State v. Alpheious Neely

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

July 2000 Session

STATE OF TENNESSEE v. ALPHEIOUS NEELY

Appeal from the Criminal Court for Shelby County

No. 98-05977 Joseph B. Dailey, Judge

No. W1999-01215-CCA-R3-CD - Decided October 2, 2000

Defendant appeals as of right his conviction of one count of burglary of a building, a Class D

felony. On appeal he contends that the evidence was insufficient to support his conviction, and

that the trial judge erred in ruling that his eleven (11) prior burglary and theft convictions were

admissible for the purposes of impeachment. We affirm the judgment of the trial court.

T.R.A.P. 3 Appeal; Judgment of the Criminal Court Affirmed.

CORNELIA A. CLARK, SP . J., delivered the opinion of the court, in which DAVID H. WELLES, J.

and ALAN E. GLENN, J., joined.

A. C. Wharton, Jr., District Public Defender, Garland Erguden, Assistant Public Defender, and

Leslie Mozingo, Assistant Public Defender, Memphis, Tennessee, for the appellant, Alpheious

Neely.

Paul G. Summers, Attorney General & Reporter and Kim R. Helper, Assistant Attorney General,

Nashville, Tennessee, and William L. Gibbons, District Attorney General and Daniel S. Byer,

Assistant District Attorney General, Memphis, Tennessee, for the appellee, State of Tennessee.

OPINION

On September 23, 1997, Memphis police officers Steven Friedlander and Jessie Meloms

responded to a call at the Central Parking Services garage and office on North Second Street in

Memphis. They looked through an outside window and observed defendant asleep in a chair

inside the office. After about ten minutes the officers observed the defendant awake and eat

some pizza sitting in a box on the desk. He then began wrapping cords around telephones and

placing the phones in a briefcase. Subsequently Officer Friedlander saw defendant take two

black objects out of the desk drawer and put them in his pocket. Defendant then left of the office

through a boarded-up window. The officers were waiting for him outside and placed him under

arrest. At that time they found a pocket organizer and pocket tape recorder on his person.

Following a search of the area around the office, the officers later found a computer monitor and

keyboard in a stairwell.

Barry Lohr, General Manager for the Memphis office of Central Parking Services,

testified that he had not given defendant permission to enter the office or take anything from it.

He arrived for work just as the officers were leaving. At that time he noticed that his pizza lunch

from the previous day was no longer located in the refrigerator where he had left it, but was now

on his desk. He also described a ceiling tile that he found broken over the top doorway. He

identified the computer equipment in the stairwell and the pocket organizer and tape recorder as

the property of Central Parking Services.

During a jury-out hearing at the close of the state=s proof, the trial judge determined that

if defendant testified, the state would be permitted to impeach him with evidence about his

eleven (11) prior convictions for auto burglary and theft. Defendant elected not to testify, but

told the trial court out of the presence of the jury that his decision was based primarily on his

desire to avoid impeachment with his prior record. He further testified during the jury-out

hearing that he had lost his place to live because of his drug use, and that he entered the office

through the boarded window trying to find a place to sleep on a rainy night. He admitted that he

had eaten the pizza he found inside the office, but denied having moved the computer equipment

into the garage area. He also denied that the pocket organizer and tape recorder were found in

his possession.

Defendant was charged with the knowing entry into a building other than a habitation,

not open to the public, without the effective consent of the owner, with the intent to commit

theft. Tenn. Code Ann. '39-14-402. Defendant first contends that the evidence was insufficient

to support his conviction for burglary. While he concedes the adequacy of proof of his

unauthorized entry into the building, he contends that the proof is not adequate to find that he

entered with the intent to commit theft.

When an accused challenges the sufficiency of the convicting evidence, the standard is

whether, after reviewing 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Questions

concerning the credibility of the witnesses, the weight and value to be given the evidence, as

well as all factual issues raised by the evidence, are resolved by the trier of fact, not this court.

State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or

reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A verdict of

guilty by the jury, approved by the trial judge, accredits the testimony of the state’s witnesses

and resolves all conflicts in the testimony in favor of the state. See State v. Cazes, 875 S.W. 2d

253, 259 (Tenn. 1994).

This issue is without merit. Two police officers testified that they observed the

defendant, while inside the building, eat pizza and take two black objects out of the desk and put

them in his pocket. They arrested him as soon as he crawled out the window, and found a pocket

organizer and pocket tape recorder in his possession. Those items were identified by the office

manager as belonging to his employer. Without regard to the issue of the telephones or the

computer equipment, this proof of actual theft is sufficient to support a conviction for burglary.

Defendant next contends that the trial court erred in ruling that appellant=s prior

convictions for auto burglary and theft were admissible for impeachment purposes if he testified.

These convictions included seven (7) convictions for burglary of a motor vehicle committed in

1993, 1994, and 1997; one (1) felony conviction for theft over $500.00 committed in 1990; and

four (4) misdemeanor convictions for theft under $500.00 committed in 1991 and 1992.

Following the court’s ruling, the defendant did not take the stand.

Subject to certain conditions for admissibility, Tennessee Rule of Evidence 609

authorizes the use of proof of a witness’s prior convictions in order to attack a witness’s

credibility. Tenn. R. Evid. 609(a). The prior convictions must be for a felony or a crime

involving dishonesty or false statement. Tenn. R. Evid. 609(a)(2).

However, when the witness to be impeached is the criminal defendant, the state must also

give notice prior to trial of its intent to utilize the conviction for impeachment purposes. Tenn.

R. Evid. 609(a)(3). Upon request, the court must determine the admissibility of an eligible

conviction by deciding whether “the conviction’s probative value on credibility outweighs its

unfair prejudicial effect on the substantive issues”. Id. In making this determination, two

criteria are especially relevant. State v. Mixon, 983 S.W.2d 661, 674 (Tenn. 1999). First, the

court must “analyze the relevance the impeaching conviction has to the issue of credibility” and

“explain [the relevance] on the record,” id., and second, it must, “assess a similarity between the

crime on trial and the crime underlying the impeaching conviction”. Id. (quoting Cohen,

Sheppeard, Paine, Tennessee Law of Evidence, §609.9 at 376 (3rd ed. 1995)). Recognizing that

the unfairly prejudicial effect of the impeaching conviction on the substantive issues greatly

increases if the impeaching conviction is substantially similar to the underlying offense being

tried, a trial court should carefully balance its probative value against its unfairly prejudicial

effect. On appellate review, the trial court’s rulings on the admissibility of prior convictions for

impeachment purposes are subject to reversal only for abuse of discretion. See, e.g., Mixon, 983

S.W.2d at 674.

The offenses of burglary and theft are highly probative of credibility. See State v. Crank,

721 S.W.2d 264, 266-67 (Tenn. Crim. App. 1986). Courts may admit impeaching convictions

when they are particularly probative of credibility, even if they are identical to the crime being

tried. See State v. Miller, 737 S.W.2d 556, 559-60 (Tenn. Crim. App. 1987) (burglary conviction

admissible in burglary prosecution); Price v. State, 589 S.W.2d 929, 931-32 (Tenn. Crim. App.

1979) (burglary and grand larceny convictions admissible in burglary prosecution).

Contrary to defendant’s assertions, the trial court in this case did carefully balance the

necessary criteria. The trial court correctly acknowledged that the similarity between the old

offenses and the new charge had to be considered in the balancing process. The trial court found

that the defendant=s lengthy and recent history of crimes involving dishonesty was particularly

probative on the question of his credibility. The trial court found that the probative value of

these convictions far outweighed the acknowledged prejudicial value of their introduction. We

-3-

review the court’s decision on this issue for abuse of discretion. None having been shown, this

issue is without merit.

The judgment of the trial court is affirmed in all respects.

____________________________________

CORNELIA A. CLARK, SPECIAL JUDGE

-4-