# FILED
November 20, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT JACKSON SEPTEMBER 1995 SESSIO N

STATE OF TENNESSEE, ) ) Appellee, ) No. 02C01-9503-CR-00078

) ) Shelby County v. ) ) Honorable Jam es C. Beasley, Jr., Ju dge ) MICHAEL ADDISON, ) (First degree Murder) ) Appellant. )
For the Appellant : For the Appellee : A.C. Wharton, Jr. Charles W. Burson District Public Defender Attorney General of Tennessee and and W. Mark Ward William David Bridgers Assistant Public Defender Assistant Attorney Gener al of Tennessee 201 Poplar Avenue 450 James Robertson Parkwa y Suite 201 Nashville, TN 37243-0493 Memphis, TN 38103-1947 John W. Pierotti District Attorney General and P. Thomas Hoover, Jr. and Paul F. Goodman Assistant District A

ttorneys General 201 Poplar Avenue Suite 301 Memphis, TN 38103-1947

OPINION FILED:_______________________

AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Michael Addison, appeals as of right from a jury c onviction in the Criminal Court of Shel by County for first deg ree murder. The defendant receive d a sentence of life imprisonment in the custo dy of the Department of Correction. In this appeal, he contends that:

(1) the evidence is i nsufficient to support his conv iction; (2) the jury’s dual findings of guilt for first degree premeditated murder and felony

murder violate double jeopardy principles; and (3) the trial c ourt e rroneously allow ed evidence of the defendant’s prior theft convictions to impeach the defendant’s credibili ty. We disagree and affirm the judgment of convicti on.

On April 2, 1993, Donald Ray Irby was found in the front seat of his car. He had been shot one time in the head, resulting in his death. The car he was driv ing had crashed into the Three Star Li quor Store. The car wa s still in gear w

ith the tires spinning, causing the c ar to overheat and make ruts in the ground.
Sergeant Michael Houston of the Memphis Police Department investigated the cri me. He testified that he examined the victim’s body at

the morgue on April 3, 1993, and noticed a he ad injury from a gunshot. He also examined the victim’s car. The front o f the car had been wrecked, tw o tires were flat, and the front passenger’s side wi ndow was broken. Ser geant Houston also found mud on the ins ide of the right front passenger’s side and inferred that the do or was open while the vehicle was stuck in the mud. Bl ood was also on the armrest between the front seat and on items lying in the floor

board in the backseat. Serg eant Houston testified that wh en he went to the back of the liq uor store, he noticed a small fence that had been knocked down and ruts in the ground where the wheels of the car had been stuck. He also3

stated that a few people who operated local businesses told him th at although they did not witness the shooting , they heard the noise of the car accelerating at a hig h rate of speed.
Sergeant Houston also testi fied that he received a call on April 4, 1993, from a couple of people who identified Michael Dean as the person r esponsible for shooting the victim and that Annie Lee Fason was w ith the defendant when the shooting occurred. Dean was the name that the defendant used on oc casion. Sergeant Houston questione d the defendant at his office. Sergeant H ouston said that the defendant initially denied any involvement in

the crime but admitted that he shot the victim with his .357 Magnum after being told th at the officers were awar e that Fason witnessed the shooting.The defendant then gave a statement r egarding his actions.

The defendant’s statement reflects that the d efendant admitted shooting the victim on April 2, 1993, around 10:05 p.m. The defendant told the officer s that he and Fason had visited her daughter, and that his gun w ent off as he raised it when arguing with Fason’s daughter. He said that he and Fason left and went to Chism Trails Store. While there, he saw the vic tim and paid him five dollars to take them to South Memphis. The defendant rode in the front pas senger seat and Fason sat i n the backsea t behind the vic tim. The defendant

said th at along

the way the vic tim turn ed off the street and started to dri ve behind the Three Star Liq uor Store. The statement shows that the defendant asked the v ictim why he was

turning off. According to the defendant, the victim started r eaching down toward

the seat with his hand. The defendant told the officers that he then pull ed his .357 Magnum out, pointed i t towards the victim, and told him to give him his money bac k if he was not going to drive them to South Memphis. He said that he then shot the victim one ti me in the upper body when he started to reach underneath the seat. The statement reflects that the car continued to accelerate, crashing into the back wall of the Thr ee Star Liquor Store. The defendant4

and Fason exited the car and walked to South Memphis to their homes. The defendant denied that either he or Fason took anything from the vi ctim. He also claimed that Ernest Sa nders sto le his gun t he next da y.

Sergeant Houston stated that he questioned Sanders about the g un and that Sanders denied having the gun. Houston said that he never found the defendant’s gun. He also testified that he did not find a weapon under the s eat of the victim’s car.

Arthur Townes testified that he was shooting pool at Earl’s Barbecue located next door to the liquor store on April 2, 1993, around 9:30 or 10:00 p .m. He stated that while shooting pool he noticed several people leaving and goi ng around the building. He said that he left and walked around the bui lding and that he saw se veral people standing around a car.Townes recalled seeing flames coming from underneath the car. He testified that he believed that the car had been in gear and running for a long time because the exhaus t system was red. Tow nes stated that he then walked up to the car, opened the door, and saw the victim inside. Tow nes said that the car was filled with smoke. Believing the victim was drunk, Townes, with the help of his brother, pulled the victim from the ca r and then turned the engine off. Tow nes testified that he did not notice a weapon on the v ictim or in the car. H e also testified that he thought the vehicle would ex

plode if the engine had not been turn ed off.
Jeffery Smith, an acquaintance of the victim’s family, te

stified that he was with his grandfather at the Three Star Liquor Store on April 2, 1993, around 10:00 p.m. He state d that hi s grand

father to ld him th at he hea rd a lou d rumbli ng sound as he le ft the car. Smith said that he also heard the noise when he got out of th e car and that it was coming from the back of the b uilding. Smith testified that he saw a car behind the building idling r

eal loudly as he looked ov er a wooden fence. He and his grandfather then went around the building , and he saw fire shooting up from the bottom of the car.5

When Townes pulled the victim from the car, Smith walked over and removed the victim’s black leather coat. Smith said that he too k the jacket to the victim’s mother and told her that the victi m had been shot. Smith and the vic tim’s mother then returned to the scene. Although Smith testified that he did not see a gun on the victim or around the car, he acknowledge d telling the officers that he noticed the jacket was hea vy when he picked it up.

Annie Lee Fason testified that she h ad known the defendant, whom she also knew as Michael Dean, for approximately four or five years. She said that on April 2, 1993, the defendant asked her to come w ith him to visit his son, the grandson of Fason, at her niece’s house. While at her niece’s house, an argument ens ued between the defendant and Fason’s daughter and niece because the defendant permitted the child to handle his gun. According to Fason, the defendant too k the gun from the table and fired it. Fason said that she and the defen dant then left and walked to Chism Trail to use a public telephone to cal l a cab. While the defendant was on the phone, the victim drove up. The defendant asked him for a ride home. Fason s tated that the victim agreed but that h e told them that he could not take th em all the way home.

Fason testified that the defendant had the g un under his pants when he got into the victim’s

car. She recalled that w hen the victim started dr iving, the defendant pulled the gun out, pointed i t at the victim’s head, and said, “Look what I g ot. See what I got.” The v ictim replied, “Yeah man I see it, okay.” Faso n said that she never saw the vi ctim with a weapon. Although Fason asked the defendant not t o do it, the defendant shot the victim. Fason testified th at the victim was turning the vehicle when he was shot. She stated that the victim was trying to do what the defendant told him to do. Fason also testified that after the defendant shot the vict im, the car ran into a wooden fence and stopped. She said that the motor was still running. She started yelling, and the defendant g ot out of the car.6 Fason stated that the defendant pointed the gun at her and grabbed her arm, ordering her out of the c ar and threatening to kil l her. She said that the defendant told her that he had already killed one person and that killing three or four more p eople would not mean anything.She also testified that she g ot out of the car and they start ed to walk away. A

t that time, the defendant told her to w ait, and he walked back to the car and reached through the w indow. Fason testified that when the defendant walked back, the defendant told her that he took a chain from the victim’s neck and asked her whether she wanted it.She said that she declined the defendant’s offer and explained that she did not run away because she was afraid the defendant would shoot her.

Fason sai d that th ey then walk ed toward s their ho mes. Alon g the way, they stopped at a servi ce station because the defendant wanted to purchase beer. At that time, Fason flagged a cab down and went to her si ster’s house. Fason stated that the defendant came to her sister’s house and asked where she w as. When her sister told the defendant that she had already left, he went away.

On cross-examination, F ason admitted that she and the defendant had been drinking that day. She conceded that she did not attempt t o help the victim or contact the police regar ding the shooting. How ever, she denied that the g un belonged to her and that she was show ing off the gun at her niece’s house.

W. J. McNabb of the M emphis Polic e Department conducted the crime scene investigation. When he arrived, the victim’s ca r was directly against the Villa Inn next to the liquor st

ore. Officer McNabb stated that the car had driven throug h a wooden fence that separated the Vil la Inn from the liquor stor e. He said that the car was still in gear

when it hit the buildi ng, spinning its tir es and digging a hole in the ground. He testified that the tires became hot because the eng ine was running at a high rate of speed, causing them to blow out and disinteg rate. He also identified the7

victim’s leather coat

that had a small amount of blood on it. Officer McNabb stated thatthere were two cans of Bicardi Rum mix in the pockets of the jacket. On crossexamination, Officer McNabb s aid that he could not recall whether the car was running when he arrived.

Willie Le e Irby, the victim’s m other, testif ied that the victim left home to go to Chism Trail Store at appr oximately three minutes before 10:00 p.m. on April 2, 1993. She said that he was wearing a leather jacket, a gold charm necklace and his class ring. She identified a rec eipt reflecting the purchas e of a necklace. Ms. Irby testified that a man brought the vict im’s jacket to her approx imately twenty min utes after the victim had left and told her that he was dead. She said tha t she left with him to go to the scene. She stated that she did not remove anything or place anything in the j acket.

Dr. Violet Hnilica, a pathologist, performed an autopsy on the victim. She testified that a single g unshot wound to the head caused the victim’s death. Accor ding to Dr. Hnilica, the bul let caused severe brain injury and a fractured sk ull. She stated that the victim suffered no injuries from the impa ct of the car hitting the building. Dr. Hnilica said that the victim was at least three feet away from the shooter because there was no residue near the w ound itself.

Andrea Dean, the defendant’s sister, testified that on the day of the c rime, she, Fason, Fason’s son-i n-law, and the defendant rode aro und together and drank beer for approximately t wo or three hours. Later that evening, they dr

opped her off at the home of Fason’s niece. She said that the defendant and Fason returned a few hours later, but left again when the defendant began arguin g with Fason’s niec e and daughter and a shot was fir ed. Ms. Dean testified that sh e saw Fason with a g un before and after they picked up the de fendant to go riding. She r ecalled seeing Fason hand the gun to the defendant. She denied th at Fason took the defendant’s gun from8

some children who wer e playing with i

t. She further denied that the defendant ow ned a gun. She also said that the de fendant did not have a vehicl e on the day of the crime.

The defendant testified that he also went by the name of Michael Dean. He stated that on April 2, 1993, he went with Ms. Dean and Fason to drink beer. He stated t hat they

later w ent to th e home of F

ason’s n iece. H e said t hat he an d Fason l eft her home after he argued with Fason’s daughter and niece and the gun accid entally went off when he pulled it from hi s pants. They walked to Chism Trail Store and asked the victim for a ride home. The victim agreed and started driving south, stopping once at a gas station to get gas. According to the defendant, the victim turned off the street and pulled behind the Three Star Li quor Store. The defendant said that h e asked the victim where he w

as taking him and to stop the c ar and let him out. He testified that as he tried to open the car door, the victim reached under hi s seat. The defendant stated that he then pulled the gun from his pants and asked the victi m what he was doing. When the victim did not answer him, the defendant told him to stop. Accordi ng to the defendant, he opened the door, and the vi ctim came up as he had one foot outside the door. The defendant testified that he thoug ht the victim had a weapo n. He said that although he could not see if the victim had anything in his hand, he fired the gun once at the victim.

The defendant recalled the car hitti ng the building and making a lot of noise. He testified that after F ason got out of the vehicle, they walked home. The defendant claimed that the gun belong ed to Fason and that Fason was playing with th e gun at her ni ece’s house. He said tha t he told the officers that the gun belo nged to him to protect Fason because she w as his child’s grandmother.

On cross-examination, the defendant denied pointing the gun at Fason, taking the victim’s

gold chain, and offering the c hain to Fason. He also cla imed that he9

paid the victim ten dolla rs for the ride and that the g un he used to shoot the victi m was stolen from his living

room the next day. The defendant co nceded that he had prior convictions for theft, recei ving stolen property

and attempted larceny from a pers on.
In rebuttal, Janie Gary,the daughter of Fason and a former g irlfriend of the defendant, testified that the defendant came to her cousin’s house on April 2 , 1993, and that the defendant was playi ng with their son w ith his gun. She said that an argument took place regar ding the defendant allowing the child to handle the gun. According to Gary, the defendant yelled, “Bitch I ’ll kill you” and fired his gun after she and her cousin shoved him out the door.

I. SUFFICIENCY OF THE EVIDENCE The defendant was charged wi th first degree murder in s eparate counts of an indictment, felony murder in count one and prem editated and deliberate murder in count two. The jury r

eturned guilty ver

dicts on each count. The trial court entered a single judgment of convi ction reflecting a conv iction for first degree mur der and a sentence of life imprisonment. The defendant cont ends that there is insufficient evidence to support his c onviction for first degr

ee murder. The state contends that th e evidence is sufficient to est ablish beyond a reasonable do ubt the defendant is guilty of first degree murder based on ei ther theory. We agree.

Our standard of review when the sufficiency of the ev idence is questioned on appeal is "whether, after v iewing the evidenc

e in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements o f the crime beyond a reasonable doubt ." Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that we may not reweigh the evidence, but must presume that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the evi dence in favor of the state. See State v. Sheffield ,1 Pursu ant to an a men dme nt effective July 1, 1995 , first degre e mu rder wa s am ended ,

purportedly dele ting the req uirem ent of de liberation. See T.C.A . § 39-13 -202(a) (1). 10 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

A. PREMEDITA TED AND DEL IBERATE MUR DER The defendant first contends that the evi dence does not establish beyon d a reasonable doubt that the kill ing was premeditated and d eliberate. At the time of the offense, the unlawful, intentional, pr emeditated and deliberate kill ing of another constituted first degree mur der. See T.C.A. §§ 39-13-201(a) and -20 2(a)(1) (1991) 1

. Our criminal code defined a del iberate act as “one performed w ith a cool purpose,” and a premeditated act as “one done after the exercise of reflection and judgment.” T.C.A. § 39-13-201(b)(1) and (2) (1991). In State v. B rown , our supreme court further defined deliberation as requir

ing some period of reflection, w ithout passion or provoc ation, and concluded that the “deliberati on necessary to establis h first degree murder cannot be formed in an instant.” 836 S.W.2d 530, 539, 543 (Tenn. 1992) . Premeditation requires a showing of a previo usly formed design or i ntent to kill. State v. West , 844 S.W.2d 144, 147 (Tenn. 1992). The existenc e of the separate and distinct element s of premeditation and deliberation is a question of fact to be decided by the jury. See State v. Brown , 836 S.W.2d at 541-42. In this respect, the deter mination of the state of mind necessary to establish the elements of first degree murder may be shown by circumstantial evidenc

e. State v. B rown , 836 S.W.2d at 541; State v. Burlison , 868 S.W.2d 713, 717 (T enn. Crim. App. 1993).

In the light most favorabl e to the state, the proof establish es that the defendant aimed a gun at the victi m’s head while the vi ctim was giving him and Fason a ride. The defendant told the victim, “Look what I got. See what I got,” and the victim replied that he saw the g un as he continued to drive the car. Although Fason as ked the defendant not to shoot the victim, the defendant shot the victim in the head as the2 We note that the provi sion defi ning fel ony murder was amended in 1995 to delete t he reckles s me ns rea e leme nt. See T.C.A. § 39-13- 202. Pursuant t o the amendment, “[n]o culpable mental state i s required f

or convict ion under [

the felony

murder] subdivi sion . . . except t he intent to commit the enum erated o ffense s or acts . . . .” T.C.A. § 3 9-13-20 2. 11 victim turned the car i n response to the defendant’s command. Fa son stated that the victim did not do anyth ing to provoke the defendant and that the victim was t rying to comply with the defendant’s orders. Immediately after s hooting the victim, the defendant pointed the gun at Fason and thr eatened her, grabbing her arm to pull her from the car. The defendant started to w alk away and then w

alked back to the car and took a gold chain from the victim’s neck. Under these circumstances, the jury reasonably could have c oncluded that the defendant reflected, w ithout passion or provocation, upon his deci sion to kill the vic tim. We conclude that the record supports the jury’s determination that the elements of intent, premeditation and deliberation were established beyond a reasonabl e doubt.

B. FELONY MURD ER Next, the defendant claims that the evidence does not support a conviction for first deg ree murder in the form of felony murder. Specifically, he contends that the proof does not establ ish beyond a reasonable doubt that the killing was committed in the perpetr ation of an aggravated rob bery. He argues that the killing occurred collateral to and not in pursuance of the theft. See State v. Severs , 759 S.W.2d 935, 9

38 (Tenn.Crim. A

pp. 1988)

(“the k illing must hav

e been in

pursuan ce of, rather than collateral to, the unlawful act described by the statute”). We disagree.
At the time of the killing, felony murder was defined as the unlawful, “reckless killing

of another committed in the perpetrat ion of, or attempt to perpetrate any first degree murder, arson, rape, robbery, burglary, theft, kidnapping or aircraft piracy.” T.C.A. §§ 39-13-201(a) and -202( a)(2) (1991) 2 . A person “acts recklessly with respect to circumstances surroundi ng the conduct or the result of the conduct when the person12

is aware of but consciousl y disregards a subs

tantial and unjustifiable ri sk that the circumstances exist or the result will occur.” T.C.A. § 39-11-302(c).

In support of his argument, the defendant alleges that there is no proof of a preconceived plan to rob the victim, of an argument bet ween the victim and the defendant, or that the defendant directed the movement of the victim’s automobi le. The defendant asserts that the evidenc e establishes that the defendant decid ed to rob the victim “after-the-fact, s

eparate, distinct and independent from the killing.” We do not agree.
The proof viewed in the li ght most favorable to the stat e establishes that after obtaining a ride from the v ictim, the defendant directed the v ictim to turn off the main street behind the liquor store. He pulled a gun on the unarmed victim and told him, “Look what I got. See what I got.” Ev en though Fason asked the defendant not t o shoot the victim, the defendant sho t the victim in the head. After leaving the car, the defendant started to walk aw ay but returned to the car to take the victim’s g old chain. Although the defendant denied taking the gold chain, the jury chose to believe the testimony of Fason. It was the jury’s prerogative to do so. We also believe that the jury was entitled to infer that the defendant ordered the victim to turn behind the liquor store to carry out an intent to rob the victim. The fact that the defendant did not take the victim’s leather jacket or wallet or demand the necklace prior to shooting the victim is not determinative. See Mullendore v. State , 183 Tenn. 53, 63, 191 S.W.2d 149, 152 (1945) (evidence that the defendant took the victim’s mone y and appropriated it to his own use per

mitted the ju ry to infer

that the defend ant intended t o rob the vi ctim, although no prior in tent to ro b was othe rwise shown ). Under th ese circu mstance s, we hold that the proof is sufficient to estab lish beyond a reasonable doubt the defendan t’s guilt for felony murder.13 II. DOUBLE JEOPARDY The defendant contends that the jury’ s dual findings for premeditated and deliberate murder and felony mur der violate double jeopar dy principles. He as

serts that both verdicts cannot stand,because once the jury ret urned a guilty ver dict on count one, charging felony mur der, the guilty v

erdict on count two, char ging premeditated and deliberate murder, was mer e surplusage and should hav e been “rejected” by the trial court.

First, we note that the defendant acknowledges that thi s issue is being raised for the first time on appeal . However, he arg ues that this constitutional error involving double j eopardy should be correct ed to prevent manifest injusti ce. See , e.g. , State v. Goins , 705 S.W.2d 648, 64 9 (Tenn. 1986). We would correct it if it were constitutional error, but it is not.
The Double Jeopardy Clause o f both the United States and Tennessee Constituti ons states t hat no person shall be put

in jeopardy

of life or li mb for the same offense. U.S. Const. amend. 5; Tenn. Const. art. I, § 10. The clause has been interpreted to include the foll owing protections: “ It protects against a sec ond prosecution for the same offense after acqui ttal. It protects agains

t a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same off ense.” North Carolina v. Pearce , 395 U.S. 711, 717, 89 S. Ct. 2072, 2076 (1969). State v. Phillips , 924 S.W.2d 662, 664 (Tenn. 1996). It is the last protection that is of interest in this case.

Although the jury ret urned guilty ver dicts for both counts of first deg ree murder, the trial court ent ered only one judgment of conv iction that imposed only on e sentence of life imprisonment. Essentially, it is the j udgment of conviction that pr ovides the legal authority for the executive branch of g overnment to incarcerate a person who14

is sentenced to confinement. See State v. Vasser , 870 S.W.2d 543, 546 (Tenn. Crim. App. 1993). In this sense, it includes the imposition of the s entence by which a defendant is punished. See Tenn. R. Crim. P. 32(e). Therefore, the trial court’s entry of only one judgment of convic tion imposing only one s entence of life imprisonment protects the defendant from receiving multiple punish ments for the same offense. No double jeopardy peril ex ists.
The defendant also argues that the jur y’s verdict for fir

st degree premeditated and deliberate murder, as charged in count tw o, should be treated as “surplusag e” and set as ide. We disagree . Count one an d count two charge the same offense of first degree murder, but each al leges a separate means. How ever, the means are not mutually exc lusive. Thus, there is no legal bar to verdi cts being returned for both counts. In fact, there are advantages to having the jury make findings on both counts i n capita l cases because

of the imp

act of State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992), when the ev idence proves first deg ree murder only throug h the perpetration of a listed felony

. See James David Carter v. State , No. 03-S01-9612-CR00119, Greene County, slip op. at 11 n.6. (Tenn. Oct. 20, 1 997) (for publication).

We are aware that the supreme court has “v acated” a “conviction”

for felony murder while uphol ding a judgment of convic tion entered for premeditated and deliberate murder. See State v. Hurley , 876 S.W.2d 57, 70 (T enn. 1993). We are also aware that this court ha s previously stat

ed that guilty ver

dicts for felony murder and premeditated

and deliber

ate murder, c

harged in s

eparate count

s but for the s

ame crime, should lead to one of the “c onvictions” being v

acated or stricken. See State v. Perry A. Cribbs , No. 02C01-9508-CR-00211, Shelby County, slip op. at 36-37 (Tenn. Crim. App. Feb. 14, 1997).15 However, we do no

t believe that the supreme c ourt in Hurley

intended for a dismissal to be the only legitimate option avai lable. Likewise, w e believe that Cribbs overlooks the fact that w hen only one killing

is involved, the tw

o counts are for the same offense -- first degree murder . The fact that each count alleges a different means of committing the offense does not change that legal fact. Moreov er, there is no need to “dismiss,” “vacate,” or “strike,” a particular “conviction” if what is meant by the term “conviction” is the return of the jury verdict of guilt. Rather, the jury verdict stands as a legitimate finding of fact and law which the trial cour

t should preserve by

merging the same offense counts into one judgment of conv iction for first degree mur der that notes the merger of counts with each other. Such is essenti ally what the tri al court did in the present case, although its judgment of conviction is worded “Murder 1st Degree / Murder Perp. Felony”

and could be read to indicate that felony murder is different from first degree murder. Such a merger and imposition of a si ngle judgment of convicti on protects against double jeopardy and preserves the validity of the jury verdicts for future avoidance of problems related to unnecessarily dismissed “charges” or “convictions.” See , e.g ., State v. Davis , 613 S.W.2d 218, 22 1 (Tenn. 1981). Therefore, the trial court did not err by mergi ng counts one and two inst ead of dismissing count tw o.

III. IMPEACHMENT BY PRIOR THEFT CONVICTIONS Finally, the defendant contends that the trial court err oneously permitted the stat e to impe ach the d efenda nt’s cred ibility with prior convi ctions of theft of property, larceny from the person and receiving stolen property. He complains that the trial court failed to consider the similarity of the charged offen se to the prior convictions in determining the danger of unfair prejudice. The de fendant relies upon the holding in State v. Farmer , 841 S.W.2d 837, 839-40 (Tenn. Crim. App. 1992), that convictions for crimes similar to the one on trial should not be admitted for impeachment because, normally, their prejudicial effect upon the jury would outweigh any probative value. He argues that the state used the convictions to show his propensity to commit aggravated16

robbery rather than to i mpeach the defendant’s credibility. The state asserts that the prior convictions ar

e not similar to the charg ed offense because felony murder inv olves a violent offense against a per son regardless of whether the underlying felony

is similar. The stat e also con tends th at the pri or convict ions invol ve crimes o f dishon esty, enhancing their probativ e value for purposes of impeaching the defendant’s credibility

. See Long v. State , 607 S.W.2d 482, 485-86 (Tenn. Crim. App. 1980). We hold that the trial court did not err

in concluding that the pr obative value on credi bility outweig hed any unfair prejudicial effect.

Pursuant to the conditions and procedures set forth in Rule 609, Tenn. R. Evid., the credibility of the accused may be attack ed by presenting evi dence of prior convictions. One condition requires that the trial court find that the conviction’s probative value on cr edibilit y outweighs its unfa ir prejudi cial eff ect on th e substa ntive issues. See Tenn. R. Evid. 609(a)(3) . In determining the probati ve value of the prior convictions, the tria l court must assess the si milarity between the crime on trial and the crime underlying the impeaching conviction. Farmer , 841 S.W.2d at 839. The trial court must next analyz e the relevance the impeachi ng conviction has to the issue of credibility. Id

.

Before trial, the state proper ly notified the defendant of its intent to use the following convict ions to impeach the defendant’s credi bility at trial: ( 1) a 1983 receiving stolen pr operty con viction, (2 ) a 1985 re ceiving sto len prope rty convict ion, (3) two convic tions fo r larce ny from a person i n 1989, a nd (4) a 1992 mis

demeanor

theft conviction. The defendant reque sted and obtained a pretrial hea ring to determine the admissibility of the defendant’s prior criminal recor

d for impeachment purposes. In its determination that the convictions were admissible for impeachm ent, the trial court found that the convictions involve issues that directly related to the defenda nt’s credibility. The tri al court stated that the mere fact that the homicide was all eged to17

have occurred during the perpetration of an aggrav ated theft, such as robbery, di d not foreclose the introduction of evidence of the prior convictions or make them unduly prejudicial.

At trial, the defendant asserted on cross-examination that he neither took a gold chain from the victim nor offered a gold chain to Fas on, stating that he woul d not have stolen it from anyone. Later, the prosecutor asked the defendant several questions regarding whether he stole the victim’s chain. The defendant once again declared that he did not steal the chain but explained that h e was not claiming that he would not steal. The prosecutor then questioned the defendant regarding each one of his prior convicti ons. The defendant conceded that he had prior convictions for theft, two counts

of receivi ng stolen pr

operty, and

two counts

of attempted la rceny from a person.
We hold that the trial court properly concluded that the probativ e value for credibility was

not outweighed by any danger of unfair prejudice. I n its decision, the trial court considered the simil arity between first degree murder committed durin g the perpetration of an aggrav ated robbery and the prior convictions for theft-rel ated offenses. Moreover, the tri al court correctly concluded that the crimes of rec eiving stolen property, larc

eny from a person, and misdemeanor theft were also crimes of dishonesty. See State v. Crane , 780 S.W.2d 375, 377 (Tenn. Crim. App. 1989) (concealing stolen prope rty); State v. Fluellen , 626 S.W.2d 299, 300 (Tenn. Crim. App. 1981) (robbery); State v. Ho ltcamp , 614 S.W.2d 389, 394 (Tenn. Crim. App. 1980) (shoplifting). Although the prior convictions were similar to aggravated robbery, their probative value on credibility outweighed the danger of unfair prejudice. For these reasons, we hold that the t rial court did not abuse its discretion by permi tting the state to impeach the defendant’s credibility with his prior convictions.18 In consideration of the foregoing and the record as a whole , the judgment of the trial court is affirmed.

Joseph M. Tipton, Judge

CONCUR:

Joe B. Jones, Presiding J udge

John K. Byers, Senior J udge