IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL 1998 FILED
April 22, 1999
STATE OF TENNESSEE, ) No. 02C01-9706-CR-00225
) Cecil Crowson, Jr.
Appellee, ) SHELBY COUNTY Appellate C ourt Clerk
)
v. ) HON. JOSEPH B. DAILEY,
) JUDGE
SIDNEY AND DONALD )
MCGLOWAN, ) (Burglary and Theft of
) Property)
Appellants. )
For the Appellants: For the Appellee:
Walker Gwinn John Knox Walkup
Assistant Public Defender Attorney General and Reporter
Memphis, Tennessee
(Defendant Sidney McGlowan)
Thomas C. Fila Marvin E. Clements, Jr.
Memphis, Tennessee Assistant Attorney General
(Defendant Donald McGlowan) Nashville, Tennessee
John W. Pierotti
District Attorney General
Memphis, Tennessee
Terrell Harris
Assistant District Attorney General
Memphis, Tennessee
OPINION FILED: ___________
AFFIRMED
William M. Barker, Special Judge
OPINION
The appellants, Sidney McGlowan and Donald McGlowan, appeal as of right
from their convictions in Shelby County Criminal Court.1 Both appellants were
convicted of burglary of a building and theft of property with a value greater than
$1,000 but less than $10,000. See Tenn. Code Ann. §§39-14-402 (1997) & 39-14-
103 (1997). Appellant Sidney McGlowan was sentenced to serve two concurrent
sentences of twelve years, as a career offender. The court sentenced appellant
Donald McGlowan to serve two concurrent sentences of six years.
On appeal, appellants each raise the following two issues: (1) whether the trial
court properly denied Sidney McGlowan’s motion for a severance; and (2) whether the
trial court properly denied their motion to suppress evidence. In addition, appellant
Sidney McGlowan argues that the evidence is insufficient to sustain his conviction.
Our review of the record reveals that no reversible error was committed in the trial
court. Accordingly, we affirm the appellants’ convictions and sentences.
BACKGROUND
During the early morning hours of July 25, 1995, Officers Joseph Boerner and
James McCluskey, of the Memphis Police Department, were driving westbound on
Deerskin Road. Officer McCluskey was following Officer Boerner in a separate patrol
car. Between approximately 2:30 a.m. and 2:50 a.m., the officers saw an approaching
car turn off its headlights. The car continued moving for twenty yards, without
headlights, until it turned into the driveway at 615 Deerskin Road. This behavior
caused the officers to become suspicious. The officers turned on their patrol car’s
blue lights and pulled up to the house.
After stopping their car, both appellants exited the vehicle and walked quickly
toward the residence. The officers stopped the appellants before they entered the
house. Officer Boerner questioned Donald while Officer McCluskey questioned
Sidney. Officer Boerner asked Donald to show him his driver’s license. In reply,
1
Sidney and Donald McGlowan are brothers. For clarity, we will refer to them either by their first
names or their full names.
2
Donald admitted that he did not have a license in his possession. Officer Boerner
subsequently arrested Donald for driving without a license and placed him in the back
of his patrol car.
While Officer McCluskey was speaking with Sidney, he noticed a clear plastic
bag sitting on the passenger seat of the vehicle. The bag contained seven miniature
televisions with price tags attached to them. Sidney initially told Officer McCluskey
that he had gotten the televisions from a friend who lived down the street. However,
he later stated that he acquired the televisions by trading cocaine for them.
Officer McCluskey then called the dispatcher, who reported that seven
televisions had been stolen from McDuff Electronics earlier that evening. A search of
the trunk revealed four camcorders with McDuff Electronics price tags hanging on
them. Based on the foregoing, the officers also arrested Sidney McGlowan.
The appellants were thereafter indicted for one count of burglary of a building
and two counts of theft of property with a value more than $1,000 but less than
$10,000. Before trial, both appellants filed a motion to suppress evidence. The trial
court denied the motions to suppress. It also denied Sidney McGlowan’s motion for
severance of the appellants.
At the suppression hearing, the appellants testified that they were drinking beer
in their yard at Deerskin Road when the officers approached them. Both appellants
testified that Sidney had not been in the car that night. Donald said that he purchased
the televisions from a man down the street.
ANALYSIS
Appellants first contend that the trial court improperly denied the motion to
sever the proceedings. Appellant Sidney McGLowan contends that he was found
guilty by association because both appellants have the same last name and live in the
same house. However, he does not identify any prejudicial use of evidence during the
joint trial. Appellant Donald McGlowan argues that he was prejudiced by antagonistic
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defenses and was forced to defend himself against his co-defendant as well as the
State. The record does not reflect any such antagonistic defense or “finger pointing”
from his co-defendant. Donald further argues that during opening and closing
arguments, Sidney’s counsel stated that Donald was solely responsible for the crime.
However, these arguments do not appear in the record before us, which precludes our
review. Tenn. R. App. P. 24(g); State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993)
(citations omitted).
Tennessee Rules of Criminal Procedure 14(c)(2)(i) and (ii) provide that a trial
court shall grant a motion to sever if deemed appropriate to promote or achieve a fair
determination of the guilt or innocence of one or more of the defendants. The trial
court possesses substantial discretion to grant or deny a motion for severance and its
decision will not be reversed absent a showing of prejudice. State v. Hutchinson, 898
S.W.2d 161, 166 (Tenn. 1994). Moreover, “mere hostility between defendants,
attempts to cast the blame for the offense on each other, or other ‘finger pointing and
tattling will not, standing alone, justify the granting of [a] severance on the ground the
defendants’ respective defenses are antagonistic.’” State v. Mabry, 1992 Tenn. Crim.
App. LEXIS 535, C.C.A. No. 01C01-9112-CC-00369, Davidson County (Tenn. Crim.
App., Nashville, June 19, 1992), perm. to appeal denied (Tenn. 1992) (quoting United
States v. Arruda, 715 F.2d 671, 679 (1st Cir. 1983)). The record must show that the
appellants were clearly prejudiced to the point that the granting of severance became
a judicial duty. State v. Burton, 751 S.W.2d 440, 447 (Tenn. Crim. App. 1988).
Appellants have failed to demonstrate any prejudice resulting from the denial of the
motion for severance.
We are of the opinion the trial court did not abuse its discretion in denying the
motion for a severance. This issue is without merit.
In their second issue, appellants argue that the trial court erred in denying their
motions to suppress all evidence obtained as a result of an investigatory stop and
4
search of the vehicle.2 Following a review of the record and applicable law, we
conclude that the trial court did not err in denying the motions to suppress.
Initially, we note that appellant Sidney McGlowan does not have standing to
challenge the search and seizure of appellant Donald’s car. One who challenges the
reasonableness of a search or seizure has the burden of establishing a legitimate
expectation of privacy in the place or property searched. Rawlings v. Kentucky, 448
U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); State v. Roberge, 642 S.W.2d 716,
718 (Tenn. 1982). Appellant Sidney has failed to establish that he had a legitimate
expectation of privacy in appellant Donald’s car. Therefore, we conclude that
appellant Sidney has no standing to object to the search and seizure. His motion to
suppress was properly overruled.
Appellant Donald first contends that the investigatory stop of his vehicle was an
unconstitutional seizure within the meaning of the Fourth Amendment. To make an
investigatory stop, an officer must, at minimum, have a reasonable suspicion, based
upon specific articulable facts, that a criminal offense has been or is about to be
committed. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889
(1968); State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992). To determine the
specific and articulable facts, the Court must consider the “totality of the
circumstances.” Watkins, 827 S.W.2d at 294 (citation omitted). This includes, but is
not limited to, objective observations, information obtained from other police officers,
and the rational inferences and deductions that a trained police officer may draw from
the facts and circumstances. Id.
At approximately 2:30 a.m. to 2:50 a.m., Officers Boerner and McCluskey saw
the appellant’s car driving toward them on Deerskin Road. As the car approached the
officers, the driver turned the automobile’s head lights off and continued driving for an
2
Neith er pa rty has elect ed to argu e tha t the c ontra ban d in the fron t sea t of the car c am e with in
the “p lain vie w” do ctrine . W e also have elect ed to not a ddre ss th at do ctrine since the s earc h wa s clea rly
justified as being a s earch inc ident to a law ful arrest.
5
additional twenty yards before turning into a driveway of a house. Both appellants
exited the vehicle and walked toward the house at a quick pace. Because of the
suspicious nature of the appellants’ behavior, the officers pulled up to the house to
question the appellants. Considering the “totality of the circumstances,” we agree with
the trial court that the officers had a reasonable suspicion, supported by specific and
articulable facts, that the appellants were committing or about to commit a criminal
offense. Therefore, we find no merit in the appellant’s contention that he was
subjected to an unconstitutional stop.
Appellant Donald next contends that the search of his automobile was an
unconstitutional search which violated his Fourth Amendment protection against
unreasonable searches and seizures and, as a result, the trial court should have
granted his motion to suppress the evidence obtained in the search. The analysis of
any warrantless search must begin with the proposition that such searches are
presumed unreasonable under the Fourth Amendment of the United States
Constitution and Article I, Section 7 of the Tennessee Constitution. This presumption
against the lawfulness of warrantless searches is subject only to a few specifically
established exceptions. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507,
514, 19 L.Ed.2d 576 (1967); State v. Tyler, 598 S.W.2d 798, 801 (Tenn. Crim. App.
1980). Before the fruits of a warrantless search are admissible as evidence, the State
must establish by a preponderance of the evidence that the search falls into one of
those limited exceptions to the warrant requirement. State v. Shaw, 603 S.W.2d 741,
742 (Tenn. Crim. App. 1980).
One such exception is a search incident to a lawful arrest. When an officer
makes a custodial arrest of a motor vehicle operator, the officer has full authority to
search the passenger compartment of the motor vehicle contemporaneously to the
arrest. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768,
775 (1990); Watkins, 827 S.W.2d at 295-96. The “contemporaneous” requirement of
the search is not destroyed when a defendant is placed in a patrol car. United States
6
v. White, 871 F.2d 41, 44 (6th Cir. 1989); Watkins, 827 S.W.2d at 296.
A driver is required to have a valid operator’s license in his immediate
possession at all times. Tenn. Code Ann. §55-50-351 (1998). Failure to have
possession of a driver’s license is a Class C misdemeanor, and any law enforcement
officer is empowered to arrest any person found violating the statute. Id. Appellant
Donald does not dispute the fact that he did not have a driver’s license in his
possession when Officer Boerner requested him to produce it. Immediately after
Officer Boerner discovered that Donald had been driving without a license, he arrested
him, handcuffed him and placed him in the back of his patrol car. Thus, Donald had
been lawfully arrested prior to the search of the vehicle. After Officer Boerner made a
valid custodial arrest of the appellant, he had a right to search the passenger
compartment of the appellant’s vehicle. The stolen property discovered as a result of
this search was admissible.
This court must next determine whether the search of the trunk of the vehicle
was valid. An automobile may be searched without a warrant if the officer has
probable cause to believe that the vehicle contains contraband and if exigent
circumstances require an immediate search. Carroll v. United States, 267 U.S. 132,
149, 155-56, 69 L.Ed.2d 543, 45 S.Ct. 280 (1925); State v. Leveye, 796 S.W.2d 948
(Tenn. 1990). If probable cause justifies the search of a lawfully stopped vehicle, it
justifies the search of every part of the vehicle, including the trunk area. United States
v. Ross, 456 U.S. 798, 72 L.Ed.2d 572, 102 S.Ct. 2157 (1982). The discovery of the
televisions coupled with the dispatcher’s report regarding the recent burglary at
McDuff’s Electronics provided the officers with probable cause to believe that the
vehicle contained additional stolen property.
The mobility of the vehicle itself supplied the requisite exigent circumstances to
conduct a warrantless search. Shaw, 603 S.W.2d at 744. There was a substantial
risk that the vehicle or the contraband would have been removed if the officers had left
the scene to procure a search warrant. Though it would have been impossible for
7
Donald to move the vehicle or the contents of its trunk since he had been arrested, his
brother, Sidney, was in a position to remove the vehicle and its contents. Given these
facts, we conclude that the police officers acted reasonably under the circumstances
and the search of the trunk area of the car was supported by probable cause and
exigent circumstances. For the reasons given, the evidence does not preponderate
against the trial court’s denial of the appellant’s motion to suppress.
In appellant Sidney McGlowan’s final issue, he contends that the evidence was
insufficient to support his conviction.3 Specifically, he argues that the fact he was a
passenger in a vehicle carrying recently stolen goods is not sufficient evidence to
support a conviction for burglary and theft of property.
An appellant challenging the sufficiency of the evidence has the burden of
illustrating to this Court why the evidence is insufficient to support the verdict returned
by the trier of fact. This Court will not disturb a verdict of guilt for lack of sufficient
evidence unless the facts contained in the record and any inferences which may be
drawn from the facts are insufficient, as a matter of law, for a rational trier of fact to
find the appellant guilty beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). In our review, we must consider the evidence in the light most
favorable to the prosecution in determining whether “any rational trier of fact could
have found the essential elements beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We do not reweigh or re-
evaluate the evidence and are required to afford the State the strongest legitimate
view of the proof contained in the record, as well as all reasonable and legitimate
inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978).
Criminal conduct may be established exclusively by circumstantial evidence.
State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987). However, the circumstantial
3
Appellant Donald McGlowan does not challenge the sufficiency of the evidence.
8
evidence “must be so strong and cogent as to exclude every other reasonable
hypothesis save the guilt of the defendant, and that beyond a reasonable doubt.”
State v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971). The trier of fact decides the
weight to be given to circumstantial evidence and to the inferences drawn from such
evidence, and the extent to which such circumstances are consistent with guilt and
inconsistent with innocence. See Marable v. State, 313 S.W.2d 451,457 (Tenn.
1958); State v. Coury, 697 S.W.2d 373, 377 (Tenn. Crim. App. 1985).
One may be convicted for theft of property if the State proves that with the
intent to deprive the owner, the defendant knowingly obtained or exercised control
over property without the owner’s consent. See Tenn. Code Ann. §39-14-103 (1997).
To sustain a conviction for burglary, the State must prove beyond a reasonable doubt
that the accused entered a building with an intent to commit a felony, theft or assault
and committed or attempted to commit a felony, theft or assault. See Tenn. Code
Ann. §39-14-402 (1997). The State is not required to produce a witness who saw the
defendants break and enter the premises in order to convict them of burglary.
Ramsey v. State, 571 S.W.2d 822, 824 (Tenn. 1978). Unexplained possession of
recently stolen property is sufficient evidence to sustain a burglary conviction. Smart
v. State, 544 S.W.2d 109, 110-111 (Tenn. Crim. App. 1976).
At trial, the evidence showed that at approximately 2:10 a.m., a burglary was
reported at McDuff Electronics. Seven mini-televisions and four camcorders were
stolen from the store. Sometime between 2:30 a.m. and 2:50 a.m., Officers Boerner
and McCluskey observed the appellants driving suspiciously down Deerskin Road.
When Officer McCluskey approached appellant Sidney McGlowan, he saw a plastic
bag containing seven televisions in the passenger seat of the vehicle. A later search
of the trunk produced four camcorders, all of which had McDuff Electronics price tags
attached to them. The appellants were in possession of the items stolen from McDuff
Electronics only twenty to forty minutes earlier.
Although the appellants claim that they did not steal the goods, the jury was
9
entitled to reject their theory in favor of the State’s theory. Questions concerning the
credibility of the witnesses, the weight and value to be given to the evidence, as well
as factual issues raised by the evidence are resolved by the trier of fact. Cabbage,
571 S.W.2d at 835. A guilty verdict rendered by the jury and approved by the trial
court accredits the testimony of the witnesses for the State, and a presumption of guilt
replaces the presumption of innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). Accordingly, we conclude that sufficient evidence existed to sustain the
convictions.
Having considered the entire record before us, we conclude that the trial court
committed no reversible error. Hence, we affirm the appellants’ convictions and
respective sentences.
_________________________________
WILLIAM M. BARKER, SPECIAL JUDGE
CONCUR:
_______________________
DAVID G. HAYES, JUDGE
_______________________
JOE G. RILEY, JUDGE
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