State of Tennessee v. Robert Miller

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 5, 2002

STATE OF TENNESSEE v. ROBERT MILLER

Appeal from the Circuit Court for Madison County
No. 01-495 Roger A. Page, Judge

No. W2002-00640-CCA-R3-CD - Filed March 28, 2003

The defendant, Robert Miller, who represented himself at trial, was convicted of vandalism over
$500 and criminal trespass. After the trial, the defendant was appointed counsel. The trial court
ordered concurrent sentences of two years and thirty days, respectively, with all but ten days
suspended, to be served in community corrections. In this appeal of right, the defendant asserts (1)
that he did not knowingly and voluntarily waive his right to counsel; (2) that the trial court erred by
the omission of a jury instruction; and (3) that the evidence was insufficient. Because the defendant
was denied the assistance of counsel at trial, the judgments of conviction are reversed and the causes
are remanded for a new trial.

Tenn. R. App. P. 3; Judgments of the Trial Court Reversed

GARY R. WADE, P.J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ROBERT
W. WEDEMEYER , JJ., joined.

George Morton Googe, District Public Defender (on appeal), and David H. Crichton, Assistant
District Public Defender (on appeal and at sentencing), for the appellant, Roger Miller.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney
General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of
Tennessee.

OPINION

At approximately 7:00 p.m. on October 9, 2000, the victim, Joe Miller, returned to his
Jackson residence to find that a Ford Escort automobile registered in the name of his wife, Gerry,
had been vandalized. The windshield was shattered, there were four flat tires with inch-wide
punctures, and the hood and front bumper had been scratched. At trial, the victim, who is the
defendant's brother, testified that he had notified the defendant two days earlier that he and his wife
could no longer provide part-time care for the defendant's daughter. The brothers talked again on
Sunday and the offense occurred on Monday, about two hours after the victim informed the
defendant that his wife would not reconsider her decision.

When confronted by the victim, the defendant denied any responsibility for the car damage
but did say, "Your wife owed me. And when somebody owed me, I’m going to get what somebody
owed me one way or another." According to the victim, the defendant also remarked, "Well, what’s
done is done. I can’t undo it. When you mess with my little girl, you’re messing with me." The
victim testified that his garage door had been closed and locked but claimed that the defendant could
have opened it without causing damage. The victim asserted that he had previously given the
defendant keys to the house and garage.

Gerry Miller testified that she and her husband left their residence at approximately 6:15 p.m.
on the date of the crime. She planned to attend a church program with a friend and her husband went
to a hardware store accompanied by their son. Ms. Miller claimed that on the way to church, she saw
the defendant stopped at a red light near her residence. She explained that she had initially agreed
to care for the defendant's child because the defendant, who was in the process of a divorce, was
working third shift. She testified that she changed her mind after the defendant and his wife
reconciled. Ms. Miller acknowledged that she and the defendant had previously been close friends
and that she had never seen the defendant behave violently toward anyone. She testified that the cost
of repairs for the automobile exceeded $1,200.00.

The defendant, who did not have an attorney at trial, denied that he had damaged the vehicle.
He contended that Ms. Miller was angry because "she had a problem with the fact that I was seeing
another woman."

I
Initially, the defendant argues that his waiver of counsel at trial was involuntary because it
was based on his inability to afford counsel and that the trial court had failed to make a proper
determination of his indigency pursuant to Tennessee Code Annotated section 40-14-202. The state
asserts that the record supports the trial court’s determination that the defendant was not indigent.
The findings of a trial judge who presided at a hearing where he saw and heard the witnesses testify
and heard and considered conflicting testimony will be given the weight of a jury verdict. His
findings will not be disturbed on appeal unless the evidence preponderates otherwise. State v.
Pritchett, 621 S.W.2d 127, 129 (Tenn. 1991); State v. O'Guinn, 709 S.W.2d 561 , 565-566 (Tenn.
1986); Ryan v. State, 97 Tenn. 206, 36 S.W. 930, 931 (1896).

The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense."
U.S. Const. amend VI. Likewise, Article I, section 9 of the Tennessee Constitution provides that "in
all criminal prosecutions, the accused hath the right to be heard by himself and his counsel." Tenn.
Const. art. I, § 9. A defendant has the right to counsel at all "'critical' stages in the criminal justice
process 'where the results might well settle the accused's fate and reduce the trial itself to a mere
formality.'" Maine v. Moulton, 474 U.S. 159, 170 (1985) (quoting United States v. Wade, 388 U.S.

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218, 224 (1967)). Where a defendant is financially unable to obtain representation, counsel must
be provided by the state. Gideon v. Wainwright, 372 U.S. 335, 343 (1963).

An "indigent person" is "any person who does not possess sufficient means to pay reasonable
compensation for the services of a competent attorney." Tenn. Code Ann. § 40-14-201(1).
Tennessee Code Annotated section 40-14-202, which governs court appointment of counsel for
indigent defendants, provides in pertinent part as follows:

(a) In all felony cases, if the accused is not represented by counsel, and the
court determines by the manner provided in subsection (b) that the accused is an
indigent person who has not competently waived the right to counsel, the court shall
appoint to represent the accused either the public defender, if there is one for the
county, or, in the absence of a public defender, a competent attorney licensed in this
state. The court may call upon any legal aid agency operating in conjunction with an
accredited college of law to recommend attorneys for appointment under the
provisions of this part. The court may, upon its own motion or upon application of
counsel appointed under this section, name additional attorneys to aid and assist in
the defense. Each appointment of counsel shall be denoted by an appropriate entry
upon the minutes of the court, which shall state the name of counsel and the date of
counsel’s appointment, but failure of the court to make such a minute entry shall not
in any way invalidate the proceeding if an attorney was in fact appointed. Upon the
appointment of an attorney hereunder, no further proceeding shall be had until the
attorney so appointed has had sufficient opportunity to prepare the case. If the court
should determine that the accused is not an indigent person, the court shall then
advise the accused with respect to the accused's right to counsel and afford the
accused an opportunity to acquire counsel.

(b) Whenever an accused informs the court that such accused is financially
unable to obtain the assistance of counsel, it is the duty of the court to conduct a full
and complete hearing as to the financial ability of the accused to obtain the assistance
of counsel, and, thereafter, make a finding as to the indigency of the accused. All
statements made by the accused seeking the appointment of counsel shall be by
sworn testimony in open court or written affidavit sworn to before the judge.

(c) When making a finding as to the indigency of an accused, the court shall
take into consideration:

(1) The nature of the services to be rendered;
(2) The usual and customary charges of an attorney in the community for
rendering like or similar services;
(3) The income of the accused regardless of source;
(4) The poverty level income guidelines compiled and published by the
United States department of labor;

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 (5) The ownership or equity in any real or personal property;
(6) The amount of the appearance or appeal bond, whether the party has been
able to obtain release by making such bond, and, if the party obtained release by
making such bond, the amount of money paid and the source of such money; and
(7) Any other circumstances presented to the court which are relevant to the
issue of indigency.

(d) If a social service agency services the criminal justice system of the
judicial district, and the court has reasonable cause to believe the accused has the
financial resources to employ counsel, the court shall order the agency to conduct an
investigation into the financial affairs of the accused and report its findings directly
to the court. The court shall consider the contents of the agency's report in making
its determination, and the report shall be made a part of the record in the cause.

(e) If the court appoints counsel to represent an accused in a felony case under
this section or in a misdemeanor case as required by law, but finds the accused is
financially able to defray a portion or all of the cost of the accused's representation,
the court shall enter an order directing the party to pay into the registry of the clerk
of such court such sum as the court determines the accused is able to pay. Such sum
shall be subject to execution as any other judgment and may also be made a condition
of a discharge from probation. The court may provide for payments to be made at
intervals, which the court shall establish, and upon such terms and conditions as are
fair and just. The court may also modify its order when there has been a change in
circumstances of the accused.

Tenn. Code Ann. § 40-14-202(a) – (e) (emphasis added). This court has previously interpreted the
statute’s hearing requirement as mandatory:

We think it is clear from the plain meaning of the statute that an indigency
hearing must be held whenever a criminal defendant claims that he is financially
unable to retain counsel. Furthermore, the legislature has placed no limits on the
word “whenever.” Thus, an indigency hearing is required at any point that the
defendant claims indigency.

State v. Dubrock, 649 S.W.2d 602 (Tenn. Crim. App. 1983) (holding that the defendant was entitled
to indigency hearing even though a third party had retained private counsel on his behalf).

In this case, the defendant first appeared before the trial court at the arraignment on June 11,
2001. On that date, he informed the trial court that he could not afford an attorney and completed
an affidavit of indigency indicating that he was employed at Quebecor World where he earned $240
per week. The affidavit included information that the defendant received food stamps and had two
dependent children. It listed assets in the form of a house valued at $63,000 subject to a mortgage
in that same amount. A minivan was valued at $2,500. The affidavit also indicated that the

4
defendant owned furniture valued at $800 for which he owed $720. The $5,000 bail had been posted
by his mother. After the trial court reviewed the affidavit and expressed doubt that the defendant
qualified as indigent, the defendant stated that he had filed for bankruptcy under Chapter 13 and was
making reorganization plan payments of $60 per week. He also stated that he paid $100 per week
in child support for one of his children and daycare expenses for the other. The trial court concluded
that the defendant could afford an attorney and should sell his vehicle for the fee. The defendant was
given one month to employ counsel.

Approximately six weeks later, the defendant again appeared in the trial court, contending
that he had attempted to hire counsel but was unable to do so for $2,500, the value of his minivan.
He had completed a second affidavit of indigency, this time indicating that he was employed at Color
World, earning $185 per week. The trial court appointed the public defender and ordered that the
defendant pay $1,000 in fees to that office, stating that the defendant was not entitled to free counsel
because he was working and had "minimal assets." One month later, the defendant again appeared
before the trial court. At that time, the defendant's appointed counsel informed the trial judge that
the defendant had telephoned his office, saying that he "didn’t need [the public defender’s] services
anymore." When questioned by the trial judge, the defendant stated that he intended to represent
himself. At a hearing two weeks later, the trial court determined that the defendant was competent
to act as his own counsel.

In State v. Gardner, 626 S.W.2d 721 (Tenn. Crim. App. 1981), the trial court found that the
defendant was not indigent and relieved appointed counsel after the defendant’s father attempted to
post a cash bond for his son’s release. On appeal, this court reversed the trial court’s judgment and
ordered the reinstatement of appointed counsel, finding that the financial condition of the
defendant’s father was irrelevant and that the evidence did not support the trial court’s determination
that the defendant was not indigent. The court observed as follows:

It is not necessary that one be a “pauper” in order to be “indigent” for
purposes of having appointed counsel in a criminal case. Rather, when one lacks the
financial resources which would allow him to retain a competent criminal lawyer at
the particular time he needs one, he is entitled to appointed counsel. Anaya v. Baker,
427 F.2d 73, 75 (10th Cir. 1970).

Indigency in the sense of ability to employ competent counsel is not
necessarily equatable with “destitution”. The judge need only be satisfied that
representation essential to an adequate defense is beyond the means of the defendant.
United States v. Cohen, 419 F.2d 1124, 1127 (8th Cir. 1969). Indigency is a relative
concept, and must be defined with reference to the particular right asserted. State ex
rel. Riendeau v. Tahash, 276 Minn. 26, 148 N.W.2d 557, 559-560 (1967). One able
to employ counsel to defend a minor misdemeanor charge may be unable to afford
counsel to defend a serious felony charge. State v. Harris, 5 Conn. Cir. 313, 250
A.2d 719, 721 (1968).

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626 S.W.2d at 725.

In State v. Dale Gray, No. 87-304-III (Tenn. Crim. App., at Nashville, Dec. 15, 1988), the
trial court appointed counsel to represent the defendant on the date he appeared for arraignment.
When the defendant appeared, however, he reported that his appointed counsel had determined that
he was not indigent and had advised him that he could sell his house, in which he had $20,000 in
equity, to pay for counsel. The court agreed that the defendant was not indigent and set the case for
trial, at which the defendant represented himself and was convicted of receiving stolen property
under the value of $200. On appeal, this court reversed the conviction, finding that the “trial court
committed error of prejudicial dimensions in failing to make a more thorough inquiry into the
financial status of the defendant.” No. 87-304-III, slip op. at 8.

In our view, the holdings in Gardner and Gray require a similar result in this case. Although
the trial court considered the defendant's claim of indigency, there was not a "full and complete"
indigency hearing within the meaning of Tennessee Code Annotated section 40-14-202. See also
State v. Stephen John Abbott, No. 01C01-9607-CC-00293 (Tenn. Crim. App., at Nashville, July 24,
1996) (holding that indigent defendant was entitled to appointed counsel even though a third party
had retained counsel on behalf of the defendant). The statute makes it mandatory that a trial court
consider the nature of the services to be rendered; the usual and customary charges of an attorney
in the community for rendering like services; the income of the defendant regardless of source; the
poverty level income guidelines compiled and published by the United States Department of Labor;
the ownership or equity in any real or personal property; the amount of the appearance or appeal
bond, whether the defendant has been able to obtain release by making such bond, and, if so, the
amount and source of any money paid; and any other relevant circumstances. Tenn. Code Ann. §
40-14-202(c). Here, however, the trial court considered only the affidavits of indigency.

Our review of the record in light of the relevant statutory factors suggests that the defendant
did, in fact, qualify as an "indigent person" and was, therefore, entitled to the appointment of counsel
without any corresponding duty to pay. When he appeared for arraignment, his monthly income was
$960 and he qualified for government assistance in the form of food stamps. He reported child
support payments in the amount of $400 per month and Chapter 13 bankruptcy reorganization plan
payments in the amount of $240 per month, two-thirds of his income. Additionally, the defendant
had legal custody of his daughter, for whom he had some daycare expenses. The record also
indicates that the defendant had been making payments to his brother and sister-in-law for clothing
and other items they had purchased for his daughter. Although he likely had other, non-fixed
expenses, the record contains no further information. When the defendant appeared before the court
a second time, his employment had changed and his income had decreased by $220 per month to
$740 and his expenses were the same. Although the defendant owned a house, the record
demonstrates he had no equity. Because a bankruptcy reorganization plan was still in effect, it is
unlikely that he could have sold either the house or the minivan without permission of the
bankruptcy court. By our calculations, the defendant would have fallen well below the 2001 poverty
guidelines. See 2001 HHS Poverty Guidelines, 66 Fed. Reg. 10695 – 10697 (Feb. 16, 2001).

6
 In our view, the trial court's failure to appoint counsel qualifies as an error of "prejudicial
dimensions." See Dale Gray, No. 87-304-III, slip op. at 8. The defendant was charged with two
felonies, burglary and vandalism over $500. He was convicted of the vandalism as charged and the
conviction for criminal trespass, a misdemeanor, was a lesser included offense of the burglary
charge. Further, prior to sentencing, the defendant completed another affidavit of indigency, this
time showing no income. Under these circumstances, the defendant should have been appointed
counsel. See Alabama v. Shelton, 535 U.S. 654 (2002) (affirming reversal of misdemeanor
conviction and suspended sentence where counsel was not provided to indigent defendant and
conviction could have led to “imprisonment even for a brief period”); Gideon, 372 U.S. at 343-45;
State v. Garrison, 40 S.W.3d 426, 433 n.9 (2000) (noting that complete denial of the assistance of
counsel “def[ies] harmless error analysis and require[s] reversal”); cf. Tenn. Sup. Ct. R. 13 § 1(j)
(providing that a trial court’s failure to follow the procedural provisions relative to appointment of
indigent counsel shall not constitute grounds for relief from conviction); State v. Earley Story, No.
W2001-00529-CCA-R3-CD (Tenn. Crim. App., at Jackson, Sept. 13, 2002) (applying Rule 13 where
defendant’s sole complaint was that trial court failed to conduct indigency hearing prior to
appointing counsel).

In Dubrock, Judge Martha Craig Daughtrey, writing for this court, concluded that "the only
circumstances under which [a] defendant could constitutionally be put to trial without an attorney
would be pursuant to a valid waiver of his right to counsel." 649 S.W.2d at 605. This record
supports the defendant’s contention that his waiver of counsel was neither knowing nor voluntary.
A waiver of the assistance of counsel "must not only be voluntary, but constitute a knowing and
intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in
each case 'upon the particular facts and circumstances surrounding that case, including the
back-ground, experience and conduct of the accused.'" Edwards v. Arizona, 451 U.S. 477, 482
(1981); see also Johnson v. Zerbst, 304 U.S. 458, 465 (1938); State v. Burkhart, 541 S.W.2d 365,
368 (Tenn. 1976); State v. Coleman, 519 S.W.2d 581, 583 (Tenn. 1975). "When an accused cannot
afford an attorney, however, it is obvious that his failure to hire a lawyer cannot be regarded as a
waiver of the right to counsel." Dubrock, 649 S.W.2d at 606; see Tobin v. United States, 402 F.2d
307, 308 (7th Cir. 1968).

Here, the defendant consistently maintained that he desired counsel but was unable to afford
the fee. At the hearing to determine his competency to represent himself, the trial court did a
thorough job of advising the defendant of his rights and ensuring that he understood them. The
defendant explained that he was exercising his right of self-representation only because he could not
pay the public defender’s fees. Under our law, this does not qualify as a "knowing and intelligent
relinquishment or abandonment" of the right to counsel. Because the trial court failed to conduct
a "full and complete" hearing on the defendant’s claim of indigency and the evidence presented
appears to have established that the defendant was an "indigent person," the waiver of the right to
counsel would not qualify as voluntary. See Dwayne Murrell v. State, No. 302 (Tenn. Crim. App.,
at Knoxville, Aug. 15, 1990) (holding that the trial court committed reversible error by failing to
conduct an indigency hearing and allowing the defendant to proceed pro se after the defendant had
requested appointment of counsel).

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 II
Next, the defendant contends that the trial court erred by failing to instruct the jury on express
statements against interest. The state argues that the defendant has waived this issue by failing to
request the instruction or object at trial to the jury instructions provided. See Tenn. R. Crim. P.
30(a)(b); see also State v. Cravens, 764 S.W.2d 754, 756-57 (Tenn. 1989). In the alternative, the
state asserts that an instruction on statements against interest was not necessary given the evidence
in the case.

The trial court has a duty “to give a complete charge of the law applicable to the facts of a
case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see also Tenn. R. Crim. P. 30. “[The]
defendant has a constitutional right to a correct and complete charge of the law.” State v. Teel, 793
S.W.2d 236, 249 (Tenn. 1990). Our law requires that all of the elements of each offense be described
and defined in connection with that offense. See State v. Cravens, 764 S.W.2d 754, 756 (Tenn.
1989). Jury instructions must, however, be reviewed in the context of the overall charge rather than
in isolation. See Sandstrom v. Montana, 442 U.S. 510 (1979); see also State v. Phipps, 883 S.W.2d
138, 142 (Tenn. Crim. App. 1994). A charge is prejudicial error “if it fails to fairly submit the legal
issues or if it misleads the jury as to the applicable law.” State v. Hodges, 944 S.W.2d 346, 352
(Tenn. 1997).

While the defendant may request special instructions, the jury charge provided by the trial
judge is sufficient where it adequately states the law. See, e.g., State v. Tyson, 603 S.W.2d 748
(Tenn. Crim. App. 1980). When a trial court's charge to the jury is accurate and complete, the court
need not give additional special instructions requested by the defendant. See State v. Story, 608
S.W.2d 599, 603 (Tenn. Crim. App. 1980).

The defendant asserts that the trial court should have provided the jury with the charge
contained in Tennessee Criminal Pattern Instruction 42.11, which provides as follows:

Evidence of an admission has been introduced in this case. An admission is
an acknowledgment by the defendant of certain facts which tend, together with other
facts, to establish [his] [her] guilt. It must be corroborated by other independent
evidence to warrant and support a conviction.

The court has permitted admission of this evidence, but it remains your duty
to decide if in fact such statement was ever made. If you do not believe it was ever
made, you should not consider it. If you decide the statement was made, you must
then judge the truth of the facts stated. In determining whether the statement is true,
you should consider the circumstances under which it was made. You should also
consider whether any of the other evidence before you tends to contradict the
statement in whole or in part. You should not arbitrarily disregard any part of the
statement, but should consider all of the statement you believe is true.

8
 If you find the statement is true, you are the sole judge of the weight that
should be given it. You should consider it along with all the other evidence in the
case in determining the defendant’s guilt or innocence.

T.P.I. – Crim. 42.11.

In this case, Joe Miller testified that the defendant, in a telephone conversation shortly after
the crimes, stated, "Your wife owed me. And when somebody owed me, I’m going to get what
somebody owed me one way or another." The defendant also allegedly told Joe Miller that "what’s
done is done. I can’t undo it. When you mess with my little girl, you’re messing with me." The
defendant categorically denied making the statements. The trial court instructed the jury that it had
the responsibility of assigning credibility of the witnesses and reconciling conflicts in the proof. In
addition, the trial court emphasized that a guilty verdict could not be supported solely by the fact that
the defendant had made statements implying his guilt. In our view, the pattern jury instruction would
have been preferable. Nevertheless, the trial court adequately covered the substance of the pattern
charge on admissions against interest. In consequence, the trial court did not err by failing to give
such an instruction. See State v. Zirkle, 910 S.W.2d 874, 892 (Tenn. Crim. App. 1995) (holding that
the trial court's failure to provide a requested instruction was not error where the substance of the
requested instruction was covered by the general charge).

III
Finally, the defendant contends that the evidence was insufficient to support his convictions.
On appeal, of course, the state is entitled to the strongest legitimate view of the evidence and all
reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the
reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v.
State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is
challenged, 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. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).
Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well
as all factual issues raised by the evidence are resolved by the trier of fact. Liakas v. State, 199 Tenn.
298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears
the burden of showing that the evidence was legally insufficient to sustain a guilty verdict. State v.
Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

A criminal offense may be established exclusively by circumstantial evidence. Duchac v.
State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable v. State, 203 Tenn. 440, 313 S.W.2d 451, 456-58
(1958); State v. Hailey, 658 S.W.2d 547, 552 (Tenn. Crim. App. 1983). The facts and circumstances
must “be so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the
defendant.” State v. Crawford, 225 Tenn. 478, 470 S.W.2d 610, 612 (1971). The weight of the
circumstantial evidence is for the jury to determine. Williams v. State, 520 S.W.2d 371, 374 (Tenn.

9
Crim. App. 1974) (citing Patterson v. State, 4 Tenn. Crim. App. 657, 475 S.W.2d 201 (1971)). The
same standard of review for sufficiency claims is applicable to guilt based upon direct as well as
circumstantial evidence. State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 208
Tenn. 75, 343 S.W.2d 895, 897 (1971). The court may not substitute its inferences for those drawn
by the trier of fact in circumstantial evidence cases. Liakas, 286 S.W.2d at 859; Farmer v. State, 574
S.W.2d 49, 51 (Tenn. Crim. App. 1978).

“A person commits criminal trespass who, knowing the person does not have the owner's
effective consent to do so, enters or remains on property, or a portion thereof.” Tenn. Code Ann. §
39-14-405(a). A person is guilty of vandalism when he “knowingly causes damage to or the
destruction of any real or personal property of another or of the state, the United States, any county,
city, or town knowing that the person does not have the owner’s effective consent.” Tenn. Code
Ann. § 39-14-408(a).

Taken in the light most favorable to the state, the evidence at trial showed that someone
broke into the victims’ locked garage and damaged their Ford Escort automobile, shattering the
windshield and flattening the tires. Gerry Miller testified that repair of the damage exceeded $1,200.
The defendant, who had argued with the victims just hours earlier, was seen in the vicinity of the
victims’ home at the time the offenses were committed. He had keys to the victims’ garage door.
There were no signs of a forcible entry. When confronted by Joe Miller, the defendant made
statements implicating his involvement. Although much of the evidence was circumstantial, it
would have been sufficient to support the convictions.

Because the defendant should have been appointed counsel at trial, the judgments of the trial
court are reversed and the cause is remanded for a new trial on the charges of criminal trespass and
vandalism in excess of $500.

___________________________________
GARY R. WADE, PRESIDING JUDGE

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