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State v. Moore

Court of Criminal Appeals of Tennessee, Jackson

June 29, 2017


          Session February 7, 2017

         Appeal from the Criminal Court for Shelby County No. 13-06261 James M. Lammey, Judge

         A Shelby County jury convicted the defendant, Lavelle Moore, of six counts of theft of property over $500 but less than $1000. The trial court merged the convictions into two counts and imposed an effective sentence of twelve years. On appeal, the defendant contends the evidence is insufficient to support his convictions; the trial court abused its discretion by ruling the defendant could be impeached with his prior theft conviction; the theft convictions violate double jeopardy; the trial court erred by ordering the defendant, during deliberations, to stand before the jury and display his eyes; the trial court abused its discretion by telling the jury to keep working after it reached an impasse; and the trial court abused its discretion when imposing consecutive sentences. After a thorough review of the record, we conclude the evidence was sufficient; the trial court properly allowed the defendant to be impeached with his prior theft conviction; and the convictions did not violate principles of double jeopardy. However, we also conclude the trial court erred when allowing the jury to view the defendant's eyes in close proximity for the first time after the case had been submitted to the jury. This error was not harmless. Accordingly, we reverse the judgments of the trial court and remand for a new trial. Because we have remanded this matter for a new trial, the defendant's final issues concerning the trial court directing the jury to continue deliberations and sentencing are pretermitted.

         Tenn. R. App. R. 3 Appeal as of Right; Judgments of the Criminal Court Reversed and Remanded.

          Lance R. Chism, Memphis, Tennessee, for the appellant, Lavelle Moore.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Chris Lareau, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Camille R. McMullen, J., joined.


          J. ROSS DYER, JUDGE.

         Facts and Procedural History

         The record reflects a Shelby County grand jury indicted the defendant on December 19, 2013, for theft of property over $500 - conduct involving merchandise. His jury trial went forward May 12, 2015, and the parties presented the following evidence:

         Around 10:00 a.m. on March 10, 2012, the defendant entered a Best Buy store in Shelby County, Tennessee. David Tolbert, a Best Buy employee, witnessed the defendant walking around the store, holding a bag, and wearing black pants, a black shirt, and a black hat. Video surveillance from the store shows the defendant walking through the store holding a blue bag with an item in it. As the defendant exited the store, the security alarm sounded. Store employees noted the defendant was carrying a bag containing a laptop with a security device still attached. They asked the defendant to produce a receipt for the laptop, and he refused.

         Around 7:44 p.m. the same day, the defendant returned to Best Buy with another man. The defendant wore the same black pants, black shirt, and back hat. Justin Jaynes, a Best Buy employee, noticed the man with the defendant carrying a bag containing a Toshiba laptop, and asked Patrick Hitt, a Best Buy employee working at the asset protection desk, to check the man's receipt before allowing him to leave the store. When the men exited the store, Mr. Hitt complied and asked to see the receipt and the contents of the bag. Matthew Salamon, another Best Buy employee, approached and witnessed the defendant hand a receipt to Mr. Hitt, while his accomplice walked into the parking lot with the bag, sounding the security alarm. Mr. Hitt told the defendant he needed to see the contents of the bag, and the defendant grabbed the receipt from Mr. Hitt's hand, said "f**k you, " and walked into the parking lot.

         Once in the parking lot, the defendant and his accomplice got into the same car, and the defendant drove away. Mr. Salamon recorded the license plate number on the vehicle and contacted Detective Raual Gonzales with the Shelby County Sheriff's Department. Detective Gonzales researched the tag numbers and determined the vehicle was registered to the defendant. Mr. Salamon performed an inventory check after the store closed and noted two laptops were missing - a Samsung with an $873 value, and a Toshiba with a $750 value.

         A couple weeks after the theft, Detective Gonzales returned to Best Buy with a photo lineup. Mr. Tolbert could not identify the defendant, but Mr. Salamon did. Mr. Salamon testified he was able to identify the defendant in the lineup due to his eyes because "[h]is eyes are very dark, and they just - they stand out to me." Both Mr. Hitt and Mr. Tolbert also acknowledged remembering the defendant due to his eyes. According to Mr. Tolbert, "there was something strange about his eyes." According to Mr. Hitt, he remembered the shape of the defendant's eyes and the way "he looked at me directly in the eyes when he said, 'F**k you, ' to me, and you know that was something that I didn't really forget."

         The State called Mr. Tolbert, Detective Gonzales, Mr. Jaynes, Mr. Hitt, and Mr. Salamon to testify at trial. In addition, the State played store surveillance video from the day in question, and Mr. Salamon identified the defendant in footage from both the morning and evening thefts. The defendant did not present proof.

         After closing arguments and being charged, the jury began to deliberate at 10:52 a.m. on May 14, 2015, and subsequently broke for lunch from 12:39 p.m. to 1:45 p.m. At 2:11 p.m., the jury sent a note to the trial court indicating they were deadlocked. The trial court told the jury to continue to deliberate. Deliberations resumed, and at 2:29 p.m., the trial court informed the parties that the jury "wants to take a look - close up look at the defendant's eyes." The defendant objected, stating he had been in the court room for two days, giving the jury ample opportunities to observe his eyes. The trial judge disagreed, noting the defendant raised the defendant's eyes on cross-examination and relied heavily on the identification of the defendant only by his eyes in closing. The trial court found it would "only be fair that [the jury] should be able to get a better look at his eyes, " particularly due to the good lighting in Best Buy and the poor lighting in the courtroom. The trial court then directed the defendant to stand close to the jury, in the light, and walk in multiple directions. The jury resumed deliberations at 2:42 p.m. and returned a verdict at 3:20 p.m., finding the defendant guilty of six counts of theft of property over $500 but less than $1000.

         The defendant's sentencing hearing went forward September 23, 2015. The trial court noted counts one through three and counts four through six were alternative factual scenarios for the same theft, so counts two and three merged into count one and counts five and six merged into count four. When considering the applicable enhancement factors, the trial court found the defendant had a previous history of criminal convictions and behavior in addition to that necessary to establish the appropriate range. Moreover, the defendant was on probation at the time he committed the crimes at issue. The trial court, therefore, sentenced the defendant as a Range 3, persistent offender, to two sentences of six years to be served at forty-five percent. After finding the defendant to be a professional criminal who knowingly devoted his life to criminal acts as a major source of livelihood, the trial court ordered the defendant to serve these sentences consecutively, for a total effective sentence of twelve years.

         The defendant filed a timely motion for new trial, arguing, in part: the trial court erred when allowing the defendant to be impeached with a prior felony conviction for theft over $1000; the trial court erred when responding to a jury question; the trial court erred when allowing the jury to observe the defendant's eyes after the close of proof and while in the process of deliberating; and the trial court erred when sentencing the defendant. The trial court denied the motion on November 23, 2015. The defendant filed a motion for permission to file a late notice of appeal in this Court on January 14, 2016. On January 20, 2016, this Court, pursuant to Tennessee Rule of Appellate Procedure 4(a), found that the interest of justice required the waiver of the timely filing of the defendant's notice of appeal, so the defendant proceeding with filing his late notice on January 27, 2016.


         On appeal, the defendant argues: the evidence was insufficient to support his convictions; the trial court abused its discretion by ruling he could be impeached with his prior theft conviction; his convictions violate the double jeopardy clauses; the trial court erred by not giving the expanded identity jury instruction; the trial court erred by ordering the defendant to display his eyes to the jury during deliberations; the trial court abused its discretion by telling the jury to keep working when it was clear the jury was unable to reach a verdict; and the trial court abused its discretion when ordering consecutive sentencing.

         I. Sufficiency of Evidence

         When the sufficiency of the evidence is challenged, the relevant question of the reviewing court is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e) ("Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt."); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the credibility of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). "A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State." State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our Supreme Court has stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523 (1963)). "A jury conviction removes the presumption of innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has the burden of demonstrating that the evidence is insufficient." State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

         Guilt may be found beyond a reasonable doubt where there is direct evidence, circumstantial evidence, or a combination of the two. State v. Matthews,805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for sufficiency of the evidence "'is the same whether the conviction is based upon direct or circumstantial evidence.'" State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact must evaluate the credibility of the witnesses, determine the weight given to witnesses' testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State,575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the jury determines the weight to be given to circumstantial evidence and the inferences to be drawn from this evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence are questions ...

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