IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 3, 2011

STATE OF TENNESSEE v. ALVERTIS BOYD

Appeal from the Criminal Court for Shelby County

No. 08-01138 Chris Craft, Judge

No. W2010-01513-CCA-R3-CD - Filed July 1, 2011

Following a jury trial, the Defendant, Alvertis Boyd, was convicted of aggravated robbery,

a Class B felony. The Defendant was sentenced as a repeat violent offender to life

imprisonment without the possibility of parole. In this appeal as of right, the Defendant

contends (1) that the evidence is insufficient to sustain his conviction; (2) that the trial court

erred in admitting two prior convictions as impeachment evidence; and (3) that the trial court

erred in sentencing him as a repeat violent offender. Following our review, we affirm the

judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

D. KELLY THOMAS,JR., J., delivered the opinion of the court, in which DAVID H.WELLES and

NORMA MCGEE OGLE, JJ., joined.

Robert Wilson Jones, District Public Defender; Dianne M. Thackery (at trial) and Phyllis

Aluko (on appeal), Assistant Public Defenders, for the appellant, Alvertis Boyd.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Neal Oldham, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

On July 30, 2007, the Defendant entered a Circle K gas station in Memphis,

Tennessee sometime after 10:00 p.m. The Defendant walked behind the counter where the

victim, a Circle K employee, was standing and took a sandwich out of the “freezer box” and

a Pepsi out of the “cooler box” before walking to the counter. Once at the counter, the

Defendant “just stood there” and was “fidgety.” The Defendant said, “don’t be scared” and

told the victim to “pay it out.” The victim understood the Defendant’s statement to mean that
he wanted her to open the cash register. The victim, believing that the Defendant was joking,

hesitated, and the Defendant “raised his shirt up” and showed the victim a “small .380”

handgun in his waistband. The victim opened the cash register and stepped back as the

Defendant reached toward the register. The Defendant told the victim to lift the pan in the

register, but the victim did not comply. The Defendant lifted the pan, took $60 or $70 from

the register, and started to leave. As he was leaving, the Defendant knocked the sandwich

and Pepsi off the counter. Realizing that he had left his cellular telephone and keys on the

counter, the Defendant returned and retrieved his belongings. As he was leaving the second

time, he bumped into a customer, Justin Scarbrough, who was entering the store. The victim

told Mr. Scarbrough that she had been robbed, and Mr. Scarbrough ran outside and saw the

Defendant jogging north down the “Highland Strip.”

During the investigation of the robbery, the victim and Mr. Scarbrough were able to

identify the Defendant from a photographic display. At trial, the victim admitted that she

was only four feet and nine inches tall but explained that she could see the weapon in the

Defendant’s waistband over the counter because the floor behind the counter was higher than

the floor in the store. The victim also testified that she opened the cash register because she

saw that the Defendant had a weapon. She said that she was “intimidated” when she saw the

Defendant’s weapon.

The Defendant testified that he went to the store with the intention of robbing the

victim. He said he went inside, grabbed a drink and a sandwich, and walked to the counter.

Once at the counter, the victim told the Defendant the price of the items he had selected. The

Defendant showed the victim how much money he had, approximately three dollars, and the

victim told him that he only had enough money for the sandwich. The victim opened the

register, and the Defendant reached over the counter and grabbed the money from the

register. The Defendant testified that he never showed the victim a weapon and that he did

not have a weapon. The Defendant admitted that he had been previously convicted of

aggravated robbery and misdemeanor theft of property.

Based upon the above evidence, the jury convicted the Defendant of aggravated

robbery. Following a sentencing hearing, the trial court found that the Defendant was a

repeat violent offender and imposed a sentence of life imprisonment without the possibility

of parole.

ANALYSIS

I. Sufficiency

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The Defendant contends that the evidence only supported a conviction of theft

because the State failed to establish that he used or displayed a deadly weapon to rob the

victim by violence or by placing the victim in fear. The Defendant also contends that the

evidence was insufficient to establish a “taking from the person” as required by the statute

because he took the money from the pan in the register and not the victim, who did not fight

with him or act fearful of him as he grabbed money from the register. The Defendant further

contends that the evidence was insufficient to establish that he used or displayed a deadly

weapon when he robbed the victim. The State responds that the evidence was sufficient to

sustain the Defendant’s conviction.

An appellate court’s standard of review when a defendant questions the sufficiency

of the evidence on appeal 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). The

appellate court does not re-weigh the evidence; rather, it presumes that the jury has resolved

all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor

of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in

testimony, and the weight and value to be given to evidence were resolved by the jury. State

v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “A verdict of guilt removes the presumption

of innocence and replaces it with a presumption of guilt, and [on appeal] the defendant has

the burden of illustrating why the evidence is insufficient to support the jury’s verdict.” Id.;

State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This rule applies to findings of guilt

based upon direct evidence, circumstantial evidence, or a combination of direct and

circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.

1999).

A conviction for aggravated robbery, as relevant to this case, requires proof that the

defendant committed an “intentional or knowing theft from the person of another by violence

or by putting the person in fear” and that the robbery was “accomplished with a deadly

weapon.” Tenn. Code Ann. §§ 39-13-401 and -402(1).

In the light most favorable to the State, the evidence introduced at trial reflects that

the Defendant entered the store with the intention of robbing the victim. The victim testified

that the Defendant told her to open the cash register and showed her a handgun, a deadly

weapon. When the victim opened the cash register, the Defendant took money from the

register before fleeing the store. The victim testified that she opened the register because the

Defendant had a handgun and that the handgun made her feel “intimidated.” While the

Defendant testified that he did not have a handgun, the jury resolved any conflicts in the

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testimony presented at trial, as was their province to do. Accordingly, we conclude that the

evidence is sufficient to sustain the Defendant’s conviction for aggravated robbery.

II. Prior conviction

The Defendant contends that the trial court erred by allowing the State to impeach his

credibility by introducing proof of his prior convictions for aggravated robbery and theft

pursuant to Rule 609 of the Tennessee Rules of Evidence and that the trial court “did not

fully weigh the unfair prejudicial impact of the admission of the prior aggravated robbery

conviction.” The Defendant further contends that because the impeaching conviction of

aggravated robbery wassubstantially similar to the convicting offense, it was more likely that

the jury would use the impeaching conviction as propensity evidence of guilt. The State

responds that the trial court complied with the procedure for weighing the probative value

of the evidence against any potential for unfair prejudice. The State further responds that the

Defendant has failed to establish that the trial court abused its discretion in admitting the

evidence of the prior convictions when the Defendant’s credibility was at issue.

Prior to trial, defense counsel argued that the aggravated robbery conviction should

be excluded because it was the same charge for which the Defendant was on trial. Defense

counsel also argued that the misdemeanor theft conviction should be excluded because a theft

conviction is “part and parcel of an aggravated robbery” conviction. The State responded

that the convictions were “germane” to the Defendant’s credibility. In denying defense

counsel’s motion to exclude these convictions, the trial court stated,

I will . . . allow the aggravated robbery and the theft, although they involve the

same type of crime that we’re on trial for they’re both crimes of dishonesty and

they’re extremely probative on the issue of honesty or dishonesty.

The trial court further stated that if the Defendant were to testify, the court would instruct the

jury that the impeaching convictions could not be used as propensity evidence but that they

may only be considered to impeach the Defendant’s credibility. Indeed, the trial court gave

the following instruction to the jury:

If from the proof you find that the defendant has been convicted of some prior

crime or crimes[,] you can consider such only for the purpose of its effect, if

any, on his credibility as a witness. It cannot be considered by you as evidence

of his guilt of the offense for which he is now on trial.

Tennessee Rule of Evidence 609(a)(3) allows for the admission of a prior conviction

to impeach the credibility of a defendant testifying at trial. Such an impeaching conviction

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must be either “punishable by death or imprisonment in excess of one year under the law

under which the witness was convicted” or “must have involved dishonesty or false

statement.” Tenn. R. Evid. 609(a)(2). The rule further provides,

[i]f the witness to be impeached is the accused in a criminal prosecution, the

State must give the accused reasonable written notice of the impeaching

conviction before trial, and the court upon request must determine that the

conviction’s probative value on credibility outweighs its unfair prejudicial

effect on the substantive issues.

Tenn. R. Evid. 609(a)(3). A trial court’s decision to admit a prior conviction under Rule 609

of the Tennessee Rules of Evidence will not be reversed on appeal unless the trial court

abused its discretion. State v. Blanton, 926 S.W.2d 953, 960 (Tenn. Crim. App. 1996).

In determining whether an impeaching conviction should be admitted, the trial court

“should first analyze the relevance the impeaching conviction has to the issue of credibility.”

State v. Mixon, 983 S.W.2d 661, 674 (Tenn. 1999). If the conviction is probative of

credibility, the trial court should then “assess the similarity between the crime on trial and

the crime underlying the impeaching conviction.” Neil P. Cohen et al., Tennessee Law of

Evidence § 6.09[10][c] (5th ed. 2005). “When an impeaching conviction is substantially

similar to the crime for which the defendant is being tried, there is a danger that jurors will

erroneously utilize the impeaching conviction as propensity evidence of guilt and conclude

that since the defendant committed a similar offense, he or she is probably guilty of the

offense charged.” Mixon, 983 S.W.2d at 674. However, the “similarity between the

impeaching conviction and the one at issue in the trial is insufficient in itself to render the

impeaching one inadmissible under Rule 609.” Cohen, supra § 6.09[10][c].

Here, the Defendant’s prior convictions for aggravated robbery and theft were highly

probative of credibility because each of the crimes involved dishonesty. See State v. Baker,

956 S.W.2d 8, 15 (Tenn. Crim. App. 1997) (holding that prior convictions of burglary and

theft were particularly probative of credibility); State v. Blevins, 968 S.W.2d 888, 893 (Tenn.

Crim. App. 1997) (stating that prior convictions of burglary, robbery, and larceny were

crimes of dishonesty); State v. Addison, 973 S.W.2d 260, 268 (Tenn. Crim. App. 1997)

(stating that misdemeanor theft was a crime of dishonesty). While the Defendant’s prior

conviction of aggravated robbery was the same offense for which he was on trial, we believe

that the probative value of the impeaching conviction outweighed any unfair prejudicial

effect because the Defendant’s credibility was at issue. See Baker, 956 S.W.2d at 15

(concluding that the trial court did not err in admitting six prior felony convictions of

burglary and theft in the defendant’s trial for aggravated rape and aggravated burglary);

Blevins, 968 S.W.2d at 893 (concluding that the trial court did not err in admitting prior

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convictions of burglary, robbery, and larceny in the defendant’s trial for burglary of an

automobile and vandalism). Additionally, the trial court followed the correct procedure

before ultimately determining that the probative value on credibility of the impeaching

convictions outweighed any unfair prejudicial effect. Accordingly, we conclude that the trial

court did not err in admitting the prior convictions.

III. Sentencing

The Defendant contends that he cannot be classified as a repeat violent offender

because the State failed to try the Defendant within 180 days of his arraignment. The

Defendant also contends that because the State filed a subsequent notice to seek enhanced

punishment as a multiple, persistent, or career offender, the prior notice to classify the

Defendant as a repeat violent offender was effectively withdrawn. The Defendant further

contends that the notice to classify the Defendant as a repeat violent offender was inadequate

because it did not “indicate when defense counsel was served with the notice” and because

it “failed to specifically set forth the dates of the prior periods of incarceration.” The State

responds that a violation of the 180-day rule would not result in a dismissal. The State also

responds that any error in the filing of the subsequent notice should be rendered harmless

because the State filed a timely and adequate notice of its intention to seek enhanced

punishment as a repeat violent offender.

In order to be classified as a repeat violent offender, a defendant must have committed

a violent offense classified in subdivision (b)(1) after July 1, 1994 and have “at least two

prior convictions for offenses classified in subdivision (b)(1) or (b)(2) as a violent offense.”

Tenn. Code Ann. § 40-35-120(a). The Defendant committed the offense of aggravated

robbery on July 30, 2007. The Defendant had prior convictions of aggravated robbery and

attempted second degree murder. The Defendant’s current conviction and his prior

convictions were designated in section 40-35-120(b)(1).

In addition to the above requirements, the Defendant must have also “served two (2)

separate periods of incarceration for the commission of at least two (2) of the predicate

offenses designated in subdivision (b)(1) or (b)(2) before committing an offense designated

in subdivision (b)(1).” Tenn. Code Ann. § 40-35-120(e)(1)(A). The documents submitted

at the sentencing hearing reflect that the offense date for the Defendant’s prior conviction of

attempted second degree murder was October 16, 1990. The Defendant was released from

the Tennessee Department of Correction on June 17, 2000, and the Defendant subsequently

committed the offense of aggravated robbery on December 17, 2001. The Defendant was

released to parole on February 26, 2007, and while on parole, the Defendant committed the

instant offense on July 30, 2007. Even though the Defendant was on parole when he

committed the instant offense, the Defendant had effectively served two separate periods of

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incarceration prior to the commission of the convicting offense. See Tenn. Code Ann. § 40-

35-120(e)(2) (providing that violent offenses committed while on supervised release into the

community shall be considered as a separate period of incarceration).

Section 40-35-120 provides time limits and notice requirements when the State seeks

to classify a defendant as a repeat violent offender. This section provides, in pertinent part,

that “[a] charge as a repeat violent offender shall be tried within one hundred-eighty (180)

days of the arraignment on the indictment.” Tenn. Code Ann. § 40-35-120(i)(1)(A). The

State is also required to “file a statement with the court and the defense counsel within fortyfive (45) days of the arraignment . . . that the defendant is a repeat violent offender.” Tenn.

Code Ann. § 40-35-120(i)(2). However, this section also provides that “[i]f the notice is not

filed within forty-five (45) days of the arraignment, the defendant shall be granted a

continuance so that the defendant will have forty-five (45) days between receipt of notice and

trial.” Tenn. Code Ann. § 40-35-120(i)(2).

We acknowledge that the Defendant was not tried within 180 days of the arraignment

on the indictment. However, the delay of the Defendant’s trial would not change the

Defendant’s classification as a repeat violent offender because “[a] continuance may be

granted to any party, including the court, for good cause shown.” Tenn. Code Ann. § 40-35-

120(i)(1)(B). This court has concluded that a defendant’s violent offender classification

should not be altered when the defendant was not tried within 180 days of the arraignment

on the indictment. State v. Thompson, 36 S.W.3d 102, 117 (Tenn. Crim. App. 2000). In

Thompson, this court stated, “even though none of the enumerated exceptions to the 180 day

requirement applied and no order of continuance was sought or granted,” relief was not

warranted when the defendant failed to establish prejudice. Id. This court compared the

180-day requirement with the 150-day deadline in the Class X felony law. Id. at 116-17.

This court concluded that in both situations, the “[c]onstitutional provisions for speedy trial

and due process are sufficient to protect the interests of defendants in seeing that criminal

proceedings are expedited.” Id. at 117. Additionally, the Defendant has not offered any

authority in support of his assertion that failure to comply with the 180-day time limit

prohibits the trial court from classifying the Defendant as a repeat violent offender. Id.

While the State and the trial court failed to comply with the 180-day requirement, the

State filed their notice that the Defendant was a repeat violent offender pursuant to section

40-35-120 within 45 days of arraignment on the indictment. However, on the day of trial,

the State filed a subsequent notice in which it sought enhanced punishment pursuant to

Tennessee Code Annotated section 40-35-202. At the sentencing hearing, defense counsel

did not object to the classification of the Defendant as a repeat violent offender or allege that

the State did not give proper notice. Defense counsel stated,

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Judge, once they file under this, there’s not much else to say to be truthful. I

understand what the law is, and what is actually required is not at the court’s

discretion, so I just have to leave it at that.

In fact, there was no mention of the subsequent notice at the sentencing hearing.

Additionally, the Defendant has failed to establish that he was prejudiced by the filing of the

subsequent notice or that he believed the State was no longer seeking the trial court’s

classification of him as a repeat violent offender. Accordingly, we believe that any error in

the filing of the subsequent notice was harmless.

We believe the Defendant’s assertion that the 45-day notice was inadequate because

it did not reflect whether defense counsel had been notified of the State’s intent to seek

enhanced punishment pursuant to this section is without merit. Any failure to notify defense

counsel would merely result in the grant of a continuance. See Tenn. Code Ann. § 40-35-

120(i)(2). Moreover, there is no evidence that the Defendant did not receive notice within

45 days of the arraignment, nor has the Defendant alleged that he was prejudiced as a result

of lack of notice. See Thompson, 36 S.W.3d at 116 (concluding that failure to comply with

the 45-day notice requirement did not preclude the State from seeking a repeat violent

offender classification when the Defendant failed to establish that he was prejudiced as a

result of the untimely notice). According to the record, the notice in this case was filed in

the trial court within 45 days of the indictment.

The Defendant is correct that the initial 45-day notice did not set forth the dates of the

prior periods of incarceration as is required by statute. See Tenn. Code Ann. § 40-35-

120(i)(2) (providing that the statement must “set forth the dates of the prior periods of

incarceration, as well as the nature of the prior conviction offenses”). However, the

Defendant did not raise this issue at any time before appeal. “Where an ambiguity or

contradiction appears on the face of the notice, [the] defendant has a duty to inquire further.”

State v. Adams, 788 S.W.2d 557, 559 (Tenn. 1990). “[W]hen the State has substantially

complied with [section 40-35-202(a)], an accused has a duty to inquire about an ambiguous

or incomplete notice and must show prejudice to obtain relief.” Id. In Adams, the court held

that prejudice was established when a notice to seek enhanced punishment pursuant to

Tennessee Code Annotated section 40-35-202 “dealt exclusively with matters relevant to

another phase of sentencing.” Id.

However, in this case, the State substantially complied with the notice requirements.

The notice complained of advised the Defendant that the State sought classification of the

Defendant as a repeat violent offender, referenced the appropriate statute, and listed the

Defendant’s qualifying prior convictions, indictment numbers, and conviction dates. The

Defendant had enough information to inquire further and determine how to proceed. The

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Defendant did not complain that the notice was inadequate or misleading until after the trial

and the sentencing hearing. Additionally, the Defendant did not assert that he was prejudiced

by a lack of information in the notice or that he had not served two separate periods of

incarceration. Indeed, the State proved at the sentencing hearing that the Defendant had

served two separate periods of incarceration prior to committing the instant offense.

Accordingly, we conclude that the error in the notice was harmless and that the trial court did

not err in classifying the Defendant as a repeat violent offender.

CONCLUSION

In consideration of the foregoing and the record as a whole, the judgment of the trial

court is affirmed.

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D. KELLY THOMAS, JR., JUDGE

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