her son, Jason Jr., and had been criminally charged as a result. He also acknowledged that he had asked the Defendant and her son to drop the charges against him and, when they refused, he informed Detective James Randolph that the Defendant, her husband, Jason Bise, Sr., and her son, Jason Jr., had tried “to sell [him] some stolen goods,” including chain saws, a table saw, a motorcycle, and a television. According to Warner, the Bises had driven “over a gate” and gained possession of the items with the help of “a Mexican named Domingo.”

Detective Randolph, who was assigned to investigate the burglary at the McElroy residence, initially was unable to locate the stolen items. When informed by Warner that the Bises had attempted to sell him stolen items, he went to the residence of Jason Jr. and found a motorcycle matching the description provided by Warner in his earlier statement. After providing Miranda warnings, Detective Randolph questioned Jason Jr. and learned that the Defendant and an individual of Mexican descent may have been involved in the burglary.

On March 25, 2009, Detective Randolph met with the Defendant, who agreed to submit to questioning. In her statement to the detective, she admitted that in September of 2008, her son, Jason Jr., had driven over a driveway gate in order to gain access to a residence and that she sat in the truck while Jason Jr. and Hosea Hernandez entered the house and “took a bunch of stuff.” The Defendant told Detective Randolph that when they returned, she informed them that she “didn't want anything to do with this” and that after they got more beer, she “passed out, and Jason and [Hernandez] went back to the house ... and took some more stuff.” In her statement, the Defendant also admitted that some of the stolen items were still in her root cellar several months after the burglary, when the assault by Warner took place. She informed the detective that after the assault, she instructed her son to get rid of the stolen items “and he took them down on Pate's Hill Road and set them out along the road.” The Defendant also told Detective Randolph that approximately one month after the burglary, her husband and Hernandez brought a motorcycle to her residence, claiming that Hernandez had purchased it. The Defendant further stated that later, when Hernandez was deported, he gave the motorcycle to Jason Jr.

The Defendant, who testified in her own defense, recalled that on the day of the burglary she went swimming with her son and Hernandez, and that in the ensuing forty-five minutes to an hour, she and the two men consumed a twelve-pack of beer. She claimed that afterward, Hernandez asked Jason Jr. to “take him to [a particular] address to pick up his personal belongings.” The Defendant maintained that although she had asked her son not to drive because of his drinking, he did so anyway, taking her and Hernandez to the site of the burglary. The Defendant testified that just before Jason Jr. drove over the gate, she warned him not to do so and asked to be taken home. She claimed that she remained inside the truck while Jason Jr. and Hernandez entered the residence and loaded the stolen items into the truck. She recalled that after they returned to her residence, Jason Jr. and Hernandez placed the stolen items in her root cellar while she went inside and passed out. Consistent with her earlier statement to Detective Randolph, the Defendant denied going back to the McElroy residence a second time, claiming that she slept while Jason Jr. and Hernandez returned and “took more stuff.” The Defendant testified that when she discovered the items did not belong to Hernandez, she told her son to get rid of them.

The Defendant further explained that she became acquainted with Warner because he had worked for her family's construction business. She stated that she and Jason Jr. pressed charges against Warner after he assaulted them and that she refused to drop the assault charges because she had “about lost [her] son” as a result of the incident. The Defendant denied ever speaking with Warner about either taking the items from the McElroy residence or trying to sell him the items. She further contended that the items described by Warner could have been tools her family owned in their construction business. While admitting that she told her son to get rid of the stolen items soon after the incident with Warner, the Defendant denied that it had anything to do with the possibility that Warner might talk to the police.

The jury found the Defendant guilty of facilitation ² of aggravated burglary ³ as a lesser-included offense in count one, and theft of property valued at one thousand dollars or more but less than ten thousand dollars ⁴ in counts two and four. She was found not guilty of aggravated burglary in count three.

As a Range I offender, the Defendant qualified for a sentence between two and four years on each offense. Id. § 40–35–112(a)(4). At the sentencing hearing, Detective Mike Fincher testified that burglaries were a particular problem in Greene County and that the Sheriff's Department had worked almost four hundred burglary cases over a one-year period. During that time, one residential burglary involved a seventeen-year-old burglar who was shot and killed by the homeowner. None of the other burglaries investigated during that time, however, had resulted in death. McElroy also testified at the sentencing hearing, confirming that the stolen items had an approximate value of $7,500 and that the cost to repair the damage to his gate...