FILED

November 20, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBER SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9611-CR-00424

)

Appellee, )

)

) SHELBY COUNTY

VS. )

) HON. JAMES C. BEASLEY, JR.

RAY L. TAYLOR, ) JUDGE

)

Appellant. ) (Aggravated Burglary & Theft)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF SHELBY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

A.C. WHARTON JOHN KNOX WALKUP

Public Defender Attorney General and Reporter

TONY N. BRAYTON CLINTON J. MORGAN

Assistant Public Defender Assistant Attorney General

201 Poplar, Suite 2-01 425 5th Avenue North

Memphis, TN 38103 Nashville, TN 37243

JOHN W. PIEROTTI

District Attorney General

JERRY R. KITCHEN

Assistant District Attorney General

Criminal Justice Complex, Suite 301

201 Poplar Street

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
1

Tenn. Code A nn. § 39-14-403; 39-14-103; 39-14 -105(3).

-2-

OPINION

The Defendant, Ray L. Taylor, appeals as of right pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure. He was convicted by a Shelby County

jury of one count of aggravated burglary and one count of theft of property valued

in excess of one thousand dollars ($1000) but less than ten thousand dollars

($10,000). 1

 The trial court sentenced him as a Range III persistent offender to

twelve years imprisonment with the Department of Correction on each count, with

the sentences to run concurrently. In this appeal, the Defendant argues that the

evidence was legally insufficient to support the verdicts and that the trial court

erred in ruling that his prior convictions were admissible for impeachment

purposes. We affirm the judgment of the trial court.

We begin with a summary of the pertinent facts. On the morning of March

2, 1995, Pamela Mosley left her home, located at 4578 Gailwood in Memphis,

Tennessee, and went to work. She later received a telephone call at work

informing her that her house had been burglarized. She then returned hom e to

find that several items which had been in the home when she left that morning

were missing. The front door to her home had been pried open and her bedroom

had been ransacked. Among the missing items were jewelry boxes containing

a large amount of jewelry, a coin collection, several handguns, a flashlight and

a blue duffel bag. She estimated the value of the missing items at seven

thousand dollars ($7000).
-3-

Two of Mosley’s neighbors, Deborah Christine Roberts and Martha

Sherwood, noticed an unfamiliar individual approach Mosley’s home on the

morning of March 2, 1995. Both Roberts and Sherwood later identified the

Defendant as this individual. The Defendant was driving an older-model Cadillac.

He parked the car next to Mosley’s house, left the car running, and approached

Mosley’s front door. He did not appear to be carrying anything as he approached

the house. He knocked on the front door, turned around, and looked up and

down the street. Martha Sherwood testified that the Defendant then turned

toward the door, the door opened, and the Defendant entered the home. After

approximately ten to fifteen minutes, the Defendant exited the home carrying a

blue duffel bag and a brown box resembling a briefcase. He tossed these items

into the Cadillac and drove away.

During the time the Defendant was in Mosley’s hom e, both Roberts and

Sherwood gained more information about his car. Sherwood drove around the

block and noted that the Cadillac had a Lauderdale County license plate.

Roberts sent an individual from her hom e to write down the license plate number

of the Cadillac. After the departure of the Defendant, the witnesses called 911.

The Defendant was arrested on the following day, March 3, 1995. At the

time of his arrest, he was driving an older-model Cadillac matching the

description of the Cadillac given by Sherwood and Roberts. The Cadillac had a

Lauderdale County license plate with a tag number matching the number Roberts

had taken from the car parked in front of Mosley’s hom e the previous day.
-4-

None of the items missing from Mosley’s home were discovered in the

Defendant’s vehicle. In fact, the items missing from Mosley’s home were never

recovered. In addition, Elton Smith, an investigator with the Burglary Bureau of

the Memphis Police Department, testified that the crime scene officer did not

check Mosley’s home for fingerprints. As such, the Defendant’s fingerprints were

not linked to the scene of the crime.

On May 30, 1995, the Defendant was indicted on charges of aggravated

burglary and theft of property. He was tried from February 20 to February 22,

1996. After considering the proof presented at trial, the jury found the Defendant

guilty as charged.

In his first issue on appeal, the Defendant argues that the evidence was

legally insufficient to support the verdicts. In particular, he contends that the

proof was not sufficient to establish his identity as the perpetrator. He asserts

that eyewitness identification testimony is inherently untrustworthy, citing United

States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). He points

out that none of the victim’s property was recovered from his vehicle and no

scientific fingerprint evidence linked him to the scene of the crime. Thus, given

that it was eyewitness testimony that linked him to the crime, he argues that the

eyewitness testimony offered at trial was insufficient to justify a rational trier of

fact in finding guilt beyond a reasonable doubt.

When an accused challenges the sufficiency of the convicting evidence,

the standard is whether, after reviewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential
-5-

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319 (1979). Questions concerning the credibility of the witnesses, the

weight and value to be given the evidence, as well as all factual issues raised by

the evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or

reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in favor of the State. State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate

view of the evidence and all inferences therefrom. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tuggle, 639 S.W .2d 913, 914 (Tenn. 1982); Grace, 493

S.W.2d at 476.

Applying these principles to the case sub judice, we believe that the

evidence was legally sufficient to support the verdicts. The Defendant was

positively identified by two eyewitnesses as the individual who entered the

victim’s home on March 2, 1995. He approached the home carrying nothing but

returned to his car carrying a blue duffel bag and a brown box resembling a

briefcase. The victim returned home shortly after the Defendant’s departure to

find that her front door had been pried open and her bedroom ransacked. Among

the numerous items missing from the home was a blue duffel bag. The victim
-6-

estimated the value of the missing items at seven thousand dollars ($7000). The

Defendant was arrested the following day. At the time of his arrest, he was

driving a car matching the general description given by the witnesses. Moreover,

the license plate number matched the one taken from the car at the scene of the

crime.

It is well-established in Tennessee that the identity of the accused as the

perpetrator of the offense charged is a question of fact for the determination of

the jury. State v. Shelley, 628 S.W.2d 436, 438 (Tenn. Crim. App. 1981); State

v. Livingston, 607 S.W.2d 489, 491 (Tenn. Crim. App. 1980). After considering

the record, we can only conclude that there was sufficient proof for the jury to

have found the elements of aggravated burglary and theft of property beyond a

reasonable doubt. See Tenn. Code Ann. §§ 39-14-403(a), 39-14-103.

Furthermore, there was sufficient proof to establish that the Defendant was the

perpetrator of the offenses. The Defendant’s first issue therefore lacks merit.

In his second issue on appeal, the Defendant argues that the trial court

erred in ruling that his prior convictions were admissible for impeachment

purposes. It appears from the record that the Defendant had a prior conviction

for petit larceny and several prior convictions for burglary. Prior to trial, the

Defendant moved the trial court to exclude his prior convictions for impeachment

purposes. The trial court initially granted the Defendant’s motion, finding that the

prejudicial effect of the prior convictions, given their similarity to the offenses

charged, outweighed their probative value. See Tenn. R. Evid. 609(a)(3). On the

following day, the prosecutor presented research on the issue and requested that

the trial judge reconsider his ruling. After considering the research offered by the
-7-

prosecutor, the trial judge qualified his ruling, stating that he would allow the

prosecutor to impeach the Defendant by asking him if he had been convicted of

“felonies involving dishonesty.” The specific nature of the prior convictions would

not be revealed. The trial court based the ruling on State v. Summerall, 926

S.W.2d 272 (Tenn. Crim. App. 1995), and State v. Ross Jones, C.C.A. No.

01C01-9405-CR-00175, Davidson County (Tenn. Crim. App., Nashville, Feb. 8,

1995), perm. to appeal denied concurring in results only (Tenn. 1995). In the

wake of this ruling, the Defendant elected not to testify at trial.

On appeal, the Defendant contends that the trial court erred in ruling that

his prior convictions were admissible for impeachment purposes. He asserts that

given the similarity between the prior convictions and the offenses charged, the

admission of the prior convictions would result in undue prejudice outweighing

their probative value. Furthermore, he argues that the trial court’s attempt to

minimize the prejudicial effect by limiting referral to the prior convictions only as

“felonies involving dishonesty” was improper. Citing State v. Barnard, 899

S.W.2d 617, 622 (Tenn. Crim. App. 1994), he alleges that the use of “generic

felonies” for impeachment purposes is misleading and promotes confusion in that

it invites speculation on the part of the jury as to the nature of the prior

convictions.

Of course, the Tennessee Rules of Evidence do provide that the State may

use a judgment of conviction to impeach the testimony of the defendant. See

Tenn. R. Evid. 609. Rule 609, however, sets forth several conditions which must

be satisfied to allow for such impeachment. Among these conditions are the

following:
-8-

(2) The crime must be punishable by death or imprisonment

in excess of one year under the law under which the witness was

convicted or, if not so punishable, the crime must have involved

dishonesty or false statement.

(3) If 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. The court may rule on the admissibility of such proof prior

to the trial but in any event shall rule prior to the testimony of the

accused. If the court makes a final determ ination that such proof is

admissible for impeachment purposes, the accused need not

actually testify at the trial to later challenge the propriety of the

determination.

Tenn. R. Evid. 609(a)(2) - (3). In determining whether the probative value of a

prior conviction on the issue of credibility outweighs its unfair prejudicial effect on

the substantive issues, a trial court should (a) “assess the similarity between the

crime on trial and the crime underlying the impeaching conviction” and (b)

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

State v. Farmer, 841 S.W .2d 837, 839 (Tenn. Crim. App. 1992); Neil P. Cohen

et al., Tennessee Law of Evidence § 609.9, at 376 (3d ed. 1995).

In the case sub judice, the trial court determined that because of the

similarity between the charged offenses and the Defendant’s prior convictions,

the probative value of the prior convictions on credibility did not outweigh the

unfair prejudicial effect on the substantive issues. Thus, the trial court ruled that

the State could not impeach the Defendant with reference to the specific nature

of his prior convictions. We believe the trial judge was correct in this

determination. The trial court did, however, rule that the State could impeach the

Defendant with reference to his convictions as “felonies involving dishonesty.”
-9-

Such a procedure was followed in a very similar case recently before

another panel of this Court. See State v. Ross Jones, C.C.A. No. 01C01-9405-

CR-00175, Davidson County (Tenn. Crim. App., Nashville, Feb. 8, 1995), perm.

to appeal denied concurring in results only (Tenn. 1995). In Jones, the defendant

was charged with aggravated burglary. Id. at 2. He had six prior burglary

convictions. Id. at 8. The trial court ruled that the State could not refer to the

specific nature of the prior convictions when impeaching the defendant, but could

ask him if he had been convicted of “felonies involving dishonesty.” Id. On

appeal, this Court stated that although “this method of identifying the convictions

for impeachment purposes is not specifically provided for by Rule 609 of the

Tennessee Rules of Evidence, we are unable to conclude that this action

constitutes error under the circumstances of this case.” Id.

The Defendant nevertheless contends that allowing the State to impeach

him with reference to “felonies involving dishonesty” was improper. Citing State

v. Barnard, 899 S.W.2d 617, 622 (Tenn. Crim. App. 1994), he argues that the

use of “generic felonies” for impeachment purposes is misleading to the jury and

promotes confusion of the issues at trial because it invites the jury to speculate

as to the nature of the impeaching felonies. In Barnard, the defendant was found

guilty of first degree murder, aggravated robbery and aggravated sexual battery.

Id. at 620. At trial, the State was permitted to impeach the defendant based on

his conviction for sexual battery in California. The trial court allowed the State to

elicit the fact of the conviction without referring to the specific nature of the

offense. Id. at 621. On appeal, a panel of this Court concluded that the limited

admission of the fact that the defendant had a prior felony conviction was error.

Id. at 622. This Court commented as follows:
-10-

Although we agree that the trial court minimized the

prejudicial impact by limiting impeachment evidence to the mere fact

that appellant had a prior felony conviction, we believe admission in

this instance was error. As previously noted, the probative value of

appellant’s prior conviction on the issue of credibility was slight.

Moreover, the prejudicial effect, while mitigated, could have allowed

the jury to unnecessarily speculate as to the type of felony actually

committed. As such, the unfair prejudicial effect of the prior

conviction outweighed its probative value.

Id.

Barnard was decided shortly before the filing of Jones. Shortly after the

filing of Jones, another panel of this Court confronted a situation sim ilar to

Barnard. See State v. Summerall, 926 S.W.2d 272 (Tenn. Crim. App. 1995). In

Summerall, the defendant was indicted for first degree murder and convicted of

second degree murder. Id. at 274. At trial, the State was permitted to impeach

the defendant based on a prior conviction for second degree murder. Id. at 276.

The trial court allowed the State to ask the defendant on cross-examination if he

was “the same Ronald Summerall who was convicted in Indictment number 89-

06732, February 23, 1990, for a felony.” Id. On appeal, the Summ erall court

noted the prior decisions in both Barnard and Jones, pointing out that the case

before them was “m ore closely aligned with the facts in Barnard” because the

impeaching conviction did not involve dishonesty. Id. at 277. Based on the

analysis of Barnard and Jones, the Summerall court went on to state that “it

would appear that a ‘generic’ felony provides inadequate information for the jury

to properly weigh its probative value. While this is a close case, the ruling in

Barnard, which bears the approval of our supreme court, is the more persuasive

authority.” Id. As a result, the Summerall court concluded that it was error for the

State to impeach the defendant with reference to his conviction “for a felony.” Id.
-11-

Applying the principles from Barnard, Jones and Summerall to the case

sub judice, we believe the trial court did not err in permitting the State to impeach

the Defendant with reference to “felonies involving dishonesty.” The case at bar,

like Jones, is distinct from Barnard and Summerall. In both Barnard and

Summerall, the impeaching conviction did not involve dishonesty and, as a result,

was of minimal probative value on the issue of credibility. Summerall, 926

S.W.2d at 276-277; Barnard, 899 S.W .2d at 622. In the present case, as in

Jones, the impeaching convictions do involve dishonesty. Jones, C.C.A. No.

01C01-9405-CR-00175, slip op. at 8; see State v. Miller, 737 S.W.2d 556, 559

(Tenn. Crim. App. 1987) (stating that burglary is a crime involving dishonesty for

impeachment purposes). Obviously, the probative value of a prior conviction

involving dishonesty on the issue of credibility is significant.

Furthermore, in both Barnard and Summerall, the State was permitted to

impeach the defendant with reference only to “a felony.” Summerall, 926 S.W.2d

at 276-77; Barnard, 899 S.W .2d at 621-22. In the present case, as in Jones, the

Defendant was to be impeached by reference to “felonies involving dishonesty.”

Jones, C.C.A. No. 01C01-9405-CR-00175, slip op. at 8. We believe that this

method of impeachment not only minimizes unfair prejudicial impact by

concealing the specific nature of prior convictions similar to the charged offense,

but also minimizes the possibility of speculation by the jury as to the nature of the

prior conviction. Impeachment with reference to “felonies involving dishonesty”

rather than simply “felonies” focuses the jury’s attention on the relevant issue,

namely the credibility of the witness, rather than on the mere fact that the witness

has a prior conviction. Coupled with a general jury instruction that such

impeachment evidence may be considered only on the issue of credibility and not
2

 The Defendant also argues that evidence of his prior convictions should have been excluded

becau se its prob ative value w as sub stantially outwe ighed by the dange r of unfair p rejudice . See

Tenn. R. Evid. 403. Having already concluded that the trial court did not err in determining that the

probative value of the limited impeachment evidence on credibility outweighed any unfair prejudicial

effect on the subs tantive issu es, w e can not conc lude that th e pro bative value was subs tantia lly

outweigh ed by the d anger o f unfair pre judice. The Defendan t’s argum ent lack s me rit.

-12-

as substantive evidence of guilt, we believe that the impeaching evidence’s

potential for an unfair prejudicial effect on the substantive issues is slight.

In the case sub judice, the impeaching convictions, although similar to the

charged offenses, were highly relevant to the issue of credibility because they

were crimes involving dishonesty. The trial court determined that under the

restrictions governing the use of the Defendant’s prior convictions for

impeachment, their probative value on the issue of credibility outweighed their

unfair prejudicial effect on the substantive issues. We cannot conclude that the

trial court abused its discretion in ruling that the prior convictions would be

admissible, in a limited manner, for the purpose of impeachment if the Defendant

chose to testify.2

Moreover, even if we were to conclude that it was error to permit the State

to impeach the Defendant with reference to “felonies involving dishonesty,” the

error is harmless under the circumstances of this case. See Tenn. R. App. P.

36(b); Tenn. R. Crim. P. 52(a). The proof of the Defendant’s guilt is quite strong.

In addition, the Defendant did not make an offer of proof as to his proposed trial

testimony. As such, we are unable to assess the full impact of the trial court’s

ruling that his prior convictions were admissible for impeachment purposes. See

State v. Abraham Galmore, C.C.A. No. 02C01-9607-CR-00230, Shelby County

(Tenn. Crim. App., Jackson, Sept. 9, 1997).
-13-

For the reasons set forth in the discussion above, we conclude that the

Defendant’s issues on appeal lack merit. We therefore affirm the judgment of the

trial court.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOE B. JONES, PRESIDING JUDGE

___________________________________

JOE G. RILEY, JUDGE