        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  April 27, 2010 Session


                 STATE OF TENNESSEE v. DAVID LYNN SISK

                    Appeal from the Circuit Court for Cocke County
                        No. 0362 Ben W. Hooper, II, Judge




               No. E2009-00320-CCA-R3-CD - Filed September 8, 2010




D. K ELLY T HOMAS, J R., J., dissenting in part and concurring in part.


       I respectfully dissent from the majority’s holding that the evidence is insufficient to
support the Defendant’s convictions. The evidence at trial established that the Defendant
lived across the street and two houses down from the victims’ burglarized home. A partially
smoked cigarette was found inside the victims’ home, and subsequent DNA testing
established that the Defendant’s DNA was present on the cigarette. Detective Grooms
described the cigarette as not being crumpled and stated that the cigarette looked as if it had
been partially smoked and then forgotten inside the house. Detective Grooms rejected the
idea that the cigarette was tracked into the house from the street and stated that the cigarette
appeared to have been placed in the house by the perpetrator. When asked on cross-
examination whether a cigarette could stick to a person’s shoe, Detective Grooms stated that
he has never had a cigarette stick to his shoe. When officers attempted to apprehend the
Defendant at his house, the Defendant, who was sitting on his front porch, ran from the
officers. The Defendant was found ten minutes later. Given the presence of the Defendant’s
DNA on the cigarette, the condition and location of the cigarette, and the Defendant’s flight
to avoid contact with law enforcement, a reasonable jury could conclude that the Defendant
was guilty beyond a reasonable doubt. The aforementioned evidence, coupled with Detective
Grooms’s testimony, excludes every reasonable hypothesis other than guilt.

       I concur with the majority’s opinion that the Defendant’s conviction of theft of
property valued $1,000 or more but less than $10,000 must be dismissed as the indictments
for theft were impermissibly multiplicitous. I further concur that the Defendant was
erroneously classified as a career offender. Respectfully, I would affirm the convictions for
aggravated burglary and theft of property valued $10,000 or more but less than $60,000 and
remand for resentencing.




                                                D. KELLY THOMAS, JR., JUDGE




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