        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs May 3, 2011

                  STATE OF TENNESSEE v. ALVERTIS BOYD

                   Appeal from the Criminal Court for Shelby County
                           No. 08-01138 Chris Craft, Judge




                   No. W2010-01513-CCA-R3-CD - Filed July 1, 2011


Following a jury trial, the Defendant, Alvertis Boyd, was convicted of aggravated robbery,
a Class B felony. The Defendant was sentenced as a repeat violent offender to life
imprisonment without the possibility of parole. In this appeal as of right, the Defendant
contends (1) that the evidence is insufficient to sustain his conviction; (2) that the trial court
erred in admitting two prior convictions as impeachment evidence; and (3) that the trial court
erred in sentencing him as a repeat violent offender. Following our review, we affirm the
judgment of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which D AVID H. W ELLES and
N ORMA M CG EE O GLE, JJ., joined.

Robert Wilson Jones, District Public Defender; Dianne M. Thackery (at trial) and Phyllis
Aluko (on appeal), Assistant Public Defenders, for the appellant, Alvertis Boyd.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Neal Oldham, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                           OPINION

        On July 30, 2007, the Defendant entered a Circle K gas station in Memphis,
Tennessee sometime after 10:00 p.m. The Defendant walked behind the counter where the
victim, a Circle K employee, was standing and took a sandwich out of the “freezer box” and
a Pepsi out of the “cooler box” before walking to the counter. Once at the counter, the
Defendant “just stood there” and was “fidgety.” The Defendant said, “don’t be scared” and
told the victim to “pay it out.” The victim understood the Defendant’s statement to mean that
he wanted her to open the cash register. The victim, believing that the Defendant was joking,
hesitated, and the Defendant “raised his shirt up” and showed the victim a “small .380”
handgun in his waistband. The victim opened the cash register and stepped back as the
Defendant reached toward the register. The Defendant told the victim to lift the pan in the
register, but the victim did not comply. The Defendant lifted the pan, took $60 or $70 from
the register, and started to leave. As he was leaving, the Defendant knocked the sandwich
and Pepsi off the counter. Realizing that he had left his cellular telephone and keys on the
counter, the Defendant returned and retrieved his belongings. As he was leaving the second
time, he bumped into a customer, Justin Scarbrough, who was entering the store. The victim
told Mr. Scarbrough that she had been robbed, and Mr. Scarbrough ran outside and saw the
Defendant jogging north down the “Highland Strip.”

       During the investigation of the robbery, the victim and Mr. Scarbrough were able to
identify the Defendant from a photographic display. At trial, the victim admitted that she
was only four feet and nine inches tall but explained that she could see the weapon in the
Defendant’s waistband over the counter because the floor behind the counter was higher than
the floor in the store. The victim also testified that she opened the cash register because she
saw that the Defendant had a weapon. She said that she was “intimidated” when she saw the
Defendant’s weapon.

       The Defendant testified that he went to the store with the intention of robbing the
victim. He said he went inside, grabbed a drink and a sandwich, and walked to the counter.
Once at the counter, the victim told the Defendant the price of the items he had selected. The
Defendant showed the victim how much money he had, approximately three dollars, and the
victim told him that he only had enough money for the sandwich. The victim opened the
register, and the Defendant reached over the counter and grabbed the money from the
register. The Defendant testified that he never showed the victim a weapon and that he did
not have a weapon. The Defendant admitted that he had been previously convicted of
aggravated robbery and misdemeanor theft of property.

       Based upon the above evidence, the jury convicted the Defendant of aggravated
robbery. Following a sentencing hearing, the trial court found that the Defendant was a
repeat violent offender and imposed a sentence of life imprisonment without the possibility
of parole.

                                         ANALYSIS

                                        I. Sufficiency




                                              -2-
       The Defendant contends that the evidence only supported a conviction of theft
because the State failed to establish that he used or displayed a deadly weapon to rob the
victim by violence or by placing the victim in fear. The Defendant also contends that the
evidence was insufficient to establish a “taking from the person” as required by the statute
because he took the money from the pan in the register and not the victim, who did not fight
with him or act fearful of him as he grabbed money from the register. The Defendant further
contends that the evidence was insufficient to establish that he used or displayed a deadly
weapon when he robbed the victim. The State responds that the evidence was sufficient to
sustain the Defendant’s conviction.

        An appellate court’s standard of review when a defendant questions the sufficiency
of the evidence on appeal 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). The
appellate court does not re-weigh the evidence; rather, it presumes that the jury has resolved
all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor
of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in
testimony, and the weight and value to be given to evidence were resolved by the jury. State
v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “A verdict of guilt removes the presumption
of innocence and replaces it with a presumption of guilt, and [on appeal] the defendant has
the burden of illustrating why the evidence is insufficient to support the jury’s verdict.” Id.;
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This rule applies to findings of guilt
based upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999).

       A conviction for aggravated robbery, as relevant to this case, requires proof that the
defendant committed an “intentional or knowing theft from the person of another by violence
or by putting the person in fear” and that the robbery was “accomplished with a deadly
weapon.” Tenn. Code Ann. §§ 39-13-401 and -402(1).

        In the light most favorable to the State, the evidence introduced at trial reflects that
the Defendant entered the store with the intention of robbing the victim. The victim testified
that the Defendant told her to open the cash register and showed her a handgun, a deadly
weapon. When the victim opened the cash register, the Defendant took money from the
register before fleeing the store. The victim testified that she opened the register because the
Defendant had a handgun and that the handgun made her feel “intimidated.” While the
Defendant testified that he did not have a handgun, the jury resolved any conflicts in the



                                              -3-
testimony presented at trial, as was their province to do. Accordingly, we conclude that the
evidence is sufficient to sustain the Defendant’s conviction for aggravated robbery.

                                      II. Prior conviction

        The Defendant contends that the trial court erred by allowing the State to impeach his
credibility by introducing proof of his prior convictions for aggravated robbery and theft
pursuant to Rule 609 of the Tennessee Rules of Evidence and that the trial court “did not
fully weigh the unfair prejudicial impact of the admission of the prior aggravated robbery
conviction.” The Defendant further contends that because the impeaching conviction of
aggravated robbery was substantially similar to the convicting offense, it was more likely that
the jury would use the impeaching conviction as propensity evidence of guilt. The State
responds that the trial court complied with the procedure for weighing the probative value
of the evidence against any potential for unfair prejudice. The State further responds that the
Defendant has failed to establish that the trial court abused its discretion in admitting the
evidence of the prior convictions when the Defendant’s credibility was at issue.

       Prior to trial, defense counsel argued that the aggravated robbery conviction should
be excluded because it was the same charge for which the Defendant was on trial. Defense
counsel also argued that the misdemeanor theft conviction should be excluded because a theft
conviction is “part and parcel of an aggravated robbery” conviction. The State responded
that the convictions were “germane” to the Defendant’s credibility. In denying defense
counsel’s motion to exclude these convictions, the trial court stated,

       I will . . . allow the aggravated robbery and the theft, although they involve the
       same type of crime that we’re on trial for they’re both crimes of dishonesty and
       they’re extremely probative on the issue of honesty or dishonesty.

The trial court further stated that if the Defendant were to testify, the court would instruct the
jury that the impeaching convictions could not be used as propensity evidence but that they
may only be considered to impeach the Defendant’s credibility. Indeed, the trial court gave
the following instruction to the jury:

       If from the proof you find that the defendant has been convicted of some prior
       crime or crimes[,] you can consider such only for the purpose of its effect, if
       any, on his credibility as a witness. It cannot be considered by you as evidence
       of his guilt of the offense for which he is now on trial.

       Tennessee Rule of Evidence 609(a)(3) allows for the admission of a prior conviction
to impeach the credibility of a defendant testifying at trial. Such an impeaching conviction

                                               -4-
must be either “punishable by death or imprisonment in excess of one year under the law
under which the witness was convicted” or “must have involved dishonesty or false
statement.” Tenn. R. Evid. 609(a)(2). The rule further provides,

       [i]f 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.

Tenn. R. Evid. 609(a)(3). A trial court’s decision to admit a prior conviction under Rule 609
of the Tennessee Rules of Evidence will not be reversed on appeal unless the trial court
abused its discretion. State v. Blanton, 926 S.W.2d 953, 960 (Tenn. Crim. App. 1996).

        In determining whether an impeaching conviction should be admitted, the trial court
“should first analyze the relevance the impeaching conviction has to the issue of credibility.”
State v. Mixon, 983 S.W.2d 661, 674 (Tenn. 1999). If the conviction is probative of
credibility, the trial court should then “assess the similarity between the crime on trial and
the crime underlying the impeaching conviction.” Neil P. Cohen et al., Tennessee Law of
Evidence § 6.09[10][c] (5th ed. 2005). “When an impeaching conviction is substantially
similar to the crime for which the defendant is being tried, there is a danger that jurors will
erroneously utilize the impeaching conviction as propensity evidence of guilt and conclude
that since the defendant committed a similar offense, he or she is probably guilty of the
offense charged.” Mixon, 983 S.W.2d at 674. However, the “similarity between the
impeaching conviction and the one at issue in the trial is insufficient in itself to render the
impeaching one inadmissible under Rule 609.” Cohen, supra § 6.09[10][c].

        Here, the Defendant’s prior convictions for aggravated robbery and theft were highly
probative of credibility because each of the crimes involved dishonesty. See State v. Baker,
956 S.W.2d 8, 15 (Tenn. Crim. App. 1997) (holding that prior convictions of burglary and
theft were particularly probative of credibility); State v. Blevins, 968 S.W.2d 888, 893 (Tenn.
Crim. App. 1997) (stating that prior convictions of burglary, robbery, and larceny were
crimes of dishonesty); State v. Addison, 973 S.W.2d 260, 268 (Tenn. Crim. App. 1997)
(stating that misdemeanor theft was a crime of dishonesty). While the Defendant’s prior
conviction of aggravated robbery was the same offense for which he was on trial, we believe
that the probative value of the impeaching conviction outweighed any unfair prejudicial
effect because the Defendant’s credibility was at issue. See Baker, 956 S.W.2d at 15
(concluding that the trial court did not err in admitting six prior felony convictions of
burglary and theft in the defendant’s trial for aggravated rape and aggravated burglary);
Blevins, 968 S.W.2d at 893 (concluding that the trial court did not err in admitting prior

                                              -5-
convictions of burglary, robbery, and larceny in the defendant’s trial for burglary of an
automobile and vandalism). Additionally, the trial court followed the correct procedure
before ultimately determining that the probative value on credibility of the impeaching
convictions outweighed any unfair prejudicial effect. Accordingly, we conclude that the trial
court did not err in admitting the prior convictions.

                                       III. Sentencing

        The Defendant contends that he cannot be classified as a repeat violent offender
because the State failed to try the Defendant within 180 days of his arraignment. The
Defendant also contends that because the State filed a subsequent notice to seek enhanced
punishment as a multiple, persistent, or career offender, the prior notice to classify the
Defendant as a repeat violent offender was effectively withdrawn. The Defendant further
contends that the notice to classify the Defendant as a repeat violent offender was inadequate
because it did not “indicate when defense counsel was served with the notice” and because
it “failed to specifically set forth the dates of the prior periods of incarceration.” The State
responds that a violation of the 180-day rule would not result in a dismissal. The State also
responds that any error in the filing of the subsequent notice should be rendered harmless
because the State filed a timely and adequate notice of its intention to seek enhanced
punishment as a repeat violent offender.

       In order to be classified as a repeat violent offender, a defendant must have committed
a violent offense classified in subdivision (b)(1) after July 1, 1994 and have “at least two
prior convictions for offenses classified in subdivision (b)(1) or (b)(2) as a violent offense.”
Tenn. Code Ann. § 40-35-120(a). The Defendant committed the offense of aggravated
robbery on July 30, 2007. The Defendant had prior convictions of aggravated robbery and
attempted second degree murder. The Defendant’s current conviction and his prior
convictions were designated in section 40-35-120(b)(1).

        In addition to the above requirements, the Defendant must have also “served two (2)
separate periods of incarceration for the commission of at least two (2) of the predicate
offenses designated in subdivision (b)(1) or (b)(2) before committing an offense designated
in subdivision (b)(1).” Tenn. Code Ann. § 40-35-120(e)(1)(A). The documents submitted
at the sentencing hearing reflect that the offense date for the Defendant’s prior conviction of
attempted second degree murder was October 16, 1990. The Defendant was released from
the Tennessee Department of Correction on June 17, 2000, and the Defendant subsequently
committed the offense of aggravated robbery on December 17, 2001. The Defendant was
released to parole on February 26, 2007, and while on parole, the Defendant committed the
instant offense on July 30, 2007. Even though the Defendant was on parole when he
committed the instant offense, the Defendant had effectively served two separate periods of

                                              -6-
incarceration prior to the commission of the convicting offense. See Tenn. Code Ann. § 40-
35-120(e)(2) (providing that violent offenses committed while on supervised release into the
community shall be considered as a separate period of incarceration).

        Section 40-35-120 provides time limits and notice requirements when the State seeks
to classify a defendant as a repeat violent offender. This section provides, in pertinent part,
that “[a] charge as a repeat violent offender shall be tried within one hundred-eighty (180)
days of the arraignment on the indictment.” Tenn. Code Ann. § 40-35-120(i)(1)(A). The
State is also required to “file a statement with the court and the defense counsel within forty-
five (45) days of the arraignment . . . that the defendant is a repeat violent offender.” Tenn.
Code Ann. § 40-35-120(i)(2). However, this section also provides that “[i]f the notice is not
filed within forty-five (45) days of the arraignment, the defendant shall be granted a
continuance so that the defendant will have forty-five (45) days between receipt of notice and
trial.” Tenn. Code Ann. § 40-35-120(i)(2).

       We acknowledge that the Defendant was not tried within 180 days of the arraignment
on the indictment. However, the delay of the Defendant’s trial would not change the
Defendant’s classification as a repeat violent offender because “[a] continuance may be
granted to any party, including the court, for good cause shown.” Tenn. Code Ann. § 40-35-
120(i)(1)(B). This court has concluded that a defendant’s violent offender classification
should not be altered when the defendant was not tried within 180 days of the arraignment
on the indictment. State v. Thompson, 36 S.W.3d 102, 117 (Tenn. Crim. App. 2000). In
Thompson, this court stated, “even though none of the enumerated exceptions to the 180 day
requirement applied and no order of continuance was sought or granted,” relief was not
warranted when the defendant failed to establish prejudice. Id. This court compared the
180-day requirement with the 150-day deadline in the Class X felony law. Id. at 116-17.
This court concluded that in both situations, the “[c]onstitutional provisions for speedy trial
and due process are sufficient to protect the interests of defendants in seeing that criminal
proceedings are expedited.” Id. at 117. Additionally, the Defendant has not offered any
authority in support of his assertion that failure to comply with the 180-day time limit
prohibits the trial court from classifying the Defendant as a repeat violent offender. Id.

        While the State and the trial court failed to comply with the 180-day requirement, the
State filed their notice that the Defendant was a repeat violent offender pursuant to section
40-35-120 within 45 days of arraignment on the indictment. However, on the day of trial,
the State filed a subsequent notice in which it sought enhanced punishment pursuant to
Tennessee Code Annotated section 40-35-202. At the sentencing hearing, defense counsel
did not object to the classification of the Defendant as a repeat violent offender or allege that
the State did not give proper notice. Defense counsel stated,



                                               -7-
       Judge, once they file under this, there’s not much else to say to be truthful. I
       understand what the law is, and what is actually required is not at the court’s
       discretion, so I just have to leave it at that.

In fact, there was no mention of the subsequent notice at the sentencing hearing.
Additionally, the Defendant has failed to establish that he was prejudiced by the filing of the
subsequent notice or that he believed the State was no longer seeking the trial court’s
classification of him as a repeat violent offender. Accordingly, we believe that any error in
the filing of the subsequent notice was harmless.

        We believe the Defendant’s assertion that the 45-day notice was inadequate because
it did not reflect whether defense counsel had been notified of the State’s intent to seek
enhanced punishment pursuant to this section is without merit. Any failure to notify defense
counsel would merely result in the grant of a continuance. See Tenn. Code Ann. § 40-35-
120(i)(2). Moreover, there is no evidence that the Defendant did not receive notice within
45 days of the arraignment, nor has the Defendant alleged that he was prejudiced as a result
of lack of notice. See Thompson, 36 S.W.3d at 116 (concluding that failure to comply with
the 45-day notice requirement did not preclude the State from seeking a repeat violent
offender classification when the Defendant failed to establish that he was prejudiced as a
result of the untimely notice). According to the record, the notice in this case was filed in
the trial court within 45 days of the indictment.

       The Defendant is correct that the initial 45-day notice did not set forth the dates of the
prior periods of incarceration as is required by statute. See Tenn. Code Ann. § 40-35-
120(i)(2) (providing that the statement must “set forth the dates of the prior periods of
incarceration, as well as the nature of the prior conviction offenses”). However, the
Defendant did not raise this issue at any time before appeal. “Where an ambiguity or
contradiction appears on the face of the notice, [the] defendant has a duty to inquire further.”
State v. Adams, 788 S.W.2d 557, 559 (Tenn. 1990). “[W]hen the State has substantially
complied with [section 40-35-202(a)], an accused has a duty to inquire about an ambiguous
or incomplete notice and must show prejudice to obtain relief.” Id. In Adams, the court held
that prejudice was established when a notice to seek enhanced punishment pursuant to
Tennessee Code Annotated section 40-35-202 “dealt exclusively with matters relevant to
another phase of sentencing.” Id.

      However, in this case, the State substantially complied with the notice requirements.
The notice complained of advised the Defendant that the State sought classification of the
Defendant as a repeat violent offender, referenced the appropriate statute, and listed the
Defendant’s qualifying prior convictions, indictment numbers, and conviction dates. The
Defendant had enough information to inquire further and determine how to proceed. The

                                               -8-
Defendant did not complain that the notice was inadequate or misleading until after the trial
and the sentencing hearing. Additionally, the Defendant did not assert that he was prejudiced
by a lack of information in the notice or that he had not served two separate periods of
incarceration. Indeed, the State proved at the sentencing hearing that the Defendant had
served two separate periods of incarceration prior to committing the instant offense.
Accordingly, we conclude that the error in the notice was harmless and that the trial court did
not err in classifying the Defendant as a repeat violent offender.

                                       CONCLUSION

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.


                                           _______________________________________
                                           D. KELLY THOMAS, JR., JUDGE




                                              -9-
