State v. Sisk

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

May 11, 2011 Session

STATE OF TENNESSEE v. DAVID LYNN SISK

Appeal by Permission from the Court of Criminal Appeals

Circuit Court for Cocke County

No. 0362 Ben W. Hooper, II, Judge

No. E2009-00320-SC-R11-CD - Filed June 15, 2011

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.

Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Affirmed in Part

and Reversed in Part

G ARY R. W ADE, J., delivered the opinion of the Court, in which C ORNELIA A. C LARK, C.J.,

J ANICE M. H OLDER, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

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

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

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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.

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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 pursuant to a single intent, there

is but a single larceny”). Because the lesser theft, a Class D felony, had been set aside as a

violation of the prohibition against double jeopardy, and the only remaining theft conviction

qualified as a Class C felony, the Court of Criminal Appeals further determined that the

Defendant qualified as a Range III persistent offender rather than as a career offender. Sisk,

2010 WL 3502512, at *10 (citing Tenn. Code Ann. § 40-35-107(a) (2003 & Supp. 2005) (“A

‘persistent offender’ is a defendant who has received: (1) Any combination of five (5) or

more prior felony convictions within the conviction class or higher, or within the next two

(2) lower felony classes . . . .”)). The Court of Criminal Appeals did not remand for

resentencing, however, because it also determined that there was insufficient evidence from

which the jury could have concluded that the Defendant had committed either the aggravated

burglary or the theft of property valued at $10,000 or more but less than $60,000. Sisk, 2010

WL 3502512, at *3-4. Judge D. Kelly Thomas, Jr. dissented from this portion of the

majority’s holding.

1

Our federal and state constitutions provide protections against being “twice put in jeopardy of life

or limb” for the same offense. U.S. Const. amend. V; Tenn. Const. art. 1, § 10; see also State v. Denton, 938

S.W.2d 373, 378 (Tenn. 1996).

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The State filed an application for permission to appeal. While conceding that the

Court of Criminal Appeals had properly set aside the Class D felony conviction for theft of

property valued at $1,000 or more but less than $10,000, and, in consequence, that the

Defendant qualified as a persistent rather than a career offender, the State asserts that the

evidence it presented at trial was sufficient to support the convictions for aggravated burglary

and theft of property valued at $10,000 or more but less than $60,000. We granted the

State’s application for review.

Standard of Review

Traditional principles apply to the appellate review of challenges to the sufficiency

of the convicting evidence. Initially, “the State must be afforded the strongest legitimate

view of the evidence and all reasonable inferences that may be drawn therefrom.” State v.

Vasques, 221 S.W.3d 514, 521 (Tenn. 2007) (citing State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978)). The jury, as the trier of fact, is empowered to assess the credibility of the

witnesses, to address the weight to be given their testimony, and to reconcile any conflicts

in the proof. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State,

575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). When there is a challenge to the sufficiency

of the evidence, the relevant question is whether, after reviewing the evidence in the light

most favorable to the State, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); see

also Tenn. R. App. P. 13(e). “Because a verdict of guilt removes the presumption of

innocence and raises a presumption of guilt, the criminal defendant bears the burden on

appeal of showing that the evidence was legally insufficient to sustain a guilty verdict.” State

v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191

(Tenn. 1992)). The standard of review “‘is the same whether the conviction is based upon

direct or circumstantial evidence.’” Id. (quoting State v. Sutton, 166 S.W.3d 686, 689 (Tenn.

2005)).

A criminal offense may, of course, be established exclusively by circumstantial

evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable v. State, 313 S.W.2d

451, 456-58, 461 (Tenn. 1958). Ultimately, however, the jury must decide the significance

of the circumstantial evidence, as well as “‘[t]he inferences to be drawn from such evidence,

and the extent to which the circumstances are consistent with guilt and inconsistent with

innocence.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable, 313

S.W.2d at 457). Appellate courts may not substitute their own inferences for those drawn

by factfinders in circumstantial evidence cases. State v. Lewter, 313 S.W.3d 745, 748 (Tenn.

2010).

Years ago, in State v. Crawford, 470 S.W.2d 610 (Tenn. 1971), this Court adopted a

standard of proof in criminal prosecutions based exclusively upon circumstantial evidence

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that purportedly required the State to prove facts and circumstances “so strong and cogent

as to exclude every other reasonable hypothesis save the guilt of the defendant, and that

beyond a reasonable doubt.” Id. at 612. This Court also stated in Crawford that in such

cases,“[a] web of guilt must be woven around the defendant from which he cannot escape

and from which facts and circumstances the jury could draw no other reasonable inference

save the guilt of the defendant beyond a reasonable doubt.” Id. at 613. This language was

recited for years by Tennessee courts as controlling in those cases in which the sufficiency

of exclusively circumstantial evidence was at issue; indeed, it was used by both the Court of

Criminal Appeals and the trial court in this case. See Sisk, 2010 WL 3502512, at *2. 2 In

State v. James, 315 S.W.3d 440, 455 n.14 (Tenn. 2010), however, we pointed out the

inconsistency between the terminology employed in Crawford and its progeny and the

standard of proof applied by the United States Supreme Court in those cases in which the

evidence is solely circumstantial. See Jackson, 443 U.S. at 326 (rejecting the notion “that

the prosecution [i]s under an affirmative duty to rule out every hypothesis except that of guilt

beyond a reasonable doubt”).3 Finally, in State v. Dorantes, 331 S.W.3d 370, 381 (Tenn.

2011), we adopted the federal standard in Tennessee and eschewed any distinction between

the standard of proof required in cases based solely upon circumstantial evidence and that

in cases where direct evidence of guilt is presented by the State. Although we observed in

Dorantes that, as a practical matter, there was little difference between the federal standard

and the “reasonable hypothesis” language used in Crawford, we also noted that, depending

2

The trial court gave an instruction to the jury on direct and circumstantial evidence while Detective

Grooms was being cross-examined regarding the cigarette butt that was found inside the victims’ residence.

This instruction made implicit reference to the Crawford language: “When the evidence is entirely

circumstantial, then before you would be justified in finding the defendant guilty, you must find that all the

essential facts are consistent with the theory of guilt, and the facts must exclude every other reasonable

theory except that of guilt.”

3

The Court in Jackson cited Holland v. United States, 348 U.S. 121 (1954), in which it had directed

“that where the jury is properly instructed on the standards for reasonable doubt,” it would be “confusing

and incorrect” to require an additional instruction that circumstantial evidence presented by the government

“must be such as to exclude every reasonable hypothesis other than that of guilt.” Id. at 139-40. The federal

Courts of Appeals have followed the Supreme Court’s guidance and consistently rejected the view that

circumstantial evidence is less probative than direct evidence. See, e.g., United States v. Kelley, 461 F.3d

817, 825 (6th Cir. 2006) (“‘Circumstantial evidence alone is sufficient to sustain a conviction and such

evidence need not remove every reasonable hypothesis except that of guilt.’” (quoting United States v.

Spearman, 186 F.3d 743, 746 (6th Cir. 1999))); United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (“It

is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the

evidence establishes guilt beyond a reasonable doubt.”); United States v. Nelson, 419 F.2d 1237, 1241 (9th

Cir. 1969) (“Since circumstantial and testimonial evidence are indistinguishable so far as the jury’s

fact-finding function is concerned, all that is to be required of the jury is that it weigh all of the evidence,

direct or circumstantial, against the standard of reasonable doubt.”).

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on the nature of the circumstantial evidence presented at trial, the adoption of the federal

standard of proof could result in a different outcome in some cases. Id.

Analysis

One commits an aggravated burglary when, without the effective consent of the

property owner, he or she enters a habitation with the intent to commit a felony, theft, or

assault. Tenn. Code Ann. §§ 39-14-402(a)(1) & -403 (2003). “A person commits theft of

property if, with intent to deprive the owner of property, the person knowingly obtains or

exercises control over the property without the owner’s effective consent.” Tenn. Code Ann.

§ 39-14-103 (2003).

The State argues that, in reversing the Defendant’s convictions for aggravated

burglary and theft of property valued at $10,000 or more but less than $60,000, the Court of

Criminal Appeals failed to give proper deference to the jury’s findings of fact and improperly

substituted its own inferences for those drawn by the jury. The evidence presented at trial

established that the Defendant, a smoker, lived across the street and two houses down from

the burglarized house. The victims had never given the Defendant permission to enter their

residence and were not smokers themselves. The victims were out of the country when the

house was burglarized, and Subhakul testified that the items stolen from inside his home

were valued at approximately $40,000, while the stolen BMW was worth $26,000. A

partially smoked, hand-rolled cigarette containing the DNA of the Defendant was found

inside the victims’ home on the date the police discovered the burglary. The chances that

the DNA found on the cigarette belonged to someone other than the Defendant were less than

one in six billion. The cigarette butt had not been crumpled or flattened as if it had been

tracked into the house from the street; indeed, the investigating officers were careful to

ensure that they did not track any debris into the crime scene. When the police went to the

Defendant’s residence several months later to arrest him on another charge and speak to him

about the burglary of the victims’ home, he ran from them and was not captured for ten to

fifteen minutes.4 Viewing the evidence, as we must, in the light most favorable to the State,

we conclude that a rational finder of fact could have found that the essential elements of the

crimes of aggravated burglary and theft of property valued at $10,000 or more but less than

$60,000 were proven beyond a reasonable doubt.

4

“‘[F]light and attempts to evade arrest are relevant as circumstances from which, when considered

with the other facts and circumstances in evidence, a jury can properly draw an inference of guilt.’”

Dorantes, 331 S.W.3d at 388 (quoting State v. Zagorski, 701 S.W.2d 808, 813 (Tenn. 1985)). Moreover, the

trial court properly charged the jury as to how to interpret flight from arrest, providing the jurors with the

appropriate pattern instruction. See Dorantes, 331 S.W.3d at 388 (quoting T.P.I.-Crim. 42.18 (10th ed.

2006)).

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In its opinion reversing the Defendant’s convictions, the Court of Criminal Appeals

distinguished our recent decision in State v. Lewter, 313 S.W.3d at 749-50, and concluded

that “other than the presence of the defendant’s DNA on the cigarette butt found inside the

home, no other evidence corroborated the State’s theory that the defendant committed the

offenses in this case.” Sisk, 2010 WL 3502512, at *3. As was the case in Lewter, however,

there is significant evidence to support the jury’s guilty verdict other than merely the

presence of an item found at the crime scene that contained the Defendant’s DNA. The

undamaged condition of the cigarette butt, Detective Grooms’ testimony that it was unlikely

the cigarette had been tracked into the house and that the victims themselves were not

smokers, the proximity of the Defendant’s residence to the burglarized house, the fact that

the Defendant often was seen smoking outside and had never been invited into the victims’

residence, and the Defendant’s flight from police on January 3, 2007, all corroborate the

DNA evidence.5 While the intermediate appellate court posited that “[s]everal plausible

explanations for the presence of the defendant’s cigarette inside the victims’ residence come

to mind, including that the cigarette butt was ‘tracked’ into the residence,” Sisk, 2010 WL

3502512, at *3, our duty on appeal of a conviction is not to contemplate all plausible

inferences in the Defendant’s favor, but to draw all reasonable inferences from the evidence

in favor of the State. Given Detective Grooms’ description of the cigarette butt and its

location, it was perfectly reasonable for the jury to believe the State’s theory that the

Defendant had entered the victims’ residence during the burglary and left the cigarette butt

there. The evidence is sufficient to support the jury’s verdict.

It is notable that the Court of Criminal Appeals stated that “[t]he mere presence of a

single cigarette partially smoked by the defendant is neither sufficient to weave an

inescapable web of guilt around the defendant, see [State v.] McAfee, 737 S.W.2d [304,] 306

[(Tenn. Crim. App. 1987)], nor ‘to exclude every other reasonable hypothesis save the guilt

of the defendant,’ see Crawford, 470 S.W.2d at 612.” Sisk, 2010 WL 3502512, at *3.

Because the court’s reference to Crawford was written prior to our decision in Dorantes, it

was not error. Applying the standard of proof under Dorantes, however, which clarifies that

circumstantial evidence is equally as probative as direct evidence, we conclude that the jury

exercised its prerogative by determining that the Defendant was guilty of both aggravated

burglary and theft of property having a value of $10,000 or more but less than $60,000.

5

The Defendant argues that his flight from police was irrelevant for purposes of proving his guilt

because the arrest took place several months after the burglary of the victims’ residence and involved another

charge. The Defendant challenged the admission of this evidence at trial and procured, on cross-

examination, an admission from Detective Grooms that the officers went to the Defendant’s residence

intending to arrest him on another charge. On redirect examination, however, Detective Grooms clarified

that he also intended to talk with the Defendant about the burglary. It was not, therefore, unreasonable for

the jury, having heard this testimony and having been properly charged on the inferences to be made from

the evidence of the Defendant’s flight, to consider it corroborative of other evidence of the Defendant’s guilt.

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Conclusion

The judgment of the Court of Criminal Appeals is reversed in part and the convictions

for aggravated burglary and theft of property with a value of $10,000 or more but less than

$60,000 are reinstated. As determined by the Court of Criminal Appeals, the Defendant

qualifies as a persistent offender for release eligibility purposes. We remand this case to the

trial court for resentencing on the two reinstated convictions. It appearing that the Defendant

is indigent, costs of this appeal shall be taxed to the State of Tennessee.

_________________________________

GARY R. WADE, JUSTICE

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