The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 10, 2015
STATE OF TENNESSEE v. RYAN SCOTT HARAWAY
Appeal from the Criminal Court for Davidson County
Nos. 2013-D-3297, 2014-A-228, 2014-A-267, 2014-A-339, 2014-A-340, 2014-B-1272
Cheryl A. Blackburn, Judge
No. M2014-02397-CCA-R3-CD – Filed September 28, 2015
_____________________________
Pursuant to a plea agreement, the Defendant, Ryan Scott Haraway, pleaded guilty to four
counts of aggravated burglary, one count of forgery, one count of theft of property, two
counts of burglary of a motor vehicle, and three counts of assault. The total effective
sentence was seven years with the trial court to determine the manner of service of the
sentence. After a sentencing hearing, the trial court ordered the Defendant to serve his
sentence in the Tennessee Department of Correction. On appeal, the Defendant asserts
that the trial court erred when it denied him an alternative sentence. After a thorough
review of the record and applicable law, we affirm the trial court‟s judgments.
Tenn. R. App. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.
Dusten E. Sharp, Nashville, Tennessee, for the appellant, Ryan Scott Haraway.
Herbert H. Slatery III, Attorney General and Reporter; Meredith Devault, Senior
Counsel; Glenn R. Funk, District Attorney General; and Jeff Preston Burks, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
Through multiple indictments, a Davidson County grand jury charged the
Defendant with four counts of aggravated burglary, eight counts of theft of property, one
count of forgery, one count of identity theft, two counts of burglary of a motor vehicle,
three counts of assault, and one count of resisting arrest. On October 3, 2014, the
Defendant entered a best interest plea to four counts of aggravated burglary (committed
in August and November 2013), one count of forgery (committed in August 2013), two
counts of burglary of a motor vehicle (committed on November 10, 2013), three counts of
assault (committed on November 10, 2013), and theft of property (committed on
November 11, 2013). Pursuant to the plea agreement, the State dismissed the remaining
counts, and the parties agreed to an effective seven-year sentence with the trial court
determining the manner of service of the sentence following a hearing.
At the sentencing hearing, the State submitted the presentence report. A transcript
of the guilty plea submission hearing is not included in the appellate record; therefore, we
rely on the summary of the facts underlying these convictions provided in the presentence
report. This portion of the presentence report is derived from multiple police department
case summaries.
On August 5, 2013, at approximately 4:18 p.m., Officer David Willover
was dispatched to [ ]Newman Place on a burglary call. Officer Willover
arrived at the scene and spoke with the victim, William Harlin. The victim
stated that his residence was burglarized on August 4, 2013, between 5:30
p.m., and 7:00 p.m., while he was away.
The victim inventoried his residence and discovered that a dual rifle hand
carry storage bag that contained a .22 caliber rifle and .30 caliber rifle and a
small television were missing.
The victim stated that entry was gained through the shattered patio door on
the side of the house. The victim stated stated [sic] that on August 5, 2013,
around noon, Advanced Financial called and informed him that a man was
attempting to cash a check at their establishment located at 2403
Nolensville Road.
The victim was informed that the check (number 3074) in the amount of
$400 was made payable to the suspect, [the Defendant] from Harlinsdale
Farms Company.
The check was signed “W.W. Harlin Jr.,[”] which was the victim. The
victim denied Advanced Financial permission to cash the check. The
victim stated that he did not know [the Defendant] or give him permission
to use his check(s).
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Further investigation revealed that a total of six checks were used by the
Defendant (Haraway) and two other suspects, Edward Spencer and William
Taylor, between August 4, 2013, and August 5, 2013.
....
On August 7, 2013, Detective Ryan Finnegan contacted Jan Pope with
Advanced Financial who forwarded surveillance photos of the incidents.
The defendants were identified from the video. Warrants were obtained
and served against the Defendant (Haraway) for one count each of forgery
and aggravated burglary.
....
The Defendant (Haraway) was apprehended and interviewed. [The
Defendant] admitted that he tried to cash one of the checks, but denied
writing it or breaking into any houses. Warrants were obtained and served
against [co-defendant Spencer] for three counts of forgery and one count of
aggravated burglary.
Warrants were obtained against [co-defendant Taylor] for two counts of
forgery and one count of aggravated burglary.
....
On August 12, 2013, at approximately 6:46 p.m., victim Matthew Ness
called the police to report a burglary at his residence, located [on Dale
Avenue]. The victim stated that his Nanny left his residence at 5:15 p.m.
The victim stated that he returned to the house at 6:40 p.m., and found the
back doors opened and glass broken on one of the doors.
The door latch and wood was broken on the other door. The victim also
found several items missing to include a 50ʺ LCD TV, a 40ʺ LCD TV, an
[i]-Pad, miscellaneous jewelry, and various med/large pieces to a sterling
serving set.
Witness William Clevenger stated that he observed a light green or beige
minivan drive out of the front yard and through the side yard of the victim‟s
residence.
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The van then exited the yard into Mr. Clevenger‟s driveway and then onto
the street. Mr. Clevenger described the van as being a 2007-2008 model
with a slope in the back of the van and a little slope on the front. Vehicle
tracks could be seen in the front of the victim‟s house, where they entered
through his driveway and ran parallel to the house.
They then went towards the side of the house and exited towards Mr.
Clevenger‟s driveway. Another unidentified neighbor stated that he had
security video of the street.
The video was viewed, but the quality was too poor to be of assistance.
The scene was processed for fingerprints and three prints were lifted.
Detective Ryan Finnegan spoke with the victim and based on the M.O.,
vehicle description, timeframe, and area, he sent in a request for the prints
to be compared to [the] Defendant [ ], William Taylor, and Edward
Spencer, who were developed and charged in a similar case.
During subsequent interviews with both [the Defendant] and [co-defendant
Taylor], neither suspect admitted to any involvement in the burglary.
Defendant Ryan Haraway‟s fingerprint[s] were later matched to latent
prints recovered from the back screen door, which was the point of entry
into the residence. The property that was taken in this case has not been
recovered.
On February 27, 2014, Detective Harrison Dooley obtained and served a
warrant against the Defendant (Ryan Haraway) for aggravated burglary.
*Note: The Defendant was charged with another burglary that occurred
close to the same time as this burglary and in the same area. While out on
bond for the other burglary, the Defendant committed several more
burglaries and used the same silver van as in this burglary.
....
On November 7, 2013, at approximately 2:35 a.m., victim Steven Liddle
called police to report a burglary in progress, [on] Tyne Valley Boulevard.
The victim stated he was home when he heard a noise, around 2:30 a.m.,
and went to investigate. The victim stated he noticed the back door open
and a window broken. He also noticed that the TV, Playstation 3, and his
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fiance‟s purse were also missing. The TV was later recovered from the
back porch stairs.
....
On November 11, 2013, Detective Ryan Finnegan spoke with the victim
who stated that his neighborhood had video cameras, at the entrance and
exit to the subdivision. The victim stated that he viewed the video and it
looked like a Dodge or Chrysler minivan that entered the subdivision, at
2:16 a.m, and it left at 2:36 a.m.
The victim also stated that the gift cards that were taken were found by a
citizen . . . it appeared they were discarded by the suspect.
Based on the vehicle description, location of the home, method of entry,
items taken, and the location of where the gift cards were found, Detective
Finnegan believed [the Defendant] to be the viable suspect.
On November 25, 2013, Detective Finnegan reviewed the video footage.
Camera #1 showed that at 2:16 a.m. and 50 seconds, a van, matching one
[the Defendant] was arrested in, was observed pulling into the victim‟s half
circle drive.
The lights were turned off, on the vehicle, and it stayed parked. At 2:20
a.m. and 17 seconds, there was a figure, medium-large in stature, walking
from the van and up to the house. At 2:20 a.m., what appeared to be the
same figure ran from the house to the driver‟s side of the van. The van then
pulled out of the drive and then out of the neighborhood, at 2:36 a.m.
Although the tag was not visible through the night vision camera, it did
show what appeared to be a male white driving the vehicle.
The vehicle was also identical make and model, had identical wheels and
identical rear bumper damage, as the van that the Defendant [ ] was arrested
in. The Defendant [ ] was also arrested in the same vehicle, on August 13,
2013, in relation to another aggravated burglary. A search warrant was also
executed on the Defendant[‟s] [ ] vehicle . . . after his arrest, in which stolen
items from other burglaries in the same area were found.
....
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Between November 8, 2013, at 4 p.m. and November 12, 2013, at 5:30
p.m., [v]ictim Daniel Harris was gone from his residence, [on] Sweetbriar
Avenue. When the victim returned, on November 12, 2013, he found his
residence had been broken into. Stolen from the residence were a 60[ʺ]
television (with a Direct TV remote, Samsung remote), a Blu-ray player,
older Macbook, three bottles of bourbon, and a white laundry basket.
On the morning of November 10, 2013, Defendant Ryan Haraway was
arrested for breaking into a vehicle near the location of this victim‟s
burglary. At that time, the vehicle he was using was also held by police.
A few days later a search warrant was executed on the Defendant‟s
vehicle[.] . . . Inside the vehicle, there was a laundry basket, with a Direct
TV and Samsung remote inside of it. The remotes that were stolen from
this burglary matched the ones that were located in the back of the
Defendant‟s vehicle.
....
During the search . . . of the Defendant‟s vehicle, there were also liquor
bottles that were stolen from the other burglaries that the Defendant was
suspected of [ ]. The Direct TV remote was also programmed to only turn
on the victim‟s Direct TV box.
The remote turned the box on when Detective Michael Brickman tried it.
The victim also identified the laundry basket as his through a picture,
because it still had the sticker and distinct redmarks on it that the victim
also recognized. The TV, Blu-ray player, bourbon, or Macbook were never
recovered.
On November 9, 2013, at approximately 6:34 p.m., victim Molly Hood
reported a burglary at her residence, [on] Graybar Lane.
Entry was made through the back door, of the residence, where the door
had been pried open with a blunt object. Stolen from the residence were an
aqua 32ʺ television and a brown bag with assorted work/personal
documents. The victim‟s brown bag was discovered by a passerby, [on
Ashwood], lying in the street.
....
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This burglary was similar to burglaries that Defendant Ryan Haraway had
committed in the recent past. Detectives knew that the Defendant was out
on bond for previous burglary and theft offenses. The Defendant was
arrested when he was caught, by West Officers, breaking into vehicles, on
November 10, 2013.
The Defendant was arrested in the same vehicle that he was in the last time
he was arrested. During previous arrest, in an interview, the Defendant told
Detective Ryan Finnegan that he would live in his vehicle while he binged
on crack cocaine.
Due to [the] Defendant‟s previous statements, there was a strong possibility
that there was property from this burglary in his vehicle. On November 11,
2013, detectives executed a search warrant on the Defendant‟s vehicle and
found property that was taken during this burglary.
The property consisted of various journals and documents bearing the
victim‟s name, as well as pictures of the victim. The victim was able to
identify the property as hers that was taken in the burglary. The property
was released to victim, at that time.
....
On November 9, 2013, at approximately 7:34 p.m., victim Bradley Gavigan
reported a burglary at his residence, [on] Linden Avenue. Entry was made
into the residence through the front door, where it was kicked in. Police
responded to the scene and cleared the residence. After the residence was
cleared, the victim inventoried the home for property that had been taken.
Stolen were three bottles of liquor, along with a Sony television and a Sony
DVD player from the master bedroom upstairs. The television in the
downstairs living room was not taken, however; the suspect attempted to
take it, but was unsuccessful in detaching it from the wall mount.
....
Detectives knew the Defendant was out on bond for previous burglary and
theft offenses. . . .
....
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Due to the Defendant‟s previous statements, there was a strong possibility
that there was property from this burglary in his vehicle. . . .
[From the Defendant‟s vehicle] police recovered an empty bottle of Chopin
vodka, which the victim stated was sitting out on the bar. The Defendant
had also taken alcohol in several burglaries, but this was the only bottle in
the vehicle.
This type of vodka is rare and distinct.
....
On November 10, 2013, at approximately 0318 hours, officers were
dispatched to [ ] 16th Avenue South on a theft call. While the officers were
searching the area Officer A. Venable heard glass break and observed a
male white subject in the parking lot next to a blue Pontiac located [on]
Villa Place.
The suspect, identified as [the Defendant], refused to answer any questions.
Officers M. Lynch and T. Lowen were assisting Officer Venable as he was
attempting to place [the Defendant] under arrest. [The Defendant] refused
to get on the ground. He would not give the officers his hands.
He pushed and grabbed Officer Lynch‟s clothes. During the struggle
Officer Lynch sustained cuts and scrapes on his arms and legs. He also
received a cut on his lip. Also during the apprehension, the Defendant
kicked Officers Venable and Lynch. Officer T. Loewe was also bitten.
During the investigation, the officers determined that two vehicles had been
broken into. A blue Pontiac belonging to John Kiefer, [who resided on
Villa Place] and a white Toyota 4-Runner that belonged to Joseph Dill
[who also resided on Villa Place].
The passenger window was busted out of Joseph Dill‟s vehicle. Officer R.
Buckman made attempts to contact the victims but he was unsuccessful.
Therefore, besides the damage to the vehicles, the officers were unable to
determine if there were any items missing at the time of this report.
At the sentencing hearing, Kayla Haraway, the Defendant‟s daughter, testified that
her parents divorced when she was five-years old and thereafter shared joint custody.
She stated that following the divorce, she spent time with her father on a “regular basis.”
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Kayla Haraway described her father as an “amazing man,” “supportive,” and “loving.”
She also acknowledged times where her father would “just disappear.” At around the age
of seven or eight, Kayla Haraway began wondering, due to her father‟s disappearances, if
he had an addiction issue.
Kayla Haraway testified that she had visited the Defendant in jail once or twice a
month since his arrest for these offenses. She said that the Defendant had acknowledged
that his actions were “wrong” and that his family wanted the Defendant to come “home.”
Kayla Haraway confirmed that the Defendant had disclosed to her his need for treatment
of his drug addiction. Kayla Haraway stated that the Defendant was a “changed man”
and expressed her desire to have the Defendant in her “life for good.”
Tricia Haraway, the Defendant‟s mother, testified that she had visited the
Defendant in jail regularly since his arrest for these offenses. She said that the Defendant
had expressed regret and remorse for his actions related to these crimes. The Defendant
had also admitted his addiction to cocaine and alcohol. Tricia Haraway stated that, if
released, the Defendant could reside with her. She stated that she had arranged for the
Defendant‟s enrollment in an outpatient drug treatment program and that she was
committed to providing him with transportation to the program and any other
appointments the trial court required.
The Defendant testified that, due to an accident during his senior year in high
school, he withdrew two months before graduation and obtained his GED. He stated that
he worked “remodeling” but had been taking online classes through Ashworth College
during his incarceration. The Defendant stated that he had four children and two
stepchildren.
The Defendant testified that he was not blaming his actions solely on his drug
abuse but acknowledged that his addiction played a role in his committing these offenses.
He explained that when he first realized that he was drinking too heavily he attended a
“Christian outreach ministry and got saved and would have long periods of sobriety.” He
also acknowledged that he had a “relapse problem.” Before the Defendant committed
these offenses, he had relapsed using crack cocaine. During his subsequent incarceration
he had enrolled in classes and worked as a trustee. He said that he read a great deal while
in jail.
The Defendant testified that, if granted an alternative sentence, he would be
admitted to an outpatient drug program, Court Foundations Center, which required
meetings four times a week and weekly drug tests. The Defendant expressed his desire to
“stay sober.” He then acknowledged his role in the crimes and expressed an apology to
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the victims of the crimes and his family. The Defendant then read the following
statement:
My miscreant behavior has caused me to make numerous bad
decisions throughout the course of my life. While I‟ve had past
misdemeanor charges this is the first time I‟ve ever faced felony charges
and spent this much time incarcerated. I‟m truly sorry for my actions, and I
apologize to everyone involved, including my own family. This past year
that I‟ve been incarcerated has taught me what a foolish and selfish
individual I‟ve been. I‟ve had a lot of time to reflect upon my life, and I am
ashamed of my poor decisions. I pray that the Court will allow me a
second chance. I will no longer live a miscreant lifestyle or engage in any
criminal behavior. I want the Court to rest assured that a decision for
probation would not be a grave miscarriage of justice. I will be the poster
child at the Court‟s mercy. Your Honor, I‟m not perfect, but I promise you
this past year of incarceration has opened my eyes. I believe I have a lot to
offer our community, and I humbly and respectfully pray for this Court to
grant me probation. And, again, I sincerely apologize to everyone, and I
think you for allowing me to address this court.
On cross-examination, the Defendant agreed that in Davidson County he had been
convicted of driving under the influence, simple possession, possession of drug
paraphernalia, theft, and criminal trespass dating back to 2005. The Defendant agreed
that, in 2008, he violated a probation sentence for simple possession in Rutherford
County and was ordered to serve forty-five days. When asked about the specifics of his
responsibility and role in the burglaries, the Defendant stated “I can‟t recall exactly,”
explaining that he was “on a drug binge.”
The Defendant testified that he had enrolled in multiple drug treatment programs
in the past. He recalled that he attended Cumberland Heights in 2011 and an outreach
ministry in Cincinnati. He also was admitted to Buffalo Valley in 2006 for a twenty-
eight day program. The Defendant agreed that he was released on bail in August after
being arrested for forgery and aggravated burglary. He was thereafter arrested on
November 10, 2013, when a police officer observed the Defendant breaking into a car.
The Defendant was charged with resisting arrest and assaulting the officer after the police
officer approached him about breaking into the car. About this incident, the Defendant
explained that he was “jumped on by the police officers” and that he “asked them to talk
to [him].” He stated that he was intoxicated and resisted but “should have done what
they told me to do.”
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On redirect examination, the Defendant testified that even though he entered a best
interest plea he was taking responsibility for these crimes. Upon questioning by the trial
court, the Defendant acknowledged the seriousness of a burglary during the middle of the
night while the residents were in the home and could not provide an explanation for his
behavior. The Defendant agreed that he was out of jail on bond “during the course of this
spree.” He further agreed that his prior attempts at rehabilitation had not prevented him
from relapse and committing additional offenses. He maintained, however, that he had
learned a great deal during the past year of incarceration.
Alarick Pruitt, a Davidson County Drug Court case developer, testified that his
assessment of the Defendant resulted in the conclusion that the Defendant would not be a
good candidate for the program. He explained that the Defendant suffered from a back
injury and took narcotic medication to treat the pain. The Sheriff‟s Department reported
that the Defendant had refused treatment on at least thirty-five occasions. The Defendant
was offered Aleve, a non-narcotic medication, which he declined. As of October 12,
2014, the Defendant reported to medical staff that he could “barely walk.” The
Defendant‟s medical records indicated that he had made over fifty medical complaints
over a ten-month period, and Mr. Pruitt stated that the Drug Court program “just [did] not
have the resources or staff” to address the need for “full-time medical attention” that it
appeared the Defendant required.
The Defendant‟s attorney provided a letter from a therapist who indicated he
would help “facilitate” the Defendant admission into a treatment facility, the Hope
Center.
After hearing this evidence, the trial court considered the purposes of sentencing,
the evidence presented at the sentencing hearing, the presentence report, the principles of
sentencing and the arguments as to alternative sentencing. The trial court first concluded
that the Defendant was eligible for an alternative sentence. It then considered that the
Defendant had six prior misdemeanor convictions and a probation violation. The trial
court noted that the Defendant had committed some of the offenses while he was released
on bond for the other offenses. In mitigation, the trial court acknowledged that the
Defendant had pleaded guilty and that the Defendant did not have a long history of prior
criminal conduct. In reviewing the Defendant‟s criminal record the trial court noted that
the Defendant had been afforded probation sentences before and yet continued to commit
offenses. The trial court recognized that the specific circumstances of the offenses,
entering homes while the occupants were asleep in the residence and committing offenses
while released from jail on bond, were significant factors in consideration of an
alternative sentence. The trial court concluded that an alternative sentence was not
appropriate in this case and ordered the Defendant to serve the remainder of his sentence
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in the Department of Correction. It is from this judgment that the Defendant now
appeals.
II. Analysis
On appeal, the Defendant asserts that the trial court abused its discretion when it
denied an alternative sentence because he is “especially suited for alternative sentence.”
He contends that because the evidence indicated that he has “a strong and willing support
network” and a “lifelong struggle with addiction” that “is best treated in the community
where professional intervention is found,” he is “an ideal candidate” for alternative
sentencing. The State responds that the trial court properly denied the Defendant
alternative sentencing. We agree with the State.
The standard of review for questions related to probation or any other alternative
sentence is an abuse of discretion with a presumption of reasonableness. State v. Caudle,
388 S.W.3d 273, 278-79 (Tenn. 2012). With regard to alternative sentencing, Tennessee
Code Annotated section 40-35-102(5) (2014) provides as follows:
In recognition that state prison capacities and the funds to build and
maintain them are limited, convicted felons committing the most severe
offenses, possessing criminal histories evincing a clear disregard for the
laws and morals of society, and evincing failure of past efforts at
rehabilitation shall be given first priority regarding sentencing involving
incarceration.
A defendant shall be eligible for probation, subject to certain exceptions, if the sentence
imposed on the defendant is ten years or less. T.C.A. § 40-35-303(a) (2014). A
defendant is not, however, automatically entitled to probation as a matter of law. The
burden is upon the defendant to show that he or she is a suitable candidate for probation.
T.C.A. § 40-3-303(b); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997);
State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet this
burden, the defendant “must demonstrate that probation will „subserve the ends of justice
and the best interest of both the public and the defendant.‟” State v. Bingham, 910
S.W.2d 448, 456 (Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259
(Tenn. Crim. App. 1990)).
There is no bright line rule for determining when a defendant should be granted
probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires
a case-by-case analysis considering “the nature of the offense and the totality of the
circumstances . . . including a defendant‟s background.” State v. Ashby, 823 S.W.2d
166, 168 (Tenn. 1991) (quoting State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986)). In
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determining if incarceration is appropriate in a given case, a trial court should consider
whether:
(A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness
of the offense or confinement is particularly suited to provide an
effective deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant.
T.C.A. § 40-35-103(1) (2014). The trial court must also consider the potential or lack of
potential for rehabilitation or treatment of the defendant in determining the sentence
alternative or length of a term to be imposed. T.C.A. § 40-35-103.
The record supports the trial court‟s findings in this case. Over the course of a
four-month period, the Defendant repeatedly entered homes and stole items from the
occupants. At least one of the break-ins occurred while the residents were in the home
asleep. The Defendant was arrested in August for his role in a burglary, released on
bond, and continued committing criminal offenses until apprehended by the police in
November during his attempt to burglarize a motor vehicle. The Defendant testified at
the sentencing hearing about his drug abuse and past failed attempts at rehabilitation.
While the Defendant‟s criminal history was not extensive, the record shows that the
Defendant had violated the terms of a prior probation sentence.
The trial court considered the pertinent facts of this case and appropriate
sentencing principles. The trial court denied alternative sentencing based on the
circumstances of the offense, the Defendant‟s past failed attempts at less restrictive
measures, and to avoid depreciating the seriousness of these crimes. The Defendant has
not established that the trial court abused its discretion by denying his request for an
alternative sentence. The Defendant is not entitled to relief.
III. Conclusion
After a thorough review of the record and relevant authorities, we conclude that
the trial court properly sentenced the Defendant. As such, we affirm the trial court‟s
judgments.
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_________________________________
ROBERT W. WEDEMEYER, JUDGE
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