State v. Sisk

Decision Date15 June 2011
Docket NumberNo. E2009–00320–SC–R11–CD.,E2009–00320–SC–R11–CD.
Citation343 S.W.3d 60
PartiesSTATE of Tennesseev.David Lynn SISK.
CourtTennessee Supreme Court

OPINION TEXT STARTS HERE

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor General; Renee W. Turner, Senior Counsel; James B. Dunn, District Attorney General; and Joe Crumley and Brownlow Marsh, Assistant District Attorneys General, for the appellant, the State of Tennessee.Wesley D. Stone, Knoxville, Tennessee (on appeal) and Brad Davidson, Newport, Tennessee (at trial), for the appellee, David Lynn Sisk.

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, J.

The defendant was convicted at trial of three offenses: aggravated burglary; theft of $10,000 or more but less than $60,000; and theft of $1,000 or more but less than $10,000. The trial court classified the defendant as a career offender, imposed sentences of fifteen, fifteen, and twelve years respectively, and ordered the twelve-year sentence to be served consecutively, for an effective sentence of twenty-seven years. On appeal, the Court of Criminal Appeals determined as follows: (1) that the conviction for theft of $1,000 or more but less than $10,000 violated the prohibition against double jeopardy; (2) that, if properly convicted of the remaining offenses, the defendant qualified as a persistent rather than a career offender; and (3) that, in any event, the evidence was insufficient to support the convictions for aggravated burglary and theft of $10,000 or more but less than $60,000. While conceding that the Court of Criminal Appeals had properly set aside the lesser theft conviction and, in consequence, correctly determined that the defendant qualified as a persistent rather than a career offender, the State applied for permission to appeal, arguing that the other two convictions should be reinstated. This Court, applying the standard of review established in State v. Dorantes, 331 S.W.3d 370 (Tenn.2011), holds that the evidence presented at trial warrants reinstatement of the convictions. The judgment of the Court of Criminal Appeals is, therefore, affirmed in part and reversed in part, and the case is remanded for resentencing in light of this opinion.

On or about April 4, 2006, the Cocke County Sheriff's Department discovered a black 1992 BMW that had been wrecked, burned, and struck several times by what appeared to have been a pointed tool. An investigation revealed that the automobile was owned by Newport resident Manit Subhakul and his wife, Marina (the “victims”). Lieutenant Ronnie Sanders of the Newport Police Department drove to the victims' residence at 504 7th Street to inform them that their damaged automobile had been found. No one was present at the house, but Lieutenant Sanders observed that a window had been broken out in the rear of the house. He contacted Detective George Grooms, a criminal investigator with the Newport Police Department, who initiated an investigation of the scene. Detective Grooms found that the back door was open and a large television set was sitting inside the entrance, lying on its side in the kitchen. It was later determined that the television set was from the master bedroom of the house. Detective Grooms concluded that a burglar had gained entry through a bathroom window and had thoroughly searched the contents of the residence. He described the house as “partially ransacked” and “in ... disarray.” Although the police found latent fingerprints inside the residence, none were suitable for comparative purposes.

Detective Grooms also found a partially smoked, hand-rolled cigarette just inside the back door in an area leading to the kitchen. He described the cigarette butt as having a stain on it but noted that it was “not crumpled” and did not “appear to be stepped on.” He also stated that he had “no independent recollection of a cigarette ever sticking to my shoe, and when it comes to conducting a search inside of a house ... we make absolutely sure that we don't carry any foreign substance inside the house ... to the best of our ability.” He surmised that “since the Subhakuls didn't smoke, it wasn't their cigarette, that it had to be left behind by the perpetrator.” Both the hand-rolled cigarette butt and a beer bottle found in the front yard of the residence were sent to the Tennessee Bureau of Investigation's (“TBI”) Knoxville Regional Crime Laboratory for DNA testing. Jennifer Millsaps, a special agent forensic scientist at the Laboratory, testified that she tested both the cigarette butt and the beer bottle “to establish a DNA profile that could be later used for comparison against any individuals in the case.” She stated that she found no DNA on the beer bottle, but she did find DNA on the cigarette butt.

The victims had left Newport to visit relatives in Thailand on March 27, 2006, eight days before police discovered the burglary, and were unable to return home for more than a week after they were notified of the crime. This created a delay in the efforts of the Newport Police Department to identify the items stolen from the victims' residence. Eventually, the victims identified numerous items that had been taken from their home, including a small safe containing cash and gold coins, several pieces of jewelry, and other valuables. The police, however, were only able to recover the door face of the safe and several family photographs, which were found on a river bank. Subhakul testified at trial that the estimated value of the BMW, which had been recently reconditioned, was $26,000, and that the total value of the other items taken was approximately $40,000.

David Lynn Sisk (the Defendant) lived with his mother at 409 7th Street, which was located across the street and two doors down from the victims' residence. He became a suspect in the burglary “by word of mouth.” Detective Grooms, following up on the lead, obtained a search warrant in order to procure a DNA sample from the Defendant. Subhakul testified that he was aware the Defendant lived across the street and that he had often seen the Defendant smoking cigarettes outside his mother's residence. Subhakul further stated that he had never given the Defendant permission to enter his residence.

Agent Millsaps testified that she compared the DNA profile obtained from the Defendant with the DNA profile developed from the cigarette butt found inside the victims' residence, and that the two profiles matched. Agent Millsaps, who was declared by the trial court to be “competent to testify as an expert in the forensic science field, especially with respect to DNA,” further stated that [t]he probability of an unrelated individual having the same DNA profile from either the African American, Caucasian, Southeastern Hispanic or Southwestern Hispanic populations exceeds the current world population [of] approximately six billion.” In other words, “the chances of walking out in the general population and finding someone else who would have the same DNA profile as the [Defendant] are greater than the world population.” She acknowledged on cross-examination that the DNA testing could not identify how long the Defendant's DNA profile had been on the cigarette butt.

On January 3, 2007, after receiving the results of the DNA analysis from the TBI and approximately nine months after the burglary of the victims' home occurred, officers went to the Defendant's residence in an attempt to effectuate an arrest. The Defendant was on the front porch of the house talking on his mobile phone. When he saw the officers stop in front of the house, he ran from them. After chasing the Defendant for approximately ten or fifteen minutes, the officers apprehended him and took him into custody. On cross-examination, Detective Grooms acknowledged that the officers' visit to the Defendant's house on January 3, 2007, “was regarding a totally separate incident than this one,” but on redirect he clarified that the officers also intended to talk to the Defendant about the burglary when they went to his residence.

The Defendant chose not to offer any proof at trial. At the conclusion of its deliberations, the jury returned verdicts of guilt for aggravated burglary, a Class C felony, see Tenn.Code Ann. § 39–14–403(b) (2003); theft of property valued at $10,000 or more but less than $60,000, a Class C felony, see Tenn.Code Ann. § 39–14–105(4) (2003); and theft of property valued at $1,000 or more but less than $10,000, a Class D felony, see Tenn.Code Ann. § 39–14–105(3). The trial court determined that the Defendant qualified as a career offender and imposed sentences of fifteen years for aggravated burglary, fifteen years for theft of property valued at $10,000 or more but less than $60,000, and twelve years for theft of property valued at $1,000 or more but less than $10,000. The trial court ordered that the sentence for the lesser theft conviction be served consecutively to the sentences for the other two convictions, which were to be served concurrently. This resulted in an effective sentence of twenty-seven years.

On appeal, the Court of Criminal Appeals reversed and dismissed the conviction for theft of property valued at $1,000 or more but less than $10,000 as violative of the prohibition against double jeopardy.1 State v. Sisk, No. E2009–00320–CCA–R3–CD, 2010 WL 3502512, at *6 (Tenn.Crim.App. Sept. 8, 2010); see also State v. Phillips, 924 S.W.2d 662, 665 (Tenn.1996) (observing that, generally, [a] single offense may not be divided into separate parts”) (citing State v. Black, 524 S.W.2d 913, 916–20 (Tenn.1975)); State v. Epps, 989 S.W.2d 742, 746 (Tenn.Crim.App.1998) (vacating and dismissing the conviction for attempted theft where the defendant was also convicted of theft arising from the same criminal episode and holding that “where the takings are all...

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