State of Tennessee v. Carmel Borum aka Carnel Borum ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 2, 2014
STATE OF TENNESSEE v. CARMEL BORUM aka CARNEL BORUM
Appeal from the Criminal Court for Shelby County
No. 12-03285 W. Mark Ward, Judge
No. W2014-00179-CCA-R3-CD - Filed January 22, 2015
The defendant, Carmel Borum, also known as Carnel Borum, appeals his Shelby County
Criminal Court jury convictions of two felonies – theft and evading arrest. He received an
effective sentence of 18 years as a persistent offender. On appeal, he claims that the trial
court erroneously admitted testimony about the value of the property in question and that the
evidence was insufficient to support the convictions. Based upon our review of the record,
the briefs, and the applicable law, we affirm the judgments of the trial court.
Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed
J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R., and R OGER A. P AGE, JJ., joined.
Eric Mogy (on appeal) and Eran Julian (at trial), Memphis, Tennessee, for the appellant,
Carmel Borum aka Carnel Borum.
Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilbur, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Pamela Fleming and Omar Malik,
Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
At trial, Michael Creswell testified that, on September 6, 2012, he was living
at 2946 Mountain Terrace in Memphis. On that date at approximately 10:30 p.m., he
discovered that someone had stolen his white 1996 Buick Century automobile from his open
carport. Mr. Creswell testified that the car bore a Lafayette County, Mississippi license plate,
and, at trial, he identified a picture of the car.
When asked by the prosecutor, “What was the value of that car to you?,” Mr.
Cresell responded, “I would price it around two thousand dollars.” Responding to the
follow-up question, “[I]f you were to list that car to sell back around the time period it was
stolen, what would you sell it for?,” Mr. Creswell said, “I would want at least two thousand
for it.”
Mr. Creswell testified that, when he discovered the car missing, he called 9-1-1
and relayed to the 9-1-1 operator the make, model, and color of the car and the license
number. Approximately three hours after Mr. Creswell discovered the theft, a police officer
telephoned him and told him the car had been recovered. Mr. Creswell testified that the
steering column had been broken and that “whoever it was who stole the car had drove [sic]
it on a flat . . . for so long it flattened the rim out and the rim started cutting into the strut
tower.”
On cross-examination, Mr. Creswell testified that, two weeks prior to the theft,
he had spent $1,500 having his car’s transmission rebuilt. Mr. Creswell opined that, had he
taken the car to a dealer to sell it, he would expect to get $1,500 to $2,000 for it.
Robert L. Strickland, an officer with the Memphis Police Department
(“MPD”), testified that while he was on patrol in the early morning hours of September 7,
2012, he received a police alert that a white Buick Century had been stolen. Officer
Strickland testified that he saw a white Buick Century and that he followed the Buick while
he conferred with the dispatcher. The officer was informed that the stolen car bore a
Mississippi license plate. Officer Strickland waited for a second police car to join him, and
then he activated his blue lights and siren to stop the Buick. The Buick, however, did not
stop, and Officer Strickland pursued it for “several miles,” recalling that the Buick ran
“several stop lights.” After the police supervisors told Officer Strickland and the other
pursuing officers that the Buick had “blown a tire,” the officers turned off their emergency
equipment and observed the Buick which, at this time, was traveling at about 30 to 35 miles
per hour. Despite the loss of a tire, the Buick traveled another three miles, followed by
“eight to ten” police cars.
During the pursuit, Officer Strickland noticed that the Buick was being driven
by a “male black” individual. After the Buick stopped, Officer Stickland used his cruiser to
prevent the driver from exiting the driver’s side of the Buick; however, as the officer was
getting out of his cruiser, he saw the Buick’s driver running away. The officer gave chase
on foot while radio-broadcasting the man’s description to his fellow officers who had joined
in the search for the fleeing man. Officer Strickland suspended his pursuit when an 80-to-90-
pound pit bulldog came toward him. Nevertheless, the officer saw the same man about five
minutes later after the man had been captured by officers on the perimeter of the search
location. Officer Strickland testified that the man in custody, the defendant, was sweating
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and limping and was the same person who ran from the Buick and whom he had been
chasing.
Officer Strickland reviewed the photograph that Mr. Creswell had earlier
identified as being a picture of his Buick, and the officer testified that the car in the picture
was the car he pursued on September 7, 2012.
Officer Strickland testified that he saw the profile of the driver’s face during
the chase and again when the man ran behind the police car after the vehicles had stopped.
The officer iterated that the defendant was the same man who had driven the Buick.
MPD Officer Clarence Farwell testified that he participated in the events that
led to the defendant’s arrest on the night of September 6-7, 2012. He identified the
defendant as the person who was apprehended following the pursuit of a white Buick
Century. Officer Farwell said that the pursuing police cars were employing their blue lights
and sirens in an effort to stop the Buick. During the pursuit, the left front tire of the Buick
“blew out.” The Buick traveled on, and although the officers discontinued their active
pursuit, they followed and monitored the Buick as it drove on the rim of the left front wheel.
Officer Farwell testified that he maintained the Buick in his sight until it stopped. When it
stopped, Officer Strickland blocked exit from the driver’s side door with his police car, and
Officer Farwell positioned his car on the passenger side of the Buick to prevent the door on
that side from being opened. Officer Farwell testified that the defendant crawled out the
passenger side window and across the hood of Officer Farwell’s car and ran away. The
officer testified that, when the defendant ran from the parked cars, he ran in front of the cars
and not around the rear.
Officer Farwell stayed with the police cars while Officer Strickland gave chase
on foot. Officer Farwell saw the defendant again four or five minutes later when other
officers brought him back to Officer Farwell’s location. Officer Farwell identified the
pictures of the Buick that showed the Mississippi license plate and the “busted steering
column.”
On cross-examination, Officer Farwell testified that the police performed no
fingerprint analyses on any of the physical evidence.
The State rested its case, and the defendant called Lieutenant Michaelle Byers
of the Shelby County Sheriff’s Office who testified that she maintained records for the office
and that the records contained intake photographs of the defendant dated September 7, 2012.
She introduced the photographs into evidence. On cross-examination, Lieutenant Byers
testified that the defendant was taken to “the Med” before he was brought to the jail. She
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stated that he was treated for dog bites on his hands. She said the report also indicated that
the defendant had a swollen left knee.
The jury convicted the defendant of theft of property valued at $1,000 or more
but less than $10,000, a Class D felony, and of evading arrest, a Class E felony. The trial
court sentenced the defendant respectively to consecutive Department of Correction terms
of 12 years and six years, yielding an effective sentence of 18 years. The defendant filed a
timely but unsuccessful motion for a new trial and then a timely notice of appeal.
The defendant complains about Mr. Creswell’s testimony concerning the value
of the stolen Buick, and he couches the issue in terms of the trial court’s erroneously
admitting Mr. Creswell’s testimony as to value. The State does not address this issue as an
evidentiary issue; rather, it treats the issue of value as a component of the defendant’s
sufficiency-of-the-evidence claim. Nevertheless, casting the issue as evidentiary error avails
the defendant nothing. Because he did not present the issue as evidentiary error in his motion
for new trial, he has waived the issue as cast in this form. See Tenn. R. App. P. 3 (providing
that “in all cases tried by jury, no issue presented for review shall be predicated upon error
in the admission or exclusion of evidence . . . or other ground upon which a new trial is
sought, unless the same was specifically stated in a motion for new trial; otherwise, such
issues will be treated as waived”). That said, we will address the issue of value further in our
treatment of the claim of insufficient evidence.
When an accused challenges the sufficiency of the evidence, the appellate court
considers the evidence in the light most favorable to the prosecution to determine whether
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt, Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979),
regardless whether the conviction is based upon direct evidence, circumstantial evidence, or
a combination of direct and circumstantial evidence, State v. Winters, 137 S.W.3d 641,
654-55 (Tenn. Crim. App. 2003). “[D]irect and circumstantial evidence should be treated
the same when weighing the sufficiency of such evidence.” State v. Dorantes, 331 S.W.3d
370, 381 (Tenn. 2011). Especially inimical to the defendant’s claim is the well-rooted axiom
that the appellate court neither re-weighs the evidence nor substitutes its inferences for those
drawn by the trier of fact. Winters, 137 S.W.3d at 655. Also, the credibility of the witnesses,
the weight and value of the evidence, and all other factual issues raised by the evidence are
resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). The
appellate court affords the State of Tennessee the strongest legitimate view of the evidence
contained in the record as well as all reasonable and legitimate inferences which may be
drawn from the evidence. Id.
In the present case, the challenge to the sufficiency of the evidence, apart from
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the challenges to the value of the stolen property, centers around the defendant’s claim that
the State failed to prove his identity as the perpetrator of the theft.
“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.” T.C.A. § 39-14-103(a). The offense is a Class D felony when
the value of the property stolen is $1,000 or more but less than $10,000. Id. § 39-14-
105(a)(3).
The offense of evading arrest is committed by one who, “while operating a
motor vehicle on any street, road, alley or highway in this state,” intentionally flees or
attempts to elude “any law enforcement officer, after having received any signal from the
officer to bring the vehicle to a stop.” Id. § 39-16-603(b)(1). This offense is a Class E
felony. Id. § 39-16-603(b)(3).
Mr. Creswell testified that, at the time of the theft, his vehicle was worth from
$1,500 to $2,000. This assessment places the value well within the range of theft described
in Code section 39-14-105(a)(3). Thus, the evidence was sufficient to establish theft as a
Class D felony.
The defendant claims that the State failed to prove that the defendant was the
person who stole the Buick. Clearly, however, the defendant was the person possessing and
exercising control over the vehicle a short time after the theft occurred. Thus, the evidence
circumstantially established the defendant’s commission of theft beyond a reasonable doubt.
Accordingly, the judgments of the trial court are affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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