                                                                                         02/12/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs June 5, 2019

                  STATE OF TENNESSEE v. ERNEST ERVIN

                 Appeal from the Criminal Court for Shelby County
                    No. 17-00718       W. Mark Ward, Judge
                     ___________________________________

                           No. W2018-01342-CCA-R3-CD
                       ___________________________________


Defendant, Ernest Ervin, was convicted by a Shelby County jury of burglary of a motor
vehicle. The trial court imposed a sentence of six years as a Career Offender to be served
in confinement. On appeal, Defendant argues that the trial court erred by admitting
surveillance video without sufficient authentication and that the evidence was insufficient
to support his conviction. Having reviewed the entire record and the briefs of the parties,
we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ALAN E. GLENN
and TIMOTHY L. EASTER, JJ., joined.

Stephen C. Bush, District Public Defender; and Phyllis Aluko, Andrew Sullivan, and
Katherine Oberembt, Assistant Public Defenders, Memphis, Tennessee, for the appellant,
Ernest Ervin.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Senior
Counsel; Amy P. Weirich, District Attorney General; and Holly Palmer, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

Background

      State’s Proof

       At approximately noon on Monday, August 8, 2016, James Washington went out
to his car which was parked in the Edison Apartments parking lot. He immediately
noticed the contents of the center console were strewn across the front seat, and he
checked his “change box” and found that ten to fifteen dollars in change was missing
from the vehicle. Mr. Washington noted that some dollar bills were still in the car, and
he photographed everything. Mr. Washington testified that he last retrieved something
from his car the day before, and he forgot to lock the car door. Mr. Washington called
police, and officers arrived and took a report. He later went to the police station and gave
a statement. Mr. Washington noted that the apartment complex had security cameras,
and he parked within view of those cameras because his car had been burglarized on a
previous occasion. Mr. Washington testified that he did not give anyone permission to
rummage through his car or take his change.

        On August 13, 2016, Detective Alvin Todd of the Memphis Police Department
obtained the surveillance video footage from the apartment complex. He was familiar
with the complex and its surveillance system. There were approximately fifteen cameras
on the property, and he had downloaded video from there “[n]o less than three previous
times.” Detective Todd noted that in his experience the date and time stamp from the
surveillance system was correct. He also used his watch to check the time. Detective
Todd saved the video from the burglary in the present case to a USB drive, and he later
burned it “to a C.D. for property and evidence.” Detective Todd testified that there were
three camera angles of the burglary. The video showed an African-American man
wearing a yellow shirt, shorts, and a black backpack milling around the apartment
complex at approximately 1:17 a.m. on August 8, 2016, attempting to open car doors.
The man entered Mr. Washington’s car at approximately 1:20 a.m. and rummaged around
inside.

       Detective Todd thought that he recognized the suspect in the video. He could not
remember the suspect’s name but remembered seeing the suspect at the precinct a few
days prior to August 13, 2016, concerning an unrelated case. The suspect had visited the
precinct on August 9, 2016, to report an assault that occurred earlier in the day.
Detective Todd talked to a co-worker and a leasing agent at the apartment complex to
discern the suspect’s name. He obtained a name and pulled up a driver’s license photo to
compare with the video. Detective Todd determined the person in the video was
Defendant.

        Officer Ashton Britton of the Memphis Police Department was working as a
“courtesy officer” with the Edison Apartments, where he lived in August 2016. The
property manager called Officer Britton the morning after the burglary and asked him to
look at the security camera footage. Officer Britton testified that he had looked at
surveillance video from the apartment complex on previous occasions, more than a dozen
times, and he had never known the date/time stamp to be inaccurate. Officer Britton
testified that he watched surveillance video from the three angles and recognized the
suspect in the video to be Defendant. He was one-hundred percent certain of Defendant’s
identity. Officer Britton had seen Defendant “at least three times” in the past; twice for

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five to ten minutes and once for approximately an hour. During those previous meetings,
Officer Britton was “face-to-face” with Defendant. Officer Britton gave Defendant’s
name to the property manager of the apartment complex.

       Officer Enis Jackson of the Memphis Police Department interacted with
Defendant when Defendant came to the police precinct on August 9, 2016, to talk about
an alleged assault. Officer Jackson confirmed Defendant’s identity and took photographs
of Defendant because Defendant reported that he had been injured.

       Detective James Harvell of the Memphis Police Department investigated
Defendant’s assault complaint and met with him at the Regional One Hospital on August
9, 2016. Detective Harvell then drove Defendant to the North Main Precinct to discuss
the assault. He identified Defendant in a still photograph taken of Defendant walking
into the precinct. Detective Harvell estimated he spent thirty minutes to an hour talking
to Defendant. Sometime later, Detective Harvell viewed the surveillance video of the
burglary in the present case. He told Detective Todd that he believed the person in the
video was Defendant. He was one-hundred percent certain of his identification.
Detective Harvell noted that Defendant was wearing the same clothing in the video that
he was wearing when Detective Harvell talked to him on August 9.

       Defendant’s Proof

        Defendant introduced his medical records from Regional One Hospital through
Joanne Hunter, the custodian of medical records. The records were from Defendant’s
visit to the hospital on August 9, 2016. The notes from the records reflected that
Defendant arrived at the hospital at 12:05 p.m. The nurse’s notes reflected that
Defendant left the hospital at 12:27 p.m. Ms. Hunter agreed that she did not personally
record any times on the records and that she relied on the work of other people. The
records reflected that Defendant refused treatment at the hospital.

        Vernita Swopshire testified at trial that she was dating the Defendant at the time of
the burglary, and they had spent the weekend of August 6-7, 2016, together at the Regal
Inn on Third Street. She had no documentation of the hotel stay. However, she
remembered the dates specifically because she works as a cafeteria manager and it was
the first week of school. She testified that on Sunday, August 7, they spent the night
together and both went to bed at approximately 10:30 p.m. She did not recall Defendant
getting up in the middle of the night, but acknowledged it was possible. She testified that
the man depicted in the Edison Apartments’ video “kind of look[ed] like” Defendant, but
was “bigger.” Ms. Swopshire testified that she cared about Defendant and wanted to help
him out. She preferred that he not be incarcerated. She said that she could not lie to keep
Defendant out of jail.



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       On cross-examination, Ms. Swopshire testified that she and Defendant had dated
on and off for seven years. She admitted that she had been afraid of Defendant at one
time in the past, but she was not testifying on his behalf out of fear. Ms. Swopshire
acknowledged that she did not tell police in September 2016, when Defendant was
arrested, that she was with him on the night of the burglary.

ANALYSIS

   I.     Authentication of the Edison Apartments surveillance video
   Defendant argues that the trial court improperly admitted surveillance video from the
Edison Apartments without adequate authentication. In terms of admissibility of
evidence, trial courts have broad discretion, and their decisions will not be disturbed
absent an abuse of discretion. State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). An
abuse of discretion occurs when a trial court applies an incorrect legal standard or reaches
an illogical or unreasonable decision and injustice toward the challenging party results.
State v. Plyant, 263 S.W.3d 854, 870 (Tenn. 2008).

   Tennessee law requires authentication or identification of all evidence prior to
admission in a trial. Tenn. R. Evid. 901(a). According to Rule 901(b), authentication
may be accomplished by the testimony of a witness with knowledge that “the matter is
what it is claimed to be.” Tenn. R. Evid. 901(b)(1). To authenticate tangible evidence, a
witness must, “be able to identify the evidence or establish an unbroken chain of
custody.” State v. Kilpatrick, 52 S.W.3d 81, 87 (Tenn. Crim. App. 2000).

       Requiring tangible evidence to be authenticated functions to “demonstrate there
has been no tampering, loss, substitution, or mistake with respect to the evidence.” State
v. Braden, 867 S.W.2d 750, 759 (Tenn. Crim. App. 1993). Rule 901 does not require
absolute certainty of identification. Rather, the circumstances established must
“reasonably assure the identity of the evidence and its integrity.” State v. Ferguson, 741
S.W.2d 125, 127 (Tenn. Crim. App. 1987); Ritter v. State, 462 S.W.2d 247, 249 (Tenn.
Crim. App. 1970). If the tangible evidence is “unique, readily identifiable, and relatively
resistant to change,” the required testimony needs only to confirm the evidence’s
relevance. State v. Cannon, 254 S.W.3d 287, 309 (Tenn. 2008).

       Defendant contends that because Detective Todd did not physically see the
Defendant on the night of the burglary, he could not provide a sufficient authentication
for the video at trial. Defendant also argues that Detective Todd could not guarantee that
the time and date stamps were accurate because did not have a hand in installing or
maintaining the security cameras at the apartment complex.

       Mr. Washington identified his car on the video, and he confirmed the location of
the crime. He testified that he forgot to lock his car and upon discovering the theft, took

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a picture of the contents of the console that had been dumped out onto the driver’s seat.
The footage on the surveillance video shows Defendant opening the victim’s unlocked
car door.

        Detective Todd testified that he had training on how to obtain an accurate
time/date stamp from a video, and he followed his training in obtaining the surveillance
video in this case. He noted that he was familiar with the Edison Apartments and their
video surveillance system. In fact, he had downloaded video from that system “[n]o less
than three previous times.” In his experience, the date and time stamp from the
surveillance system was correct, and he also used his watch to check the time in this case.
Detective Todd saved the video pertaining to the burglary in the present case to a USB
drive, and he later burned it “to a C.D. for property and evidence.” At trial, Detective
Todd confirmed that he had watched the entire video and recorded what he watched. He
also stated that the contents of the video introduced at trial as Exhibit Three was what he
watched. Detective Todd further testified that he recognized the suspect on the video to
be Defendant, who had been at the North Main Precinct on August 9, 2016, to report an
assault. He noted that the suspect in the video was wearing a yellow shirt, shorts, and a
black backpack.

        Officer Ashton Britton confirmed Detective Todd’s authentication of the
surveillance video. He worked as a “courtesy officer” at the Edison Apartments, and he
also lived there. The property manager called Officer Britton to look at the surveillance
video of the burglary the morning after the burglary. Officer Britton testified that he had
looked at the surveillance video from the apartment complex on previous occasions, and
he had never known the date/time stamp to be inaccurate. He watched the video of the
burglary in this case and recognized the suspect to be Defendant, whom he had met at
least three times in the past. Detective James Harvell also viewed the surveillance video
and identified Defendant as the person depicted on the video burglarizing Mr.
Washington’s vehicle. He noted that Defendant was wearing the same clothing in the
video that he was wearing when Detective Harvell talked to him on August 9, 2016, on
an unrelated matter. We reject Defendant’s argument that the video was improperly
authenticated. See State v. Osayamien Ogbeiwi, No. W2010-00117-CCA-R3-CD, 2011
WL 3276188, at * 12 (Tenn. Crim. App. July 29, 2011)(The trial court did not err when it
admitted security camera footage because it was introduced during the testimony of the
officer who reviewed and retrieved the footage shortly after the offense, the video
“supplemented the testimonies” of witnesses, and the defendant admitted to being “the
gunman seen on the video shooting the victim”). Defendant is not entitled to relief on
this issue.




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   II.    Insufficient evidence to sustain conviction
       Defendant contends that the evidence was insufficient to sustain his conviction for
burglary of a motor vehicle because the State did not prove his identity as the person who
committed the offense.

        “Because a verdict of guilt removes the presumption of innocence and raises a
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992)). “Appellate courts evaluating the sufficiency of the convicting evidence must
determine ‘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.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e).
When this court evaluates the sufficiency of the evidence on appeal, the State is entitled
to the strongest legitimate view of the evidence and all reasonable inferences that may be
drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011)
(citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)).

        Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686,
691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of
review for sufficiency of the evidence “‘is the same whether the conviction is based upon
direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the
credibility of the witnesses, determine the weight given to witnesses’ testimony, and
reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn.
2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover,
the jury determines the weight to be given to circumstantial evidence, the inferences to be
drawn from this evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence. Dorantes, 331 S.W.3d at 379 (citing State v. Rice,
184 S.W.3d 646, 662 (Tenn. 2006)). When considering the sufficiency of the evidence,
this court “neither re-weighs the evidence nor substitutes its inferences for those drawn
by the jury.” Wagner, 382 S.W.3d at 297 (citing State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997)).

       “The identity of the perpetrator is an essential element of any crime.” State v Rice,
184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Thompson, 519 S.W.2d 789, 793
(Tenn. 1975)). The State has the burden of proving beyond a reasonable doubt
the identity of the defendant as a perpetrator. State v. Cribbs, 967 S.W.2d 773, 779
(Tenn. 1998). Identity may be established by either direct evidence or circumstantial
evidence, or a combination of the two. Thompson, 519 S.W.2d at 793; see also State v.

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Lewter, 313 S.W.3d 745, 748 (Tenn. 2010). The identification of the defendant as a
perpetrator is a question of fact for the jury after considering all the relevant proof. State
v. Thomas, 158 S.W.3d 361, 388 (Tenn. 2005) (citing State v. Strickland, 885 S.W.2d 85,
87 (Tenn. Crim. App. 1993)).

       “A person commits burglary who, without the effective consent of the property
owner . . . enters any freight or passenger car, automobile, truck, trailer, boat, airplane or
other motor vehicle with intent to commit a felony, theft or assault or commits or
attempts to commit a felony, theft or assault.” Tenn. Code Ann. § 39-14-402(a)(4). “A
person commits theft of property if, with intent to deprive the owner of property, the
person knowingly obtains or exercises control over the property without the owner’s
effective consent.” Tenn. Code Ann. § 39-14-103(a).

       The proof in this case was sufficient to establish Defendant’s identity. Viewed in a
light most favorable to the State, the proof shows that Defendant entered Mr.
Washington’s vehicle and took between ten and fifteen dollars in change. Mr.
Washington testified that he did not give anyone permission to be inside his vehicle and
take his change. Surveillance video, which we have already determined was properly
authenticated and admitted, shows Defendant opening the door to Mr. Washington’s
vehicle and rummaging around inside the vehicle. Detective Todd, who obtained the
video from the Edison Apartments, thought that he recognized the suspect in the
surveillance video; however, he could not remember the person’s name. He noted that
the suspect had visited the North Main Precinct on August 9, 2016, to report an assault.
Detective Todd spoke with a co-worker and a leasing agent at the apartment complex and
ultimately determined that the person on the video was Defendant.

       Both Officer Britton and Detective Harvell viewed the surveillance video of the
burglary and identified Defendant as the suspect. Both men were one-hundred percent
certain of Defendant’s identity. Officer Britton had seen Defendant “at least three times”
in the past: twice for five to ten minutes and once for approximately an hour. Officer
Britton noted that he was “face-to-face” with Defendant during those meetings.
Detective Harvell investigated Defendant’s assault complaint in an unrelated case and
spent thirty minutes to an hour talking to Defendant. He testified that Defendant was
wearing the same clothing at the time of that interview that he was wearing in the video
of the burglary.

       Although Defendant argues that there were slight discrepancies in the clothing the
suspect was wearing in the video from the burglary and in that of a still photograph taken
of Defendant walking into the police precinct to report the assault, the jury resolved any
discrepancies in favor of the State. The jury observed Defendant in the courtroom,
viewed the video of the burglary, heard the witness’ testimony, and determined that
Defendant was the person who committed the burglary. Based on our review of the
evidence, we conclude that the evidence was sufficient beyond a reasonable doubt to

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support Defendant’s conviction for burglary of a motor vehicle. Defendant is not entitled
to relief on this issue.

                                    CONCLUSION

      For the foregoing reasons, the judgment of the trial court is affirmed.


                                  ____________________________________________
                                  THOMAS T. WOODALL, JUDGE




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