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.
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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.
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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
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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
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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).
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