### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON July 2000 Session
STATE OF TENNESSEE v. ALPHEIOUS NEELY Appeal from the Criminal Court for Shelby County No. 98-05977 Joseph B. Dailey, Judge

No. W1999-01215-CCA-R3-CD - Decided October 2, 2000

Defen dant appeals a s of right his conv iction of one coun

t of burglary

of a building, a Cl

ass D fel ony. On appeal he contends that the evidence was ins uffic ient to support his conviction, and that the trial judge erred in ruling that his eleven (11) prior burglary an d theft conv ictions were admissible for the

purposes of impea

chment. We affirm

the judgment of th

e trial court. T.R.A.P. 3 Appeal;

Judgment of the Cr

iminal Court Affirm

ed.

C O RNELIA A. C LARK , S P

. J., delivered the opinion of the court, in which D AVID H. W ELLES , J

. and A LAN E. G LENN , J., joined.

A. C. Wharton, Jr., Distri c t Public Defender, Garland Erguden, Assistant Public Defender, and L e slie Mozingo, Assistant Public Defender, Memphis, Tennessee, for the appellant, Alpheious Neel y.
Paul G. Summers, Attorney General & Reporter and Kim R. Helper, Assistant AttorneyGeneral, Nashvi ll e, Tennessee, and William L. Gibbons, District Attorney General and Da niel S. Byer, Assistant District Attorney General, Memphis, Tennessee, for the appellee, State of T ennessee.
OPINION

On September 23, 1997, Memphis police officers Steve n Friedl ander and Jessie Me loms responded

to a call at the C entral Parking S ervices gara ge and office

on North Second Str

eet in Memphis. They looked through an outside window and observed defendant a sleep in a chai r inside the office. After about ten minutes the officers observed the defendan t awake andeat
somepizza sitting in a box on the desk. He then began wrapping cord s around teleph ones and placing the phones in a brie fcase. Subseque

ntly Office

r Friedla ndersaw defendant take two black objects out of the desk drawer and put them in his pocket. Defendant then left of the office through a boarded-up window. The officers wer e waiting f or him outside and placed him under arrest. At that time they found a pocket org ani zer and pocket tape recorder on his person. Following a search of the area around the office, the officers later f ound a computer monitor and keyboard i

n a stairwell.Barry Lohr, Gener

al Manager fo

r the Memphis offic

e of Central Park

ing Services, testified that he had not given defe ndant permis sion to enter the of fice or take any

thing from it. He arrived for work jus t as the officers were leaving. At that time he noticed that his pizza lunch from the previous day was no longer located in the refrig erator where he had left it, but was no w on his desk. He also de scribed a ceilin

g tile that he fou

nd broken over the

to p doorway. He identified the computer equipment in the stairwell and the pocket organizer and tape recorder as the property

of Central Parking

Services. During a jury-out h

earing at the close of t he state = s proof, the trial judge determined that if defendant testified, the state would be permitted to impeac h him with evidence about his eleven (11) prior c on victions for auto burglary and theft. Defendant elec ted not to testify, but told the trial court out

of the prese

nce of the jur y that his dec ision was based pr

imarily on his desire t o avoid impeachment with his prior record. He further testified during the jury -out hearing that he had lost his place to live be cause of his dru g use, and that he entered the office through th e boarded window trying to find a place to sleep on a rainy night. He admitted t

hat h e had eaten the p izza he found inside the office, but denied having moved the computer equipment into the garage area. He also denied that the pocket org anizer and tape recorder were found i n his possession.

Defendant

was charged wi th the know ing entryinto a building other than a habitation, notopen to the public, without the effective consent of the owner, with the intent to co mmit theft. Tenn. Code Ann. ' 39-14-402. Defendant first contends tha t the evidence was insufficient to support his convict

ion for burglar

y. While he co

ncedes the adeq

uacy of pr

oof of his
unau thorized en try into the building, he contends that the proof is not adequate to find that he entered with the i

ntent to commit thef

t.
When an accused cha

llenges the su fficiency

of the convicting

evidence, the sta

ndard is whether, after reviewing the evidence in the light most favorable to the prosecution, an y rational trier of fact could have found the essential elemen ts of t he crime bey

ond a reasonable

doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Questions concerning the credibility of the witnesses, the weight and value to be given the e vidence, as wellas all f

actual issues ra

ised by the e

vidence, are r

esolved by th

e trier of fact,

not this court. State v . Pappas , 7 54 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or reevaluat e the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). A verd ict o f guilty by the jury, approved by the trial judge, accredits the t estim ony of the state’s witnesses and resolves all conflicts in the testimony in favor of the state. See State v. Cazes , 875 S.W. 2d 253, 259 (Tenn. 1994).

This issue is without merit. Two police officers testified t hat they observed the defend ant, while inside the building, eat pizza and take two black objects out of the desk and p u t themin his pocket. They arrested him as soon as he crawled out the window, and found a pocket organizer and pocket tape recorder in his possession. Tho s e items were identified by the office manager as belonging to

his employer . Without regard to the issue of the telephones or the computer equipment, this proof of actual theft is sufficient to support a conviction for burglary

.-3-

Defendant

next c ontends that the trial court erred in ruling that appellant = s prior convictions for auto burgla ry and thef

t were admiss

ible fo r impeachment purposes if he testified. These convictions included seven (7) convictions for bu rglary of a motor vehicle c

ommitted in 1993, 1994, and 1997; one (1) felony conviction for theft over $500.00 committed in 1990; and four (4) misdemeanor convictions for theft under $500.00 committed in 1991 and 1992

. Following the court’s ruling, the defendant did not take the stand. Subject to certain conditions for admissibility, Tennessee Rule of Evidence 609 authorizes the use of proof of a witness’ s prior convictions in order to attack a witness’s cred ibi lit y. Tenn. R. Evid. 609( a). The prior co

nvic tions must be fo r a felony o r a crime involving dishonesty or false statement. Tenn. R. Evid. 609(a)(2).
However, when the witness to be impeached is the criminal defendant, t he state must also give notice prior

to trial of its intent to utilize the conviction for impeachment purposes. Tenn. R. Evid. 609(a)(3). Upon request, the court must determine the admissibility of an eligible conviction by deciding

whether “the co

nviction’s probat

ive value on cre

dibility outwe

ighs its unfair prejudicial effect on the substantive issues”. Id. In ma king thi s determination, two criteria are especially relevant. State v. Mixon , 983 S.W.2d 661, 674 (Tenn. 199 9). First, the
court must “an alyze the relevance the impeaching conviction has to the issue of cr edibility” and “explain [the relevanc e] on the record,” id. , and second, it must, “assess a similarity between the crime on trial and the crime underlying the impeaching conviction”. Id. ( quot ing Cohen, Sheppeard, Paine, Tennessee Law of Evidence , §609.9 at 376 (3 rd ed. 1995)). Recognizing that the unfairly prejudicial effect of the impeaching c onviction on the subs tantive issues gr eatly increases if the impeaching conviction is su

bstant ially similar to the underlying offense be ing tried, a trial court shou

ld carefull

y balance

its probative value against its unfairly prejudicial effect. On appellate review , the tr ial court’s rulings on the admissibility of prior convictions for impeachment

purp oses are subject to reversal only for abuse of discretion. See , e.g., Mixon, 983 S.W.2d at 674.

The offenses of burg

lary and the

ft are highly

probati v e of credibility. See State v. Crank , 721 S.W.2d 264, 266-67 (Tenn. Crim. App. 1986). Courts may admit impeaching con viction s when they are particularly pr obative of credibility, even if they are identical to the crime being tried. See State v. Miller , 737 S.W.2d 556, 559-60 (Tenn. Crim. App. 1987) (burglary conviction admissible

in burglary

prosecution); Price v. State , 589 S.W.2d 929 , 931-3 2 (Tenn. Crim. App. 1979) (burglary and grand larc eny convictions admissible in burglary prose cution). Contrary to defendant’s assertions , the trial court in this case did carefully balance the necessary criteria. The trial court co rrectly acknowledged

that the similarity

between the old offenses and the new charge had to be considered in the balancing proce ss. The trial court found that the defendant =

s le ngth y and rece nt h ist ory o f cri mes inv olv ing d ish one sty wa s particularly probative on the question of h is credib ili ty. The trial court found that the probative value of these convictions far o

utweighed the a

cknowledged pr

ejudic ial value of t

heir intr oduction. We-4-

review the court’s decision on this issue for abus e of discretion. N

one having bee

n shown, this issue is without meri

t. The judgment of t

he trial court is a

ffirmed in all re

spects.

____________________________________ CORNELIA A. CLARK, SPECIAL JUDGE