State of Tennessee v. Billy D. Sizemore ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 21, 2010
STATE OF TENNESSEE v. BILLY D. SIZEMORE
Appeal from the Circuit Court for Perry County
No. 2008-CR-25A Robbie Beal, Judge
No. M2009-01827-CCA-R3-CD - Filed January 31, 2011
The Perry County Grand Jury indicted Appellant, Billy D. Sizemore, for one count of theft
over $1,000 in connection with the theft of rolls of wire fencing from Eugene Grinder. A
jury convicted Appellant as charged, and the trial court sentenced Appellant to twelve years
as a career offender. On appeal, Appellant argues that the evidence is insufficient to support
his conviction because there was insufficient corroboration of his co-defendant’s testimony.
After a thorough review of the record, we conclude that there was sufficient corroborating
evidence and, therefore, the evidence was sufficient to support his conviction. The judgment
of the trial court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.
J ERRY L. S MITH, J., delivered the opinion of the court, in which A LAN E. G LENN and R OBERT
W. W EDEMEYER, JJ., joined.
Larry Joe Hinson, Jr., Hohenwald, Tennessee, for the appellant, Billy D. Sizemore.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Ron Davis, District Attorney General, and Stacey B. Edmonson, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual Background
Eugene Grinder, the victim in this case, owns property in Perry County, Tennessee.
About eight years before trial, Mr. Grinder purchased about 5,000 feet of six-foot wire
fencing in seventy-two, irregular-sized rolls. Some of the rolls were bigger, and some were
smaller. He paid $3,000 for the fencing. He left the wire fencing outside on this property.
In January 2008, someone called the victim and told him they found a roll of the wire
fencing. When he arrived at his property, the victim discovered that the majority of the wire
fencing had been taken and just a few pieces of it were left.
Christopher Reeves, Appellant’s co-defendant, testified that he was incarcerated at
the time of trial. He stated that in January 2008, he and Appellant stole rolls of wire fencing
from a property in Perry County. The two men loaded some of the wire into a truck. Mr.
Reeves did not know what happened to the wire fencing because he returned home after
loading it. The two men returned and loaded up more wire fencing into a red Chevy pick-up
truck they borrowed from Herbert Dell Potter. On their way to Mr. Potter’s house, the truck
broke down. After the truck was repaired, they returned to Mr. Potter’s house with the wire
fencing. Mr. Potter was living with Kelly Pilatti at the time. The wire fencing was sold to
Heather Georges and Trade Time, a local radio show.
Mr. Potter and his wife, Kelly Potter, recalled that Appellant borrowed Mr. Potter’s
pick-up truck in January 2008. When Appellant returned with the truck, the back of the truck
was filled with twenty-five to thirty rolls of wire fencing about six feet high. The wire
fencing was rusty. Appellant told Mr. Potter that the wire fencing was left over from a job
erecting a fence. Mr. Potter and his wife admitted that they did not know where Appellant
obtained the wire.
Lewis County Sheriff’s Sergeant Tommy Franzen was informed that wire fencing had
been stolen from Mr. Grinder’s property. He went to the victim’s property and saw that some
wire was still there. He contacted scrap metal places to see if anyone had attempted to sell
any wire fencing. He was sent to the Pilatti’s residence. There Sergeant Franzen discovered
twenty-one rolls of wire fencing. Mr. Grinder identified the rolls as belonging to him. While
there, he spoke with Mr. Pilatti and both of the Potters. Appellant and his co-defendant were
brought into the sheriff’s department for another reason, and Sergeant Franzen interviewed
them about the wire fencing. Appellant told Sergeant Franzen he bought the wire fencing
at a store for $85 a roll.
Heather Georges was a close friend of Appellant. She recalled that she purchased a
few rolls of wire fencing from Appellant in late December 2007 or early January 2008. She
purchased the wire fencing for use in her dog breeding business. When she returned from
a dog show in Georgia, the wire fencing had been delivered. The wire fencing was rusty and
the rolls were all different sizes. On January 22, 2008, the police questioned her regarding
her purchase of the wire fencing. When she learned it had been stolen, she gave it to the
authorities.
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Joey Holt heard an advertisement for wire fencing on the Trade Time radio program.
He purchased some wire for $25 a roll in January 2008. After he saw a newspaper article
regarding wire fencing similar to that he purchased, he contacted the authorities. The
sheriff’s department took the wire.
On January 24, 2008, Perry County Sheriff’s Detective Mike Chandler was contacted
by the Lewis County Sheriff’s Department. The Lewis County Sheriff’s Department
provided the results of their investigation into the stolen wire fencing to Detective Mike
Chandler. As a result, Detective Chandler obtained warrants for Appellant’s arrest.
The Perry County Grand Jury indicted Appellant for one count of theft over $1,000.
At the conclusion of a jury trial held on June 12, 2009, Appellant was found guilty as
charged. The trial court sentenced Appellant to twelve years as a career offender. Appellant
filed a timely notice of appeal.
ANALYSIS
Appellant’s sole issue on appeal is that the evidence was insufficient to support his
conviction because the testimony of his co-defendant was not properly corroborated at trial.
When a defendant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury
and “approved by the trial judge, accredits the testimony of the” State’s witnesses and
resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253,
259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the
accused is originally cloaked with a presumption of innocence, the jury verdict of guilty
removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to
demonstrate the insufficiency of the convicting evidence. Id. The relevant question the
reviewing court must answer is whether any rational trier of fact could have found the
accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.
P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences
that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is
precluded from re-weighing or reconsidering the evidence when evaluating the convicting
proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,
805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the
weight and value to be given to evidence, as well as all factual issues raised by such
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evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788
S.W.2d 559, 561 (Tenn. 1990).
We agree with Appellant that convictions may not be based solely upon the
uncorroborated testimony of accomplices. See State v. Robinson, 971 S.W.2d 30, 42 (Tenn.
Crim. App. 1997). However, Tennessee law requires only a modicum of evidence in order
to sufficiently corroborate such testimony. See State v. Copeland, 677 S.W.2d 471, 475
(Tenn. Crim. App. 1984). More specifically, precedent provides that:
The rule of corroboration as applied and used in this State is that there must be
some evidence independent of the testimony of the accomplice. The
corroborating evidence must connect, or tend to connect the defendant with the
commission of the crime charged; and, furthermore, the tendency of the
corroborative evidence to connect the defendant must be independent of any
testimony of the accomplice. The corroborative evidence must[,] of its own
force, independently of the accomplice’s testimony, tend to connect the
defendant with the commission of the crime.
State v. Griffis, 964 S.W.2d 577, 588-89 (Tenn. Crim. App. 1997) (quoting Sherrill v. State,
321 S.W.2d 811, 815 (Tenn. 1959)). In addition, our courts have stated that:
The evidence corroborating the testimony of an accomplice may consist of
direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. The quantum of evidence necessary to corroborate
an accomplice’s testimony is not required to be sufficient enough to support
the accused’s conviction independent of the accomplice’s testimony nor is it
required to extend to every portion of the accomplice’s testimony. To the
contrary, only slight circumstances are required to corroborate an accomplice’s
testimony. The corroborating evidence is sufficient if it connects the accused
with the crime in question.
Id. at 589 (footnotes omitted). Furthermore, we note that the question of whether an
accomplice’s testimony has been sufficiently corroborated is for the jury to determine. See
id. at 588; State v. Maddox, 957 S.W.2d 547, 554 (Tenn. Crim. App. 1997).
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We conclude that there was adequate testimony from other witnesses at the trial to
corroborate the testimony of Mr. Reeves, Appellant’s co-defendant. Mr. Reeves testified at
trial that he and appellant loaded wire fencing into a pick-up truck they borrowed from Mr.
Potter. They returned with the wire fencing and the truck to Mr. Potter’s house, who was
living with Mr. Pilatti at the time. He also testified that the wire fencing was sold to Ms.
Georges on the Trade Time radio program. Mr. Potter testified that Appellant and his co-
defendant borrowed his pick-up truck. They later returned with rolls of wire fencing in the
back of the truck. They left the wire fencing in Mr. Pilatti’s yard. Ms. Georges testified that
she purchased wire fencing from Appellant. Mr. Holt testified that he purchased wire
fencing from an individual advertising wire fencing on the Trade Time radio program. Both
Ms. Georges and Mr. Holt described the wire fencing as rusty. Sergeant Franzen discovered
wire fencing on Mr. Pilatti’s property and Mr. Grinder identified it as his.
As stated above, we conclude that there is more than adequate evidence to corroborate
Mr. Reeves’s testimony. Clearly, the jury also came to the same determination. Therefore,
we find that the evidence is sufficient to support Appellant’s conviction.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
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JERRY L. SMITH, JUDGE
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