            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                            MARCH 1999 SESSION
                                                              FILED
                                                            August 3, 1999
STATE OF TENNESSEE,             *      C.C.A. # 02C01-9806-CR-00168
                                                           Cecil Crowson, Jr.
      Appellee,                 *      SHELBY COUNTY Appellate Court Clerk

VS.                             *      Hon. James C. Beasley, Jr., Judge

ALLISON TORRENCE,               *      (Theft Over $1,000.00 and

      Appellant.                *      Burglary of a Motor Vehicle)




For Appellant:                         For Appellee:

Tony N. Brayton                        John Knox Walkup
Assistant Public Defender              Attorney General and Reporter
201 Poplar Avenue, Suite 2-01
Memphis, TN 38103                      Douglas D. Himes
                                       Assistant Attorney General
                                       425 Fifth Avenue North
                                       Nashville, TN 37243-0493

                                       David Henry
                                       Assistant District Attorney General
                                       201 Poplar Avenue, Third Floor
                                       Memphis, TN 38103




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                      OPINION


              The defendant, Allison Torrence, was convicted of theft over $1000.00

and burglary of a motor vehicle. The trial court imposed Range III, consecutive

sentences of twelve years for the theft and six years for the burglary conviction. In

this appeal of right, two issues are presented for review:

              (I) whether the trial court erred by allowing the
              defendant's previous convictions to be used for
              impeachment purposes; and

              (II) whether the trial court erred by imposing consecutive
              sentences.



              We affirm the judgment of the trial court.



              During the early morning hours of September 2, 1997, Memphis

patrolman Bill Greenwood saw the defendant pulling a wheeled garbage can along

the street. Because the activity was "pretty unusual" at between 4:00 and 5:00

A.M., Officer Greenwood stopped the defendant and asked to look inside the

garbage can. After receiving the defendant's consent, Officer Greenwood

discovered a television, VCR and stereo equipment concealed under a small plastic

bag and a few aluminum cans. When the officer conducted a weapons search of

the defendant, he found a new Mitsubishi cellular telephone.



              Initially, the defendant told Officer Greenwood and other officers who

had arrived on the scene that he had obtained the equipment from a pawn shop.

He explained that the cellular telephone belonged to a friend. The defendant

produced a pawn ticket which was illegible. He could not identify the owner of the

telephone and was unable to read the number. When Officer Greenwood dialed the

memory number one on the cellular phone, he awakened Gregory Koziel who said


                                           2
that his wife owned a Mitsubishi cellular telephone that had been left in their van.

The officer waited while the Koziels checked the van. After returning to the phone,

they reported that the vehicle had been burglarized and badly damaged when the

television, VCR, and stereo had been ripped out.



                 When the officers transported the defendant to the Koziel residence,

Mr. Koziel identified the stolen items and confirmed that the defendant did not have

permission to remove those items from the van. At trial, he testified that the value of

the stolen property was approximately $1,500.00.



                                                     I

                 The defendant first asserts that the trial court erred by allowing the

state to introduce his prior convictions for purposes of impeachment. See Tenn. R.

Evid. 609. We find no reversible error.



                 Before trial, the district attorney filed a notice to utilize the convictions

for impeachment purposes under Rule 609(a)(3) of the Tennessee Rules of

Evidence. The notice included seven prior offenses:

                 (1) receiving and concealing stolen property (November
                 18, 1985);

                 (2) receiving and concealing stolen property (November
                 18, 1985);

                 (3) unlawful possession of a controlled substance with
                 intent to sell/deliver1 (July 3, 1991);

                 (4) burglary (September 5, 1991);

                 (5) theft of property (November 17, 1992);

                 (6) theft of property (July 1, 1994); and


        1
          At the pretrial hearing, the defendant challenged the admissibility of the drug conviction;
how ever , it has not b een challe nge d on a ppe al.

                                                    3
              (7) burglary of a motor vehicle (December 16, 1994).

In response, the defendant requested a pretrial hearing in an effort to suppress the

prior convictions. See State v. Morgan, 541 S.W.2d 385 (Tenn. 1976). The

defendant argued that the two 1985 convictions were inadmissible under Tenn. R.

Evid. 609(b) because they were more than ten years old. He also contended that

the burglary and theft convictions were inadmissible because they were too similar

to the offenses charged. The trial court ruled that all of the convictions could be

used by the state for impeachment purposes:

              [B]ased on the nature of the crimes charged, it appears
              ... all of them are crimes involving dishonesty. ... I don't
              find that the 1985 convictions are so far removed outside
              ... of the rules, ...that they should be excluded ... because
              of the fact that they do deal with property crimes, crimes
              involving dishonesty. And there seems to be definitely a
              pattern of those types of offenses. ... And I think in
              weighing whether or not to allow that in versus the
              prejudicial effect, I believe that the State would be
              prejudiced by not being allowed to prove [the] specific
              nature of crimes involving dishonesty[,] that it would be
              appropriate to allow all of these convictions in with the
              appropriate charge to the jury, that they are not to
              consider them for anything other than to determine the
              credibility of Mr. Torrence should he decide to testify.



              The defendant elected not to testify but made an offer of proof in

which he asserted he would have testified that he had found the stolen property in

the garbage can. He contended that he was collecting aluminum cans when he

discovered the items and had no idea they had been stolen. He stated that he

explained these circumstances to Officer Greenwood and denied having claimed he

purchased the items at a pawn shop. The defendant also denied any involvement in

the burglary of Koziels' van.



              Rule 609 of the Tennessee Rules of Evidence specifically provides as

follows:


                                           4
                     (a) General Rule. For the purpose of attacking the
              credibility of a witness, evidence that the witness has
              been convicted of a crime may be admitted if the
              following procedures and conditions are satisfied:

                                          ***

                     (2) The crime must be punishable by death or
              imprisonment in excess of one year under the law under
              which the witness was convicted or, if not so punishable,
              the crime must have involved dishonesty or false
              statement.

                      (3) If the witness to be impeached is the accused
              in a criminal prosecution, the State must give the
              accused reasonable written notice of the impeaching
              conviction before trial, and the court upon request must
              determine that the conviction's probative value on
              credibility outweighs its unfair prejudicial effect on the
              substantive issues. The court may rule on the
              admissibility of such proof prior to the trial but in any
              event shall rule prior to the testimony of the accused. If
              the court makes a final determination that such proof is
              admissible for impeachment purposes, the accused need
              not actually testify at the trial to later challenge the
              propriety of the determination.

              (b) Time limit.--Evidence of a conviction under this rule is
              not admissible if a period of more than ten years has
              elapsed between the date of release from confinement
              and commencement of the action or prosecution; if the
              witness was not confined, the ten-year period is
              measured from the date of conviction rather than
              release. Evidence of a conviction not qualifying under
              the preceding sentence is admissible if the proponent
              gives to the adverse party sufficient advance notice of
              intent to use such evidence to provide the adverse party
              with a fair opportunity to contest the use of such
              evidence and the court determines in the interests of
              justice that the probative value of the conviction,
              supported by specific facts and circumstances,
              substantially outweighs its prejudicial effect.

See also State v. Farmer, 841 S.W.2d 837, 839 (Tenn. Crim. App. 1992).



              In determining whether the probative value of a prior conviction on the

issue of credibility is outweighed by its prejudicial effect on the substantive issues, a

trial court should "(a) 'assess the similarity between the crime on trial and the crime

underlying the impeaching conviction,' and (b) 'analyze the relevance the

                                            5
impeaching conviction has to the issue of credibility.'" Farmer, 841 S.W.2d at 839

(quoting N. Cohen, D. Paine, and S. Sheppeard, Tennessee Law of Evidence §

609.9, at 288 (2d ed. 1990)). In State v. Abraham Galmore, _____ S.W.2d _____,

No. 02S01-9804-CR-000333, slip op. at 10 (Tenn., at Jackson, May 10, 1999), the

supreme court ruled that an offer of proof is not necessary to preserve the issue for

appeal.



              The defendant contends that the 1985 receiving and concealing

convictions are too stale to be relevant. Because the trial court determined that the

offenses, both of which involved dishonesty, established a pattern of criminal

conduct, it allowed each to be used by the state for impeachment purposes.



              The probative value of ten-year plus convictions may substantially

outweigh any prejudicial effect where the defendant's record shows "a continuing

course of conduct which was probative of ... credibility." State v. Johnson, 596

S.W.2d 97, 104 (Tenn. Crim. App. 1979). Here, the other four convictions, each of

which involved dishonesty, were less than ten years old. Taken together, the six

offenses, ranging from 1985 to 1994, established a continuing course of criminal

dishonesty. Yet the rule requires that the "probative value of the conviction,

supported by specific facts and circumstances, substantially outweigh[] its prejudicial

effect." Tenn. R. Evid. 609(b) (emphasis added).



              While giving some deference to the ruling of the trial judge, it is our

view that the controlling test was not met. The prejudicial effect of similar crimes is

substantial. A series of criminal acts, regardless of their nature, suggests a

propensity to commit other crimes. A "substantial outweighing" of the probative

value requires, of course, a higher standard of assurance by the state before


                                           6
admission. The record here simply does not contain specific "facts and

circumstances" which would support the admission of the two twelve-year-old

convictions under the exception to Rule 609(b). Id. In our assessment, the trial

court erred by admitting the 1985 convictions but the error was harmless in that it

had no effect on the results of the trial. See Tenn. R. App. P. 36(b).



              The defendant also challenges the admissibility of his 1991 through

1994 burglary and theft convictions. He contends that the similarity between those

convictions and charges in this case causes a prejudice that outweighs the

probative value of the prior convictions. The state, of course, disagrees.



              While the prior convictions for burglary were similar to the charges for

which the defendant was tried, that does not, as a matter of law, render evidence of

the prior offenses inadmissible. See State v. Gibson, 701 S.W.2d 627, 628-29

(Tenn. Crim. App. 1985) (prior drug convictions admissible in prosecution for

possession of drugs); State v. Goad, 692 S.W.2d 32, 37 (Tenn. Crim. App. 1985)

(prior conviction for armed robbery admissible in prosecution for murder first degree

and armed robbery); and Johnson, 596 S.W.2d at 104 (prior conviction for burglary

admissible in prosecution for burglary). Prior crimes involving dishonesty bear

greatly upon credibility. If the defendant had testified, the trial would have amounted

to a swearing match between him and Officer Greenwood. The defendant's

credibility as a witness would have been critical to the jury's determination. Thus his

prior offenses had significant probative value for the state. In our view, the trial court

did not err by admitting the 1991 through 1994 convictions for impeachment

purposes.



              The defendant insists, however, that the prejudicial effect of the prior


                                            7
convictions could have been minimized if the state had referred to the convictions in

a "generic" fashion, rather than specifically identifying the nature of the crimes. In

Galmore, however, our supreme court ruled that "proper application of the balancing

test under Tenn. R. Evid. 609(a)(3) requires identification of the prior conviction."

Slip op. at 5. Our high court noted that not "identifying the felony ... would permit a

jury to speculate as to the nature of the prior conviction" and would hinder the jury's

ability to "properly weigh the conviction's probative value as impeaching evidence."

Id.



              In summary, the trial court erred by admitting the 1985 convictions but

did not err by admitting the several other convictions for crimes involving dishonesty.

In our view, the admission of the 1985 offenses was harmless error. See Tenn. R.

App. P. 36(b) (Relief shall not be granted "unless, considering the whole record,

error involving a substantial right more probably than not affected the judgment or

would result in prejudice to the judicial process.") First, the state had a strong case

against the defendant. Officer Greenwood essentially caught the defendant "red-

handed." Secondly, it is unlikely the jury would have accredited the defendant's

proffered testimony due to the four other convictions that were admissible for

impeachment purposes.



                                           II

              Next the defendant contends that the trial court erred by the imposition

of consecutive sentences. When there is a challenge to the length, range, or

manner of service of a sentence, it is the duty of this court to conduct a de novo

review with a presumption that the determinations made by the trial court are

correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon

the affirmative showing in the record that the trial court considered the sentencing


                                           8
principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). The Sentencing Commission Comments provide that the

burden is on the defendant to show the impropriety of the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              Prior to the enactment of the Criminal Sentencing Reform Act of 1989,

the limited classifications for the imposition of consecutive sentences were set out in

Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case, our supreme court

ruled that aggravating circumstances must be present before placement in any one

of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the

court established an additional category for those defendants convicted of two or

more statutory offenses involving sexual abuse of minors. There were, however,

additional words of caution:

              [C]onsecutive sentences should not be routinely imposed
              . . . and . . . the aggregate maximum of consecutive
              terms must be reasonably related to the severity of the
              offenses involved.

Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the

cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence,

the codification of the holdings in Gray and Taylor; consecutive sentences may be

imposed in the discretion of the trial court upon a determination that one or more of



                                           9
the following criteria2 exist:

                 (1) The defendant is a professional criminal who has
                 knowingly devoted himself to criminal acts as a major
                 source of livelihood;

                 (2) The defendant is an offender whose record of
                 criminal activity is extensive;

                 (3) The defendant is a dangerous mentally abnormal
                 person so declared by a competent psychiatrist who
                 concludes as a result of an investigation prior to
                 sentencing that the defendant's criminal conduct has
                 been characterized by a pattern of repetitive or
                 compulsive behavior with heedless indifference to
                 consequences;

                 (4) The defendant is a dangerous offender whose
                 behavior indicates little or no regard for human life, and
                 no hesitation about committing a crime in which the risk
                 to human life is high;

                 (5) The defendant is convicted of two (2) or more
                 statutory offenses involving sexual abuse of a minor with
                 consideration of the aggravating circumstances arising
                 from the relationship between the defendant and victim
                 or victims, the time span of defendant's undetected
                 sexual activity, the nature and scope of the sexual acts
                 and the extent of the residual, physical and mental
                 damage to the victim or victims;

                 (6) The defendant is sentenced for an offense
                 committed while on probation; or

                 (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).



                 In State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), our supreme

court ruled that consecutive sentences cannot be required for any of the

classifications "unless the terms reasonably relate to the severity of the offenses

committed and are necessary in order to protect the public from further serious

criminal conduct by the defendant." Id. at 938. The Wilkerson decision, which


        2
           The first four criteria are found in Gray. A fifth category in Gray, based on a specific number
of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion . See
Tenn. Code Ann. § 40-35-115, Sentencing Comm ission Comments.

                                                     10
modified guidelines adopted in State v. Woods, 814 S.W.2d 378, 380 (Tenn. Crim.

App. 1991), governing the sentencing of dangerous offenders, described sentencing

as "a human process that neither can nor should be reduced to a set of fixed and

mechanical rules." Wilkerson, 905 S.W.2d at 938 (footnote omitted).



              At the sentencing hearing on April 9, 1998, the trial court found that

the defendant "ha[s] a history of being a criminal who has made his livelihood, what

livelihood there is, from committing crimes." The trial court imposed consecutive

sentencing based on its findings that the defendant met two of the statutory criteria:

he is a professional criminal who has knowingly devoted himself to criminal acts as

a major source of livelihood and he is an offender with an extensive record of

criminal activity. See Tenn. Code Ann. § 40-35-115(b)(1), (2). These findings by

the trial judge are supported by defendant's numerous past convictions for theft and

burglary, his poor work history, and his admission that he engaged in theft to

support his drug habit.



              In State v. Desirey, 909 S.W.2d 20 (Tenn. Crim. App. 1995), this court

ruled as follows:

              [Trial courts should] ensure that the aggregate sentence
              imposed should be the least severe measure necessary
              to protect the public from the defendant's future criminal
              conduct and should bear some relationship to
              defendant's potential for rehabilitation.

Id. at 33.



              The defendant contends that his situation is analogous to that of the

defendant in Desirey. Desirey was convicted of four counts of bribing a public

servant and was sentenced to four consecutive four-year, six-month sentences. Id.

at 34. On appeal, this court modified the sentences so that three of the terms were


                                          11
concurrent, resulting in an aggregate nine-year sentence. Id. at 34. The author

reasoned that four consecutive sentences were inappropriate because the

defendant had been convicted of non-violent offenses which "consisted of a short

series of similar, related conduct of an ongoing nature." Id. at 34. The court

commented that "offenses which overlap with the same intent can make concurrent

sentencing appropriate." Id. at 34 (citing State v. Holt, 691 S.W.2d 520, 522 (Tenn.

1984)).



              Although the defendant, like Desirey, did commit non-violent offenses

which consisted of an ongoing series of related conduct, there is a significant

difference between this defendant and Desirey. The proof established that Desirey

possessed significant potential for rehabilitation. This defendant, on the other hand,

has continued to violate the law despite a number of opportunities at probation and

parole. His prior incarceration has been for relatively short periods of time. There is

little in this record to suggest that the defendant is prepared to change his course of

conduct. Considering the defendant's extensive criminal record, his history of

supporting himself through crime, and his past unwillingness to comply with

probation and parole, an aggregate eighteen-year sentence bears a reasonable

relationship to the seriousness of the crimes and is necessary to protect the public

from future criminal acts by the defendant. See Wilkerson, 905 S.W.2d at 938.



              Accordingly, the judgment of the trial court is affirmed.



                                          _________________________________
                                          Gary R. Wade, Presiding Judge




                                          12
CONCUR:



____________________________
Joseph M. Tipton, Judge



_____________________________
Thomas T. W oodall, Judge




                                13
