# FILED May 26, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE APRIL SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9807-CR-00279 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. THOMAS H.SHRIVER, LEWIS L. BELL, a.k.a. ) JUDGE LEWIS COLEM AN, a.k.a. ) LOUI S LE E I NGRA M, ) ) Appe llant. ) (Burglary , CriminalImpersonation )

ON APPEAL FROM THE JUDGMENT OF THE CRIMIN AL COURT OF DAVI DSON COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : JEFFREY A. DeVASHER JOHN KNOX WALKUP Assistant Public Defender Attorney Generaland Reporter BRENT T. WHITE PATRICI A C. KUSSMA NN Assistant Public Defender Assistant Attorney General 1202 Stahlman Buildi ng 425 Fifth Avenu e North Nashvill e, TN 37201 VICTOR S . JOHN SON Distri ct Attorney General NICK BAILEY Assistant Distri ct Attorney General Washington Square, Suite 500 222 Se cond A venue N orth Nashvill e, TN 37201-1649

OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defen dant, Lewis L. Bell, appeal s from his conv iction s for burgl ary and criminal impersonati on. On appeal, he ar gues (1) that

the evidence was insuffi cientto convict

him ofburglary

or criminalimpersonati on, (2) t hat the trial court erred by admit

ting the testimony of

a fingerprint speci alist, and (3) that the trialcourt err

ed by instructing t he jury that it could “wei gh and consider” the meaning of a

sen ten ce o f i mp r isonm ent. Be caus e we fin d no m erit in Defendant’s three issues, we affirm his convicti ons.

I. S UFFICI ENCY OF THE EVI DENCE Tennessee Rule of Appell ate Procedure 13(e) prescri bes that “[ f]indi ng s of guilt in cri minal acti ons whether by the trial court

or jury shall be set

aside if the evidence is insuf

ficien t to support

the findi ngs by the tri er of fact of guil t beyond
a reason able do ubt.” Tenn. R. App. P. 13(e). I n additi on, because convi ction by
a trier of fact destroy

s the presumption of innocence and imposes a presumpti on of guilt, a convicted criminaldefendant be ar s the burden of showing that

the evidence was insu fficient. McBe e v. State , 372 S.W .2d 173, 176 (Tenn. 196 3);
see also State v. Evans , 838 S.W .2d 185 , 1 91 (Tenn. 1992) (citing State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1976), and State v . Brown , 551 S.W.2d 329, 331 (T enn. 19 77)); State v. Tug gle , 639 S.W .2d 913 , 914 (T enn. 19 82); Holt v. State , 357 S.W .2d 57, 61 (T enn. 1962 ).

In its review of the eviden ce, an appe llate court must afford the State “t he strongest legiti mate view of t he evidence as wel l as all reas onab le and legitim ate-3-

inferences

that may be d ra wn t herefrom.” Tug gle , 639 S.W.2d at 914 (ci ting State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978)) . The court may not“rewe igh or re-evalua te the evide nce” in the record b elow. Evans , 838 S.W.2d at 191 (citi ng Cabbage , 571 S.W .2d at 836). Likew ise, should the review ing court find particular conflicts in the trial testimon y, the court must resolve them in favor of the jury ve rdict or trial cou rt judgm ent. Tug gle , 639 S.W.2d at 914.

The facts pres ented at trial reveal that a silent alarm was t ripped in a Nash ville sign-making busi ness, C&D Safety Company, i n the mid-afternoon of September 28, 1996. Metr opolitan Nashvill e-Davidson County Office r Kevin Caperton received t he dispatch and i nvestigated the premis es. He testif ied that the busin ess is o pen to the stre et in two places: a door for f oot traf fic and adoor forvehic le traffi c. The rest of th e build ing, inc luding a ma chine shop , is surrounded by a chain-link and barbed-wire fence approxi mately eight feet high
.
Officer Caperton concluded from his investi gation that in order to enter the buildi ng, a person must unlock the padlocke d doors with a key, cut t he padlocks,
or scale the fence. Capert on further testified that f

ollowing the fir

st alarm, he found no signs of

entry—that t he buildi ng appeared secure.
Appr oxima tely two hours later, the p olice dispatcher n otifi ed Officer Caperton that the silen t alarm a t C&D had ac tivated ag ain. Upon his second investi gation of the premis es, Cape rton fo und that one of the doors to

the
m a chine shop, a doo r which was c ompletely within the chain-link, barbed -wire fence, was op en. At th at time, C aperton reques ted som eone fro m the s ecurity
s e rvice to open the bui lding. Caperton test ified that once insi de, he concluded1 The nature of that item was a pparently not revealed attrial, though officers testified that they found no burglary tools on Defendant’s person at the time of his apprehension. -4- from the app earance of the machine-shop desk that someone had “gone throu gh ” material s on the desk and i n the drawers. As he prepared to l eave, the of ficer noticed th at the m etal ring for th e door’s p adlock h ad bee n cut.

At 8:30 p.m. thesameevening, Officer C aperton rece ived word of a third alarm at C&D Safety Company. Becau se h e hadant ici pat ed a thi rd a larm, Caperton was patroll ing nearby and arrived at the scene quickly. The off icer parked short o f the bu ilding a nd wa lk ed quiet ly to t he premises. He heard the doorto the mach ine shop op ening or closing , so he mo ved to a position w here he could see th at doo r. He th en sa w De fenda nt runn in g away from the door toward the fence . As Cap erton ob served D efenda nt climb th e fence , he broadcasted to other of ficers a descripti on o f Defendant and his clothi ng. Defenda nt dropped to the ground and bega n to walk throug h an alley.

Officer Kelvin Lusk apprehended Defen dant in the alleyway. Lusk drew h is pistol and ordered Defendantto the ground as Defendant asked, “What’s going on? Ma n, I haven ’t done an ything.” Ac cording to Lusk, D efenda nt was sw eaty and out of breat h, and he carri ed something in hi s hand. 1 When asked his name, Defen dant rep lied that it was “Lewis B ell.”
Gwyn Greg ory tes tifie d ne xt for the State, and she stated t hat she had
access to the records of the Metropoli tan Police Depart ment, that s he checked2 Defendant’s first name is spel led Louis and Lew is in the record. -5- those records upon reque st to dete rmine Defendant’ s ide ntity , and that s he dis cer ned D efe ndan t’ s true na me was not Loui s Bel l, but

was Loui s In gra m. 2

F inal ly, Todd C arson, presu mably an o wner of C& D Safety C ompan y, testified for theprosecuti on, describin g the insid e of the bu siness a s “ransa cked,” with it ems “strewn around.” He testified that al l of the desk drawers were open and that the l ock and door had been brokenoff of a cabinet. Carson stated t hat he left t he business at app roximatel y noon the day of the intrusion, but

he did not state whether any employees were sti ll presen t in t he bu il ding at th at time or whether any one could have been i n the buil ding between noon and t he time of the cri me . Carson also test ified that he did not know Defendant and that Defendant did not have permiss ion to be on the pre mise s. To C arson ’s knowledge, no items we re taken from the business, although he testifi ed that he did not have an inventory of the sm alle r items and w ould not know if any were missing.
A. Burglary Tennessee Co d e Anno tated § 39 -14-402 reads, “A person comm its burglary who, without t he effective consent of the property owner . . . [e]nters a buildi ng other than a h abitati on (or any por tion thereof) n ot open to the pub lic with intent to com mit a felon y, theft, or ass ault . . . .” Tenn . C ode Ann. § 39-14- 402(a)(1). Defendant chall enges the fi nding that he inte nded to comm it a theft, and he alterna tively asserts that the S tate d id not establish hi s identi ty as the perpetra tor.-6- Defe ndan t’s argum ent that he did not po ssess a n intent to c omm it theft must fail. This C ourt re cently reaffi rmed the pre-1989 principl e that “a j ury may reaso nably and legit imately i nferthatby breaking and entering a bui lding containi ng valuable prope rty, a defendant inten ds to com mit theft.” State v. Ingram , 986 S.W.2d 598 (Tenn. Crim. App. 1998) (cit ing Ha ll v. State , 490 S.W.2d 495, 496 (T enn. 19 73)); see Hall , 490 S.W.2d at 496; State v. Chrisman , 885 S.W .2d 834 , 838 (T enn. C rim. App . 1994); State v. Avery , 818 S.W.2d 365, 367-68 (Tenn. Crim. A pp. 199 1); State v. Burkley , 804 S.W.2d 458, 460 (Tenn. Cri m. App. 19 90); Bennet t v . State , 530 S.W.2d 788, 791 (Tenn. Crim. App. 1975) (quoti ng Hall , 490 S.W .2d at 496 ).

In Ingram , thedefenda nt e nte red thevi cti m’shomegarage by breaki ng a hole in the wall. Id. The proof showed that the garage cont ained law n tools, a ladder, and a ca r. Id. Likewise, in thi s case, Offi cer Caperton saw Defenda nt imm ediate ly after t he buildi ng’s sil ent alarm act ivated, inside t he eight-f oot high, chain-li nk and barbed-wir e fence surround ing the busi ness, runni ng from the
same door tha t had be en vand alized ea rlier in the da y.

The evide n ce presented by the company’s propri etor, Todd Carson, showe d that the buildin g Def enda nt ente red co ntaine d a de sk, lock ed ca bin et , and sma ll ha nd tools. The desk had been ransacked and dr awers were open, and the lock and door had been broken fr

om the cabinet . Carson stated thatdue to the lack of

inventor

y for t he small tool s, he c oul d not det ermi ne i f an y i tems
were missing . We conclude that this ev idence was s ufficien t to circu msta ntially show that D efendant inten ded to com mit a theft inside C& D Safety C ompan y.-7- Defendant next argues that the State failed to establi sh that he committed the burgla ry. This issue also lacks merit . Offi cer Caperton saw t he perpetrator running from the building and broadca sted a description of De fendant’s bod y, clothi ng, and direct ion of fl ight to other offi cers. Once other officer s apprehended Defen dant, Cape rton ide ntified h im as the pe rpetra tor. Th is was sufficie nt t o permit the jury to con clude that De fendant perp etrated the burg lary.

B. Criminal

Impersonati

on Tennessee Code Annotated § 39-16- 301 r eads, “A person comm its criminal impers onation who, with intent to injure or defrau d anoth er perso n . . . [a]ssumes a false identity . . . .” Tenn. Code Ann. § 39-16-301(a)(1). Defendant argues that the evidence at t rial di d not establ ish that he intended to inju re or de fraud an other p erson “when giving p olice th e nam e Lou is Bell, n or doe s it establish that the na me Lo uis Bell wa s a false ide ntity.” W e disagre e.

The State cites State v. Brooks , 909 S.W.2d 854 (Tenn. Crim. App . 1995), in suppo rt of its argument that t he State was not required to prove why Defendant gave officers a fals e nam e. The State contends t hat instead, it was sufficient to show that Defendant

intenti onally gave police a false name. In Brooks , this Court stated, “To establi sh the offense of cri minal impersonat ion, the state is not require d t o show proof of why the defendant sought to def raud the Jackson Police Department, onl y that he i ntend ed to misreprese nt his true identity.” Id. at 859.

We believe t hat the fac ts heard by t he jury i n thi s case a re analo gous to Brooks su ch that we must adher e to its result. The jury heard proof that3 Although this information was not presented to the jury, it is contained in other parts of the record on appeal. -8- Defendant represented hi mself to pol ice as Louis Bel l and that his “true name”
was not Louis Be ll. Under Brooks , this eviden ce was sufficient to permit thejury to convict him of crimina l imperso nation. See id. at 859; Statev. Thomas E. Bradshaw , No. 01C01-9609-CR-00406, 1997 WL 5789 63, at *4 (Te nn. Cri m. App., Nashvil le, Sept. 19, 1997); State v. C harles Le e W hite , No. 02C01-9501- CC-000 25, 1995 W L 555044 (Tenn. Crim . App., Jackso n, Sept. 20, 199 5).

Howeve r, we note that the r esult might

have been diff

erent had Defendant placed before the j ury evidence that his mother’s name had at onetime been Bell and thatDefendan t had b een p reviou sly con victed u nder th e nam e Bell. 3 Had Defendant been able to show t he jury that giving officers the name Bell woul d not h indereffo rts to identify an d prose cute him , but instea d lead pr osecu tors to formerconvictions, the evide nce could h ave refuted any inference of an inten t to defraud
.
Furthermore, had Defe ndant bee n able to cross-e xamine witne ss Gwyn Gregory , he co uld potenti ally have shown that t he State, at that ti me, did not know Defendant’s “

true name,” but

knew onl y that he had also been convi cted underthe nam e Louis In gram. D efenda nt a rgues that because he coul d not cross-examineGregory, hi s right t o confront

the witness wa s violated. Howe ver, Defe ndan t’s inabil ity to cross-examine Gregory was self-i mposed: Had he been willi ng to disclose hi s prior conviction s to the j ury, Defendant could have argue d, through a tho rough cro ss-examin ation of Grego ry and through his own testimo ny, thatusing the na me B ell cou ld not be construed as i ntending to defraud law4 Defendant’s prosecution i n these cases demonstrates the confusion. He was indicted

as Louis Lee Ingram, a.k.a. Lewis Lee Bell, a.k.a. Louis Lee Bell. He was convicted under the nameLouis Coleman (his mother’s married name), and the judgment lists Bell and Ingram as aliases. A jury-out

discussion reveale

d that Defendant had also been convicted under the name o f Coleman in the past, in a ddition to the names Ingram and Bell. The presenten c e investigation report d iscloses that “his finger prints show

ed him to be

Lewis Le

e Coleman.” -9- enforce ment. The confusion cr eated by the Defendant’s pri or use of more th an one identity complicated the Defendant’s trialtactics. 4

II. TESTIMONY B Y GWYN GREGORY Defendant challenges t he trialcourt’s decision to p ermit Gwyn Grego ry to testify that Lewis Bell was not Defendant’ s “tr ue name.” Defendant cl aims that admittingGreg ory’s tes timon y impa ired his right to confr ont the witnessbecause had he cross-examined Gregory, he would have been forced to revealhis past criminal convicti ons. Furthermore, he argues that Gregory’s test imony was not relevant; a nd even if it was relevan t, it was mo re prejud icial than pro bative.

“ Releva nt evidence” i s evidence “having any tendenc y to make the existence of any fact

that is of consequen ce t o the determinat ion of theaction
more proba ble or less pr obable than i t would have been without t he evidenc e.” Tenn. R. Evid. 40 1. The determinati on of whether pr offered ev idence is r

elevant is left to the disc retion of the trial judge. State v. Forbes , 918 S.W.2d 431, 449 (Tenn. Cri m. App. 1995 ). The S tate resp onds th at Defen dant is “atte mpt[ing ] to elevate a matter o f trial tactics to the level of a co nstitutiona l question .” We agree with that statem ent and the next: “[D efenda nt], through his attorne y, elected not to cross exam ine Ms. Greg ory.” (Empha sis added.)-10- That Defendanthad been convicted and fingerprinted under a name other than Bell at leas t six times in th e past is p robative o f the issue of w hethe r Bell
wa s an false n ame, a nd the e vidence was, ther efore, relev ant. In add iti on , because the tri al court r ecognized that Gregory’s ful l testi mony would indeed be prejudici al to Defendant by implying that he had a cri minal history, th e cou rt prope rly limited the substance of her testi mony. We cannot conclude that the tri al court committed an abuse of discreti on by admitting Gregory’s statements.

IV. TRUTH IN SENTENCI NG Finally, Defe ndan t challe nges the trial c ourt’s instruc tion to th e jury tha t it may “weigh and consider” a sentence of imprisonment. Former Tennessee Code Annotated § 40-35-201 mandated su c h an instru ction: “W hen a c harge a s to poss ible penalti es has been requested pur suant to subdivision (b)(1), the judge shall also incl ude in the i nstructi ons for the j ury to wei gh and consider t he meaning of a sentence of imprisonment for t he offense charged and any lesser included offenses .” Tenn . Code Ann. § 4 0-35-20 1(b)(2)(A )(i). Defendant made such a request for the trial court to inform the jury of possible penalties.

In State v. Ra chel Marie Green , No. 01C01-9706-CR-00223, 1998 WL 708915 (Ten n. C ri m. App., N ashville, O ct. 12, 1998) (for pu blication), this Court foll owe d the inst ruction of the Tennessee Supreme Court i n State v. King , 973 S.W.2d 586 (T enn. 1 998), o n this iss ue. As in this ca se, the defen dant in Green challenged t he trial cou rt’s instruction that the jury sho uld “weigh and consider” a sente nce of im prisonm ent. Green , 1998 W L 7089 15, at *26
.

We noted in Green that the King court he ld,-11- [F]ormer

Tennessee Code Annotated § 40-35-201(b)(2) . . . was not impe rmiss ibly vague, did not m andate a misleading j ury inst ruction, and did not require a jury i nstructi on on matters i rrelevant to a Defe ndan t’s guilt or

inno cence . Th e cour t concluded th at the jury instruct ion given in King violated the due process cl ause of neit her the United States n or the T ennes see Co nstitution.

. . . . I n King , alth ough the supreme court stated that it was signif icantthat the j ury had been inst ructed that the sen tencing informa ti on was “fo r your in forma tion on ly,” the co urt spe cifically stated that sentencing and pa role inf ormation had a “measure of relevance”

to the j ury’s f unction i n determining guilt or innocence. Id. at *27 (ci tations omitted). Moreover, we st ated in Green , The challe nge d jury i nstructi on was mandated by the legisl ature. The constit utionality of t he statute has been upheld by oursup remecou rt . Th e su pre me court rej ected theargument that sentencing and parole informa tion are entirely irreleva nt to the jury’s function of determini ng guilt or innocence . We the refore conclude thatthe trial judge did not err by givi ng the jury i nstructi on mandated by former T ennes see Co de Ann ota ted § 40-35-2 01(b)(2)

. Id. We find no reaso n to rev is it the Green decisio n, and we co nclud e that th is issue lac ks me rit.

Because we find no m erit in Defendant’s ass ignments of error, we affirm the verdic t of the jury an d judgm ent by the trial court.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ JAMES CU RWOOD WITT, JR. , JUD GE