State of Tennessee v. Alton Tappan

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 7, 2006

STATE OF TENNESSEE v. ALTON TAPPAN

Appeal from the Criminal Court for Shelby County
No. 05-01325 Paula Skahan, Judge

No. W2006-00168-CCA-R3-CD - Filed May 29, 2007

A Shelby County jury convicted the defendant, Alton Tappan, of aggravated burglary and theft of
property valued at $1,000 or more but less than $10,000. The trial court imposed an effective
incarcerative sentence of 14 years. On appeal, the defendant challenges the sufficiency of the
convicting evidence and complains that his sentence is excessive because the State failed to prove
an offender range above Range I. Our review assures us that the evidence is sufficient and that the
defendant was properly sentenced. We therefore affirm the convictions and sentence.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JERRY L. SMITH and
ROBERT W. WEDEMEYER , JJ., joined.

C. Anne Tipton, Memphis, Tennessee, for the Appellant, Alton Tappan.

Robert E. Cooper, Jr., Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Chris West, Assistant District Attorney General,
for the Appellee, State of Tennessee.

OPINION

Viewed in the light most favorable to the State, the evidence at trial established that
on the morning of October 3, 2004, Elizabeth Young parked her 2000 Ford Taurus on the street
across from her church, located at Park and Marechalneil in Orange Mound, and attended
Communion services. When she left the church at approximately 1:45 p.m. to return home, she
discovered that her vehicle was missing. She contacted local law enforcement officers and reported
the theft. A few days later, Ms. Young was watching television and recognized her vehicle on a local
evening news broadcast. She later identified and retrieved her vehicle from the police impoundment
lot.
 At trial Ms. Young identified a photograph of her car, although she said that the
wheels were different. The car shown in the photograph had a distinctive license plate, “Z by B,”
which Ms. Young explained meant “Zeta by Beta,” her sorority. Ms. Young testified that her stolen
vehicle was “in pretty good shape” and had been driven approximately 21,000 miles prior to the
theft. She purchased the automobile in 2000 for $23,000. Ms. Young estimated that the value of
the vehicle as of the date it was stolen was “probably between nine and [$]10,000.”

Larry Gafford, who lived at 3524 Marianne in a duplex family residence, testified that
on October 5, he awoke at approximately 9:50 a.m. because someone was “aggressive[ly] knocking”
on his door. He looked out a window, and because he did not recognize the vehicle in the driveway,
he did not answer the door. He testified that the vehicle was a dark blue Ford Taurus, and he
identified a photograph of the vehicle taken outside his residence.

Mr. Gafford testified that he laid down on his couch, and at that point he heard
“another noise knocking on the next-door neighbor’s door.” He looked through his front-door
window and saw two men “prying open the iron door and kick[ing] in the wooden door” to the
neighbor’s residence. Mr. Gafford described one of the men as shorter than six feet tall, weighing
135 to 140 pounds, black, and wearing a white shirt and tennis shoes. The other man was
approximately six feet and three inches tall, weighing over 200 pounds, black, and wearing dark
colored clothing, “[b]luish gray.”

Mr. Gafford testified that he retrieved his pistol and called the police department.
Over the telephone, Mr. Gafford gave “an exact description as [the intruders] were going in and out”
of the neighbor’s residence carrying electronic equipment and a jewelry box. Mr. Gafford remained
on the telephone until the police officers arrived.

When the officers arrived, one of the intruders was coming out of the house, and the
other man was setting a stolen item at the vehicle. When the intruders saw the officers, they “eluded
to the side and went through the back door or through the side of the house” and escaped through
“the backyard.” In addition to the officers’ personal observations, Mr. Gafford also supplied the
responding officers “a full description of what [the intruders] were wearing, their size, their
activities, [and] exactly what they were doing.” Mr. Gafford saw the men again approximately 45
minutes later after the officers located and detained them. The officers brought the intruders
separately to Mr. Gafford to see if he could identify them. Mr. Gafford testified that he identified
the men as “the two guys that [he] saw actually break into the house 3 feet away from [his] face.”

Mr. Gafford admitted that when he testified at the defendant’s preliminary hearing,
he did not identify the defendant or the other intruder. He explained at trial, “Because instead of
myself making a mistake at the time I would of rather used the testimony that I gave earlier to the
police officers, to the detectives, to the 911 operator. If you put all of these together and you put
exactly what I say what they were wearing, it should match up directly to their booking sheet.” Mr.
Gafford did, however, identify the defendant at trial.

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 On cross-examination, Mr. Gafford stated that he had worked four hours on the night
of October 4 at Young Avenue Sound Studio. He went home shortly after midnight and fell asleep
on his couch. Mr Gafford denied having consumed any alcohol or narcotics that evening.

When asked on cross-examination to name the color of the intruders’ eyes, Mr.
Gafford replied that “[f]or the most part” he just saw the backs of their heads and the sides of their
faces. Mr. Gafford said that he remained inside his residence until the police officers arrived and
the intruders fled. He then walked outside and spoke with one of the officers. According to Mr.
Gafford, the police officers captured one of the intruders “fairly quickly off the bat within like the
first three or four minutes.” The officers captured the second intruder approximately 45 minutes
later. The officers drove the intruders separately to the break-in site, and Mr. Gafford testified that
he identified each suspect by the clothing they were wearing.

Defense counsel challenged Mr. Gafford’s in-court identification of the defendant,
particularly because Mr. Gafford failed to identify the defendant at the preliminary hearing. Counsel
alleged that Mr. Gafford “identified this man because he’s a male black,” to which Mr. Gafford
replied, “No. I identified that gentleman there as the guy that did the break into the house.”

Adriana Morales, who lived with her daughter at the burglarized residence, testified
that on the morning of October 5, 2004, she took her daughter to a doctor’s appointment. She
returned to the residence and “saw a lot of police cars in the street.” She spoke with the officers,
learned what had happened, and went to the police station to give a statement. At trial, she identified
numerous photographs depicting the damage to her residence and items of personal property, such
as a television and stereo equipment that had been moved to her porch and stereo speakers inside the
trunk of an unknown blue vehicle parked in her driveway.

Memphis Police Officer Shan Hicks testified that he responded to a call reporting a
“prowler” at 3526 Marianne. He saw two individuals on the front porch carrying electronic
equipment and a jewelry box. One of the individuals was dressed in a blue suede jogging suit, and
the officer recalled that the other man was wearing a white tee shirt. At trial, the officer identified
the defendant as one of the men on the porch.

As Officer Hicks got out of his police vehicle, the men ran “towards the back of the
house.” Officer Hicks pursued, but he lost sight of the intruders when he reached the backyard, at
which point he broadcast on his radio a description of the intruders. Officer Hicks returned to the
front of the residence and observed the blue vehicle in the driveway and numerous items of personal
property inside the vehicle. From its license plate, the officer identified the registered owner of the
vehicle and determined that the vehicle was stolen. At trial, the officer could not recall the name of
the vehicle’s owner.

Officer Hicks identified photographs of the residence’s interior, the “kicked-in” front
door, and items on the front porch. The officer recalled that the items on the porch shown in one of
the photographs had been removed from the backseat of the blue Taurus after crime scene officers

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had processed the area. Officer Hicks testified that other officers in the area apprehended two men
and transported them to the scene where Officer Hicks identified them as the intruders he had seen.

On cross-examination, Officer Hicks estimated that he was able to observe the
intruders for 10 to 15 seconds. He also estimated that he saw their faces “briefly for a second before
they ran off.” He testified that the men captured and returned to the scene had dark colored eyes.
The man in the jogging suit was wearing a hat, and the other man had a “fade cut.” The officer
testified that he could not tell if the men had any scars or gold teeth. Officer Hicks affirmed that the
second suspect who was in custody and transported to the scene 30 to 40 minutes later had been
stopped behind a Papa John’s pizza parlor located only one or two blocks from Ms. Morales’s
residence.

The defense presented testimony from one witness, Officer Alvin Davis, who arrested
the defendant “in front of the Papa John’s” in the “700 block of South Highland” at 11:08 a.m. The
officer testified that the arrest site is the “next street over” from 3526 Marianne. When the officer
saw the defendant, the defendant was “walking across the street from another residen[ce], like right
across from the pizza place . . . carrying a pizza box walking toward the Papa John’s.”

On cross-examination, Officer Davis explained that he arrested the defendant because
he matched the description of one of the men who had burglarized a residence in the area and
because the defendant appeared suspicious walking with a pizza box toward, not away from, the
pizza parlor.

Based upon the evidence presented the jury found the defendant guilty of the charged
offenses of aggravated burglary of Ms. Morales’s residence and theft of Ms. Young’s vehicle,
valued at $1,000 but less than $10,000. For his aggravated burglary conviction, the trial court
sentenced the defendant as a persistent offender to 14 years in the Department of Correction; for his
theft conviction, the trial court sentenced the defendant as a career offender to 12 years in the
Department of Correction. The court ordered the sentences to be served concurrently with each other
but consecutively to a sentence in another case.

The defendant filed a timely appeal. He challenges the sufficiency of the convicting
evidence and attacks the sentencing procedure followed in his case. We will discuss each issue in
turn.

SUFFICIENCY OF THE EVIDENCE

The defendant pursues a two-prong attack on the sufficiency of the convicting
evidence. He argues that the State failed to establish a legally sufficient basis that the value of Ms.
Young’s stolen vehicle was greater than $1,000. Regarding the aggravated burglary conviction, the
defendant maintains that the witnesses’ generalized identifications, based upon clothing, race, and
gender, were unreliable and insufficient to prove his guilt. As we shall explain, we disagree and
affirm the defendant’s convictions.

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 The standard for an appellate court when reviewing a challenge to the sufficiency of
the evidence is “whether, considering the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002); see also Tenn. R. App. P. 13(e); Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2791-92 (1979); State v. Hall, 8 S.W.3d 593, 599
(Tenn. 1999). Because a verdict of guilt removes the presumption of innocence and imposes a
presumption of guilt, the burden shifts to the defendant upon conviction to show why the evidence
is insufficient to support the verdict. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State
v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982). On appeal, the State is entitled to the strongest legitimate view of the evidence and to all
reasonable and legitimate inferences that may be drawn therefrom. State v. Smith, 24 S.W.3d 274,
279 (Tenn. 2000); see also Carruthers, 35 S.W.3d at 558; Hall, 8 S.W.3d at 599.

A verdict of guilt by the trier of fact resolves all conflicts in the evidence in favor of
the prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “Questions about
the credibility of witnesses, the weight and value of the evidence, as well as all factual issues raised
by the evidence are resolved by the trier of fact, and this Court does not re-weigh or re-evaluate the
evidence.” Evans, 108 S.W.3d at 236 (citing Bland, 958 S.W.2d at 659). Nor may this court
substitute its own inferences drawn from circumstantial evidence for those drawn by the trier of fact.
Id. at 236-37.

A. 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 (2003). If the value of the property is $1,000 or more but less than
$10,000, the theft is a Class D felony. Id. § 39-14-105(3). Code Section 39-11-106(a)(36) defines
“value” in the following fashion:

(i) The fair market value of the property or service at the time
and place of the offense; or

(ii) If the fair market value of the property cannot be
ascertained, the cost of replacing the property within a reasonable
time after the offense;

....

(C) If the property or service has a value that cannot be
ascertained by the criteria set forth in subdivisions (a)(36)(A) and (B),
the property or service is deemed to have a value of less than fifty
dollars ($50.00).

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Id. § 39-11-106(a)(36)(A)(i), (ii), (C). It is up to the jury to determine the fair market value of the
items stolen. State v. Hamm, 611 S.W.2d 826, 828-29 (Tenn. 1981).

Tennessee Rule of Evidence 701(b) permits the owner of personal property to testify
about the value of that property. Tenn. R. Evid. 701(b) (“A witness may testify to the value of the
witness’s own property or services.”); Reaves v. State, 523 S.W.2d 218, 220 (Tenn. Crim. App.
1975). He or she can testify about either the fair market value at the time of the offense or the
replacement cost. State v. Gene Allan Logue, No. W1999-01795-CCA-R3-CD, slip op. at 3 (Tenn.
Crim. App., Jackson, Dec. 15, 2000).

Here, Ms. Young testified that her stolen vehicle was “in pretty good shape” and had
been driven approximately 21, 000 miles. She purchased the automobile in 2000 for $23,000 and
had “kept up with the maintenance and all.” Ms. Young estimated that the value of the vehicle as
of the date it was stolen was “probably between nine and [$]10,000.” Based on her testimony, the
evidence was sufficient for the jury to determine that the value of her vehicle was more than $1,000.
See Gene Allan Logue, slip op. at 3 (given information presented concerning original purchase price,
the original condition of the property, and the length of ownership, the evidence was sufficient for
the jury to determine that value of the stolen property was more than five hundred dollars but less
than one thousand dollars).

The defendant likens Ms. Young’s testimony to the victim’s testimony about the
value of stolen coins in State v. Robert Nix, No. 136, slip op. at 3 (Tenn. Crim. App., Knoxville,
Sept. 6, 1991). However, Robert Nix is readily distinguishable from the present appeal. The victim
in Robert Nix initially guessed at the face value of some coins that were stolen and later admitted to
not knowing the value of the coins at all. Id. Ms. Young’s opinion is hardly classified as pure
speculation or conjecture. She explained to the jury that she based her opinion on the price that she
paid for the vehicle in 2000 and taking into consideration that when stolen in 2004, the vehicle was
in good condition and had only been driven approximately 21,000 miles. Her explanation had
sufficient details to permit the jury to decide whether her estimated value was appropriate. This
evidence, we hold, was legally sufficient to establish that the value of the stolen vehicle was $1,000
or more but less than $10,000.

B. Aggravated Burglary

The crime of aggravated burglary is committed when a person (1) without the
effective consent of the property owner (2) enters a habitation or remains concealed in such
habitation, and (3) has the intent to commit a felony, theft or assault, or does commit or attempt to
commit a felony, theft or assault. T.C.A. §§ 39-14-402, -403 (2006). The defendant acknowledges
that two witnesses, Mr. Gafford and Officer Hicks, provided identification testimony at trial, and
both men made in-court identifications of the defendant. Nevertheless, the defendant insists that
these identifications were “suspect and highly unreliable” such that the State failed to prove his
identity as the perpetrator of the aggravated burglary.

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 As recounted earlier, Mr. Gafford testified that he watched the defendant “from the
side perfectly in full form, rip open the door off the thing which is actually 3 feet in front of [his]
front door.” Officer Hicks testified at trial that he saw the defendant and the accomplice before the
men fled the scene. He estimated that he had his eyes on both men “ten maybe 10, 15 seconds.” The
identity of the defendant was a question of fact for the jury. State v. Phillips, 728 S.W.2d 21, 25
(Tenn. Crim. App. 1986). The defendant registers no complaint about the accuracy of the jury
instruction regarding identity. The jury could reasonably infer from the evidence that the defendant
was one of the men who broke into Ms. Morales’s apartment. This court is not at liberty to
reevaluate that assessment, and we hold that the evidence was legally sufficient to support the
defendant’s conviction for aggravated burglary.

SENTENCING

At the sentencing hearing in the present case, the defense conceded that for purposes
of the aggravated burglary conviction, a class C felony, the defendant qualified as a Range III,
persistent offender, see T.C.A. § 40-35-107(a)(1) (2006) (persistent offender is a defendant who has
received “[a]ny combination of five (5) or more prior felony convictions within the conviction class
or higher, or within the next two (2) lower felony classes”), and that for purposes of the Class D theft
conviction, the defendant qualified as a career offender, see id. § 40-35-108(a)(3) (career offender
is a defendant who has received “[a]t least six (6) prior felony convictions of any classification if the
defendant’s conviction offense is a Class D or E felony”). Accordingly, the sentencing range for the
aggravated burglary was 10 to 15 years, and the sentence for the theft was statutorily set at 12 years.
See id. §§ 40-35-108(c), -112(c)(3). Having so conceded, the defendant nevertheless insisted at
sentencing that he must be sentenced as a Range I offender because the State had not provided the
court with any certified judgments to establish the prior convictions.

The trial court adjourned and continued the sentencing hearing to allow time for the
State to obtain certified copies of the defendant’s judgment sheets. The State obtained the necessary
records and presented them to the court when the hearing resumed. Those records established 10
prior felony convictions that are Class B, D, or E felonies, which substantiated that the defendant
was a persistent offender for the aggravated burglary conviction and a career offender for the theft
conviction. The trial court imposed the statutorily required sentence of 12 years for the theft
conviction, and it sentenced the defendant to 14 years for the aggravated burglary conviction. The
trial court ordered that the sentences be served concurrently to each other but consecutively to an
earlier sentence for which probation was revoked.

From the defendant’s brief on appeal, it is not entirely clear whether he is arguing that
the State’s notice of intent to seek enhanced punishment, see T.C.A. § 40-35-202(a) (2006), was
defective because it did not include any certified judgments or that the court erred in continuing the
sentencing hearing to allow the State to obtain certified judgments. In either event, we discern no
basis to disturb the trial court’s sentencing determination.

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 The statutory notice of intent to seek enhanced sentencing is intended to “(a) provide
fair notice to an accused that he/she is exposed to other than standard sentencing, (b) to facilitate plea
bargaining, (c) to enable the accused to make an informed decision before entering a guilty plea, and
(d) to a certain extent, to aid in trial strategy.” State v. Livingston, 197 S.W.3d 710, 712 (Tenn.
2006). There is no evidence in the present case that the purpose of the notice requirement was
somehow thwarted.

Regarding the contents of the notice, Code section 40-35-202 “requires, at a
minimum, that the State file: (1) written notice, (2) clearly expressing the State’s intention to seek
sentencing outside of the standard offender range, (3) setting forth the nature of the prior felony
conviction, the dates of the convictions, and the identity of the courts of the convictions.”
Livingston, 197 S.W.3d at 713-14 (footnote omitted); see T.C.A. § 40-35-202(a) (2006). The State’s
notice in the record before us complies with these requirements, and the notice is not defective
because certified copies of the judgments of conviction are not attached thereto.

Moreover, we discern nothing improper about the trial court’s continuing the
sentencing hearing, and certainly the defendant has shown no prejudice. The presentence report is
considered to be reliable hearsay, making it unnecessary in most instances to introduce certified
copies of convictions. See State v. Adams, 45 S.W.3d 46, 59 (Tenn. Crim. App. 2000). The trial
court could have sentenced the defendant as a persistent and career offender based on the presentence
investigation report and was not required to impose Range I sentences in the absence of certified
copies of the judgments.

Based on the foregoing, we affirm the defendant’s convictions and sentencing.

____________________________________
JAMES CURWOOD WITT, JR., JUDGE

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