IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 2, 2014

STATE OF TENNESSEE v. CARMEL BORUM aka CARNEL BORUM

Appeal from the Criminal Court for Shelby County

No. 12-03285 W. Mark Ward, Judge

No. W2014-00179-CCA-R3-CD - Filed January 22, 2015

The defendant, Carmel Borum, also known as Carnel Borum, appeals his Shelby County

Criminal Court jury convictions of two felonies – theft and evading arrest. He received an

effective sentence of 18 years as a persistent offender. On appeal, he claims that the trial

court erroneously admitted testimony about the value of the property in question and that the

evidence was insufficient to support the convictions. Based upon our review of the record,

the briefs, and the applicable law, we affirm the judgments of the trial court.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the Court, in which D. KELLY

THOMAS, JR., and ROGER A. PAGE, JJ., joined.

Eric Mogy (on appeal) and Eran Julian (at trial), Memphis, Tennessee, for the appellant,

Carmel Borum aka Carnel Borum.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilbur, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Pamela Fleming and Omar Malik,

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

At trial, Michael Creswell testified that, on September 6, 2012, he was living

at 2946 Mountain Terrace in Memphis. On that date at approximately 10:30 p.m., he

discovered that someone had stolen his white 1996 Buick Century automobile from his open

carport. Mr. Creswell testified that the car bore a Lafayette County, Mississippi license plate,

and, at trial, he identified a picture of the car.

When asked by the prosecutor, “What was the value of that car to you?,” Mr.
Cresell responded, “I would price it around two thousand dollars.” Responding to the

follow-up question, “[I]f you were to list that car to sell back around the time period it was

stolen, what would you sell it for?,” Mr. Creswell said, “I would want at least two thousand

for it.”

Mr. Creswell testified that, when he discovered the car missing, he called 9-1-1

and relayed to the 9-1-1 operator the make, model, and color of the car and the license

number. Approximately three hours after Mr. Creswell discovered the theft, a police officer

telephoned him and told him the car had been recovered. Mr. Creswell testified that the

steering column had been broken and that “whoever it was who stole the car had drove [sic]

it on a flat . . . for so long it flattened the rim out and the rim started cutting into the strut

tower.”

On cross-examination, Mr. Creswell testified that, two weeks prior to the theft,

he had spent $1,500 having his car’s transmission rebuilt. Mr. Creswell opined that, had he

taken the car to a dealer to sell it, he would expect to get $1,500 to $2,000 for it.

Robert L. Strickland, an officer with the Memphis Police Department

(“MPD”), testified that while he was on patrol in the early morning hours of September 7,

2012, he received a police alert that a white Buick Century had been stolen. Officer

Strickland testified that he saw a white Buick Century and that he followed the Buick while

he conferred with the dispatcher. The officer was informed that the stolen car bore a

Mississippi license plate. Officer Strickland waited for a second police car to join him, and

then he activated his blue lights and siren to stop the Buick. The Buick, however, did not

stop, and Officer Strickland pursued it for “several miles,” recalling that the Buick ran

“several stop lights.” After the police supervisors told Officer Strickland and the other

pursuing officers that the Buick had “blown a tire,” the officers turned off their emergency

equipment and observed the Buick which, at this time, was traveling at about 30 to 35 miles

per hour. Despite the loss of a tire, the Buick traveled another three miles, followed by

“eight to ten” police cars.

During the pursuit, Officer Strickland noticed that the Buick was being driven

by a “male black” individual. After the Buick stopped, Officer Stickland used his cruiser to

prevent the driver from exiting the driver’s side of the Buick; however, as the officer was

getting out of his cruiser, he saw the Buick’s driver running away. The officer gave chase

on foot while radio-broadcasting the man’s description to his fellow officers who had joined

in the search for the fleeing man. Officer Strickland suspended his pursuit when an 80-to-90-

pound pit bulldog came toward him. Nevertheless, the officer saw the same man about five

minutes later after the man had been captured by officers on the perimeter of the search

location. Officer Strickland testified that the man in custody, the defendant, was sweating

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and limping and was the same person who ran from the Buick and whom he had been

chasing.

Officer Strickland reviewed the photograph that Mr. Creswell had earlier

identified as being a picture of his Buick, and the officer testified that the car in the picture

was the car he pursued on September 7, 2012.

Officer Strickland testified that he saw the profile of the driver’s face during

the chase and again when the man ran behind the police car after the vehicles had stopped.

The officer iterated that the defendant was the same man who had driven the Buick.

MPD Officer Clarence Farwell testified that he participated in the events that

led to the defendant’s arrest on the night of September 6-7, 2012. He identified the

defendant as the person who was apprehended following the pursuit of a white Buick

Century. Officer Farwell said that the pursuing police cars were employing their blue lights

and sirens in an effort to stop the Buick. During the pursuit, the left front tire of the Buick

“blew out.” The Buick traveled on, and although the officers discontinued their active

pursuit, they followed and monitored the Buick as it drove on the rim of the left front wheel.

Officer Farwell testified that he maintained the Buick in his sight until it stopped. When it

stopped, Officer Strickland blocked exit from the driver’s side door with his police car, and

Officer Farwell positioned his car on the passenger side of the Buick to prevent the door on

that side from being opened. Officer Farwell testified that the defendant crawled out the

passenger side window and across the hood of Officer Farwell’s car and ran away. The

officer testified that, when the defendant ran from the parked cars, he ran in front of the cars

and not around the rear.

Officer Farwellstayed with the police cars while Officer Strickland gave chase

on foot. Officer Farwell saw the defendant again four or five minutes later when other

officers brought him back to Officer Farwell’s location. Officer Farwell identified the

pictures of the Buick that showed the Mississippi license plate and the “busted steering

column.”

On cross-examination, Officer Farwell testified that the police performed no

fingerprint analyses on any of the physical evidence.

The State rested its case, and the defendant called Lieutenant Michaelle Byers

of the Shelby County Sheriff’s Office who testified that she maintained records for the office

and that the records contained intake photographs of the defendant dated September 7, 2012.

She introduced the photographs into evidence. On cross-examination, Lieutenant Byers

testified that the defendant was taken to “the Med” before he was brought to the jail. She

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stated that he was treated for dog bites on his hands. She said the report also indicated that

the defendant had a swollen left knee.

The jury convicted the defendant of theft of property valued at $1,000 or more

but less than $10,000, a Class D felony, and of evading arrest, a Class E felony. The trial

court sentenced the defendant respectively to consecutive Department of Correction terms

of 12 years and six years, yielding an effective sentence of 18 years. The defendant filed a

timely but unsuccessful motion for a new trial and then a timely notice of appeal.

The defendant complains about Mr. Creswell’stestimony concerning the value

of the stolen Buick, and he couches the issue in terms of the trial court’s erroneously

admitting Mr. Creswell’s testimony as to value. The State does not address this issue as an

evidentiary issue; rather, it treats the issue of value as a component of the defendant’s

sufficiency-of-the-evidence claim. Nevertheless, casting the issue as evidentiary error avails

the defendant nothing. Because he did not present the issue as evidentiary error in his motion

for new trial, he has waived the issue as cast in this form. See Tenn. R. App. P. 3 (providing

that “in all cases tried by jury, no issue presented for review shall be predicated upon error

in the admission or exclusion of evidence . . . or other ground upon which a new trial is

sought, unless the same was specifically stated in a motion for new trial; otherwise, such

issues will be treated as waived”). That said, we will address the issue of value further in our

treatment of the claim of insufficient evidence.

When an accused challengesthe sufficiency of the evidence, the appellate court

considers the evidence in the light most favorable to the prosecution to determine whether

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt, Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979),

regardless whether the conviction is based upon direct evidence, circumstantial evidence, or

a combination of direct and circumstantial evidence, State v. Winters, 137 S.W.3d 641,

654-55 (Tenn. Crim. App. 2003). “[D]irect and circumstantial evidence should be treated

the same when weighing the sufficiency of such evidence.” State v. Dorantes, 331 S.W.3d

370, 381 (Tenn. 2011). Especially inimical to the defendant’s claim is the well-rooted axiom

that the appellate court neither re-weighs the evidence nor substitutes its inferences for those

drawn by the trier of fact. Winters, 137 S.W.3d at 655. Also, the credibility of the witnesses,

the weight and value of the evidence, and all other factual issues raised by the evidence are

resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). The

appellate court affords the State of Tennessee the strongest legitimate view of the evidence

contained in the record as well as all reasonable and legitimate inferences which may be

drawn from the evidence. Id.

In the present case, the challenge to the sufficiency of the evidence, apart from

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the challenges to the value of the stolen property, centers around the defendant’s claim that

the State failed to prove his identity as the perpetrator of the theft.

“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.” T.C.A. § 39-14-103(a). The offense is a Class D felony when

the value of the property stolen is $1,000 or more but less than $10,000. Id. § 39-14-

105(a)(3).

The offense of evading arrest is committed by one who, “while operating a

motor vehicle on any street, road, alley or highway in this state,” intentionally flees or

attempts to elude “any law enforcement officer, after having received any signal from the

officer to bring the vehicle to a stop.” Id. § 39-16-603(b)(1). This offense is a Class E

felony. Id. § 39-16-603(b)(3).

Mr. Creswell testified that, at the time of the theft, his vehicle was worth from

$1,500 to $2,000. This assessment places the value well within the range of theft described

in Code section 39-14-105(a)(3). Thus, the evidence was sufficient to establish theft as a

Class D felony.

The defendant claims that the State failed to prove that the defendant was the

person who stole the Buick. Clearly, however, the defendant was the person possessing and

exercising control over the vehicle a short time after the theft occurred. Thus, the evidence

circumstantially established the defendant’s commission of theft beyond a reasonable doubt.

Accordingly, the judgments of the trial court are affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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