        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 28, 2015

                STATE OF TENNESSEE v. DAVID LOUIS WAY

                   Appeal from the Circuit Court for Sevier County
                      No. 14972-II    Richard R. Vance, Judge




                 No. E2014-01246-CCA-R3-CD          - Filed July 1, 2015


The Defendant, David L. Way, pleaded guilty to burglary and misdemeanor theft. The trial
court ordered concurrent probationary sentences of four years for the burglary conviction,
and eleven months and twenty-nine days for the theft conviction. Thereafter, the Defendant
was arrested for burglary and possession of burglary tools. The trial court issued a probation
violation warrant and, after a hearing, revoked the Defendant’s probationary sentence. On
appeal, the Defendant contends that the trial court improperly ordered him to serve the
remainder of his sentence in confinement for violating the terms of his probation, and that
the trial court improperly admitted a Tennessee Bureau of Investigation firearms and tool
mark examiner as an expert witness. After a thorough review of the record and applicable
law, we affirm the trial court’s judgment.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which D. K ELLY T HOMAS,
J R. and T IMOTHY L. E ASTER, JJ., joined.

Heather N. McCoy, Sevierville, Tennessee, for the appellant, David Louis Way.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; James Dunn, District Attorney General; and George Ioannides, Assistant District
Attorney General, for the appellee, State of Tennessee.



                                         OPINION

       This case arises from the Defendant’s arrest while serving a probationary sentence.
On August 24, 2010, the Defendant pleaded guilty to burglary and misdemeanor theft. The
trial court ordered a probationary sentence of eleven months and twenty-nine days for the
theft charge and a probationary sentence of four years for the burglary charge. One of the
conditions of the Defendant’s probationary sentence required him to “obey the laws of the
United States, or any State in which [he] may be, as well as any municipal ordinances.”

       In August 2012, the Defendant was arrested in Sevier County, Tennessee, on charges
of burglary and possession of burglary tools. Millard Spurgeon, a co-defendant, was also
charged for these offenses. A probation violation warrant was issued, and the trial court held
a consolidated probation revocation hearing wherein the parties presented the following
evidence1 : Stephanie Randles, a Tennessee State Bank employee, identified a photograph of
an ATM that she installed at Gatlinburg-Pittman High School. Ms. Randles confirmed that
the machine was at that location on August 19, 2012, and in good working order. Following
the burglary, Ms. Randles found the ATM “completely destroyed” and “beyond repair.” She
stated that the ATM was replaced at the cost of $3,044.15. She noted that $1,540 was
removed from the ATM during the burglary as an additional loss to the bank. On cross-
examination, Ms. Randles agreed that she was not present during the burglary, but she stated
that she went to check on the machine after notification of the robbery.

       John Ogle, the Gatlinburg-Pittman High school principal, testified that he was notified
by “the monitoring company” that the school alarm was engaged. Mr. Ogle consented to the
company requesting the police and then drove to the school. When he arrived, the police
were already present, and he found that the ATM, “a couple” vending machines, and a
change machine had been broken into as well as some storage areas and a few closets. Mr.
Ogle stated that the closed-circuit television system was used to determine that the
perpetrators had entered through a window in the teacher’s lounge.

       Mr. Ogle testified that the ATM belonged to Tennessee State Bank and that the school
received a fee for allowing the placement of the ATM. He noted damage to the ATM and
damage to several doors in the facility. He said that the school maintenance department
informed him that the damage was “a few hundred dollars.” Mr. Ogle identified photographs
taken from the surveillance footage. In the photographs, two men with their heads and faces
covered were seen walking throughout the building. One of the men carried a crow bar and
approached the ATM. In one photograph, various pieces of debris were lying on the floor
around where the man leaned over the ATM.

       The State played a clip of the surveillance video from August 19, 2012, at 2:40 a.m.


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         At the consolidated hearing, both the Defendant and his co-defendant, Mr. Spurgeon, presented
evidence. We summarize only the evidence that pertains to the Defendant’s appeal.

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Mr. Ogle observed that the suspect walking had a distinctive gait, a “high lift of the heel.”
Mr. Ogle identified the same gait at other points in the footage. One suspect was carrying
a crow bar and wearing a dark-colored “hoodie,” camouflage pants, and gloves. The other
suspect, with the distinctive gait, wore a camouflage coat, a red backpack, gloves, a toboggan
to cover his face, and “darker-colored bottom wear.” In the video footage, time stamped 2:42
a.m., Mr. Ogle stated that it appeared the man with the distinctive gait was carrying “some
sort of prying device.”

       Mr Ogle testified about a portion of the video footage as follows:

       The first individual had the crowbar wedged between the door of the ATM and
       the body of the unit. He placed his feet on the crowbar and his hands behind
       him to grant himself leverage trying to pry the door open. Now he’s moved up
       the machine and is working on the top portion where the user interface is.




The other suspect then entered the area and laid down his backpack, from which he produced
another device to work on opening the machine. The two suspects left the building at 2:43
a.m. and returned at 3:00 a.m. A portion of the ATM was open at this point, and one of the
suspects began working in an area around the “cash receptacle.” The surveillance footage
then showed both suspects using a variety of tools to open the ATM. Approximately forty
minutes later, “a large container c[a]me[] out,” and the suspects begin chiseling at it with a
hammer and a prying device. Once this container was opened, the suspect with the
distinctive gait removed the cash from the container.

       On cross-examination, Mr. Ogle testified that the suspects were inside the school from
approximately 2:30 to 4:30 a.m. Mr. Ogle stated that he could not identify the Defendant or
his co-defendant based upon surveillance footage.

        Jamila Byrd testified that in August 2012, she worked at McKinney’s Market. She
recalled that on the morning of August 19, 2012, Officer Gary McCarter came into the store
for a cup of coffee. While there he provided her with a description of two men the police
were looking for, “a taller [man who] . . . had a lazy eye, and then the other gentleman was
kind of short and did some kind of walk.” Ms. Byrd told Officer McCarter that she had not
seen two men meeting that description. Later that same morning, between 10:30 and 11:00
a.m., a “tall gentleman” came into the store and bought lottery tickets. Ms. Byrd identified
the Defendant in court as the man who bought the lottery tickets on August 19, 2012. Ms.
Byrd said that the Defendant produced a “wad of money” from his front right pocket and
spent approximately a “couple of hundred dollars” for lottery tickets. Fifteen to twenty

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minutes later, the other suspect with the distinctive gait entered the market. Ms. Byrd viewed
the video surveillance footage from the school burglary and stated that the gait of the suspect
was consistent with the gait of the man in the market on the morning of August 19.

       Ms. Byrd testified that, upon noticing the man’s gait, she called Officer McCarter.
When the police arrived, the two suspects were sitting in a blue minivan. The Defendant was
seated in the driver’s seat, and the other suspect was seated in the passenger seat. Ms. Byrd
admitted that she had taken money from McKinney’s Market while employed there. Ms.
Byrd stated that no promises had been made to her regarding that theft prosecution.

       Gary McCarter, a Gatlinburg Police Department officer, testified that he was involved
in the Gatlinburg-Pittman High School burglary investigation. He stated that he reported to
the high school in the early morning hours of August 19, 2012. Officer McCarter observed
the vandalized ATM machine and damage to other vending machines and doors. He also
watched the surveillance video. While watching this video, Officer McCarter noted distinct
factors about the intruders such as their clothing, mannerisms, height and weight. He stated
that the “lookout,” who kept going to the front door of the school to see if someone was
approaching, “raise[d] his leg in a curious manner.” He mentioned specifics of the suspects’
descriptions to several people, one of which was Jamila Byrd. He spoke with Ms. Byrd at
McKinney’s market at around 8:00 a.m. on August 19, 2012. Later that morning, he received
a phone call from Ms. Byrd. Ms. Byrd told Officer McCarter that two men matching his
description were at the market.

       Officer McCarter testified that he dispatched officers to the market. When Officer
McCarter arrived, the police had already detained the Defendant and Mr. Spurgeon. The
Defendant gave police officers permission to search his vehicle, and the police seized
clothing and tools, which included two crowbars. The clothing was consistent with the items
worn by the suspects in the video surveillance footage. Officer McCarter said that it had
rained at some point during that night, and that the clothing found in the vehicle was wet.
He also noted that the license plate for the vehicle was found inside the vehicle rather than
displayed at the rear bumper.

       Rodney Burns, a Gatlinburg Police Department officer, testified that he sent the tools
found in the Defendant’s vehicle and the door of the ATM machine to the Tennessee Bureau
of Investigation (“TBI”) for analysis. Detective Burns stated that this case was dismissed at
the preliminary hearing, but he presented the evidence to the grand jury, and the Defendant
was indicted. Detective Burns said that he attended the Defendant’s parole hearing where
the Defendant admitted ownership of the tools and the camouflage clothing retrieved from
the vehicle. He also admitting using his mother’s van and displaying the wrong license tag
on the van.

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       On cross-examination, Detective Burns agreed that the police did not recover a
backpack, cash, or masks. When asked if the police found any physical evidence at the high
school, Detective Burns responded that one of the tools found in the van matched the tool
mark on the ATM machine and a paint transfer from another of the tools matched the ATM
paint. He agreed there was no DNA or fingerprint evidence but explained that the suspects
wore gloves.

       Teri Arney, a TBI firearms and toolmark examiner, testified as an expert in the field
of toolmark examination. Agent Arney analyzed a pry bar or “cat’s paw” recovered in this
case. Based on her analysis, she found three usable marks and concluded that the pry bar
found in the Defendant’s vehicle was used to make all three marks on an ATM component
recovered from Gatlinburg-Pittman High School.

        On cross-examination, Agent Arney agreed that toolmark examination is a visual
determination based upon the comparison of surface features. She explained that there is a
verification process that requires another qualified examiner to also conduct an analysis.
Agent Arney stated that, in her opinion, she was completely certain that the pry bar found in
the Defendant’s vehicle made the marks on the ATM component. Agent Arney agreed that
it was possible for two examiners to be wrong but “very unlikely.” Agent Arney agreed that
she did not know how the tools were stored before they came into her possession.

        Annette Way, the Defendant’s mother, testified that the Defendant came home around
8:00 p.m. on Saturday night, August 18, 2014, laid down on the couch, and went to sleep.
She said he was sick. She recalled that the Defendant left her home at around 8:00 a.m. on
Sunday morning. Ms. Way stated that she would have known if the Defendant “snuck out”
of her home because she had an alarm “on [her] driveway.” Ms. Way stated that she would
not lie for her son.

       On cross-examination, Ms. Way testified that, on that night, the Defendant slept
upstairs while she slept downstairs in the living room. Ms. Way confirmed that the
Defendant drove her van when he left on Sunday morning.

       At the conclusion of the hearing, the trial court made the following findings:

       Essentially the proof is circumstantial. The Court in viewing that proof has
       considered and seen the evidence by recording, the surveillance camera,
       photographic copies of certain portions of it, physical evidence, the statements
       and arguments of counsel, testimony of witnesses, and the entire record. The
       standard of proof for violation of probation is probable cause. Based upon the
       evidence, it appears that both defendants match the description of the

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individuals on the videotape committing the burglary and theft as to the size,
as to individual physical characteristics and generally matched the clothing that
was found in the van the next day. In particular, the height of the defendants
matched the relative heighths [sic] of the two men on the videotape. Their
faces were covered during the theft but the general physical description is the
same. . . . The following day [the defendants] were observed at McKinney’s
Market. The police were called. [The Defendant] gave consent to search the
van. In the van were found wet clothing, which again matched the appearance
of the clothing worn by the men committing the burglary. The testimony was
that it rained that night, the ground was wet. And that certain tools were taken
into evidence.

        We heard testimony from Ms. Arney, who is qualified with many years
experience as a toolmark identification expert, that she described her
procedure for examining the toolmarks on the portions of the ATM machine
matching them with one of the tools found in the van, that that tool matched
three individual markings on the ATM machine. And her testimony, she found
it was conclusive and one hundred percent certain that those marks were made
by the tools found in [the Defendant’s] vehicle. While the defense has argued
and [conducted] cross-examination, there is no evidence to contradict that
testimony, and the Court finds that she was a credible and qualified expert
witness.

       While each of the defendant’s [sic] mothers have offered an alibi, there
can be no alibi for the tool found in the van, which was conclusively testified
to have been used in this burglary and theft. Witnesses may be mistaken about
certain things.

       But from all of the evidence, the Court does find that there is probable
cause to believe that both [the Defendant] and Mr. Spurgeon committed the
burglary, vandalism and theft at the school. . . . So the Court does find that
each of these men have violated the terms of their respective probation by
finding there is probable cause to believe that they committed the burglary
while on probation.

       In [the Defendant’s] case, he is on regular state probation, has a fixed
sentence. In reviewing the records and the notices filed by the State with
respect to the current pending case, [the Defendant] has numerous previous
felony convictions, that because of his extensive prior criminal history that
probation is not really an option, that it would diminish the seriousness of the

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       offense, and therefore, further probation is denied and [the Defendant] is
       ordered to serve the balance of his sentence in the Department of Correction.

It is from this judgment that the Defendant now appeals.

                                         II. Analysis

       The Defendant asserts that the evidence does not support the trial court’s probation
revocation and that the trial court improperly admitted a Tennessee Bureau of Investigation
firearms and tool mark examiner as an expert witness. The State responds that the trial court
properly revoked the Defendant’s probation because the evidence established that the
burglary was committed while the Defendant was on probation. As to the challenge to the
expert witness, the State responds that expert testimony regarding microscopic tool marks
is admissible and Agent Arney’s extensive training and experience supports the trial court’s
determination that she was qualified as an expert witness. We agree with the State.

                                 A. Probation Revocation

      In Tennessee, the procedure for a revocation of a probation sentence is set out in
Tennessee Code Annotated section 40-35-311 (2014). The statute provides, in part, as
follows:

               Whenever it comes to the attention of the trial judge that any defendant,
       who has been released upon suspension of sentence, has been guilty of any
       breach of the laws of this State or has violated the conditions of probation, the
       trial judge shall have the power to cause to be issued under such trial judge’s
       hand a warrant for the arrest of such defendant as in any other criminal case.

T.C.A. § 40-35-311(a).

       A trial court may revoke probation upon its finding by a preponderance of the
evidence that a violation of the conditions of probation has occurred. T.C.A. § 40-35-
311(e)(2014). “In probation revocation hearings, the credibility of witnesses is to be
determined by the trial judge.” State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App.
1991). If a trial court revokes a defendant’s probation, its options include ordering
confinement, ordering the sentence into execution as originally entered, returning the
defendant to probation on modified conditions as appropriate, or extending the defendant’s
period of probation by up to two years. T.C.A. § § 40-35-308(a), (c), -310 (2014); see State
v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999).



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       The judgment of the trial court in a revocation proceeding will not be disturbed on
appeal unless there has been an abuse of discretion. See State v. Shaffer, 45 S.W.3d 553, 554
(Tenn. 2001); State v. Smith, 909 S.W.2d 471, 473 (Tenn. Crim. App. 1995). In order for this
Court to find an abuse of discretion, “there must be no substantial evidence to support the
conclusion of the trial court that a violation of the conditions of probation has occurred.”
State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001). Further, finding of abuse of discretion
“‘reflects that the trial court’s logic and reasoning was improper when viewed in light of the
factual circumstances and relevant legal principles involved in a particular case.’” Shaffer,
45 S.W.3d at 555 (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

       In the present case, the Defendant was arrested for burglary of a local high school.
The record provided substantial evidence to support the trial court’s revocation of probation,
including surveillance footage of the burglary, clothing found in the Defendant’s vehicle
matching the clothing worn by the suspects in the surveillance video footage, as well as the
tools used in the burglary, also found in the Defendant’s vehicle.

        After the trial court found that the Defendant had violated his probation, it retained
discretionary authority, pursuant to Tennessee Code Annotated section 40-35-310(b), to order
the Defendant to serve his sentence in incarceration. The determination of the proper
consequence of a probation violation embodies a separate exercise of discretion. Hunter, 1
S.W.3d at 647. Case law establishes that “an accused, already on probation, is not entitled
to a second grant of probation or another form of alternative sentencing.” State v. Jeffrey A.
Warfield, No. 01C019711-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App., at
Nashville, Feb. 10, 1999), perm. app. denied (Tenn. June 28, 1999).

      The record clearly reflects that the Defendant violated the terms of his probation by
committing a new offense while on probation. Accordingly, the trial court was justified in
revoking the Defendant’s probation, and it was within the trial court’s authority to order the
Defendant to serve his original sentence upon revoking the Defendant’s probation sentence.
The Defendant is not entitled to relief.

                                    B. Expert Witness

       The Defendant asserts that the tool mark evidence in this case is unreliable and,
therefore, the admission of Agent Arney’s testimony as an expert witness is contrary to
Tennessee Rule of Evidence 702. The State responds that expert testimony regarding
microscopic tool marks is admissible in Tennessee and Agent Arney was properly qualified
as an expert witness.

       As stated by McDaniel v. CSX Transp., Inc., “[i]n general, questions regarding the

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admissibility, qualifications, relevancy and competency of expert testimony are left to the
discretion of the trial court.” 955 S.W.2d 257, 263 (Tenn. 1997) (citing State v. Ballard, 855
S.W.2d 557, 562 (Tenn. 1993)). “The trial court’s ruling in this regard may only be
overturned if the discretion is arbitrarily exercised or abused.” McDaniel, 955 S.W.2d at
263-64. Specifically, the rules that govern the admissibility of such evidence are Tennessee
Rules of Evidence 702 and 703. Rule 702 of the Tennessee Rules of Evidence provides:

               If scientific, technical, or other specialized knowledge will substantially
       assist the trier of fact to understand the evidence or to determine a fact in issue,
       a witness qualified as an expert by knowledge, skill, experience, training, or
       education may testify in the form of an opinion or otherwise.

Rule 703 of the Tennessee Rules of Evidence provides:

               The facts or data in the particular case upon which an expert bases an
       opinion or inference may be those perceived by or made known to the expert
       at or before the hearing. If of a type reasonably relied upon by experts in the
       particular field in forming opinions or inferences upon the subject, the facts or
       data need not be admissible in evidence. Facts or data that are otherwise
       inadmissible shall not be disclosed to the jury by the proponent of the opinion
       or inference unless the court determines that their probative value in assisting
       the jury to evaluate the expert’s opinion substantially outweighs their
       prejudicial effect. The court shall disallow testimony in the form of an opinion
       or inference if the underlying facts or data indicate lack of trustworthiness.

In addition to complying with Rules 702 and 703, the evidence must be relevant under Rule
401 of the Tennessee Rules of Evidence. McDaniel, 955 S.W.2d at 264 n.8. “The trial court,
therefore, must determine that the expert testimony is reliable in that the evidence will
substantially assist the trier of fact to determine a fact in issue and that the underlying facts
and data appear to be trustworthy.” Brown v. Crown Equipment Corp., 181 S.W.3d 268, 274
(Tenn. 2005).

       The State’s evidence in qualifying the Agent Arney as an expert in the area of tool
mark analysis showed that she held a bachelor’s degree in chemistry. She had worked in the
TBI laboratory for seventeen years, and she had undergone various Forensic Firearms
Identification trainings, courses, and seminars. Agent Arney received her Association of
Firearms and Toolmark Examiners Certification in Firearm Evidence Examination and
Identification in 2005. She had previously been qualified as an expert and had testified as
a tool mark analyst in “over a hundred” cases. Agent Arney explained that firearms and
toolmark examination is a discipline of forensic science that deals with the analysis of tools

                                                9
and the toolmarks they produce and matching those toolmarks back to a specific tool.

        Based upon the record, we conclude that the trial court acted within its discretion in
ruling that the witness was qualified to testify as an expert. It is clear that she possessed
scientific, technical, and specialized knowledge, experience, and training that, when relevant
in a given case, would substantially assist the trier of fact. The Defendant has shown no error
in the trial court’s acceptance of the witness as an expert.

                                     III. Conclusion
       Based on the foregoing reasoning and authorities, we affirm the trial court’s judgment.




                                                   _________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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