State v. Tony Higgs ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
MARCH 1997 SESSION
STATE OF TENNESSEE, * C.C.A. # 02C01-9610-CC-00360
July 18, 1997
Appellee, * HARDEMAN COUNTY
VS. * Hon. Jon Kerry Blackwood, Judge
Cecil Crowson, Jr.
TONY LEON HIGGS, * (Aggravated Burglary and Theft of
Appellate C ourt Clerk
Property $1,000.00 or more but less
Appellant. * than $10,000.00)
For Appellant: For Appellee:
Gary Antrican Charles W. Burson
District Public Defender Attorney General & Reporter
Jeannie Kaess Kenneth W. Rucker
Asst. District Public Defender Assistant Attorney General
118 East Market Street Criminal Justice Division
P.O. Box 700 450 James Robertson Parkway
Somerville, TN 38068 Nashville, TN 37243-4351
Elizabeth Rice
District Attorney General
Jerry Norwood
Asst. District Attorney General
302 Market Street
Somerville, TN 38068
OPINION FILED:_____________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Tony Leon Higgs, was convicted of aggravated
burglary and theft of property valued over $1,000.00 but less than $10,000.00. The
trial court imposed Range II, seven- and four-year sentences, respectively. The
sentences are to be served concurrently.
In this appeal of right, the defendant challenges the sufficiency of the
evidence and contends that certain testimony should not have been admitted at trial.
We find no error and affirm the judgment of the trial court.
On the afternoon of September 4, 1995, Unice Woods, accompanied
by her son, Jarvis Beasley, drove into the driveway of their residence and noticed
that someone had broken into their front door. They heard noises from inside the
residence. Beasley, fourteen years old at the time of trial, then saw a man, who was
wearing a black bandanna around his hand, carry a radio out the side door of the
Woodses' residence. When the burglar went back inside the house, Ms. Woods
drove to the Bolivar Police Department to report the crime.
Deputies Wesley Green and Anthony Bynum of the Hardeman County
Sheriff's Department responded to a dispatch, made sure the residence was secure,
and then reported that it was safe for the family to return. When Ms. Woods's
husband, Joe Woods, arrived at the residence, he saw that the front door had been
knocked down. A bedroom television had been moved into the living room, jewelry
had been scattered, and a VCR and a second television had been unplugged.
Several items were reported as among those missing: a Pulsar watch, a tiger-eye
ring, a wedding band, a ruby and diamond ring, a gold ring with a diamond, two pairs
of diamond earrings, two gold bracelets, a gold chain with a charm, some clothing,
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and $475.00 in cash. Another VCR and compact discs had been placed in a front
room of the house as if about to be carried away.
While at the police station, Beasley identified the defendant from a
lineup consisting of ten photographs. Beasley remembered having talked with the
defendant on several occasions prior to the burglary; he described the burglar as a
black male and, prior to the photographic lineup, told his mother that the burglar was
the person who had borrowed his bike sometime earlier. When Ms. Woods asked if
he was referring to Tony Higgs, Beasley replied, "Yes." Eventually, the Woodses
received approximately $1,500.00 in insurance proceeds.
At trial, Earnestine McNeal, Unice Woods's cousin, testified that she
had seen the defendant in the possession of four or five rings sometime after the
burglary. When the defendant asked if she would like to purchase a ring, Ms.
McNeal recognized one of the rings, which had not been reported as stolen, as
belonging to Ms. Woods.
The defense produced several witnesses. Virginia Williams recalled
that the defendant had attended a barbeque at her residence in Middleton,
Tennessee, late on the afternoon of September 4, 1995, which was Labor Day. She
did not recall, however, when the defendant arrived. Other witnesses said they
observed the defendant at the barbeque but could not pinpoint his time of arrival.
Clyde Braddock, however, claimed that he was with the defendant on that Labor
Day from between 2:00 or 3:00 P.M. until the end of the day. Braddock, who
conceded that he was a friend and co-worker of the defendant, admitted on cross-
examination that he had not informed authorities of the alibi from the time of the
arrest until the time of trial.
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I
Initially, the defendant contends that there was "no competent
evidence of the value of the property" to support the conviction of theft over $1,000.
The defendant points out that Joe Woods's testimony was that he filed an insurance
claim around "$1,100.00, if that much," and Eunice Woods estimated insurance
coverage in the amount of $1,500.00. The defendant insists that the amount of the
coverage was not sufficient.
A jury verdict, approved by the trial judge, accredits the testimony of
the witnesses for the state and resolves all conflicts in favor of the theory of the
state. State v. Hatchett, 560 S.W.2d 627 (Tenn. 1978). On appeal, the state is
entitled to the strongest legitimate view of the evidence and all reasonable
inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 835(Tenn. 1978). The credibility of the witnesses, the weight to be given their
testimony, and the reconciliation of conflicts in the evidence are matters entrusted
exclusively to the jury as triers of fact. Byrge v. State, 575 S.W.2d 295 (Tenn. Crim.
App. 1978). This court may not reevaluate the evidence or substitute its inferences
for those drawn by the trier of fact. Farmer v. State, 574 S.W.2d 49, 51 (Tenn.
Crim. App. 1978). A conviction may be set aside only when the reviewing court
finds that the "evidence is insufficient to support the finding by the trier of fact of guilt
beyond a reasonable doubt." Tenn. R. App. P. 13(e).
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One commits a theft of property if, with the intent to deprive the owner
thereof, the person knowingly obtains or exercises control without the owner's
effective consent. Tenn. Code Ann. § 39-14-103. Traditionally, the carrying away of
property, no matter how slight the distance, with any intent to deprive the owner,
constituted a larceny. See, e.g., Caruso v. State, 326 S.W.2d 434, 435 (Tenn.
1958). The successor offense, theft, is a Class D felony if the property obtained is
$1,000 or more but less than $10,000. Tenn. Code Ann. § 39-14-105(3).
Value is defined as follows:
(i) [t]he fair market value of the property or service at the
time and place of the offense; or
(ii) [i]f the fair market value of the property cannot be
ascertained, the cost of replacing the property within a
reasonable time after the offense.
Tenn. Code Ann. § 39-11-106(a)(35)(A).
In addition to the sum of $475.00 in cash, the Woodses collectively
testified that a Pulsar watch, a tiger-eye ring, a wedding band, a ruby and diamond
ring, a diamond ring and band, a gold ring with diamonds, a gold chain with a
diamond charm, two pairs of diamond earrings, a thin gold chain with a diamond
charm, two gold bracelets, a Tommy Hilfiger shirt, a compact disc, a radio/compact
disc player with a dual cassette, a denim jacket, and one leather jacket had been
stolen from their residence. None of the items were recovered. Other property had
been moved around by the burglar and, by all appearances, would have also been
hauled away had the Woodses not interrupted the burglary. Insurance benefits
ranged between $1,100.00 and $1,500.00. See Rule 701(b), Tenn. R. Evid.; Neil P.
Cohen et al., Tennessee Law of Evidence, § 701.6 (3d ed. 1995).
From all of the circumstantial evidence, a jury could properly infer that
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the value of the property taken was between $1,000.00 and $10,000.00. A trier of
fact may, from all of the evidence presented at trial, determine the fair market value
of the stolen property. State v. Hamm, 611 S.W.2d 826, 828-29 (Tenn. 1981).
Thus, the evidence is sufficient. Moreover, any suggestion that Beasley did not
adequately identify the defendant would not be a basis for reversal. He had known
the defendant for several years, used to be a neighbor to the defendant, had talked
to the defendant on prior occasions, and had once allowed the defendant to borrow
his bicycle. There is no indication that the photographic lineup was suggestive or
improperly conducted. See Neil v. Biggers, 409 U.S. 188 (1972); Bennett v. State,
530 S.W.2d 511 (Tenn. 1975).
II
The defendant also complains that the trial court should have excluded
the testimony of Earnestine McNeal who stated that she had seen the defendant in
possession of Ms. Woods's jewelry. The defendant complained that the testimony
was irrelevant because Ms. McNeal described a piece of jewelry that Ms. Woods
had not reported as stolen in the burglary. The defendant points out that evidence
is relevant only if it has "any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence." Rule 401, Tenn. R. Evid. The defendant argues
that the evidence should have also been excluded under the rule prohibiting
evidence of other crimes. The defendant also argues that other crimes, wrongs, or
bad acts are not admissible to prove the character of a person in order to show
action and conformity with a character trait. Rule 404(b), Tenn. R. Evid.; State v.
Parton, 694 S.W.2d 299 (Tenn. 1985).
"The decision to admit or exclude evidence is left to the discretion of
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the trial judge and his decision will not be disturbed unless it is arbitrarily exercised."
State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1989). Here, the trial court
made the determination that Ms. McNeal's testimony qualified within the definition of
relevance. That the Woodses might not have discovered and then reported to
police all of the property taken in the burglary would not have been an unreasonable
inference. Certainly, that Ms. McNeal, even though a relative, had recognized the
defendant in possession of a ring belonging to Ms. Woods was probative of the
crimes. The unexplained possession of stolen goods has traditionally permitted the
trier of fact to infer that the possessor has stolen the items. Bush v. State, 541
S.W.2d 391 (Tenn. 1976); State v. Gautney, 607 S.W.2d 907 (Tenn. Crim. App.
1980). The credibility of the witness and the weight to be given the testimony was
for the jury to determine.
Moreover, this evidence does not, in our view, qualify as evidence of
another crime. It is not, in the words of the ruling in Parton, "wholly independent of
that for which [the defendant] is charged." 694 S.W.2d at 302 (citing Bunch v. State,
605 S.W.2d 227, 229-30 (Tenn. 1980)). That Ms. McNeal testified that, sometime
after the burglary, she saw a ring which belonged to Ms. Woods in the possession of
the defendant related to the offenses at issue. It was the jury's prerogative to
accept or reject any possible implication of guilt.
Accordingly, the judgment is affirmed.
__________________________________
Gary R. Wade, Judge
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CONCUR:
______________________________
Joe B. Jones, Presiding Judge
_______________________________
Curwood Witt, Judge
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