# FILED
November 20, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON SEPTEMBE R SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9611- CR-00424 ) Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. JA MES C. BEA SLEY, J R. RAY L. TAYLOR, ) JUDGE ) Appe llant. ) (Aggra vated B urglary & Theft)

ON APPEA L 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 Generaland Reporter TONY N. BRAYTON CLINTON J. MORGAN Assistant Public Defender Assistant Attorney General 201 Poplar, Sui te 2-01 425 5th Avenu e North Memphis, TN 38103 Nashvill e, TN 37243 JOHN W. PIEROTTI Distri ct Attorney General JERRY R. KI TCHEN Assistant Distri ct Attorney General Criminal Just ice Complex, Sui te 301 201 Poplar Street Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 Tenn. Code A nn. § 39-14-403; 39-14-103; 39-14 -105(3). -2- 

# OPINION

The Defendant, Ray

L. Taylor, appeals as of rightpursuant to Rule 3 of the Tennessee Rules of Appell ate Procedure. He was convictedby a She lby Cou nty jury of one count of

aggravated bur

glary and one cou nt of theft of propert

y valued in excess of one t housand dollar s ($1000) but l ess than ten tho usand do llars ($10,000). 1 The trialcourt sentenced h im as aRa nge III pers istent offen der to twelve years impri sonment with t he Department of Correc tion on ea ch cou nt, with the sentences to run concurrently. In t his appeal, the Defendant ar gues that t he evidence was lega lly insufficient to support the verdicts and tha t the trial court erred in ruling that his prior co nviction s were adm issib le for impeachment purpos es. W e affirm the judgm ent of the tria l court.

We begin with a summary of the pertinent facts. On the morning of March 2, 1995, Pam ela Mosley left her home, located at 4578 Gailwood in Memphis, Tennessee, and w ent to w ork. Sh e later re ceiv ed a teleph one call at work informing herthat her hous e had been burglarize d. She th en return ed hom e to find that sever

al items whi ch had been in the home when she left t hat mor ning
were missing
. The front door to her home had been pri ed open and her bedroom had been ransacked. Among themissing items were j ewelry boxes containi ng a large amount of jewelry , a coin col lectio n, severalhandguns, a fl ashl ight an d
a blu e duffel b ag. She esti mated the value of the missi ng items at seven thousand dollars ($7000 ).-3- Tw o of Mos ley ’s ne ighb ors, Deborah Chr ist ine Ro berts and Ma rth a S h erwood, noticed an unfamiliar i ndividualapproach Mosley’ s home on the morning of March 2, 1995. Both Roberts and Sherwood later i dentifi ed t he Defendant as this individ ual. The D efendant was driving an older- model Cadillac. He parked the car ne xt to Mosle y’s house , left the car running, and approached Mosle y’s front door . He did not appe ar to be carry ing anythi ng as he approached the hous e. He k nock ed on the fron t door, tu rned a round , and lo ok ed up and down the street
. Martha Sherwood testifi ed that the Defendant then t urned toward the door, t he door opened, and t he Defendant enter ed the home. After appro ximate ly ten to fifteen minutes , the Defendant exited t he home carrying a blue duffelbag and a brown box resemblinga br iefcas e. H e to sse d th ese it ems into the Cadillac an d drove awa y.
During the time th e Defe ndant w as in Mo sley’s hom e, b oth Ro berts and Sherwood gained more inf ormation about h is car. Sherwood drove around t he block and noted t hat the Cadillac had a Lauderdale County license pl ate. Robe rts sent an in dividual from her hom e to write down the li cense plate number of the Cadill ac. After

the departur

e of the Defendant, t he witnesses cal led 911.

The Defendant was arr ested on the following day, March 3, 1995. At the ti me of h is arr

est , hewas dri vi ng an old er- modelCadi ll ac matching the descripti on of the Cadil lac given by Sherwood and Roberts. The Cadillac hada Laud erdale Coun ty license pl ate with a t ag number matching the number Robe rts had taken from the car parked in front of Mosley’s hom e the previous d ay.-4- None of the items m issing from M osley’s hom e were disco ve red in the Defe ndan t’s vehicle. In fact, the items missi ng from Mosley’ s home were never recovered. In addit ion, Elton Smith, an investi gator wit h the Burglary Bur eau of the Memphis Police Depa rtment, testifi ed that the crime scene off icer did not check Mosley’s home for fingerprints . As such , the Defe ndant’s fin gerprints were not link ed to the scene of

the crime.

On May 30, 1995, t he Defendant was indi cted on chargesof aggravated burglary and the ft

of p rop ert

y. He wa s triedfrom Feb ruary 20 to February 22, 1996. After considering the proof prese nted at trial, the jury found the Defendant guilty as charged.

In his fi rst iss ue on appeal, t he Defendant argues t hat the evi de nce wa s legally insuffi cient to

support the verdicts. In part icular, he contends that the proofwas no t s uffic ient to esta blish his ide ntity as the p erpetrato r. He ass erts thateyewitness i dentifi cation testimony is inherently untrust

worthy, c iting United States v. Wade , 388 U.S. 218, 87 S.Ct. 19 26, 18 L .Ed.2d 1 149 (19 67). He p oints out that none of

the vict im’s propert

y was recovere d from his vehi cle and no scien tific fingerprint evi dence linked hi m to the scene of the crime. Thus, given thatit was e yewitn ess te stimo ny that lin ked h im to the cri me, he argues that the eyewitness testimony offer ed at tri al was insuf ficien t to justify

a rationaltrier

of fact in finding guilt beyon d a reas onable doubt.

Wh en an ac cuse d cha llenge s the s ufficien cy of the convic ting evid ence , the standard i s whether, af ter revi ewing the evid ence in the ligh t mos t favora ble to the p rosecu ti on, any rat ional trier of f act could have found the essent ial-5-

eleme nts of the crime beyonda reaso nable d oubt. Jack son v. V irginia , 443 U. S. 307, 319 (19 79). Quest ions concerni ng the credi bilit y of the wi tnesses, t he weightand value to be given the evidence, as wel l as allfactual issues rai sed by the evidence, are resolved by the trier of fa ct, not this co urt. State v. Pappas , 754 S.W.2d 6 20, 623 (Tenn. Cri m. App. 1987). Nor may this court reweigh o r reevalua te the evide nce. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 197 8).

A jury ver

dict approv

ed by the trial j udg e accredits the State’ s witnesses and resolves all conflicts in fa vor of the S tate. State v. Grace , 493 S.W.2d 474, 476 (Tenn . 1973). O n appe al, t he State is entitled to th e strong est legitim ate viewof the evidence and al l infer ences therefrom

. Cabbage , 571 S.W.2d at 835. Because a verdic t of guilt removes the presumpti on of innocence and r eplaces it with a pres umptio n of guilt, the accused has the burden in this court of illustrati ng why the evidence is insuf ficient to support the verdict returned by the trier of fact. State v. Tug gle , 639 S.W .2d 913 , 914 (T enn. 19 82); Gr ace , 4 93 S.W.2d at 476.
Applying these prin ciples to the case sub judi ce , we believe that t he evidence was leg ally suf ficien t to support

the verdi cts. The Defendant was positive ly identified by two eyew itn esse s as the individual who entered the victim’s home on March 2, 1995. He approached t he home carrying not hing but returne d to his ca r carryi ng a blue duffel bag and a brown box resembling a briefcase. The v ictim returned home short ly after the Defe ndant’s d eparture to find that her f ront door had been pried open and her bedroom ransacked. Among t he nume rous ite ms m issing from th e hom e was a blue duffel b ag. Th e victim-6-

estimated the value of the missing items at seven thousand dol lars ($7000) . The Defendant was arr este d the foll owing day. At the time of

his arrest , he was drivi ng a car matching the general descripti on given by t he witnesses. Mo reover, the license pl ate number matched theone taken fr om the car at the scene of t he crime.

It is well -establi shed in Tennessee thatthe ident ity of the accused as t he perpetrator of the off

ense charged is a que stion of fa ct for t he determinati on of the jury. State v. Shelley , 628 S.W .2d 436, 438 (Tenn. Crim . App. 1981 ); State
v. Livingst

on , 607 S.W.2d 489, 491 (Ten n. C ri m. App. 1980). Af ter consi dering the record, we can only concl ude that the re was sufficient pro of for the jury to have found the el ements of aggravated bur glary and t heft of

property beyond a
reaso nable doubt. See Tenn
. Code Ann. §§ 39-14-403( a), 39-14- 103. Furthermore, t here was suffic ient proof to establ ish that

the Defendant was t he perpetra tor of the offe nses. T he De fendan t’s first issue the refore lack s merit.

In his second is sue on appeal, t he Defendant argu es tha t the trial court erred in ruling that his prior co nviction s were adm is sible for impeachment purposes. I t appears fr om the record that

the Defendant

had a prior conviction forpetit l arceny and several pri or convict ions for bu rglary. Prior to trial , the Defendant moved the tri al court t o exclude hi s prior conviction s for impeachment purposes. The tr ial cou rt initially granted the Defendant’s moti on, findi ng thatthe prejudici al effect of

the pr ior convi ctions, given thei r simil arity to the off

enses charged, outweighed their proba tive value. See Tenn. R. Evid. 609(a)(3). On the followi ng day, theprosecutor presented research on the issue and requested that the trialjudge reconsi der his rul ing. After consideri ng the research offered by the-7-

prosecutor, th e trialjudge quali fied his ruling, statingthat he woul d allow th e prosecutor

to impeach the Defendant byasking him if he had been convicted of “feloni es involving disho nesty.” The s pecific nature of the p rior con victions would not be revea led. T h e trialcourt based t he ruling o n State v. Sum mera ll , 926 S.W.2d 2 72 (Tenn. Crim. App. 1995), and State v. Ross Jones , C.C.A. N o . 01C01-9405-CR-00175, Davidson Coun ty (Tenn . Crim. A pp., Nashvill e, Feb. 8, 1995), perm . to app eal de nied c oncu rring in re sults o nly (Tenn. 1995). In the wake of this ru ling, the Defe ndan t electe d not to testify at tr ial.

On appeal, t he Defendant contends thatthe tri al court erred in rul ing that his prior conv iction s were admissibl e for impeachmentpurp oses. He asserts t hat given the similar ity bet ween the prior

convicti ons and the offenses charged, the admission of the p rior con vic tio ns would resul t in undue prejudice out weighing their probative value. Fur thermore, he ar

gues that t he trialcou rt’s att empt to minimize the prejudi cial ef fect by l imitingreferralto the pri or convicti ons only as “feloni es involv ing dishonest y” was improper . Citi ng State v. Barnard , 899 S.W.2d 617, 6 22 (Ten n. Crim . App. 1 994), h e alleg es tha t the us e of “ge neric felonies”for impe achmen t purposes i s misleading and promotes confusi on in that it invites speculati on on the part of the jur y as to the n ature of t he prior convictions.

Of course, th e Tennessee Rules ofEvidence do prov ide that t he State may
use a judgm ent of con viction to im peach the testim ony of the defend ant. See Tenn. R. Evid. 609 . Rule 60 9, howe ver, sets forth several condi tions which must be satisfied to a llow for suc h impe achm ent. Am ong th e se conditi ons are the followi ng:-8- (2) The crime mus t be pu nisha ble by death or imprisonment in excess of one year under the law under which the witness was co nvicted or, if

not so punishabl e, the cri me must have invol ve d dishon esty or false statem ent. (3) If the witness to be i mpeached is the accused in a cri minal prosecution , the State must give t he acc used reasonable wr itten notice of the i mpeaching convict ion before trial , and the cour t upon request must d etermin e that th e convicti on’s probative value on credibility outweighs i ts unfai r prejudi cial ef fect on th e subs t antive issues. The c ourt may rul e on the admissibi lity of such proof

prior to the trial but in a ny event s hal l rule prior to t he testi mony of the accused. If the court makes a fi nal determ ination that su ch pro of is a dmis sible for impeachment purposes, the accus ed need no t actua lly testif

y at the t rial to later cha ll enge the propri ety of t he determinati on. Tenn. R. Evid. 609(a)(2 ) - (3). In de terminin g wheth er the pro bative valu e of a prior convicti on on the issue of credibility outw eighs its unfair pr ejudici al effec

t on the substantive issues, a t rial court shoul d (a) “assess the simil arity

between the cri me on trialand the cri me underlying t he impeaching convi ction” and (b) “analyze the releva nce the impea ching co nviction ha s to the issue of cr edibility.” State v. Farmer , 841 S.W

. 2d 837, 839 (Tenn. Cri m. App. 1992); Nei l 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 betwee n th e c harged offenses and the Defendant’s prior convictions, the probative value of th e prior con victi ons on credibi lity did not out

weigh the unfair prejudic ial eff

ect on the substantive i ssues. Thus, t he trialcourt ruled that the State c ould not impe ach the Defen dant with re ference to the specific nature of his pri or convict ions. We believe the trial judg e was correc t in this determinati on. The trialcourt did, however, rul e that theState could impeach the Defen dant with re ference to his con victions as “felonies inv olving dish onesty.”-9- Such a proc edure was fo ll owed in a very similar case recently before another panel of th is Court. See State v. Ross Jones , C.C.A. No. 01C01- 9405- CR-00175, Davidso n Cou nty (Ten n. Crim. A pp., Nas hville, Feb. 8 , 1995), per m. to appeal denied conc urring in resu lts only (Tenn. 1995). In Jones , the defendan t
was charge d with agg ravated b urglary. Id. at 2. H e had six prior burg lary convictions. Id. at 8. The trial court ruled that

the State coul d not refer to th e spec ific nature of t he prior convicti ons when impe achin g the d efend ant, bu t could ask him if he had be en convicted o f “felonies involving dishon esty.” Id. On appe al, this Court

stated th at although “this metho d of ident ifyi ng the convic tions forimpeachment purposes is not sp ecifically pr ovided for

by Rule 609 of t he Ten nessee Rules of Evidence, we are unable to conclude t hat this a ctio n constitutes error un der the circum stances of this ca se.” Id.

The Defendant nevert heless contendsthat allowin g the Sta te to impeach him with reference to “felonies i nvolvi ng dishonesty ” was improper. Citing State
v. Barnard , 899 S.W.2d 617, 622 (Tenn. Cr im. App. 1994), he argues that th e use of “generic f

elonies” for impeachment purposes is misleadi ng to the j ury and prom otes c onfus ion of th e issue s at trial b ecau se it invites the jury to specu late
as to the natur e of the im peach ing felonie s. In Barnard , the defendan t was found guilty of fir

st degree murder, aggravated robbery and aggravated sex ual battery. Id. at 620. At tri al, theState was permit ted to impeach t he defendant based on his convicti on for sexualbattery in C alifornia. Th e trial court a llowed the State to elicit the fact of the conviction without r efer ring to t he specifi c nature of t he offense

. Id. at 621. On appeal, a panel of t his Court concl uded that the l imited admission of the fact that the defendant

had a prior f

elonyconviction was e rror. Id. at 622. This Court commented as follows:-10- Altho ugh we agree that t he trialcourt mini mized the prejudici al impact by l imitingimpeachmen t evi dence to the mere fact thatappell ant had a prior felony co nvict ion, webelieve admi ssion in this instance waserror. As previousl y noted, the probative value of appe llant’s prior conv iction on th e issue o f credibility was slight. Moreover, the prejudic ial effect, while mit igated, could have all owed the jury to unne cess arily spe culate as to th e type o f felony a ctually committed. As such, the unfai r prejudici al effec t of the prior convicti on outweighed i ts probative value. Id.

Barnard was dec ided shortly before the filing of Jones . Shortl y after the fili ng of Jones , another pan el of this Court confro nted a situation sim ilar to Barnard
. See State v. Sum mera ll , 926 S.W.2d 272 (Tenn. Crim. A pp. 199 5). In Sum mera ll , the defendant was indicted for fi rst degree murder and convicted of second degree m urder. Id. at 274 . At trial, the State was permitted to i mpeach the defend ant bas ed on a prior conv iction for sec ond de gree m urder. Id. at 276. The trialcourt all owed the State to ask the defendant on cross-examination if he
was “the sam e Ron ald Su mm erall wh o was convic ted in Indictment number 89- 06732, February 23 , 1990, for a felony.” Id. On appeal, the Summ era ll court noted the prior

decisions i n both Barnard and Jones , pointing out t hat the case before them was “m ore clo sely ali gne d with the f acts in Barnard ” because the impeaching conviction did not invo lve dishon esty. Id
. at 277. Based on the analysi s of Barnard and Jones , the Sum mera ll court we nt on to sta te that “i t would appear that a ‘generic’felony pr ovides inadequate information for the jury to properly

weigh its

probative value. Wh ile th is is a clo se ca se, the ruling in Barnard , which bears the approv al of our suprem e court, is the mo re persuasive authority.” Id. As a result , the Sum mera ll court concluded that it was err

or for t he State to impea ch the de fendan t with reference to his conviction “for a felony.” Id.-11- App lying thepri nci ple s fr om Barnard , Jones and Sum mera ll to t he cas e sub judice , we believe the trialcourt did not err i n permitti ng the State to impeach the Defendant wit h reference to “feloni es involv ing dishonesty. ” The case at bar, like Jones , i s di sti nct from Barnard and Sum mera ll . In both Barn ard an d Sum mera ll , the impeaching con victi on did not involv e dishonesty and, as a result,
was of minim al proba tive value on the issue of credibility. Summe rall , 926 S.W.2d at 276-2 77; Barnard , 899 S.W .2d at 622 . In the pres ent case, as i n Jones , the impeaching con victi ons do invo lve dishon esty. Jones , C.C.A. No. 01C01 -9405-CR-00 175, slip op. at 8; see State v. Miller , 737 S.W.2d 556, 559 (Tenn. Crim. App. 1987) (stati ng thatburglary is a crime involving dishone sty for impeachment purposes). Obvi ously, t he probat ive v alue of a pri or convict ion involving dis hones ty on the iss ue of cre dibility is significan t.
Furthermore, in both Barnard and Sum mera ll , the State wa s perm itted to impeach the defen dant with reference on ly to “a felony.” Sum mera ll , 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 i nvolvi ng dishone sty.” Jones , C.C.A . No. 01C01- 9405- CR- 00175, slip op. at 8. W e belie ve that th is method of impeachment not only minimizes unfair p rejudici al impact by concealing the specif ic nature of prior convicti ons similar

to the charg ed offense, but also minimize s the possibil ity of speculati on by the jur y as to the nature of t he prior conviction
. Impea chme nt with refere nce to “felonies involv ing dishon esty ” rather than simply

“feloni es” focuses t he j ur y’s attention on t he relevant issue,
nam ely the credib ilit

y of the wi tness, rat her than on themere fact that the witness has a prior c onvicti on . Coupled with a general jur y instructi on that such impeachment evidence may be considered onl y on the iss ue of credibil ity and not2 The Defendant also ar gues that evidence of his prior convi ctions shoul d 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 al ready concl uded that t he trial court didnot err i n determining that the probativ e value of the limited impeachment evidence on credi bility out weighed any unf

air prej udicial effe ct on the s ubs tantiv e issu es, w e can not c onc lude t hat th e pro bative value was subs tantia lly outweigh ed by the d anger o f unfair pre judice. T he De fendan t’s argum ent lack s me rit. -12- as substanti ve evidence of gu ilt, we be lieve tha t the im peac hing e videnc e’s potential fo r an unfa ir prejudicial e ffect on the substan tive issues is slight.

In the case sub judice , the impeaching convicti ons, although similar to the charged offenses, were highly rel evant to the issue of credibil ity because they
were crimes invo lving dish onesty. The t rial cour t determined t hat under the restri ctionsgoverning the use of the Defendant’s prior convict ions fo r impea chme nt, their pro bative v alue o n the is sue o f credib ility outwe ighed their unfair prejudicial effect on the s ubstantive issues. We cannotconclude that the trialcou rt abuse d its di scretion in ruli ng that the prior conv iction s would be admissible, in a li mited manner, for the purpose of

impeachment if t he 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 “f

elonies i nvolvi ng dishonesty ,” the
erro r is harm less und er the circu mstan ces of this c ase. See Tenn. R. App. P
. 36(b); Tenn. R. Crim. P. 52(a). The p roof of th e Def enda nt’s gu ilt is quite strong. In additio n, the Defendant did not make an off

er ofproof as to his proposed t rial testimony. As such, weare una ble to asse ss the full imp act of th e trial co urt’s ruling that his prior convictions w ere admis sible for im peach ment p urpose s. See State v. Abraham Galmore , C.C.A. N o. 02C 01-960 7-CR -00230 , Shelby C ounty (Tenn. C rim. App., Jack son, Sept. 9, 19 97).-13- Fo r the reasons set

forth i n the discussi on above, we concl ude that the Defe ndan t’s issues on appeal lackmerit. We therefore affirm the ju dgme nt of the trial court.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOE B. JONES, PRESI DING J UDGE

___________________________________ JOE G. RILE Y, J UDGE