IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 16, 2014

STATE OF TENNESSEE v. FRANK KENDALE SPARKMAN, JR.

Direct Appeal from the Circuit Court for Lewis County

Nos. 2004-CR-71 (6549), 2004-CR-38 (6524) Timothy Easter, Judge

No. M2012-02381-CCA-R3-CD - Filed September 19, 2014

The appellant, Frank Kendale Sparkman, Jr., pled guilty in the Lewis County Circuit Court

to selling one-half gram or more of cocaine, a Class B felony, and possession of less than

one-half gram of cocaine, a Class C felony, and received an effective eleven-year sentence

to be served on supervised probation. On appeal, the appellant contends that the trial court

erred by revoking his probation and ordering that he serve his effective sentence in

confinement. Based upon the record and the parties’ briefs, we affirm the judgment of the

trial court.

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

NORMA MCGEE OGLE,J., delivered the opinion of the Court, in which THOMAS T. WOODALL

and ALAN E. GLENN, JJ., joined.

Kenneth K. Crites, Centerville, Tennessee, for the appellant, Frank Kendale Sparkman, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; Kim

R. Helper, District Attorney General; and Sean Duddy, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

I. Factual Background

On December 8, 2004, the appellant pled guilty to selling one-half gram or more of

cocaine, a Class B felony, and possession of less than one-half gram of cocaine with intent

to sell or deliver, a Class C felony, and the trial court sentenced him to consecutive sentences

of eight and three years, respectively. The appellant completed a portion of his effective

eleven-year sentence in a boot camp program and then began serving the remainder of his
sentence on supervised probation. The appellant’s probation was to expire on July 12, 2015.

On January 9, 2012, the appellant’s probation officer filed a probation violation

report, alleging that the appellant had violated probation by being arrested on January 5,

2012, for possession of cocaine for resale and theft of property. The trial court issued a

probation violation warrant, and the appellant was arrested.

At the appellant’s probation revocation hearing, the State advised the trial court that

due to the complexity of the appellant’s drug case, it was seeking to revoke the appellant’s

probation only for the theft charge. Jerry Grohowski testified that he was the appellant’s

probation officer and that someone would have gone over the rules of probation with the

appellant when the appellant was released from boot camp. Rule number two required that

the appellant obey the laws of this state. Grohowski filed a violation of probation report

against the appellant for new charges of possession of a Schedule II controlled substance for

resale and theft of property. The appellant had reported the new charges to Grohowski, but

Grohowski already knew about them.

On cross-examination, Grohowski testified that the appellant never tested positive for

cocaine or marijuana while on probation. The appellant tested positive for Lortab but had

prescriptions for the drug.

Allison Lacey Sisco testified that in October 2011, she allowed some friends, one of

whom was Corey Anthony, to stay at her home while she had surgery. When Sisco returned

home from surgery on October 12, her friends claimed that her house had been “robbed,” that

they were gone when the incident occurred, and that they returned home to find “the whole

place had been ransacked.” Sisco went to her bedroom and discovered that $80 in cash, a

new iPod Generation 4, a laptop computer, and a camera were missing. Sisco reported the

stolen items to the police that same day.

Sisco testified that she owned an iPhone but had loaned it to Anthony. After Sisco

learned about the thefts from her home, she and Anthony went to a convenience store. At

that time, Sisco’s iPhone was in Anthony’s pocket. Sisco said that on the way home from

the store, she asked Anthony if he had returned her phone to her and that he told her,

“‘[Y]eah, Lacey, I gave it to you when I got back in the car.’” Anthony suggested to Sisco

that she had left the phone on the hood of her car and had driven away from the store without

retrieving it. On October 13, 2012, Sisco reported to Officer Brent Bridges that her iPhone

also was missing.

On cross-examination, Sisco testified that when she discovered the iPhone was

missing, she and Anthony returned to the convenience store but could not find the phone.

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Sisco told Officer Bridges that her iPhone was either missing or had been stolen and gave

him the phone’s serial number. On January 5, 2012, Sisco learned from Deputy Chris Himes

that her phone had been recovered. The police returned the phone to her in March 2012.

Sisco said that the phone had been charged, that her information had been “cleaned off,” and

that the phone contained music and a few pictures that did not belong to her. She said she

never gave the appellant permission to possess her phone. Upon being questioned by the trial

court, Sisco testified that she did not think Anthony returned the phone to her.

On redirect examination, Sisco testified that the phone wasin her ex-boyfriend’s name

but that she paid for the phone. Sisco told the police that she did not know whether she left

the phone on the hood of her car or Anthony stole it. She acknowledged that she did not

think the appellant stole the phone.

Officer Brent Bridges of the Hohenwald Police Department testified that he took a

report from Lacey Sisco about the missing iPhone and that Sisco “thought it had been stolen

but she was not for sure.” On cross-examination, Officer Bridges testified that Sisco

suspected Anthony had taken the phone. Deputy Bridges did not talk with Anthony.

Investigator Johnny Hilburn of the Lewis County Sheriff’s Department (LCSD)

testified that on January 5, 2012, he and other officers were investigating possible drug

activity at a home on Fan Street in Hohenwald and executed a search warrant at the

residence. During the search, they found drugs, drug paraphernalia, and various electronic

devices. The appellant and a small cellophane package containing a small amount of cocaine

were in the living room. Investigator Hilburn searched the appellant’s vehicle and noticed

that the center console was loose. He stated that a vehicle’s center consol was usually

fastened tightly to the vehicle’s floorboard and was a “common location for hiding items

either directly in the console or under the console to keep it from being easily visible in plain

view.” Investigator Hilburn looked under the console and found an iPhone.

On cross-examination, Investigator Hilburn testified that the home did not belong to

the appellant and that the police did not find any drugs on the appellant’s person. He

acknowledged that Corey Anthony was a known drug user and that he had arrested Anthony

previously.

Officer Josh Keltner of the LCSD testified that he participated in the execution of the

search warrant at the home on Fan Street. During the search, Investigator Hilburn found an

iPhone in the appellant’s vehicle. The appellant received Miranda warnings, and Officer

Keltner talked with him about the phone. Officer Keltner said the appellant claimed that the

phone was his and that he had “just got it activated in Columbia because his other one had

broke.” The appellant did not identify from whom he obtained the phone, and Officer

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Keltner did not ask the appellant. On cross-examination, Officer Keltner acknowledged that

he had no reason to think the appellant stole the iPhone.

Deputy Chris Himes of the LCSD testified that he participated in the execution of the

search warrant on Fan Street and that an officer asked him if he was related to Lacey Sisco.

Deputy Himes told the officer no but that his wife was related to her. Officers told Deputy

Himes that they had found a camera with pictures on it, and Deputy Himes told them that a

camera and other items, including an iPhone, had been stolen from Sisco. Officer Keltner

revealed to Deputy Himes that the officers also had found an iPhone. Deputy Himes spoke

with Sisco and determined that the iPhone belonged to her.

At the conclusion of the State’s proof, the trial court found that when the officers

recovered Sisco’s iPhone, it was in the appellant’s possession and control and that the

appellant had not received consent from Sisco to exert control over her phone. The trial

court then concluded as follows:

That taken in conjunction with the testimony of the other

law enforcement officers, particularly Deputy Keltner with the

Sheriff’s Department, that the defendant gave a statement

admitting he had taken the phone and called it his and activated

it in Maury County or Columbia because his other one has been

broken. When all of that testimony is weighed against a

preponderance of the evidence, the Court can conclude that the

State has established that this defendant is in violation of

probation by violating Rule 2 of Exhibit No. 1, the terms and

conditions of probation.

II. Analysis

The appellant contends that the trial court abused its discretion by revoking his

probation because the State failed to prove that the iPhone was stolen as opposed to lost or

that he had any connection to the theft of the phone. The appellant also contends that the trial

court erroneously stated that the appellant admitted to Investigator Keltner that he took the

phone. The State argues that the record supports the trial court’s finding of theft by the

appellant and, therefore, that the trial court properly revoked the appellant’s probation. We

agree with the State.

Upon finding by a preponderance of the evidence that the appellant has violated the

terms of his probation, a trial court is authorized to order an appellant to serve the balance

of his original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310, -311(e); State

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v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Probation revocation rests in the sound

discretion of the trial court and will not be overturned by this court absent an abuse of that

discretion. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995); see State v.

Pollard, 432 S.W.3d 851, 864 (Tenn. 2013) (concluding that abuse of discretion with a

presumption of reasonableness is the appropriate standard of appellate review for all

sentencing decisions). “A trial court abuses its discretion when it applies incorrect legal

standards, reaches an illogical conclusion, bases its ruling on a clearly erroneous assessment

of the proof, or applies reasoning that causes an injustice to the complaining party.” State

v. Phelps, 329 S.W.3d 436, 443 (Tenn. 2010).

The State sought to revoke the appellant’s probation based only on the theft charge.

“A person commits theft of property if, with intent to deprive the owner of property, the

person knowingly obtains or exercises control over the property without the owner’s effective

consent.” Tenn. Code Ann. § 39-14-103.

The evidence at the revocation hearing established that the appellant exercised control

over Sisco’s iPhone without her effective consent. An officer found the phone in the

appellant’s vehicle, and the appellant admitted that he activated the phone. Moreover, the

trial court could infer from the fact that the phone was hidden underneath the vehicle’s center

console that the appellant knew the phone was stolen. We note that the appellant did not

offer Officer Keltner an explanation as to how he obtained the phone. See State v. Steven

Van Tucker, No. W2010-01943-CCA-R3-CD, 2012 Tenn. Crim. App. LEXIS 259, at **19-

20 (Jackson, Apr. 25, 2012) (relying on State v. James, 315 S.W.3d 440, 457 (Tenn. 2010),

for the proposition that “possession of recently stolen property, unless satisfactorily

explained, creates a permissible inference that the defendant gained possession through theft

or had knowledge that the property had been stolen”).

The trial court never stated that the appellant admitted stealing the phone. Instead, the

trial court said that the appellant “admitt[ed] he had taken the phone and called it his and

activated it.” In our view, the trial court meant that the appellant admitted taking possession

and ownership of the phone and activating it. The evidence supports the trial court’s

conclusion, and we conclude that the trial court did not abuse its discretion by revoking the

appellant’s probation.

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgment of the trial

court.

_________________________________

NORMA McGEE OGLE, JUDGE

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