        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                            APRIL SESSION, 1999           May 26, 1999

                                                     Cecil W. Crowson
STATE OF TENNESSEE,            )                   Appellate Court Clerk
                                    C.C.A. NO. 01C01-9807-CR-00279
                               )
      Appellee,                )
                               )
                               )    DAVIDSON COUNTY
VS.                            )
                               )    HON. THOMAS H. SHRIVER,
LEWIS L. BELL, a.k.a.          )    JUDGE
LEWIS COLEM AN, a.k.a.         )
LOUIS LEE INGRAM,              )
                               )
      Appe llant.              )    (Burglary, Criminal Impersonation)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF DAVIDSON COUNTY


FOR THE APPELLANT:                  FOR THE APPELLEE:

JEFFREY A. DeVASHER                 JOHN KNOX WALKUP
Assistant Public Defender           Attorney General and Reporter

BRENT T. WHITE                      PATRICIA C. KUSSMANN
Assistant Public Defender           Assistant Attorney General
1202 Stahlman Building              425 Fifth Avenu e North
Nashville, TN 37201
                                    VICTOR S. JOHNSON
                                    District Attorney General

                                    NICK BAILEY
                                    Assistant District Attorney General
                                    Washington Square, Suite 500
                                    222 Se cond A venue N orth
                                    Nashville, TN 37201-1649




OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

       The Defen dant, Lewis L. Bell, appeals from his convictions for burglary and

criminal impersonation.      On appeal, he argues (1) that the evidence was

insufficient to convict him of burglary or criminal impersonation, (2) that the trial

court erred by admitting the testimony of a fingerprint specialist, and (3) that the

trial court erred by instructing the jury that it could “weigh and consider” the

meaning of a sentence of imprisonm ent.              Be caus e we fin d no m erit in

Defendant’s three issues, we affirm his convictions.



                      I. SUFFICIENCY OF THE EVIDENCE

       Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings

of guilt in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the findings by the trier of fact of guilt beyond

a reason able do ubt.” Tenn. R. App. P. 13(e). In addition, because conviction by

a trier of fact destroys the presumption of innocence and imposes a presumption

of guilt, a convicted criminal defendant bears the burden of showing that the

evidence was insu fficient. McBe e v. State , 372 S.W .2d 173, 176 (Tenn. 196 3);

see also State v. Evans, 838 S.W .2d 185 , 191 (Tenn. 1992) (citing State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329,

331 (T enn. 19 77)); State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Holt v.

State, 357 S.W .2d 57, 61 (T enn. 1962 ).



       In its review of the eviden ce, an appe llate court must afford the State “the

strongest legitimate view of the evidence as well as all reas onab le and legitim ate



                                          -2-
inferences that may be d rawn therefrom.” Tug gle, 639 S.W.2d at 914 (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re-

weigh or re-evalua te the evide nce” in the record b elow. Evans, 838 S.W.2d at

191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court

find particular conflicts in the trial testimon y, the court must resolve them in favor

of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W.2d at 914.



      The facts presented at trial reveal that a silent alarm was tripped in a

Nash ville sign-making business, C&D Safety Company, in the mid-afternoon of

September 28, 1996. Metropolitan Nashville-Davidson County Office r Kevin

Caperton received the dispatch and investigated the premis es. He testified that

the busin ess is o pen to the stre et in two places: a door for foot traffic and a door

for vehicle traffic.   The rest of th e build ing, inc luding a ma chine shop , is

surrounded by a chain-link and barbed-wire fence approximately eight feet high.



      Officer Caperton concluded from his investigation that in order to enter the

building, a person must unlock the padlocke d doors with a key, cut the padlocks,

or scale the fence. Caperton further testified that following the first alarm, he

found no signs of entry—that the building appeared secure.



      Appr oxima tely two hours later, the p olice dispatcher n otified Officer

Caperton that the silen t alarm a t C&D had ac tivated ag ain. Upon his second

investigation of the premises, Caperton found that one of the doors to the

machine shop, a doo r which was c ompletely within the chain-link, barbed -wire

fence, was op en. At that time, C aperton reques ted som eone fro m the s ecurity

service to open the building. Caperton testified that once inside, he concluded

                                         -3-
from the appearance of the machine-shop desk that someone had “gone through”

materials on the desk and in the drawers. As he prepared to leave, the officer

noticed th at the m etal ring for th e door’s p adlock h ad bee n cut.



       At 8:30 p.m. the same evening, Officer C aperton rece ived word of a third

alarm at C&D Safety Company. Because he had anticipated a third alarm,

Caperton was patrolling nearby and arrived at the scene quickly. The officer

parked short o f the bu ilding a nd wa lked quietly to the premises. He heard the

door to the mach ine shop op ening or closing , so he mo ved to a position w here

he could see th at doo r. He th en sa w De fenda nt runn ing away from the door

toward the fence .       As Cap erton ob served D efenda nt climb th e fence, he

broadcasted to other officers a description of Defendant and his clothing.

Defenda nt dropped to the ground and bega n to walk throug h an alley.



       Officer Kelvin Lusk apprehended Defen dant in the alleyway. Lusk drew h is

pistol and ordered Defendant to the ground as Defendant asked, “What’s going

on? Ma n, I haven ’t done an ything.” Ac cording to Lusk, D efenda nt was sw eaty

and out of breath, and he carried something in his hand.1 When asked his name,

Defen dant rep lied that it was “Lewis B ell.”



       Gwyn Greg ory tes tified next for the State, and she stated that she had

access to the records of the Metropolitan Police Department, that she checked




       1
          The nature of that item was apparently not revealed at trial, though officers testified
that they found no burglary tools on Defendant’s person at the time of his apprehension.

                                              -4-
those records upon request to determine Defendant’s identity, and that she

discerned Defendant’s true name was not Louis Bell, but was Louis Ingram.2



       Finally, Todd C arson, presu mably an o wner of C& D Safety C ompan y,

testified for the prosecution, describin g the insid e of the bu siness a s “ransa cked,”

with items “strewn around.” He testified that all of the desk drawers were open

and that the lock and door had been broken off of a cabinet. Carson stated that

he left the business at approximately noon the day of the intrusion, but he did not

state whether any employees were still present in the bu ilding at that time or

whether anyone could have been in the building between noon and the time of

the crime.      Carson also testified that he did not know Defendant and that

Defendant did not have permission to be on the pre mise s.                    To C arson ’s

knowledge, no items we re taken from the business, although he testified that he

did not have an inventory of the smaller items and w ould not know if any were

missing.



                                         A. Burglary

       Tennessee Code Anno tated § 39 -14-402 reads, “A person comm its

burglary who, without the effective consent of the property owner . . . [e]nters a

building other than a habitation (or any portion thereof) n ot open to the pub lic with

intent to com mit a felon y, theft, or ass ault . . . .” Tenn . Code Ann. § 39-14-

402(a)(1). Defendant challenges the finding that he inte nded to comm it a theft,

and he alterna tively asserts that the S tate did not establish his identity as the

perpetra tor.




       2
           Defendant’s first name is spelled Louis and Lewis in the record.

                                              -5-
      Defe ndan t’s argum ent that he did not po ssess a n intent to c omm it theft

must fail. This C ourt re cently reaffirmed the pre-1989 principle that “a jury may

reaso nably and legitimately infer that by breaking and entering a building

containing valuable prope rty, a defendant inten ds to com mit theft.” State v.

Ingram, 986 S.W.2d 598 (Tenn. Crim. App. 1998) (citing Hall v. State, 490

S.W.2d 495, 496 (T enn. 19 73)); see Hall, 490 S.W.2d at 496; State v. Chrisman,

885 S.W .2d 834 , 838 (T enn. C rim. App . 1994); State v. Avery, 818 S.W.2d 365,

367-68 (Tenn. Crim. A pp. 199 1); State v. Burkley, 804 S.W.2d 458, 460 (Tenn.

Crim. App. 19 90); Bennett v. State, 530 S.W.2d 788, 791 (Tenn. Crim. App.

1975) (quoting Hall, 490 S.W .2d at 496 ).



      In Ingram, the defendant entered the victim’s home garage by breaking a

hole in the wall. Id. The proof showed that the garage contained law n tools, a

ladder, and a ca r. Id. Likewise, in this case, Officer Caperton saw Defendant

imm ediate ly after the building’s silent alarm activated, inside the eight-foot high,

chain-link and barbed-wire fence surrounding the business, running from the

same door tha t had be en vand alized ea rlier in the da y.



      The evidence presented by the company’s proprietor, Todd Carson,

showed that the buildin g Def enda nt ente red co ntaine d a de sk, lock ed ca binet,

and small hand tools. The desk had been ransacked and drawers were open,

and the lock and door had been broken from the cabinet. Carson stated that due

to the lack of inventory for the small tools, he could not determine if any items

were missing . We conclude that this evidence was s ufficien t to circu msta ntially

show that D efendant inten ded to com mit a theft inside C& D Safety C ompan y.




                                         -6-
      Defendant next argues that the State failed to establish that he committed

the burgla ry. This issue also lacks merit. Officer Caperton saw the perpetrator

running from the building and broadcasted a description of De fendant’s bod y,

clothing, and direction of flight to other officers. Once other officers apprehended

Defendant, Cape rton ide ntified h im as the pe rpetra tor. Th is was sufficie nt to

permit the jury to con clude that De fendant perp etrated the burg lary.



                            B. Criminal Impersonation

      Tennessee Code Annotated § 39-16-301 reads, “A person comm its

criminal impers onation who, with intent to injure or defrau d anoth er perso n . . .

[a]ssumes a false identity . . . .” Tenn. Code Ann. § 39-16-301(a)(1). Defendant

argues that the evidence at trial did not establish that he intended to injure or

defraud another p erson “when giving p olice th e nam e Lou is Bell, n or doe s it

establish that the na me Lo uis Bell wa s a false ide ntity.” W e disagre e.



      The State cites State v. Brooks, 909 S.W.2d 854 (Tenn. Crim. App . 1995),

in suppo rt of its argument that the State was not required to prove why Defendant

gave officers a fals e nam e. The State contends that instead, it was sufficient to

show that Defendant intentionally gave police a false name. In Brooks, this Court

stated, “To establish the offense of criminal impersonation, the state is not

required to show proof of why the defendant sought to defraud the Jackson

Police Department, only that he intended to misreprese nt his true identity.” Id.

at 859.



      W e believe that the facts heard by the jury in this case a re analo gous to

Brooks such that we must adhere to its result.          The jury heard proof that

                                         -7-
Defendant represented himself to police as Louis Bell and that his “true name”

was not Louis Be ll. Under Brooks, this eviden ce was sufficient to permit the jury

to convict him of crimina l imperso nation. See id. at 859; State v. Thomas E.

Bradshaw, No. 01C01-9609-CR-00406, 1997 WL 578963, at *4 (Tenn. Crim.

App., Nashville, Sept. 19, 1997); State v. C harles Le e W hite, No. 02C01-9501-

CC-000 25, 1995 W L 555044 (Tenn. Crim . App., Jackso n, Sept. 20, 199 5).



       Howeve r, we note that the result might have been different had Defendant

placed before the jury evidence that his mother’s name had at one time been Bell

and that Defendant had b een p reviou sly con victed u nder th e nam e Bell. 3 Had

Defendant been able to show the jury that giving officers the name Bell would not

hinder efforts to identify an d prose cute him , but instea d lead pr osecu tors to

former convictions, the evide nce could h ave refuted any inference of an inten t to

defraud .



       Furthermore, had Defe ndant bee n able to cross-e xamine witne ss Gwyn

Gregory, he could potentially have shown that the State, at that time, did not

know Defendant’s “true name,” but knew only that he had also been convicted

under the nam e Louis In gram. D efenda nt argues that because he could not

cross-examine Gregory, his right to confront the witness wa s violated. Howe ver,

Defe ndan t’s inability to cross-examine Gregory was self-imposed: Had he been

willing to disclose his prior convictions to the jury, Defendant could have argued,

through a thorough cross-examin ation of Grego ry and through his own testimo ny,

that using the na me B ell cou ld not be construed as intending to defraud law



       3
          Although this information was not presented to the jury, it is contained in other parts
of the record on appeal.

                                              -8-
enforce ment. The confusion created by the Defendant’s prior use of more than

one identity complicated the Defendant’s trial tactics.4



                       II. TESTIMONY BY GWYN GREGORY

       Defendant challenges the trial court’s decision to p ermit Gwyn Grego ry to

testify that Lewis Bell was not Defendant’s “true name.” Defendant claims that

admitting Greg ory’s tes timon y impa ired his right to confront the witness because

had he cross-examined Gregory, he would have been forced to reveal his past

criminal convictions. Furthermore, he argues that Gregory’s testimony was not

relevant; a nd even if it was relevan t, it was mo re prejud icial than pro bative.



       “Relevant evidence” is evidence “having any tendency to make the

existence of any fact that is of consequence to the determination of the action

more proba ble or less probable than it would have been without the evidenc e.”

Tenn. R. Evid. 40 1. The determination of whether proffered evidence is relevant

is left to the disc retion of the trial judge. State v. Forbes, 918 S.W.2d 431, 449

(Tenn. Crim. App. 1995 ). The S tate resp onds th at Defen dant is “atte mpt[ing ] to

elevate a matter o f trial tactics to the level of a co nstitutiona l question .” We agree

with that statem ent and the next: “[D efenda nt], through his attorne y, elected not

to cross exam ine Ms. Greg ory.” (Empha sis added.)




       4
         Defendant’s prosecution in these cases demonstrates the confusion. He was indicted
as Louis Lee Ingram, a.k.a. Lewis Lee Bell, a.k.a. Louis Lee Bell. He was convicted under the
name Louis Coleman (his mother’s married name), and the judgment lists Bell and Ingram as
aliases. A jury-out discussion revealed that Defendant had also been convicted under the
name of Coleman in the past, in addition to the names Ingram and Bell. The presentence
investigation report discloses that “his fingerprints showed him to be Lewis Lee Coleman.”

                                            -9-
      That Defendant had been convicted and fingerprinted under a name other

than Bell at leas t six times in th e past is p robative o f the issue of whether Bell

was an false n ame, a nd the e vidence was, ther efore, relev ant. In add ition,

because the trial court recognized that Gregory’s full testimony would indeed be

prejudicial to Defendant by implying that he had a criminal history, the court

prope rly limited the substance of her testimony. We cannot conclude that the trial

court committed an abuse of discretion by admitting Gregory’s statements.



                           IV. TRUTH IN SENTENCING

      Finally, Defe ndan t challe nges the trial c ourt’s instruc tion to th e jury tha t it

may “weigh and consider” a sentence of imprisonment. Former Tennessee Code

Annotated § 40-35-201 mandated such an instru ction: “W hen a c harge a s to

poss ible penalties has been requested pursuant to subdivision (b)(1), the judge

shall also include in the instructions for the jury to weigh and consider the

meaning of a sentence of imprisonment for the offense charged and any lesser

included offenses .” Tenn . Code Ann. § 4 0-35-20 1(b)(2)(A )(i). Defendant made

such a request for the trial court to inform the jury of possible penalties.



      In State v. Rachel Marie Green, No. 01C01-9706-CR-00223, 1998 WL

708915 (Tenn. Crim. App., N ashville, O ct. 12, 1998) (for pu blication), this Court

followed the instruction of the Tennessee Supreme Court in State v. King, 973

S.W.2d 586 (T enn. 1 998), o n this iss ue. As in this ca se, the defen dant in Green

challenged the trial cou rt’s instruction that the jury sho uld “weigh and consider”

a sente nce of im prisonm ent. Green, 1998 W L 7089 15, at *26 .



      We noted in Green that the King court he ld,

                                          -10-
       [F]ormer Tennessee Code Annotated § 40-35-201(b)(2) . . . was not
       impe rmiss ibly vague, did not m andate a misleading jury instruction,
       and did not require a jury instruction on matters irrelevant to a
       Defe ndan t’s guilt or innocence. The court concluded th at the jury
       instruction given in King violated the due process clause of neither
       the United States n or the T ennes see Co nstitution.
              . . . . In King, although the supreme court stated that it was
       significant that the jury had been instructed that the sentencing
       informa tion was “fo r your in forma tion on ly,” the co urt spe cifically
       stated that sentencing and parole information had a “measure of
       relevance” to the jury’s function in determining guilt or innocence.

Id. at *27 (citations omitted). Moreover, we stated in Green,

              The challe nged jury instruction was mandated by the
       legislature. The constitutionality of the statute has been upheld by
       our supreme court. The supreme court rejected the argument that
       sentencing and parole informa tion are entirely irreleva nt to the jury’s
       function of determining guilt or innocence . We the refore conclude
       that the trial judge did not err by giving the jury instruction mandated
       by former T ennes see Co de Ann otated § 40-35-2 01(b)(2) .

Id. We find no reaso n to rev isit the Green decisio n, and we co nclud e that th is

issue lac ks me rit.



       Because we find no m erit in Defendant’s assignments of error, we affirm

the verdic t of the jury an d judgm ent by the trial court.



                                   ____________________________________
                                   DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JAMES CURWOOD WITT, JR., JUDGE




                                         -11-
