Court of Criminal Appeals of Tennessee, Nashville
Session November 14, 2017
from the Criminal Court for Davidson County No. 2013-A-684
Mark J. Fishburn, Judge
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.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
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
E. Glenn, J., delivered the opinion of the court, in which
John Everett Williams and Norma McGee Ogle, JJ., joined.
E. GLENN, JUDGE.
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.
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
Related to Motion to Suppress
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
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.
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.
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.
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.
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 ...