State of Tennessee v. Kayla Marie Anderson

12/06/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 18, 2018 Session

STATE OF TENNESSEE v. KAYLA MARIE ANDERSON

Appeal from the Circuit Court for Maury County

No. 24936 David L. Allen, Judge

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No. M2018-00015-CCA-R3-CD

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The Defendant, Kayla Marie Anderson, pled nolo contendere to theft of property valued

over five hundred dollars for her role in arranging a drug transaction during which the

victim was robbed. The Defendant preserved as certified questions several issues related

to her arrest, her interview, and the search of her telephone pursuant to two separate

warrants. Because the record reveals the existence of inculpatory evidence not derived

from the arrest, interview, or search, we determine that the questions are not dispositive

and dismiss the appeal.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which TIMOTHY L.

EASTER and J. ROSS DYER, JJ., joined.

Brandon E. White, Columbia, Tennessee, for the appellant, Kayla Marie Anderson.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant

Attorney General; Brent A. Cooper, District Attorney General; and Caleb Bayless,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

On December 24, 2015, the victim, Holly H., contacted the Defendant by

telephone in hopes of purchasing “roxies,” an opioid pill, from the Defendant. In the

course of the drug transaction, two men assaulted the victim in her vehicle and robbed her

of a laptop. Law enforcement searched the Defendant’s telephone pursuant to a warrant

and discovered that the Defendant had sold the victim’s laptop immediately after the

robbery, and the Defendant was charged with robbery through a theory of criminal

responsibility and with theft of property valued at five hundred dollars or less. The

Defendant challenged the first search warrant on numerous grounds.

The facts underlying the offense and the investigation were introduced at the

hearing on the first motion to suppress held on December 9, 2016. Detective Bryon

Stoker of the Columbia Police Department testified that the victim told him that she had

contacted a woman named Kayla, whose last name she did not know, about purchasing

pills. According to the victim, Kayla stated that she would not be able to meet the victim

for the drug transaction but that she would be “sending her boyfriend.” The victim gave

a physical description of Kayla which fit the Defendant “to the T.” The victim likewise

indicated that she had purchased drugs from Kayla in the past, and she described the

location of the previous transaction as “on Nowlin Court next to the big trash can that

was sitting in front of her house at the time.” Detective Stoker testified that the address

helped him identify the Defendant, and the record reveals that the Defendant resided on

Nowlin Court.

The first search warrant, which all the parties ultimately agreed was defective,

stated that the victim arrived at the site of the prearranged drug transaction, that two men

entered her car, and that the victim was punched, strangled, and bitten in the course of the

robbery. The two men absconded with the victim’s bag, which contained a laptop.

Detective Stoker testified at the suppression hearing that the offenders, however, left

behind evidence in the form of a telephone abandoned in the victim’s vehicle. This

telephone led police to connect Mr. Leslie Sparkman to the offense. At first, Detective

Stoker was not aware that the Defendant and Mr. Sparkman were in a relationship, but he

acquired the information “in between the cell phone dumps” because he discovered

messages exchanged by the Defendant and Mr. Sparkman. Asked if he was referring to

the cell phone seized from the Defendant or the one left in the vehicle, he responded,

“No, we got it from [hers], too. Got it from [hers,] too. But we — I think we were under

the assumption that the phone that was left inside that car came from Leslie Sparkman.”

Mr. Sparkman pled guilty to robbery prior to the resolution of the Defendant’s case.

Detective Stoker described the Defendant as a “person of interest” at this point in

the investigation. Officer Landen Barber came into contact with the Defendant on

December 31, 2015, when he was investigating an unrelated incident at a trailer park and

witnessed the Defendant driving a car. Officer Barber was aware that the Defendant’s

license had been revoked, and he confirmed this fact through dispatch. He then arrested

the Defendant for driving on a revoked license, and pursuant to Detective Stoker’s

request, he brought her to the police station so that Detective Stoker could question her

about the robbery. The Defendant was informed of her Miranda rights, and she agreed to

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speak with Detective Stoker. The videotape of the interview reveals that she had the

telephone which was the subject of the subsequent search warrants in her possession

while she was speaking with Detective Stoker.

During the interview, the Defendant told Detective Stoker that her previous

telephone, a laptop computer, and forty-five dollars were stolen from her home a week

prior to her arrest. She described the stolen telephone and agreed that a photograph

which Detective Stoker showed her resembled her stolen telephone. Detective Stoker

revealed that the telephone in the photograph was recovered from the scene of a robbery

and assault. When the Defendant again asserted that the telephone had been missing for a

week, Detective Stoker informed her that the robbery took place a week before the

interview. The Defendant said, “OK. I’m…I’m done.” Detective Stoker repeated,

“You’re done?” The Defendant simultaneous said, “You’re yelling at me.” Detective

Stoker asserted, “That’s your phone,” and the Defendant agreed, “Yes, that’s my phone.”

Both were speaking in raised voices.

Detective Stoker revealed that the victim of the robbery had named the person

who arranged the drug transaction as a woman named Kayla, but the Defendant denied

having talked to “any girl” about “roxies.” She told Detective Stoker, “The only person

I’ve ever sold roxy to that would be a girl, would be a girl named Holly and she’s from

Nashville and that was months and months ago and she called me and I didn’t have any

months and months ago….” Detective Stoker mentioned that he would check the

victim’s telephone for the Defendant’s number, and the Defendant reiterated that her

telephone had not been in her possession. She then asked for an attorney, and the

interview was immediately concluded. Officer Barber took the Defendant to jail for the

offense of driving on a revoked license, and the Defendant’s telephone was seized.

Detective Stoker obtained a search warrant on January 4, 2016, and another

detective performed a “dump” of the telephone pursuant to the warrant. The affidavit

supporting the search warrant is not entirely intelligible and does not establish a

connection between the Defendant, her telephone, and the crime. The search of the

Defendant’s telephone, however, revealed that she sold the victim’s laptop through

Facebook on the day that it was taken. Detective Stoker testified that he did not have

probable cause to arrest the Defendant for the offenses at issue until after he searched the

telephone and that the contents of the telephone provided the probable cause for the arrest

of the Defendant on January 6, 2016, in connection with the robbery. The trial court

found that the affidavit supporting the warrant was defective and granted the motion to

suppress the results of the search at a hearing on December 9, 2016, and through a written

order filed on January 11, 2017.

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The State promptly sought a new search warrant on December 14, 2016. The new

affidavit alleged that the victim, whose first name was Holly, was robbed during a drug

deal which she had arranged by telephone with the Defendant. The affidavit recited

information from the Defendant’s police interview, including that the Defendant

acknowledged the telephone in the victim’s vehicle was her allegedly stolen telephone

and that she had previously arranged a narcotics transaction with a woman named Holly.

The affidavit alleged that there was probable cause to believe that the electronic

communications between the victim and Defendant could be found on the Defendant’s

telephone. The warrant permitted the search of “[a]ny digital and/or electronic evidence,

including but not limited to [various types of files] stored on the device to be searched to

assist in obtaining additional evidence to the aggravated robbery.” The return reflects

that “cell phone calls, text messages, social media, audio video, device users, installed

applications, MMS, [and] SMS messages” were inspected.

The Defendant, unaware of the new search warrant, subsequently moved to

dismiss the indictment, prohibit the issuance of a second search warrant, and for the

return of her telephone. The Defendant argued that the State, having chosen not to appeal

the suppression issue, was bound by the trial court’s ruling and prohibited from obtaining

a subsequent search warrant. The trial court denied the motion, holding that the State

could seek a second search warrant if it had probable cause, independent of any illegally

obtained evidence, to support the new warrant.

The Defendant filed a motion to suppress the evidence obtained from her cell

phone pursuant to the second warrant. In the motion, the Defendant attacked the warrant

on various grounds, including that the warrant failed to describe with sufficient

particularity the things to be searched and that the affidavit was based on either recklessly

false statements or information obtained in violation of the Defendant’s constitutional

rights. The trial court denied the second motion to suppress.

The Defendant subsequently entered a plea of nolo contendere to theft of property

valued at over five hundred dollars.1 At the plea hearing, the State recited that, if the case

had gone to trial, it would have introduced proof that the victim agreed to buy pills from

the Defendant, that she was robbed by two men, that the search of the Defendant’s

1

Defense counsel noted that the valuation of the property as either over or under five hundred

dollars was “a very close question,” and the Defendant agreed to an amendment of the indictment in

Count 1, charging robbery through a theory of criminal responsibility, to the offense of theft of property

valued over five hundred dollars. Count 2, charging theft of property valued at five hundred dollars or

less, was dismissed pursuant to the plea agreement.

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telephone revealed that she had sold the items2 taken during the robbery, and the items

were ultimately recovered. The Defendant reserved, with the consent of the court and the

prosecutor and with the agreement of all parties that the questions were collectively

dispositive of the case, the following certified questions of law:

1. Whether [the trial court] erred when it overruled Defendant’s

suppression motions as to whether Officer Barber’s arrest of Defendant and

Detective Stoker’s subsequent detention and questioning of Defendant

constituted an illegal detention for the purpose of gathering additional

evidence in violation of the Fourth Amendment the United States

Constitution and Article I, § 7 of the Tennessee Constitution, and therefore

required suppression of all evidence obtained from the seizure and

subsequent search of Defendant’s [cell phone], which was seized during the

detention and interrogation of Defendant?

2. Whether [the trial court] erred when it overruled Defendant’s

suppression motions as to whether the State illegally seized Defendant’s

cellphone during her interrogation with Detective Stoker in violation of the

Fourth Amendment to the United States Constitution and Article I, § 7 of

the Tennessee Constitution, in that the State, according to the Defendant,

only had probable cause to arrest Defendant for driving on a

revoked/suspended license, only had the right to search Defendant for

dangerous instrumentalities and evidence of the crime for which Defendant

was arrested, and that Defendant’s [cell phone] should not have been seized

as a result of Defendant’s arrest for driving on a revoked/suspended license

because a [cell phone] has no bearing on whether or not Defendant was

driving on a revoked/suspended license?

3. Upon granting Defendant’s first suppression motion as to the first

search warrant obtained by the State, did [the trial court] err when it

overruled Defendant’s motion to dismiss this case with prejudice, motion

for an immediate stay, motion for return of her personal property pursuant

to Rule 41 of the Tennessee Rules of Criminal Procedure, and motion to

preclude the State from going forward with the second search warrant,

given that Detective Stoker admitted under oath during the first suppression

hearing that the State did not have probable cause to arrest Defendant prior

to searching Defendant’s [cell phone] on or around January 4, 2016, and,

according to Defendant, the doctrines of Due Process, Res Judicata, Claim

2

At the plea hearing, the prosecutor stated that a computer case and “maybe some ancillary

items” were taken from the victim in addition to the computer.

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Preclusion, and/or Collateral Estoppel should prevent the State from

obtaining a second search warrant for Defendant’s [cell phone] after the

first search warrant was suppressed?

4. Whether [the trial court] erred when it overruled Defendant’s

second suppression motion as to whether the particularity and scope of the

second search warrant was impermissibly overbroad in violation of the

Fourth Amendment to the United States Constitution and Article I, § 7 of

the Tennessee Constitution?

5. Whether [the trial court] erred when it overruled Defendant’s

motion to suppress her interrogation and, in not granting Defendant’s

motion to suppress her interrogation, whether the [trial court] erred in not

redacting certain portions of Detective Stoker’s affidavit in support of the

second search warrant and in using Detective Stoker’s un-redacted affidavit

in support of the second search warrant to support finding that the affidavit

in support contained sufficient factual allegations from which the

magistrate could determine that probable cause existed to support issuance

of the search warrant?

6. Even assuming, arguendo, that [the trial court] did not err in

declining to suppress the interrogation of Defendant, did [the trial court] err

when it overruled Defendant’s motion to suppress as to whether Detective

Stoker’s affidavit in support in the second search warrant contained

sufficient factual allegations from which the magistrate could determine

that probable cause existed to support issuance of the search warrant?

ANALYSIS

On appeal, the Defendant asserts that the trial court erred in denying her second

motion to suppress and that, without the evidence obtained from the cell phone, the trial

court should have dismissed the charges against her. The State responds that the certified

questions are not dispositive because other evidence exists in the record to support the

charges. The State also asserts that there were no constitutional infirmities associated

with the second search warrant.

Under Tennessee Rule of Criminal Procedure 37(b)(2)(A), a defendant may enter

a guilty plea and reserve a certified question of law “that is dispositive of the case” so

long as certain requirements are met, including that the question was reserved with the

consent of the state and trial court and that all parties agree that the question is

dispositive. Tenn. R. Crim. P. 37(b)(2)(A)(i)-(iv). The reviewing court, however, is not

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bound to accept the parties’ agreement that a question is dispositive. State v. Preston,

759 S.W.2d 647, 651 (Tenn. 1988), pet. to rehear denied (Tenn. Oct. 24, 1988). Instead,

the appellate court is required to make an independent determination that the question

presented is indeed dispositive of the case. State v. Dailey, 235 S.W.3d 131, 135 (Tenn.

2007). Indeed, Rule 37 requires both that the question be dispositive of the case and that

the judgment reflect that the parties agree that the question is dispositive of the case.

Tenn. R. Crim. P. 37(b)(2)(A), (A)(iv). When the question is not dispositive, the

appellate court must dismiss the appeal because it lacks jurisdiction. State v. King, 437

S.W.3d 856, 886 (Tenn. Crim. App. 2013).

A certified question is dispositive when the reviewing court is presented with two

alternatives: either affirming the conviction or reversing and dismissing the charges. Id.

If the appellate court might reverse and remand, the issue is not dispositive. State v.

Oliver, 30 S.W.3d 363, 364 (Tenn. Crim. App. 2000); State v. Wilkes, 684 S.W.2d 663,

667 (Tenn. Crim. App. 1984). A question is not dispositive “when there is additional,

unchallenged evidence which could be used to support the conviction.” State v. Prince

Dumas, No. W2015-01026-CCA-R3-CD, 2016 WL 4083256, at *2 (Tenn. Crim. App.

Aug. 1, 2016). “[T]he burden is on defendant to see … that the record brought to the

appellate courts contains all of the proceedings below that bear upon whether the certified

question of law is dispositive and the merits of the question certified.” Preston, 759

S.W.2d at 650; see State v. Randall Lunsford, No. 01C01-9603-CC-00098, 1997 WL

381910, at *4 (Tenn. Crim. App. July 11, 1997) (noting that the defendant’s burden

includes “providing a record that contains a complete description of the relevant facts”).

Because of the difficulty of framing a proper certified question, Tennessee Rule of

Criminal Procedure 37 has been described as “the quagmire of criminal jurisprudence in

Tennessee.” State v. Thompson, 131 S.W.3d 923, 923-24 (Tenn. Crim. App. 2003).

In State v. Dailey, the prosecutor, trial court, and defendant all believed the

certified question was dispositive. 235 S.W.3d at 133. The prosecutor more particularly

represented on the record that, while the State would certainly use other proof if it were

to discover additional evidence at a later time, “as the evidence stands at this time, … [the

confession] would be dispositive and we would not be able to proceed.” Id. While this

court dismissed the appeal, reasoning that other forensic and circumstantial evidence

would be available to the prosecution, the Tennessee Supreme Court reversed,

concluding that the appellate court could not “second-guess[]” the investigation and must

instead determine whether the question is dispositive on the appellate record as it stands.

Id. at 134, 135; see also State v. Kenneth C. Dailey, No. M2005-01223-CCA-R3-CD,

2006 WL 1994525, at *3 (Tenn. Crim. App. July 18, 2006). Dailey clarified that this

court must determine whether “the prosecution had evidence not challenged by the

certified question that could be used to prosecute the defendant.” Dailey, 235 S.W.3d at

136. Because the State represented to the trial court that no other evidence existed and

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because the record did not belie this assertion, the Tennessee Supreme Court determined

that the question was dispositive on the record before it. Id.

We first examine the effect of Detective Stoker’s testimony that he did not have

probable cause to arrest the Defendant for the offenses at issue until he searched the

telephone and that the contents of the telephone provided the probable cause for the arrest

of the Defendant on the instant charges. The Defendant asserts that Detective Stoker’s

concession is the equivalent of the prosecutor’s statement in Dailey that the case could

not be prosecuted absent the proof. Probable cause is present when “‘at the time of the

arrest, the facts and circumstances within the knowledge of the officers, and of which

they had reasonably trustworthy information, are sufficient to warrant a prudent person in

believing that the defendant had committed or was committing an offense.’” State v.

Bell, 429 S.W.3d 524, 530 (Tenn. 2014) (quoting State v. Echols, 382 S.W.3d 266, 277-

78 (Tenn. 2012)). “[T]he strength of the evidence necessary to establish probable cause

to arrest is significantly less than the strength of evidence necessary to find a defendant

guilty beyond a reasonable doubt.” State v. Bishop, 431 S.W.3d 22, 41 (Tenn. 2014).

Generally, in determining whether probable cause exists for an arrest, “the assessment of

probable cause is reviewed from a purely objective perspective, [and] the officer’s

subjective state of mind is irrelevant.” State v. Reynolds, 504 S.W.3d 283, 301 (Tenn.

2016); see State v. Huddleston, 924 S.W.2d 666, 676 (Tenn. 1996) (noting that the

officer’s “subjective belief that he did not have enough evidence to obtain a warrant is

irrelevant to whether or not probable cause actually existed”). In Dailey, the Tennessee

Supreme Court accepted the prosecutor’s concession that the State had no other evidence

with which to prosecute the defendant, particularly noting that there was nothing in the

record to contradict the statement. Dailey, 235 S.W.3d at 136. The record here, in

contrast, does not contain a statement from the prosecutor asserting that he would be

constrained to dismiss the charges without the disputed evidence. Furthermore, the

record does contain other evidence connecting the Defendant to the crime. Accordingly,

Detective Stoker’s testimony does not render the question dispositive.

Dailey did not specify the quantum of proof necessary to render a question non-

dispositive. Instead, it noted that the record contained nothing aside from the confession

and the prosecutor’s representation that the case would be dismissed if the confession

were to be suppressed. Id. This court has previously held that “the record need not …

contain evidence sufficient to support a conviction in order to divest this Court of

jurisdiction to hear [an] appeal.” State v. William Jeffery Sweet, No. E2008-00100-CCA-

R3-CD, 2009 WL 2167785, at *10 (Tenn. Crim. App. July 21, 2009). Instead, “[i]t is

enough for the record on appeal to demonstrate that evidence apart from the challenged

item supports the State’s charges.” Id. at *10; see id. at *11 (concluding that evidence

stipulated at plea hearing was “ample evidence” of guilt).

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Despite the fact that this court has recited on numerous occasions that a certified

question is not dispositive if it might require a remand, the Tennessee Supreme Court has

on at least two occasions remanded after concluding that the certified question revealed

that some evidence at issue was inadmissible but other evidence was admissible. In State

v. Payne, the defendant challenged the admissibility of his statements through a certified

question. 149 S.W.3d 20, 23-24 (Tenn. 2004). The prosecutor stated that, without the

confession, the State would not be able to establish a prima facie case. Id. at 24. On

appeal, the State agreed that the certified question was dispositive based on the

prosecutor’s concession that the State would be unable to prosecute absent the statement.

Id. at 24 n.4. The Tennessee Supreme Court concluded that two “phases” of the

interview required suppression but that the first “phase” was admissible. Id. at 34-35.

Despite the fact that “the defendant did not implicate himself in the fire or in his mother’s

death” during the first “phase,” the Court remanded for further proceedings. Id. at 35. In

State v. Walton, the appellate court determined that while the defendant’s statement

required suppression, the physical evidence recovered did not. 41 S.W.3d 75, 96 (Tenn.

2001). Because his possession of various stolen goods could properly be considered as

evidence of guilt, the Tennessee Supreme Court remanded. Id. (observing that the fact

that the question was not dispositive did not become apparent until the court had analyzed

the question and noting that the case presented “special circumstances”).

Nevertheless, when the record reveals additional, unchallenged evidence to

support the charges, the question is generally nondispositive. See, e.g., State v. Maegan

Davis, No. W2017-02145-CCA-R3-CD, 2018 WL 3409678, at *6 (Tenn. Crim. App.

July 12, 2018) (concluding that the defendant’s conviction for driving under the influence

(“DUI”) was supported by testimony from the suppression hearing that she acted

impaired and that the legality of the blood draw was therefore not dispositive of the DUI

conviction, although it was dispositive of her conviction for DUI per se); State v. Jared

C. Brown, No. M2004-02101-CCA-R3-CD, 2005 WL 2139815, at *5 (Tenn. Crim. App.

Aug. 30, 2005) (holding that a question regarding whether the search of the defendant’s

home was unconstitutional was not dispositive when the defendant failed to

simultaneously challenge the search of a package at a shipping facility and the package

constituted “proof of the marijuana offense”); State v. Kevin Bufford, No. M2004-00536-

CCA-R3-CD, 2005 WL 1521779, at *4 (Tenn. Crim. App. June 24, 2005) (holding that a

question challenging the defendant’s statement was not dispositive because a security

camera showed him and an accomplice committing one robbery and the accomplice

confessed his involvement and implicated the defendant); ); State v. Thompson, 131

S.W.3d 923, 925 (Tenn. Crim. App. 2003) (concluding that the defendant’s challenge to

his status as a multiple DUI offender was not dispositive of the case when the State

would be able to sentence him for DUI even if the court ruled in his favor); State v.

Oliver, 30 S.W.3d 363, 364 (Tenn. Crim. App. 2000) (same); State v. James O.

Gambrell, Sr., No. 01C019603-CR-00123, 1997 WL 230199, at *3 (Tenn. Crim. App.

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May 7, 1997) (considering the victim’s willingness to testify in determining that, while

the defendant’s confession may have been the “cornerstone” of the case at the time of the

suppression hearing, the prosecution’s statement at the time of the plea hearing that the

victim was at that time willing to testify rendered the confession nondispositive); State v.

Randall Lunsford, 1997 WL 381910, at *4 (concluding that the question of the validity

of the search warrant for the defendant’s business was not dispositive because the

package containing one kilogram of cocaine was seized from a shipment carrier prior to

the issuance of the warrant); see also State v. Hendrix, 782 S.W.2d 833, 837 (Tenn. 1989)

(Harbison, J., concurring) (noting that the question was not dispositive as to one

defendant because of the prosecutor’s unrefuted statement “that additional evidence, not

involved in the search, was possessed by the State”); State v. Jennette, 706 S.W.2d 614,

616 (Tenn. 1986) (concluding that the question was not dispositive because, even if the

search were invalid, the testimony of officers who had observed the marijuana while

flying over the property was “alone was sufficient to convict the appellees”); cf. State v.

John Whittington, No. W2004-02405-CCA-R3-CD, 2005 WL 3059423, at *3 (Tenn.

Crim. App. Nov. 10, 2005) (noting that the suppression of a blood test would not be

dispositive of a dismissed count of DUI when other evidence of intoxication existed but

concluding that it was dispositive of the count to which the defendant pled guilty, DUI

per se).

The question this court is faced with is whether, if we were to suppress the

evidence obtained from the Defendant’s interview and cell phone, there would still be

evidence to support the charges. We conclude that, in the case at bar, the State possessed

sufficient additional evidence to render the questions presented nondispositive. We

reiterate that the quantum of proof is not that which would be necessary to support a

conviction. William Jeffery Sweet, 2009 WL 2167785, at *10. The record reveals that, at

the time that the Defendant was arrested on the unrelated traffic violation, law

enforcement knew that the victim had contacted a person whose first name was Kayla to

arrange the purchase of some pills. The victim’s description of Kayla closely matched

the Defendant’s physical appearance. The victim had previously purchased pills from

Kayla near a trash can at a location which Detective Stoker recognized to be the

Defendant’s residence. Kayla told the victim that she would not personally conduct the

transaction but would be “sending her boyfriend.” During the drug transaction, the

victim was beaten and robbed by two men. The men left a telephone in the victim’s car,

and this telephone was connected by evidence not specified in the record to Mr.

Sparkman. Detective Stoker testified that this abandoned telephone (as well as the one

later seized from the Defendant) contained messages which alerted police that the

Defendant and Mr. Sparkman were romantically involved. The testimony of the victim

could have identified the Defendant as the individual who arranged the drug transaction

and sent her boyfriend to complete the transaction, which ultimately proved to be a

robbery. See State v. Michael Kennedy, No. W2001-03107-CCA-R3-CD, 2003 WL

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402798, at *3 (Tenn. Crim. App. Feb. 21, 2003) (concluding that question was not

dispositive based on officer’s testimony that the victim had observed his stolen property

in the defendant’s yard). We conclude that the proof in the record, in the absence of a

representation by the prosecutor that the State would otherwise be forced to dismiss the

charges, is sufficient to render the certified questions nondispositive. Accordingly, we do

not have jurisdiction to consider the questions presented.

CONCLUSION

Based on the foregoing reasoning, we conclude that the questions are not

dispositive and dismiss the appeal.

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JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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