Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs March 14, 2017
from the Criminal Court for Davidson County No. 2013-B-1033
Monte D. Watkins, Judge
Davidson County Criminal Court Jury convicted the Appellant,
Virgil Lucas Baker, of aggravated burglary, a Class C felony;
vandalism of property valued more than $500 but less than $1,
000, a Class E felony; and assault, a Class A misdemeanor.
After a sentencing hearing, the trial court sentenced him to
concurrent sentences of fifteen years; six years; and eleven
months, twenty-nine days, respectively. On appeal, the
Appellant contends that the trial court erred by denying his
motion to suppress the victim's identifications of him
and that the evidence is insufficient to support the
convictions. Based upon the record and the parties'
briefs, we affirm the judgments of the trial court.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Rae Tennent (on appeal) and Chaucey Fuller and Will
Allensworth (at trial), Nashville, Tennessee, for the
appellant, Virgil Lucas Baker.
Herbert H. Slatery III, Attorney General and Reporter;
Katherine C. Redding, Assistant Attorney General; Glenn R.
Funk, District Attorney General; and Nathan McGregor,
Assistant District Attorney General, for the appellee, State
McGee Ogle, J., delivered the opinion of the court, in which
Robert W. Wedemeyer and Camille R. McMullen, JJ., joined.
MCGEE OGLE, JUDGE.
trial, Cory Owen, the victim, testified that about 11:00 a.m.
on Sunday, August 14, 2011, he and his eleven-year-old son
were in the basement of their newly constructed home on Stone
Hall Boulevard in Hermitage. The residential lots on either
side of the home were vacant, and the victim's wife was
at work. The victim's car was in the garage, the garage
door was down, and no other cars were in the driveway.
victim testified that he heard "kind of like a slapping
sound" on the main floor and went upstairs to
investigate. As he got to the front door, he encountered the
Appellant, who had come out of the master bedroom. The
Appellant was wearing a t-shirt and shorts, and the victim
had never seen him before that day. The Appellant hit the
victim and knocked him down, and they "tussled."
The victim said that he sustained numerous scratches and
bruises and that his "only thought at that point was to
get between [the Appellant] and his son."
victim testified that the Appellant ran out the front door.
The victim said he thought about his son and who else could
be in the house, so he went into the master bedroom, took his
loaded Glock pistol out of his nightstand, and pulled back
the slide to make sure a round was in the chamber. He then
went to find his son and see if anyone else was in the home.
As he passed the front door, he saw the Appellant in the
front yard and a car parked on the street. He said that the
Appellant was "fumbling and looking like he was coming
back in, " so he shot at the car six to eight times to
warn the Appellant to go away. Four or five bullets hit the
car's back door, front door, and windshield, and the
Appellant fled in the car. The victim described the car as a
"four-door Honda Civic, kind of gray, silvery
victim testified that he telephoned 911 and that he went to
the emergency room "to get checked out." The front
door to his home had been kicked in and "the casing on
the side and the trim work [had been] taken off."
Nothing in the house was missing, but a jewelry box in the
master bedroom was open. A pillow from the bedroom was in the
hallway just outside the bedroom, and a brown cotton glove
was in the hallway between the living room and the front
door. The victim said that he did not remember if the
Appellant was wearing gloves or dropped anything but that the
glove found in the hallway did not belong to anyone in his
family. The next day, the victim paid "around $1,
000" to replace the "whole interior" of the
front door. He said he paid cash and did not receive a
receipt. He identified photographs of his injuries, the
damage to the front door, the glove and pillow, and a sliver
Honda Accord with broken windows and bullet holes in the
victim testified that Detective Craig Christie showed him a
six-photograph array a couple of days after the break-in but
that he was unable to identify anyone. He stated that the
incident was "pretty devastating" and that he was
still "shook up" when he looked at the array. On
September 27, Detective Christie showed him another array,
and he selected the Appellant's photograph. He explained,
I remember at that point taking more time, kind of looking at
my hands or isolating each picture versus being overwhelmed
by a line-up and me actually having to see a line-up. I just
kind of took my time, uh, and was able to pick him out, so I
guess it was more of kind of a hindsight type thing. It was
very easy to identify him at that point.
The [September 27] line-up I believe was a more recent
picture which kind of made me realize okay, the first line-up
was not, the general line-up did not look like him. I have
seen the line-up now, the first and the [September 27] one
and the first one, more facial hair, more hair on his head
and it just did not seem like him the day that he broke in.
The [September 27] line-up was a clearer picture, a more
recent picture, and he looked more like the day that he had
[W]hen he broke in he had a little bit of scruff, hair was
very short. The first line-up that I saw was totally
opposite. He had a lot of facial hair, a lot, uh, he had
hair. The [September 27] more recent picture looked more like
him in the face and the eyes is kind of what I was focusing
on. He had shorter hair and the less, less facial hair.
the first array, the victim testified that he was "more
rushed, " "just kind of wanted to get out of the
room, " and did not take the time he should have to look
at the photographs. The State asked if the victim was 100%
certain about his identification of the Appellant in the
September 27 array, and he said yes. At the conclusion of his
testimony, he identified the Appellant in court as the
intruder and said that "I know this is the guy that
broke in my house."
cross-examination, the victim testified that he selected a
photograph from the first array but told Detective Christie
that "[he] felt like [he] was just trying to pick
somebody at random and [he] wasn't confident in
that." He stated, "At that time frame, I thought it
looked similar [to the intruder], but I wasn't
positive." He acknowledged that he was "dazed"
by the intruder's hitting him and that he and the
intruder "were busy fighting." About six weeks
later, on September 27, Detective Christie showed him another
six-photograph array, and he selected the Appellant's
photograph. He acknowledged that the Appellant's
"eyes and nose stood out" and that he was positive
of his identification.
victim testified that he never saw the Appellant with a
weapon or a glove and that the police did not collect the
pillow from the hallway. Items of value were in the jewelry
box, but nothing was missing. He said he shot at the getaway
car to scare the Appellant, not to injure or kill him, and
that he did not remember telling 911 the car was a silver
Pontiac. He said that based on the placement of the bullet
damage in the silver Honda Accord in the photographs, he was
sure it was the getaway car. He said that the man who
repaired his front door was a "friend of a friend"
but that the man was a licensed contractor who did "trim
work" for a living.
redirect examination, the State showed the first photograph
array, with three black and white photographs on the top and
three black and white photographs on the bottom, to the
victim. The victim acknowledged that he selected the bottom
left photograph, which was photograph number four. However,
he told Detective Christie that "[he] was not confident
at all." The Appellant's photograph was in the top
right position in the first array and was photograph number
three. The victim explained that the Appellant's
photograph in the first array showed the Appellant with more
hair on top of his head and more facial hair than was present
on the day of the incident. The State then showed him the
September 27 array, which also had three black and white
photographs on the top and three black and white photographs
on the bottom. The victim said he immediately selected the
top right photograph, which was photograph number three, as
the intruder. He acknowledged that the photograph was that of
the Appellant and said that it looked more like the Appellant
on the day of the break-in than photograph number three in
the first array. He also acknowledged that photograph number
one in the first array and photograph number two in the
September 27 array were the exact same photographs of another
man. However, he did not notice they were the same
photographs when he looked at the array on September 27.
Coakley testified that she was the Appellant's
fiancé and that she did not want to testify against
him. On August 14, 2011, Coakley and the Appellant were
"separated, " but she loaned her car to him. When
the car was returned to her, bullet holes were in the body,
the windows were broken, and glass was on the floorboards.
Coakley's friends notified the police, and she spoke with
an officer. The State showed Coakley photographs of a silver
Honda Accord with broken windows and bullet holes, and she
identified it as her Honda.
cross-examination, Coakley acknowledged that she spent time
with the Appellant on the morning of August 14. He woke her
about 9:30 or 10:00 a.m. and asked if she was going to sleep
all day. The Appellant was acting normal and was not nervous.
When Coakley saw her car later that day, it was damaged. The
damage to the windshield was not caused by a bullet and
appeared to have been caused by a blunt object. She stated,
"And that is how the police report was written up was a