         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                              Assigned on Briefs April 8, 2008


                STATE OF TENNESSEE v. CLARENCE DODSON

                  Direct Appeal from the Criminal Court for Shelby County
                         No. 06-05740   James C. Beasley, Jr., Judge



                  No. W2007-01875-CCA-R3-CD - Filed September 5, 2008


The defendant, Clarence Dodson, was convicted by a Shelby County jury of aggravated burglary, a
Class C felony, and theft of property under $500, a Class A misdemeanor. He was subsequently
sentenced to concurrent sentences of fifteen years and eleven months, twenty-nine days for the
respective convictions. On appeal, he raises two issues for our review: (1) whether the evidence is
sufficient to support the aggravated burglary conviction; and (2) whether the trial court erred in
allowing prior convictions for aggravated burglary and misdemeanor theft of services to be used for
impeachment purposes. Following review of the record, we find no error and affirm the judgments
of convictions.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
J.C. MCLIN , JJ., joined.

Robert Wilson Jones, District Public Defender, and Garland Ergüden and Rusty White, Assistant
Public Defenders, for the appellant, Clarence Dodson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Pamela Fleming, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                       Factual Background

     The victims, Jonathan White and Leandra Felton, rented a duplex at 118 Silverage in Memphis
where they resided with their son. However, in late January 2006, the couple separated and left the
duplex, but they remained in contact and left all their belongings inside the residence. The two knew
the defendant “from around the neighborhood” and had previously hired him to do some repair work
on a wall inside the home.
        On February 9, 2006, Victim Felton asked Victim White to accompany her to the duplex to
check on their belongings. As the two arrived at the residence, they immediately noticed that the
curtains in the window had been changed. Victim White approached the front door while Victim
Felton remained in the car. As Victim White approached the front door, he observed that it had been
kicked in and was damaged. He attempted to push it open but was unable to do so because it was
blocked. Victim White then went to the side door of the duplex and entered, immediately noticing
that there was a “big hole in the kitchen” wall leading to the vacant duplex unit next door and “a lot
of trash and things” scattered inside.

        As Victim White was entering their duplex, Victim Felton, still in the car, saw the defendant
exit the front door of the adjacent duplex carrying a bag and a miniature boom box, which she
recognized as her own. Upon exiting, the defendant immediately began running. Victim Felton
began honking the car horn, and, when Victim White returned “seconds” later, she informed him,
“there he is.” Victim White then began chasing the defendant, whom he immediately recognized,
through the neighborhood and caught him on the next street. According to Victim White, the
defendant raised his hands like he intended to fight, and Victim White hit him. Victim Felton, who
had called the police from her cell phone, arrived in the car and saw the defendant hitting Victim
White. She grabbed a hockey stick from her car and proceeded to hit the defendant with it. Victim
White took the stick from Victim Felton and also hit the defendant. According to Victim White, the
defendant continued to resist and ran on three separate occasions, but they were able to catch him
each time and eventually subdued him until police arrived. Police arrived on the scene to find the
defendant bleeding severely from head wounds, and he was transported to The Med.

        The victims went to the police station, and Victim White identified, from a photograph, the
defendant as the one who had broken into the duplex. Upon their return to the duplex, the victims
noted that several items were missing and that the duplex was full of trash, as if someone had been
living there. The furniture in the living room had been piled against the front door. The bedroom
suite, which included a headboard, footboard, rails, and a night stand, was missing. According to
Victim Felton, she had purchased the suite for $500. Also missing was a wall heater, which they
were charged $100 of their security deposit to replace, and a bookcase valued at $50. Two rings
were also taken, one of which was recovered from the defendant while at The Med. The missing
ring was worth $75 or $80 dollars. In the bedroom, the victims found clothes which they recognized
as belonging to the defendant.

        After the defendant was released from The Med, he went to his sister’s house to recuperate.
Police went to the home of the defendant’s sister, informed him that his home on Pennsylvania had
been burglarized, and transported him to 201 Poplar in order to identify a suspect in the burglary.
After identifying the suspect, the defendant was then questioned and arrested in connection with the
instant burglary. He gave an oral statement, admitting possession of the rings recovered in his
pockets at The Med. However, in the followup written statement, the defendant denied knowledge
of or participation in the burglary. At trial, the defendant testified and again denied involvement.
In fact, he testified that he had never been in the duplex to work and that he did not know the
victims. According to the defendant, he was simply walking down the street when he heard someone


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yell, “Hey, you, yeah, you the one, you did it.” He stated that he looked back, saw the victims
running toward him, and saw a pair of hedge shears in the hand of Victim White. The defendant
testified that he ran until he had to stop and catch his breath. According to the defendant, the next
thing he remembered was waking up in The Med.

        The defendant was indicted by a Shelby County grand jury for aggravated burglary and theft
of property over $500. Following a jury trial, he was convicted of aggravated burglary and the lesser
offense of theft of property under $500. He was subsequently sentenced to concurrent sentences of
fifteen years and eleven months, twenty-nine days. Following the denial of his motion for new trial,
the defendant filed a timely notice of appeal.

                                                Analysis

       On appeal, the defendant has raised two issues for our review. First, he contends that the
evidence is insufficient to support the conviction for aggravated burglary beyond a reasonable doubt.
He further contends that the trial court erred by allowing the defendant to be impeached with prior
convictions for aggravated burglary and misdemeanor theft of services.

I. Sufficiency of the Evidence

        We apply the rule that where the sufficiency of the evidence is challenged, the relevant
question for the reviewing court is “whether, after viewing the evidence in the light most favorable
to the [State], 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, 99 S. Ct. 2781, 2789 (1979); see also
Tenn. R. App. P. 13(e). The scope of our examination of the evidence is not equivalent to that of
the jury’s. In a challenge to the sufficiency of the evidence, this court does not retry the defendant.
We emphasize that our examination in a sufficiency review is not to revisit inconsistent,
contradicting, implausible, or non-credible proof, as these issues are resolved solely by the jury.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Rather, we look to the record to determine
whether there was substantive probative evidence to support the verdict. The second inquiry, the
question of legal sufficiency, then follows: whether the record contains evidence from which the
jury could have found the essential elements of the crime beyond a reasonable doubt. Every
reasonable hypothesis of innocence need not be dispelled; it is only necessary that there exists proof
which supports the elements of the crime. The State is entitled to the strongest legitimate view of
the evidence and all reasonable inferences which may be drawn therefrom. State v. Harris, 839
S.W.2d 54, 75 (Tenn. 1992). All questions involving the credibility of witnesses, the weight and
value to be given to the evidence, and all factual issues are resolved by the trier of fact. State v.
Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court will not reweigh or reevaluate
the evidence presented. Cabbage, 571 S.W.2d 832 at 835.

       “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Nichols,
24 S.W.3d 297, 301 (Tenn. 2000) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). A jury


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conviction removes the presumption of innocence with which a defendant is initially cloaked and
replaces it with one of guilt so that, on appeal, a convicted defendant has the burden of
demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
These rules are applicable to findings of guilt predicated upon direct evidence, circumstantial
evidence, or a combination of both. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990).

        A person commits aggravated burglary who, without the effective consent of the property
owner, enters a habitation and commits or attempts to commit, as relevant here, a theft. T.C.A. §
39-14-402(a), -403(a) (2006). Tennessee Code Annotated section 39-14-103 (2003) provides that,
“[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.”
T.C.A. § 39-14-103 (2006). It has previously been held that burglary may be established by
circumstantial evidence and that the State is not required to offer a witness who saw the defendant
break and enter into the burglarized premises. Ramsey v. State, 571 S.W.2d 822, 824 (Tenn. 1978);
State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993).

         The defendant, though conceding that there is some evidence to support his conviction in
light of the victims’ testimony, argues that the proof is insufficient when properly viewed against the
high standard enunciated in Jackson v. Virginia and Tennessee Rule of Appellate Procedure 13(e).
Essentially, the defendant’s argument is based upon his assertion that the State’s witnesses were not
credible. According to the defendant, “[t]he proof reflected no agreement as to the facts except for
[the defendant’s] assertion that he had not been inside the duplex, and the admission by both
[victims] that they had not seen [the defendant] inside their duplex.” Moreover, he relies upon
inconsistencies in the victims’ testimony to support his argument. Specifically, he notes the
discrepancy in the testimony of the victims with regard to what the defendant was carrying when he
exited the premises, that these items were not found despite the fact that Victim White claimed to
have never lost sight of the defendant during the chase, that the victims downplayed the viciousness
of their attack on the defendant, and that it was illogical for the defendant to have been living in the
duplex when he had his own home.

         We note at this juncture that the scope of our examination of the evidence is not equivalent
to that of the jury’s. Again, in a challenge to the sufficiency of the evidence, this court does not retry
the defendant. Our examination in a sufficiency review is not to revisit inconsistent, contradicting,
implausible, or non-credible proof, as these issues are “entrusted exclusively to the jury as the triers
of fact.” State v. Oody, 823 S.W.2d 554, 558 (Tenn. Crim. App. 1991). In this case, we
acknowledge that some minor inconsistencies did appear in the testimony of the witnesses; however,
those inconsistencies were placed before the jury. The jury obviously rejected the defendant’s
testimony at trial and accredited the testimony of the State’s witnesses, as evidenced by its finding
of guilt.

        In the light most favorable to the State, the proof at trial overwhelmingly supports the jury’s
verdict. The evidence established that the defendant was seen exiting the adjacent duplex by Victim


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Felton at the same time Victim White was attempting to enter their apartment. The defendant was
carrying property which belonged to the victims when he exited. He immediately began running
upon his exit from the duplex and continued to run until caught by Victim White. Inside the victims’
duplex, a large hole had been cut in the wall connecting the adjacent duplex, and several items were
missing. Moreover, clothes identified as the defendant’s were found in the victim’s duplex. Finally,
the defendant himself made an oral statement to police that the rings recovered at The Med had come
from his pocket. One of those rings belonged to Victim Felton. These facts are sufficient to allow
a rational trier of fact to have found the defendant guilty of aggravated burglary beyond a reasonable
doubt. Though not challenged by the defendant, we would also note that the facts presented were
also sufficient to support the conviction for theft of property under $500.

II. Use of Prior Convictions for Impeachment

        Next, the defendant contends that the trial court erred in allowing the State to use prior
convictions for aggravated burglary and misdemeanor theft of services for impeachment purposes.
The general rule is that, in a criminal case, prior convictions can be used to impeach the credibility
of the accused who takes the stand in his own defense. Tenn. R. Evid. 609. However, before the
State is permitted to impeach an accused’s credibility, certain conditions and procedures must be
satisfied. The prior convictions must be for a crime punishable by incarceration in excess of one
year or for a crime involving dishonesty or false statement. Tenn. R. Evid. 609(a)(2); see also State
v. Blanton, 926 S.W.2d 953, 959 (Tenn. Crim. App. 1996). A trial court’s determination under Rule
609 will not be reversed unless it appears from the record that the court abused its discretion. State
v. Waller, 118 S.W.3d 368, 371 (Tenn. 2003); State v. Mixon, 983 S.W.2d 661, 675 (Tenn. 1999).
A trial court abuses its discretion when it applies an incorrect legal standard or reaches a decision
which is against logic or reasoning that causes an injustice to the party complaining. Waller, 118
S.W.3d at 371.

        On appeal, the defendant contends that allowing the State to impeach him with the two prior
convictions, which were the same as the charged crimes in the instant case, was error because the
probative value did not substantially outweigh the prejudicial effect. According to the defendant,
the case essentially turned on the credibility of the witnesses, as the proof was not overwhelming,
and allowing the use of the same type of convictions as the charges on trial for impeachment
purposes more probably than not affected the verdict.

        Two criteria are especially relevant in determining whether the probative value of a
conviction on the issue of credibility outweighs its unfair prejudicial effect upon the substantive
issues: (1) the impeaching conviction’s relevance as to credibility and (2) the impeaching
conviction’s similarity to the charged offense. Waller, 118 S.W.3d at 371 (citing Mixon, 983 S.W.2d
at 674). A trial court should first analyze whether the impeaching conviction is relevant to the issue
of credibility. Id. Rule 609 suggests that the commission of any felony is “generally probative” of
a criminal defendant’s credibility. Id. (citing State v. Walker, 29 S.W.3d 885, 890 (Tenn. Crim. App.
1999)). However, our supreme court has previously rejected a per se rule that permits impeachment
by any and all felony convictions. Id. Second, the court must consider that, when an impeaching


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conviction is substantially similar to the crime for which the defendant is being tried, there is a
danger that a juror will erroneously utilize the impeaching conviction as propensity evidence of guilt
and conclude that, because the defendant committed a similar offense, he or she is probably guilty
of the offense charged. Mixon, 983 S.W.2d at 674. Accordingly, the unfair prejudicial effect of an
impeaching conviction on the substantive issues greatly increases if the impeaching conviction is
substantially similar to the crime for which the defendant is being tried. Id. A prior felony
conviction must be analyzed to determine whether it is sufficiently probative of credibility to
outweigh any unfair prejudicial effect it may have on the substantive issue of the case. Id.

        As noted by the State, the appellate courts of this state have previously held that the offenses
of burglary and theft are crimes involving dishonesty and are “highly probative of credibility.” State
v. Baker, 956 S.W.2d 8, 15 (Tenn. Crim. App. 1997); see also State v. Crank, 721 S.W.2d 264, 266-
67 (Tenn. 1986); State v. Tune, 872 S.W.2d 922, 927 (Tenn. Crim. App. 1993). Moreover, “the fact
that a prior conviction involves a similar crime for which the defendant is being tried does not
automatically require its exclusion.” State v. Blevins, 968 S.W.2d 888, 893 (Tenn. Crim. App.
1997).

        In reaching its conclusion on this issue, the trial noted that the two prior convictions which
the State sought to rely upon for impeachment purposes were “for the same offenses which the
defendant is on trial[,] [a]nd normally speaking, the Court would be inclined not to allow those
convictions in simply because they are of the same nature.” The court went on to state, however, that
both crimes had repeatedly been found to be crimes which involved dishonesty and “would definitely
go to the credibility of a witness sought to be impeached.” The court then noted that, based upon
the opening statements of the parties, the credibility of both the victims and the defendant would be
major issues in the case. As such, the court then had to make a determination of the probative value
versus the prejudicial effect of allowing the prior convictions to be used. In doing so, the court stated
as follows:

        [T]he concern I have is even in light of everything else just a general analysis, the
        interest of justice being, you know, seeking the truth, I have a great deal of concern
        for the fact that [the defendant] has frankly a lengthy history of offenses that involve
        dishonesty. Those would be attempted burglaries back in 1980, burglary in 1988,
        robbery, aggravated robbery in 1992 and 1993, aggravated burglary in 1995, theft of
        property in 2005. All of those offenses involve dishonesty.

                And for the defendant to be allowed to take the witness stand and testify
        unimpeached as if he has no prior record that would go to attack his credibility for
        truthfulness when in fact he has three, four, five, six, seven prior convictions which
        would go to his reputation for ability to speak the truth, the interest of justice would
        seem to cry out that that would not be a proper determination. However, it is going
        to be prejudicial to [the defendant] if the State is allowed to impeach him with a prior
        aggravated burglary and a theft of property and the State has conceded that the other
        convictions are too old, and they’re not going to attempt to get those in.


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               But this Court is of the opinion that especially in the case that’s going to
       involve strictly a credibility issue as to the victim’s word versus the defendant’s
       word, that the probative value to the State of Tennessee in being able to attempt to
       impeach the word of the defendant substantially outweighs any prejudicial effect that
       it may have to the defendant, obviously if the Court allows this, the Court will give
       curative instructions to the jury on how they are to utilize these prior convictions.

         Based upon a reading of the trial court’s findings, it is clear that the court correctly
determined that the two prior convictions were extremely probative of the defendant’s credibility,
a major issue in the case. See Baker, 956 S.W.2d at 15. Noting that the prior convictions involved
crimes of dishonesty, the court then proceeded to perform the necessary balancing test, noting the
similarity in the prior convictions, but concluding “that the interest of justice would seem to cry out”
for a true determination of the defendant’s credibility. As such, the court concluded that the resulting
prejudicial effect was outweighed by the probative value. Because the record reveals that the trial
court carefully weighed the probative value versus the prejudicial effect, we conclude that the court
did not abuse its discretion in deeming these convictions admissible for impeachment purposes.

                                          CONCLUSION

       Based upon the foregoing, the judgments of conviction are affirmed.




                                                        ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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