State of Tennessee v. Deney Brockman

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 10, 2012

STATE OF TENNESSEE V. DENEY BROCKMAN

Appeal from the Criminal Court of Shelby County

No. 09-08006 James C. Beasley, Jr., Judge

No. W2011-01939-CCA-R3-CD - Filed June 28, 2012

Deney Brockman (“the Defendant”) was convicted by a jury of burglary of a building other

than a habitation. After a hearing, the trial court sentenced the Defendant as a career

offender to twelve years in the Tennessee Department of Correction. In this appeal, the

Defendant challenges the sufficiency of the evidence supporting his conviction. Upon our

thorough review of the record and applicable law, we hold that the evidence is sufficient to

support the Defendant’s conviction. Accordingly, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment

of the Criminal Court Affirmed

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS

and C AMILLE R. M CM ULLEN, JJ., joined.

Stephen Bush, Chief Public Defender; Harry E. Sayle III, Assistant Public Defender (on

appeal); Jim Hale, Assistant Public Defender (at trial), Memphis, Tennessee, for the

appellant, Deney Brockman.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; Amy Weirich, District Attorney General; and Pam Fleming, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

The Defendant was charged with one count of burglary of a building other than a

habitation with intent to commit theft, a Class D felony. See Tenn. Code Ann. § 39-14-

402(a)(1), (c) (2006). At the Defendant’s jury trial, Officer Keith Rogers of the Memphis

Police Department testified that, on September 6, 2009, he was working the 5:00 p.m. to 1:00

a.m. shift on Uniform Patrol in Memphis. He was working with a trainee, who was driving

the squad car. As they were driving, Officer Rogers heard an alarm. He instructed the

trainee to drive down Vance and, as they did so, the alarm became louder. On their way,

Officer Rogers “saw a male black pushing a shopping cart.” The man was “just east of

Walnut on Vance” and “traveling westbound on Vance.” Officer Rogers was headed east

on Vance.

Officer Rogers testified that he looked at the man and noticed that he “had a shopping

cart full of bottles.” They drove a short distance further and discovered that the source of the

alarm was W. W. Liquor. Officer Rogers “kind of put it together” and instructed his trainee

to turn the squad car around and return to the man they had earlier passed. Officer Rogers

stated that the distance between the store and the location where they had seen the man was

forty to forty-five yards.

As they reapproached the man with the cart, Officer Rogers stated, the man “saw that

we were coming toward him, and he took off running.” At this point, the man was at the

intersection of Vance and Walnut. According to Officer Rogers, about two or three minutes

had elapsed since he first saw the man. Officer Rogers testified that he was “certain” that

the man he saw running was the same person he first saw pushing the shopping cart. The

man was still pushing the cart when they came back in his direction.

The man ran southbound on Walnut from Vance, and Officer Rogers got out of the

squad car and ran after him. The chase continued for about a hundred yards, during which

Officer Rogers instructed the man, “Police, freeze, police, freeze, get on the ground.” The

man ignored Officer Rogers and ran to a nearby warehouse, where there was a fence. The

man tried to jump the fence, but Officer Rogers held him at gunpoint until he returned to the

ground. Officer Rogers then handcuffed and searched the suspect.

Officer Rogers testified that they recovered the shopping cart, in which they found

liquor bottles, a sledge hammer, wire cutters, and “some other miscellaneous tools.” They

returned to the liquor store and, once the owner arrived, entered the store. At that point, they

discovered that a large hole had been knocked into the back wall. They also discovered that

a chain-link fence on the side of the store had been cut from its pole. In the ground on the

side of the building were “tire marks from where the shopping cart was moved back and

forth.” Photographs of the building, fence, ground, and shopping cart were admitted without

objection. Officer Rogers also identified the Defendant as the man he saw pushing the

shopping cart and whom he subsequently chased and took into custody.

Officer Leroy Williamson of the Memphis Police Department testified that he was

“new on the job” at the time of the instant episode. On that night, he was riding with Officer

Rogers, his field training officer. They responded to the alarm at about 11:00 or 11:30 p.m.

-2-

as they were driving eastbound on Vance. As they approached the intersection with Walnut,

they stopped and Officer Williamson “saw an individual walking southbound on Walnut.”

This person was pushing a shopping cart. Officer Williamson could tell that the person was

an African-American man. The man was wearing “a light brown, tannish, sort of warm-up

set type deal, like a warm-up suit.” The officers continued through the intersection and

reached the liquor store in “five seconds maybe.” Officer Williamson estimated the distance

from the intersection to the liquor store as two hundred to two hundred and fifty feet.

When they realized that the alarm was coming from the liquor store, Officer Rogers

instructed him to turn around and drive back to the man’s location so they could check him

out. Officer Williamson drove back to the intersection, turned left onto Walnut, and they

“saw the basket sitting in the street.” He drove further and they saw the suspect running. He

recognized the clothing that the man was wearing. Officer Rogers got out of the car and gave

chase. Officer Williamson followed after parking the car. He saw the suspect trying to climb

a fence. Officer Rogers drew his weapon and advised the suspect to stop. Officer

Williamson then “cuffed him up, patted him down, and [they] took him back to the squad

car.” The officers then returned to the liquor store and subsequently “went back and secured

the shopping cart.”

According to Officer Williamson, only about ten seconds elapsed between their first

and second sightings of the suspect. Officer Williamson identified the Defendant as the

suspect he initially saw pushing the shopping cart and whom they later apprehended.

On cross-examination, Officer Williamson estimated that the Defendant had already

gone a couple of hundred feet south on Walnut from the intersection when they first observed

him pushing the shopping cart. Officer Williamson acknowledged that the area was dark

and that, during the initial sighting, he saw the man’s back moving away from them. When

they returned to the intersection after determining that the alarm was coming from the liquor

store, Officer Williamson turned south onto Walnut. He saw the shopping cart but not the

man who had been pushing it. He drove further and saw the suspect running. According to

Officer Williamson, the ensuing foot chase lasted about ten to twelve seconds.

David Lockhart testified that he was the manager of the liquor store and that it was

owned by his father. He went to the scene of the burglary on the night of September 6, 2009,

and found “a big hole” in the back wall. The wall was built of concrete blocks and the hole

was “about three feet wide and about three feet tall.” The hole had not been there previously.

Lockhart also noticed “bottles on the floor and a bunch of stuff missing from the shelves.”

Missing was a case of Patron tequila and bottles of Wall Street whiskey. These bottles

should have been on the shelf near the hole. Lockhart viewed the contents of the shopping

cart at the scene and identified the bottles as belonging to the store.

-3-

Lockhart testified that he had given no one permission to create the hole or to take the

bottles. He stated that the store was located in Memphis, Shelby County, Tennessee.

Lockhart stated that the fence had been in place when he last left the building. He also stated

that they did not keep shopping carts at the store.

The State rested its case after Lockhart’s testimony. The defense put on no proof.

After deliberating, the jury found the Defendant guilty as charged. The trial court

subsequently sentenced the Defendant as a career offender to twelve years in the Tennessee

Department of Correction. This appeal followed. The only issue the Defendant raises is the

sufficiency of the evidence supporting his conviction.

Analysis

Standard of Review

Our standard of review regarding sufficiency of the evidence is “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319 (1979). See also Tenn. R. App. P. 13(e). After a jury finds

a defendant guilty, the presumption of innocence is removed and replaced with a presumption

of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the defendant

has the burden on appeal of demonstrating why the evidence was insufficient to support the

jury’s verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellate court does

not weigh the evidence anew; rather, “a jury verdict, approved by the trial judge, accredits

the testimony of the witnesses for the State and resolves all conflicts” in the testimony and

all reasonably drawn inferences in favor of the State. State v. Harris, 839 S.W.2d 54, 75

(Tenn. 1992). Thus, “the State is entitled to the strongest legitimate view of the evidence

and all reasonable or legitimate inferences which may be drawn therefrom.” Id. (citation

omitted). This standard of review applies to guilty verdicts based upon direct or

circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing State

v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our Supreme Court adopted

the United States Supreme Court standard that “direct and circumstantial evidence should be

treated the same when weighing the sufficiency of such evidence.” Id. at 381. Accordingly,

the evidence need not exclude every other reasonable hypothesis except that of the

defendant’s guilt, provided the defendant’s guilt is established beyond a reasonable doubt.

Id.

Burglary of a Building

Our criminal code provides that “[a] person commits burglary who, without the

effective consent of the property owner . . . [e]nters a building other than a habitation (or any

-4-

portion thereof) not open to the public, with intent to commit . . . theft[.]” Tenn. Code Ann.

§ 39-14-402(a)(1) (2006). For the purposes of establishing a burglary, “enter” is defined as

the “[i]ntrusion of any part of the body.” Id. § 39-14-402(b)(1). “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.” Id. § 39-14-103

(2006).

The proof in this case demonstrated that, after the W & W Liquor Store had closed

for business, someone cut the fence protecting the building, smashed a hole through the back

wall of the building, reached in or entered, and removed numerous bottles of liquor from the

interior of the building. The security alarm went off and Officers Rogers and Williamson

responded. On their way to the liquor store, they passed a man pushing a shopping cart full

of bottles. Upon discovering that the alarm was sounding from the liquor store, the officers

returned to the area where they had seen the man pushing the shopping cart. The man ran,

abandoning the cart. The officers gave chase and apprehended the suspect. Both officers

identified the suspect as the Defendant. Both officers identified the Defendant as the man

they had seen pushing the shopping cart. The shopping cart was recovered and found to

contain bottles of liquor, a sledgehammer, and wire cutters. The manager of the liquor store

identified the bottles in the shopping cart as the ones missing from the store’s shelves. The

manager testified that he had given no one consent to enter the building through a hole in the

wall, nor had he given consent for anyone to take liquor from the store shelves. This proof

is sufficient to support the Defendant’s conviction.

The Defendant argues that “[t]he testimony of each of the officers who apprehended

[him] differs significantly,” pointing to discrepancies in times and distances, the direction in

which the suspect was headed when they first sighted him, and who cuffed and searched the

suspect. As our supreme court has made clear, however, “[t]he choice of which witnesses

to believe and which to disbelieve is a matter entrusted to the jury. Furthermore, the jury is

free to believe portions of a witness’ testimony and to disbelieve other portions.” State v.

Thomas, 158 S.W.3d 361, 388 (appx) (Tenn. 2005) (citation omitted).

The Defendant also argues that neither officer “had a good opportunity to view the

man pushing the cart” on their initial sighting. However, “[i]dentification of a defendant as

the person who committed the offense for which he or she is on trial is a question of fact for

the jury’s determination upon consideration of all competent proof.” Id. Both Officer

Rogers and Officer Williamson identified the Defendant as the man they had seen pushing

the shopping cart and whom they later apprehended. Officer Williamson described having

noticed the man’s clothing when first seeing him and testified that the man they later

apprehended was wearing the same clothing. This proof was more than sufficient to support

-5-

the jury’s conclusion that the man first seen pushing the cart was the same man the officers

later apprehended and that that man was the Defendant.1

In sum, the jury had before it sufficient proof from which to conclude that the

Defendant committed the burglary of W & W Liquor Store with the intent to commit theft.

Accordingly, the Defendant is entitled to no relief on this basis.

Conclusion

For the foregoing reasons, we affirm the judgment of the trial court.

_________________________________

JEFFREY S. BIVINS, JUDGE

1

We note that the written jury charge, included in the record on appeal, complied with the jury

instruction set forth in State v. Dyle, 899 S.W.2d 607, 612 (Tenn. 1995), regarding identification. See also

T.P.I.-Crim. 42.05 (15th ed. 2011).

-6-