Probation violation based on weapon dismissed

Jul. 7—A Cumberland County man in jail for a probation violation because a weapon was found inside a travel home that served as a dual residence was released back on probation following a Criminal Court hearing earlier this month.

Kenneth A. Toebbe, 35, was on probation after serving the minimum requirement of a three-year sentence for a plea to an information charging possession of oxymorphone in January 2021.

The Department of Corrections has a "terminate release" program that basically discharges inmates when they reach the two-year or less mark of a prison sentence. Toebbe was released on probation after completing the system's boot camp program Aug, 3, 2021.

Board of Pardon and Parole Officer Chris Goddard testified that among conditions of release was that Toebbe was banned from owning, possessing or living where firearms are present.

A random home search of the recreation vehicle turned into duplex-type setting where Toebbe lived in one section and his 15-year-old son in another was conducted on Feb. 9.

Goddard testified the camper home, located on property owned by Toebbe's mother, has separate entrances and two living areas. During the visit, Goddard testified he observed a shotgun lying beside a bed in one room. He filed a probation violation warrant and Toebbe was held without bond pending the hearing on June 10.

Assistant Pubic Defender Janis Mize called two witnesses — the 15-year-old son and Toebbe's mother, Tammy Wells.

Both testified that the two living areas had to be accessed from separate locked doors with the son and the father not having access to the other's bedroom.

The son added that the shotgun seized had been given to him by his grandfather for hunting and target practicing and that in a hurry, he left his bedroom door open.

The son added that the shotgun given to him as a gift "meant a lot to me" and that he always took great care to secure the weapon after hunting or target practicing.

Mize argued that the camper home was similar to a duplex and that her client never had access to the weapon and was not present when the bedroom door was left open by the son.

She argued the state had not met the burden of proof establishing Toebbe had access or control over the weapon.

Judge Gary McKenzie ruled there was no proof of intent to own or possess the weapon and that undisputed testimony was father and son had separate living quarters which normally were kept under lock with one not having keys to the other's room.

McKenzie dismissed the violation warrant and ordered the shotgun be returned only to the grandfather for safe keeping to prevent future confusion during home checks.

Michael Moser may be reached at mmoser@crossville-chronicle.com