FILED

May 26, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

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. )

LOUIS LEE INGRAM, )

)

Appellant. ) (Burglary, Criminal Impersonation)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF DAVIDSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

JEFFREY A. DeVASHER JOHN KNOX WALKUP

Assistant Public Defender Attorney General and Reporter

BRENT T. WHITE PATRICIA C. KUSSMANN

Assistant Public Defender Assistant Attorney General

1202 Stahlman Building 425 Fifth Avenue North

Nashville, TN 37201

VICTOR S. JOHNSON

District Attorney General

NICK BAILEY

Assistant District Attorney General

Washington Square, Suite 500

222 Second Avenue North

Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
-2-

OPINION

The Defendant, Lewis L. Bell, appeals from his convictions for burglary and

criminal impersonation. On appeal, he argues (1) that the evidence was

insufficient to convict him of burglary or criminal impersonation, (2) that the trial

court erred by admitting the testimony of a fingerprint specialist, and (3) that the

trial court erred by instructing the jury that it could “weigh and consider” the

meaning of a sentence of imprisonment. Because we find no merit in

Defendant’s three issues, we affirm his convictions.

I. SUFFICIENCY OF THE EVIDENCE

Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings

of guilt in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the findings by the trier of fact of guilt beyond

a reasonable doubt.” Tenn. R. App. P. 13(e). In addition, because conviction by

a trier of fact destroys the presumption of innocence and imposes a presumption

of guilt, a convicted criminal defendant bears the burden of showing that the

evidence was insufficient. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963);

see also State v. Evans, 838 S.W .2d 185, 191 (Tenn. 1992) (citing State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329,

331 (Tenn. 1977)); State v. Tuggle, 639 S.W .2d 913, 914 (Tenn. 1982); Holt v.

State, 357 S.W.2d 57, 61 (Tenn. 1962).

In its review of the evidence, an appellate court must afford the State “the

strongest legitimate view of the evidence as well as all reasonable and legitimate
-3-

inferences that may be drawn therefrom.” Tuggle, 639 S.W.2d at 914 (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “reweigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at

191 (citing Cabbage, 571 S.W.2d at 836). Likewise, should the reviewing court

find particular conflicts in the trial testimony, the court must resolve them in favor

of the jury verdict or trial court judgment. Tuggle, 639 S.W.2d at 914.

The facts presented at trial reveal that a silent alarm was tripped in a

Nashville sign-making business, C&D Safety Company, in the mid-afternoon of

September 28, 1996. Metropolitan Nashville-Davidson County Officer Kevin

Caperton received the dispatch and investigated the premises. He testified that

the business is open to the street in two places: a door for foot traffic and a door

for vehicle traffic. The rest of the building, including a machine shop, is

surrounded by a chain-link and barbed-wire fence approximately eight feet high.

Officer Caperton concluded from his investigation that in order to enter the

building, a person must unlock the padlocked doors with a key, cut the padlocks,

or scale the fence. Caperton further testified that following the first alarm, he

found no signs of entry—that the building appeared secure.

Approximately two hours later, the police dispatcher notified Officer

Caperton that the silent alarm at C&D had activated again. Upon his second

investigation of the premises, Caperton found that one of the doors to the

machine shop, a door which was completely within the chain-link, barbed-wire

fence, was open. At that time, Caperton requested someone from the security

service to open the building. Caperton testified that once inside, he concluded
1

 The nature of that item was apparently not revealed at trial, though officers testified

that they found no burglary tools on Defendant’s person at the time of his apprehension.

-4-

from the appearance of the machine-shop desk that someone had “gone through”

materials on the desk and in the drawers. As he prepared to leave, the officer

noticed that the metal ring for the door’s padlock had been cut. 

At 8:30 p.m. the same evening, Officer Caperton received word of a third

alarm at C&D Safety Company. Because he had anticipated a third alarm,

Caperton was patrolling nearby and arrived at the scene quickly. The officer

parked short of the building and walked quietly to the premises. He heard the

door to the machine shop opening or closing, so he moved to a position where

he could see that door. He then saw Defendant running away from the door

toward the fence. As Caperton observed Defendant climb the fence, he

broadcasted to other officers a description of Defendant and his clothing.

Defendant dropped to the ground and began to walk through an alley.

Officer Kelvin Lusk apprehended Defendant in the alleyway. Lusk drew his

pistol and ordered Defendant to the ground as Defendant asked, “What’s going

on? Man, I haven’t done anything.” According to Lusk, Defendant was sweaty

and out of breath, and he carried something in his hand.1 When asked his name,

Defendant replied that it was “Lewis Bell.”

Gwyn Gregory testified next for the State, and she stated that she had

access to the records of the Metropolitan Police Department, that she checked
2

 Defendant’s first name is spelled Louis and Lewis in the record.

-5-

those records upon request to determine Defendant’s identity, and that she

discerned Defendant’s true name was not Louis Bell, but was Louis Ingram.2

Finally, Todd Carson, presumably an owner of C&D Safety Company,

testified for the prosecution, describing the inside of the business as “ransacked,”

with items “strewn around.” He testified that all of the desk drawers were open

and that the lock and door had been broken off of a cabinet. Carson stated that

he left the business at approximately noon the day of the intrusion, but he did not

state whether any employees were still present in the building at that time or

whether anyone could have been in the building between noon and the time of

the crime. Carson also testified that he did not know Defendant and that

Defendant did not have permission to be on the premises. To Carson’s

knowledge, no items were taken from the business, although he testified that he

did not have an inventory of the smaller items and would not know if any were

missing.

A. Burglary

Tennessee Code Annotated § 39-14-402 reads, “A person comm its

burglary who, without the effective consent of the property owner . . . [e]nters a

building other than a habitation (or any portion thereof) not open to the public with

intent to commit a felony, theft, or assault . . . .” Tenn. Code Ann. § 39-14-

402(a)(1). Defendant challenges the finding that he intended to comm it a theft,

and he alternatively asserts that the State did not establish his identity as the

perpetrator. 
-6-

Defendant’s argument that he did not possess an intent to commit theft

must fail. This Court recently reaffirmed the pre-1989 principle that “a jury may

reasonably and legitimately infer that by breaking and entering a building

containing valuable property, a defendant intends to commit theft.” State v.

Ingram, 986 S.W.2d 598 (Tenn. Crim. App. 1998) (citing Hall v. State, 490

S.W.2d 495, 496 (Tenn. 1973)); see Hall, 490 S.W.2d at 496; State v. Chrisman,

885 S.W.2d 834, 838 (Tenn. Crim. App. 1994); State v. Avery, 818 S.W.2d 365,

367-68 (Tenn. Crim. App. 1991); State v. Burkley, 804 S.W.2d 458, 460 (Tenn.

Crim. App. 1990); Bennett v. State, 530 S.W.2d 788, 791 (Tenn. Crim. App.

1975) (quoting Hall, 490 S.W .2d at 496). 

In Ingram, the defendant entered the victim’s home garage by breaking a

hole in the wall. Id. The proof showed that the garage contained lawn tools, a

ladder, and a car. Id. Likewise, in this case, Officer Caperton saw Defendant

immediately after the building’s silent alarm activated, inside the eight-foot high,

chain-link and barbed-wire fence surrounding the business, running from the

same door that had been vandalized earlier in the day. 

The evidence presented by the company’s proprietor, Todd Carson,

showed that the building Defendant entered contained a desk, locked cabinet,

and small hand tools. The desk had been ransacked and drawers were open,

and the lock and door had been broken from the cabinet. Carson stated that due

to the lack of inventory for the small tools, he could not determine if any items

were missing. We conclude that this evidence was sufficient to circumstantially

show that Defendant intended to commit a theft inside C&D Safety Company.
-7-

Defendant next argues that the State failed to establish that he committed

the burglary. This issue also lacks merit. Officer Caperton saw the perpetrator

running from the building and broadcasted a description of Defendant’s body,

clothing, and direction of flight to other officers. Once other officers apprehended

Defendant, Caperton identified him as the perpetrator. This was sufficient to

permit the jury to conclude that Defendant perpetrated the burglary.

B. Criminal Impersonation

Tennessee Code Annotated § 39-16-301 reads, “A person comm its

criminal impersonation who, with intent to injure or defraud another person . . .

[a]ssumes a false identity . . . .” Tenn. Code Ann. § 39-16-301(a)(1). Defendant

argues that the evidence at trial did not establish that he intended to injure or

defraud another person “when giving police the name Louis Bell, nor does it

establish that the name Louis Bell was a false identity.” We disagree. 

The State cites State v. Brooks, 909 S.W.2d 854 (Tenn. Crim. App. 1995),

in support of its argument that the State was not required to prove why Defendant

gave officers a false name. The State contends that instead, it was sufficient to

show that Defendant intentionally gave police a false name. In Brooks, this Court

stated, “To establish the offense of criminal impersonation, the state is not

required to show proof of why the defendant sought to defraud the Jackson

Police Department, only that he intended to misrepresent his true identity.” Id.

at 859.

We believe that the facts heard by the jury in this case are analogous to

Brooks such that we must adhere to its result. The jury heard proof that
3

 Although this information was not presented to the jury, it is contained in other parts

of the record on appeal.

-8-

Defendant represented himself to police as Louis Bell and that his “true name”

was not Louis Bell. Under Brooks, this evidence was sufficient to permit the jury

to convict him of criminal impersonation. See id. at 859; State v. Thomas E.

Bradshaw, No. 01C01-9609-CR-00406, 1997 WL 578963, at *4 (Tenn. Crim.

App., Nashville, Sept. 19, 1997); State v. Charles Lee White, No. 02C01-9501-

CC-00025, 1995 W L 555044 (Tenn. Crim. App., Jackson, Sept. 20, 1995).

However, we note that the result might have been different had Defendant

placed before the jury evidence that his mother’s name had at one time been Bell

and that Defendant had been previously convicted under the name Bell. 3 Had

Defendant been able to show the jury that giving officers the name Bell would not

hinder efforts to identify and prosecute him, but instead lead prosecutors to

former convictions, the evidence could have refuted any inference of an intent to

defraud. 

Furthermore, had Defendant been able to cross-examine witness Gwyn

Gregory, he could potentially have shown that the State, at that time, did not

know Defendant’s “true name,” but knew only that he had also been convicted

under the name Louis Ingram. Defendant argues that because he could not

cross-examine Gregory, his right to confront the witness was violated. However,

Defendant’s inability to cross-examine Gregory was self-imposed: Had he been

willing to disclose his prior convictions to the jury, Defendant could have argued,

through a thorough cross-examination of Gregory and through his own testimony,

that using the name Bell could not be construed as intending to defraud law
4

 Defendant’s prosecution in 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

name Louis Coleman (his mother’s married name), and the judgment lists Bell and Ingram as

aliases. A jury-out discussion revealed that Defendant had also been convicted under the

name of Coleman in the past, in addition to the names Ingram and Bell. The presentence

investigation report discloses that “his fingerprints showed him to be Lewis Lee Coleman.”

-9-

enforcement. The confusion created by the Defendant’s prior use of more than

one identity complicated the Defendant’s trial tactics.4

II. TESTIMONY BY GWYN GREGORY

Defendant challenges the trial court’s decision to permit Gwyn Gregory to

testify that Lewis Bell was not Defendant’s “true name.” Defendant claims that

admitting Gregory’s testimony impaired his right to confront the witness because

had he cross-examined Gregory, he would have been forced to reveal his past

criminal convictions. Furthermore, he argues that Gregory’s testimony was not

relevant; and even if it was relevant, it was more prejudicial than probative. 

“Relevant evidence” is evidence “having 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 have been without the evidence.”

Tenn. R. Evid. 401. The determination of whether proffered evidence is relevant

is left to the discretion of the trial judge. State v. Forbes, 918 S.W.2d 431, 449

(Tenn. Crim. App. 1995). The State responds that Defendant is “attempt[ing] to

elevate a matter of trial tactics to the level of a constitutional question.” We agree

with that statem ent and the next: “[Defendant], through his attorney, elected not

to cross examine Ms. Gregory.” (Emphasis added.) 
-10-

That Defendant had been convicted and fingerprinted under a name other

than Bell at least six times in the past is probative of the issue of whether Bell

was an false name, and the evidence was, therefore, relevant. In addition,

because the trial court recognized that Gregory’s full testimony would indeed be

prejudicial to Defendant by implying that he had a criminal history, the court

properly limited the substance of her testimony. We cannot conclude that the trial

court committed an abuse of discretion by admitting Gregory’s statements.

IV. TRUTH IN SENTENCING

Finally, Defendant challenges the trial court’s instruction to the jury that it

may “weigh and consider” a sentence of imprisonment. Former Tennessee Code

Annotated § 40-35-201 mandated such an instruction: “When a charge as to

possible penalties has been requested pursuant to subdivision (b)(1), the judge

shall also include in the instructions for the jury to weigh and consider the

meaning of a sentence of imprisonment for the offense charged and any lesser

included offenses.” Tenn. Code Ann. § 40-35-201(b)(2)(A)(i). Defendant made

such a request for the trial court to inform the jury of possible penalties.

In State v. Rachel Marie Green, No. 01C01-9706-CR-00223, 1998 WL

708915 (Tenn. Crim. App., Nashville, Oct. 12, 1998) (for publication), this Court

followed the instruction of the Tennessee Supreme Court in State v. King, 973

S.W.2d 586 (Tenn. 1998), on this issue. As in this case, the defendant in Green

challenged the trial court’s instruction that the jury should “weigh and consider”

a sentence of imprisonment. Green, 1998 W L 708915, at *26. 

We noted in Green that the King court held, 
-11-

[F]ormer Tennessee Code Annotated § 40-35-201(b)(2) . . . was not

impermissibly vague, did not mandate a misleading jury instruction,

and did not require a jury instruction on matters irrelevant to a

Defendant’s guilt or innocence. The court concluded that the jury

instruction given in King violated the due process clause of neither

the United States nor the Tennessee Constitution. 

. . . . In King, although the supreme court stated that it was

significant that the jury had been instructed that the sentencing

information was “for your information only,” the court specifically

stated that sentencing and parole information had a “measure of

relevance” to the jury’s function in determining guilt or innocence.

Id. at *27 (citations omitted). Moreover, we stated in Green, 

The challenged jury instruction was mandated by the

legislature. The constitutionality of the statute has been upheld by

our supreme court. The supreme court rejected the argument that

sentencing and parole information are entirely irrelevant to the jury’s

function of determining guilt or innocence. We therefore conclude

that the trial judge did not err by giving the jury instruction mandated

by former Tennessee Code Annotated § 40-35-201(b)(2). 

Id. We find no reason to revisit the Green decision, and we conclude that this

issue lacks merit.

Because we find no merit in Defendant’s assignments of error, we affirm

the verdict of the jury and judgment by the trial court.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

JAMES CURWOOD WITT, JR., JUDGE