State v. Alpheious Neely ( 1997 )

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
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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.
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CORNELIA A. CLARK, SPECIAL JUDGE
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