### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs J

anuary 10, 2001 STATE OF TENNESSEE v. RICHARD CRAWFORD Direct Appeal from the Criminal Court for Shelby County

No. 98-09420 W. Otis Higgs, Judge

No. W2000-00335-CCA-R3-CD - Filed March 14, 2001

D AVID G. H AYES , J., diss enting.

Our law provides: “A per

son charged wi

th an offense

has no burden to prove his innocence.” T ENN
. C ODE A NN
. § 39-11-201(c). Because I amunable to disregard this most basic principle of law, I am also unable to affirm the judgment of conviction in this case. The facts may

be summarized as fo

llows: A motorist is stopped

while driving a vehic

le on a public stre

et. The police inform the motorist that the ve

hicle that he is dri

ving is stolen. The motorist states that the car is his and produces a Tennessee title to the vehicle and other proof of ownership. Although the title exhibited to the officer does not show a completed transfer to the motorist, it does bear the name of the previous owner and matches the VIN number on the vehicle. The motorist advi ses the police that “he bought the car two weeks earlier from a car lot,” but does not furnish the na me of the car lot. At some point during the on-scene investigation, and after answering numerous questions, the motorist advises the police that he will answe r no further ques

tions. At this

point he is arrested.
A conviction may

not res t so lel y upo n co nje ctu re, g ues s, s pecu lat ion , or a me re po ssi bil ity. State v. Th arpe , 726 S.W.2d 896, 900 (T enn. 1987). I

n this case, the de

fendant’s convic

tion is essentially

based on his possession of the stolen vehicle alone, i.e

. , un aided by other independent proof that the Appellant had received it knowing it to have been stolen. The defendant’s explanation for possession was unrebutted. I find under these circumstances that the explanation for possession was arguably reasonable and sufficient to over come the inference of guilty knowledge. I n the absenceof evidence whic h could have shed l

ight on the missing

facts of this case

, I am unable t

o1 The only evidenc e in the recor d even linking the defe ndant to T & A Auto Sale s was the testimo ny of Sgt.

Webb that the defendant s tated he worked th

ere: Q: (Prosecution) A nd did he tell you what his occup ation was? A: He said he worked at a car sales lot. And I believe it was T and A Auto Sales on Lamar. We not e, h owev er,tha t T & A Auto Sales is not listed as a place of employment on the defendant’ s pre-senten ce report. Even assuming the

defendant did work at

this locat

ion, there i

s absolutely

no testimony

indicatin

g his posit

ion there.
2 Lt. McCartney testif

ied that t he defendant produced “some paperwork - it was n’t anyt hing offi cial as I recall. It was just a bill of sale or someth ing . . . - it wasn’t a title . . . .” Sgt. We bb, howe ver, t estified that t he defendant produced a Tennessee tit le at the scene.
Additiona lly, Lt. McCartney related that he observed scratch marks on the VIN plate located on the dash of the Cadillac. This testimo ny was contra dicted by S gt. W.E. D awkins, who is also assigned to the auto theft division and who specializes

in performin g vehicle iden tifications for the p olice dep artment. Dawkin s testified t hat he noticed nothing wrong or u nusual abo ut the VIN plate - “[it] looke d like any VI N numb er on any ca r.” -2- conclude that the proof before us excludes “ever

y other rea

sonable hyp

othesis save the guilt of the [defendant].” State v. Crawford , 225 Tenn.478, 482, 470 S.W.2d 610, 612 (1971). While the proof p resentsspeculation or possibility as to the defendant’s guilt, such proof is insufficient to support a conviction. Tharpe , 726 S.W.2d at 900. App aren tly, no independent police investigation was undertaken. Minimal inves tigati ve effort could have verified or negated the defendant’s claim of ownership and

whether the name on the title was a real or fictitious person. There is nothing in the record which suggests that the police ever seized or recorded any information from the documents of ownership examined at the scene. We are without proof as to whether the vehicle was acquired at less than its value or any other evidenceestablishing the circumstances by which the defendant came into possession of the stolen vehicle. The defendant made no attempt to flee and his response to police was neither contradictory nor improbable. Contrary to the trial court’s findings and those implied by the majority, I fin d nothing in the record to support the conclus i on that the defendant was a car salesman with T & A Auto Sales on Lamar

in Memphis. 1 Moreov er, numerous other findings entered by the trial court are simply not supported by the record. The police officer

s’ testimony a

t trial was less than compelling and a t times materially contradictory

wit h ot her o ffi cers ’ te sti mon y. 2 In sum, the arresting officer testified at trial that the defendant was arrested because “ . . . the vehicle was stolen. He claimed to be the owner; the public VIN plate had been sw

itched.” The majo

rity opines th

at “the state is not

required to subpo

ena all car lot de al ers in and around Shelby County to establish that none of them sold this vehicle to the defendant,

in order to dispute his statement that he bought it from an unnamed ‘car lot’.” I rea

d this to mean that the defendant should haveprovided the police greater assistance in the prosecution of their case against him.
Fin all y, with regard to

the defendant’s

second issue of va

luation, I am un

able to agree that the value of the vehicle was properly established . As the record r eflects, the prosecutor rested i ts ca se without proving va

luation. The trial

court then permitt

ed the State to reo

pen its case. As t

h e3 THE COU RT: All right. Did you speak to your insurance company about this st olen vehicle? THE WITN ESS: Yes, si r, I did. THE COURT : And is t hat what they ar rived at , at 16,000? T HE WITNES S: What ended up happening, t he value at t

he time it

was stolen i

n December wa s 16,000. We did not settle un til someti

me in 1998, basicall

y on into Jan

uary. And at the time we settl ed, because a year had gone around, t he Blue Book

value had dropped to 15,500. And th at was the amount we settled upon. THE COU RT: Alrig ht. I’ll allow that. [PROSECUT ION]: Thank you, judge. -3- majority states, the owner of the vehicle testified that the 1992 Cadillac was purchased by his mother for approximately $45,000. This ignores the fact, however, that the theft occurred in December of 1997 and that no proof w

as presented to e

stablish the value

of the five-y

ear-old Cadillac on the da

te it was stolen. Moreover, although the blue book value was alluded to, no foundation was ever laid for the proper

introduction of this proof. See Tenn. R. Evid. 803(17). With reference to the $15,500 valuation also noted by

the majority, this figure was developed not by the prosecutor, but

by the trial judge after the

court assumed inte

rrogation of the

witness. 3
The most important function which a court has to perform with respect to criminal lawis to notmake easier the conviction of the alleged miscreant; rather, it is the protection of the innocent against false convictions. In view of the judicial shortcuts taken, the cu mulativ e errors previo

usly noted, the prosecution’ s failure to prope rly establish valuatio

n, and the overal

l insufficiency of the evidence, I would reverse and dismiss the conviction.

___________________________________ DAVID G. HAYES, JUDGE