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State v. Rembert

Court of Criminal Appeals of Tennessee, Nashville

April 16, 2018


          Session November 14, 2017

          Appeal from the Criminal Court for Davidson County No. 2013-A-684 Mark J. Fishburn, Judge

         The Defendant, MacArthur Rembert, also known as McArthur Brown, was convicted by a Davidson County Criminal Court jury of aggravated burglary, a Class C felony, and theft of property valued between $1000 and $10, 000, a Class D felony, and was sentenced to an effective term of fifteen years in the Tennessee Department of Correction. On appeal, the Defendant argues that: (1) the trial court erred in denying his motion to suppress because the officer lacked probable cause to place him under arrest and search his vehicle; (2) the trial court erred in denying his motion under State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), because the State's loss of surveillance video footage resulted in a fundamentally unfair trial; and (3) the evidence is insufficient to sustain his conviction for theft of property because the State did not present sufficient evidence to establish the value of the stolen goods. After review, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

          Courtney A. Teasley, Nashville, Tennessee, for the appellant, MacArthur Rembert, aka McArthur Brown.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Janice Norman, Assistant District Attorney General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams and Norma McGee Ogle, JJ., joined.


          ALAN E. GLENN, JUDGE.


         The Defendant was indicted on seven charges arising from a series of crimes in an area of North Nashville that occurred in October 2012: one count of burglary of a motor vehicle, three counts of theft, and three counts of aggravated burglary. This appeal involves one count of aggravated burglary and one count of theft, stemming from an incident at the apartment of Malcolm Woodard on October 23, 2012.

         Prior to trial, the Defendant filed both a motion to suppress and a motion to dismiss. In his motion to suppress, the Defendant sought to exclude evidence obtained from his vehicle on grounds that the search was improper. In his motion to dismiss, the Defendant argued that all charges should be dismissed because of a failure to preserve evidence, i.e., a Ferguson violation. The trial court denied both motions.

         Facts Related to Motion to Suppress

         Frederick Massey testified at the preliminary hearing that on October 14, 2012, he discovered that someone had broken into his Mustang GT and stolen his "after-market" speakers. Mr. Massey called the police and waited in the parking lot for them to arrive. As he was waiting, Mr. Massey saw the Defendant pull up in a burgundy or red four-door sedan, possibly a Pontiac Bonneville. He then saw the Defendant bring Mr. Massey's tire jack and speakers out from behind some nearby bushes. Mr. Massey confronted the Defendant, and the Defendant got into his vehicle and fled. Mr. Massey noted the license plate number on the Defendant's car as he drove away.

         Melba Scates testified at the preliminary hearing that her apartment was broken into on October 15, 2012. Among a number of other things, a jewelry box was stolen and was the only property that had been recovered.

         Lakina Natallia testified at the preliminary hearing that on October 19, 2012, she had just gotten home from work when she heard something being inserted in the front door of her apartment. Through the peephole, she saw someone outside the door but could not see the person's face. She opened the door and saw two men leaving in opposite directions, walking very fast. She saw that one of the men was wearing white athletic shoes. She closed the door to her apartment and heard the noise of a car as if the men were driving away. Soon after, Ms. Natallia went to the management office and watched the surveillance video of the exterior areas of the apartment complex. She observed two men on the video, which was the only activity on the footage that occurred during the time period at issue. She said that when she saw the men on the video, they were "kind of leisurely walking" and "calm." Ms. Natallia identified the Defendant as one of the individuals at her door.

         Officer Paul Flournoy with the Metro Nashville Police Department testified that he was involved in the investigation of several burglaries at the Granstaff and Villages of the Green apartment complexes in October 2012. To curtail the crime, the police department created a special team to target the area. On the day the Defendant was ultimately arrested, someone tried to break into a woman's apartment in the Villages, but the would-be burglar ran away when the woman exited screaming. The suspect was seen on a surveillance video getting into a car and quickly leaving the scene. Officer Flournoy went to the Villages' office and viewed the video, on which he saw the Defendant and another man get into a vehicle and drive off at a high rate of speed. Other officers had already viewed the video and obtained a license tag number from the vehicle. Officer Flournoy recalled that the video showed the suspects running or at least "walking awful fast" to get into the car, although one could not tell that the suspects were running from looking at the still photographs taken from the video.

         Officer Flournoy decided to continue his investigation by going to speak with the victim of one of the earlier burglaries. When he arrived at the Granstaff Apartments to speak with that man, Officer Flournoy saw the Defendant and a woman standing near a vehicle that appeared to be the same one he had seen in the video. Officer Flournoy noticed that the Defendant was covering up what appeared to be televisions in the backseat of the vehicle. The vehicle was missing a hubcap, as the "be on the lookout" based on the surveillance video had mentioned, and the license plate matched the vehicle from the video. The Defendant and his female companion went inside an apartment, and Officer Flournoy parked across the street from the vehicle.

         Officer Flournoy testified that, a few minutes later, he saw the Defendant walk outside holding a trash can. He and the Defendant had a brief innocuous conversation, and then the Defendant dumped the contents of the trash can into the dumpster and went back inside the apartment. Officer Flournoy noted that the police later learned a stolen jewelry box and jewelry were among the contents thrown into the dumpster. A few minutes later, the Defendant and his female companion exited the apartment, got into the car, and started to drive away. Before they exited the apartment complex, Officer Flournoy activated his blue lights and pulled over the car. Officer Flournoy advised the Defendant that he had seen him and the vehicle on the surveillance video. Officer Flournoy observed "two TVs on the back seat that had been covered up and there was a big flathead screwdriver sitting on ...

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