State v. Bass, No. M2006-02563-CCA-R3-CD (Tenn. Crim. App. 2/28/2008)
| Decision Date | 28 February 2008 |
| Docket Number | No. M2006-02563-CCA-R3-CD.,M2006-02563-CCA-R3-CD. |
| Parties | STATE OF TENNESSEE v. CHERYL BASS |
| Court | Tennessee Court of Criminal Appeals |
David L. Raybin (on appeal), Nashville, Tennessee, and Eric L. Davis (at trial), Franklin, Tennessee, for the appellant, Cheryl Bass.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Kim R. Helper and Mark K. White, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
The defendant, Cheryl Bass, was convicted by a jury of criminal simulation with a value of less than $1,000, theft of property greater than $1,000 but less than $10,000, tampering with the evidence, and forgery. The defendant was sentenced to one year for criminal simulation, a Class E felony; three years for theft, a Class D felony; four years for tampering with evidence, a Class C felony; and one year for forgery, a Class E felony. At her sentencing hearing the trial court ordered the defendant's sentences to run concurrently and imposed a total effective sentence of four years. On appeal, the defendant argues that there was insufficient evidence to sustain her convictions, the trial court improperly sentenced her to four years confinement, the court improperly assessed fines against her, and the trial court failed to grant a new trial in light of newly discovered evidence. In addition, the defendant argues that the jury received improper instructions and that violations of her Fourth Amendment right against search and seizure warrant suppression of the evidence against her. Upon review, we affirm the judgments of the trial court.
The following evidence was presented at the defendant's trial. Detective Charles Warner testified that on January 6, 2004, he and his partner, Detective Arlena Clausi, were investigating the passing of counterfeit certificates at a local area McDonald's restaurant. Detective Warner recounted that in November 2003, McDonald's employees contacted police and reported an individual matching the defendant's description and driving a white Honda similar to the defendant's passed counterfeit food coupons at the restaurant. Detective Warner and Detective Clausi called upon the defendant at her home and explained that they were police officers who wished to speak with her about the investigation. Initially, the defendant stated that she did not want to talk to the officers, but after Detective Warner expressed the belief that the matter might be resolved within a few minutes, the defendant relented and allowed the officers inside her home.
Detective Warner testified that he and Detective Clausi entered the home, the defendant demanded that they remove their shoes, which they declined to do, and the defendant became uncooperative. Detective Warner informed the defendant that if she would permit an examination of her computer, the investigation into the issue of counterfeit coupons could be resolved quickly. The defendant refused, became combative, and refused any cooperation stating she would "make things as difficult as possible." At one point, the defendant's husband arrived home and encouraged the defendant to turn the computer over to the detectives, but the defendant persisted in her refusal. The defendant told detectives she needed to leave to pick up her daughter. Detective Warner told her she was free to go, but that he intended to "freeze" the house in order to obtain a warrant to search the defendant's house and car. The defendant was permitted to leave and get her daughter, but she was not permitted to take her own car. Detective Warner stated that the defendant took her husband's car instead and left to get her daughter. Detective Warner left Detective Clausi at the residence to secure it with other detectives while he obtained a search warrant.
Detective Warner testified that he returned to the defendant's residence and presented the defendant, her husband, and their attorney with a copy of the search warrant. Thereafter, detectives searched the house and Detective Warner compiled a master log detailing the time, date, location, and nature of all evidence collected. Detectives located coupons and gift certificates in the defendant's car, the kitchen, and the upstairs bathroom. Detective Warner identified several Opry Mills gift certificates found in the kitchen. The sizes of certificates were uneven and had repeating serial numbers. Detective Warner identified other coupons and certificates, all cut unevenly or altered, with values between $200 and $400 and containing repeat serial numbers. Detective Warner also identified a separate packet of $25 gift certificates for Opry Mills, three of which appeared to be valid, and three that were possibly counterfeit. He testified that the counterfeit certificates contained the same serial numbers as the authentic certificates, had uneven edges, and did not bear the temperature-adjusting orange watermark on the back of the certificates found on the originals. Detective Warner also testified that several torn counterfeit McDonald's gift certificates were recovered from the wastebasket in the upstairs bathroom.
Detective Warner testified that detectives also recovered what appeared to be a reimbursement check in the amount of $2,528.56 made payable to Mark Hartman. Along with the check, detectives found a social security statement for Mark Hartman and an AOL/DSL modem belonging to Mr. Hartman in a box in the basement closet of the defendant's house. In the defendant's purse, detectives found a military identification card. In the kitchen, detectives found additional military identification cards which appeared to have been copied and cut. Detective Warner stated that two cards contained the defendant's picture, name, social security number, and described the defendant as "Mil — Tech Sgt." Another card contained the same information and described the defendant as "Mil. Active Reservist." A pair of scissors were found near the military identification cards.
On cross-examination, Detective Warner testified that he left the defendant's residence to obtain a search warrant. As a result, he was not present when the defendant and her daughter locked themselves in an upstairs bathroom and denied access to detectives. However, Detective Warner identified photographs taken of the torn remains of coupons and certificates found in and around the upstairs bathroom trash can by Detective Kevin Adams after the defendant and her daughter left the bathroom. Detective Warner admitted that no scissors were found in the upstairs bathroom, but a pair of scissors were found downstairs in the kitchen pantry in a Kroger bag containing the military identification cards Detective Warner previously identified.
Detective Arlena Clausi testified that she arrived at the defendant's residence, and the defendant was hostile to the detectives' presence but invited them into her home. Detective Clausi stated that it was her responsibility to "freeze" the defendant's home and preserve any evidence until Detective Warner returned with the search warrant. Detective Clausi confirmed that the defendant left the house in her husband's car and returned home with her teenaged daughter while Detective Clausi and another detective maintained the scene.
Detective Clausi testified that at one point, the defendant asked her daughter, "Did you find that homework?" The defendant then told her she needed to go and find the homework. Detective Clausi testified that her suspicions were aroused by the awkward nature of this conversation. According to Detective Clausi, the daughter went outside to the defendant's car and began looking through it. Detective Clausi followed the daughter outside and observed her as she began searching the car. When the defendant's daughter noticed Detective Clausi watching her, she exited the car and returned inside. Once inside, the defendant asked her daughter if she found the homework and the daughter replied that she had not. Detective Clausi testified that the defendant then told her daughter, "You need to find that homework or you're going to be in trouble." The daughter left and went upstairs. Shortly thereafter, the defendant left the room and followed her daughter upstairs. Detective Clausi testified that Detective Grandy followed the two women upstairs. Moments later, Detective Clausi heard the defendant yelling at Detective Grandy about his attempts to enter the room where they were located. She ran upstairs and saw the defendant and her daughter in the daughter's bedroom. The defendant told the detectives that her daughter was ill and the two went into the adjoining bathroom where they stayed for several minutes before coming back downstairs again.
Detective Kevin Adams testified that he was part of the team that executed the search warrant at the defendant's residence and was assigned to search the upstairs and bathroom area. There was a door from the bathroom to the bedroom concealed from the hallway. After the defendant and her daughter returned downstairs, Detective Adams searched the bathroom and found torn McDonald's gift certificates and coupons in the bathroom trash can, and the torn and shredded remnants of "paper shavings" were located around the trash can. According to Detective Adams, the coupons and certificates were torn into fine "confetti-like" pieces. Detective Adams also testified that he conducted a search in the kitchen and found scissors and military identification cards in a Kroger bag in the pantry just off the kitchen area.
Mark Hartman testified that he...
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