        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                      SEPTEMBE R SESSION, 1997              FILED
                                                      November 20, 1997
STATE OF TENNESSEE,         )   C.C.A. NO. 02C01-9611-CR-00424
                            )                         Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
      Appellee,             )
                            )
                            )   SHELBY COUNTY
VS.                         )
                            )   HON. JAMES C. BEASLEY, JR.
RAY L. TAYLOR,              )   JUDGE
                            )
      Appe llant.           )   (Aggra vated B urglary & Theft)


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


FOR THE APPELLANT:              FOR THE APPELLEE:

A.C. WHARTON                    JOHN KNOX WALKUP
Public Defender                 Attorney General and Reporter

TONY N. BRAYTON                 CLINTON J. MORGAN
Assistant Public Defender       Assistant Attorney General
201 Poplar, Suite 2-01          425 5th Avenu e North
Memphis, TN 38103               Nashville, TN 37243

                                JOHN W. PIEROTTI
                                District Attorney General

                                JERRY R. KITCHEN
                                Assistant District Attorney General
                                Criminal Justice Complex, Suite 301
                                201 Poplar Street
                                Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                       OPINION

      The Defendant, Ray L. Taylor, appeals as of right pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure. He was convicted by a She lby Cou nty

jury of one count of aggravated burglary and one count of theft of property valued

in excess of one thousand dollars ($1000) but less than ten thousand do llars

($10,000). 1 The trial court sentenced him as a Range III pers istent offen der to

twelve years imprisonment with the Department of Correc tion on ea ch cou nt, with

the sentences to run concurrently. In this appeal, the Defendant argues that the

evidence was lega lly insufficient to support the verdicts and tha t the trial court

erred in ruling that his prior co nviction s were adm issible for impeachment

purpos es. W e affirm the judgm ent of the tria l court.



      W e begin with a summary of the pertinent facts. On the morning of March

2, 1995, Pamela Mosley left her home, located at 4578 Gailwood in Memphis,

Tennessee, and w ent to w ork. Sh e later re ceived a telephone call at work

informing her that her house had been burglarize d. She th en return ed hom e to

find that several items which had been in the home when she left that morning

were missing . The front door to her home had been pried open and her bedroom

had been ransacked. Among the missing items were jewelry boxes containing

a large amount of jewelry, a coin collection, several handguns, a flashlight and

a blue duffel bag.         She estimated the value of the missing items at seven

thousand dollars ($7000 ).




      1
          Tenn. Code A nn. § 39-14-403; 39-14-103; 39-14 -105(3).

                                                 -2-
      Two of Mosley’s neighbors, Deborah Christine Roberts and Martha

Sherwood, noticed an unfamiliar individual approach Mosley’s home on the

morning of March 2, 1995. Both Roberts and Sherwood later identified the

Defendant as this individ ual. The Defendant was driving an older-model Cadillac.

He parked the car ne xt to Mosle y’s house , left the car running, and approached

Mosle y’s front door. He did not appear to be carrying anything as he approached

the hous e. He k nock ed on the fron t door, tu rned a round , and lo oked up and

down the street. Martha Sherwood testified that the Defendant then turned

toward the door, the door opened, and the Defendant entered the home. After

appro ximate ly ten to fifteen minutes, the Defendant exited the home carrying a

blue duffel bag and a brown box resembling a briefcase. He tossed these items

into the Cadillac an d drove awa y.



      During the time th e Defe ndant w as in Mo sley’s hom e, both Roberts and

Sherwood gained more information about his car. Sherwood drove around the

block and noted that the Cadillac had a Lauderdale County license plate.

Robe rts sent an in dividual from her hom e to write down the license plate number

of the Cadillac. After the departure of the Defendant, the witnesses called 911.



      The Defendant was arrested on the following day, March 3, 1995. At the

time of his arrest, he was driving an older-model Cadillac matching the

description of the Cadillac given by Sherwood and Roberts. The Cadillac had a

Laud erdale Coun ty license plate with a tag number matching the number Robe rts

had taken from the car parked in front of Mosley’s hom e the previous d ay.




                                       -3-
      None of the items m issing from M osley’s hom e were disco vered in the

Defe ndan t’s vehicle. In fact, the items missing from Mosley’s home were never

recovered. In addition, Elton Smith, an investigator with the Burglary Bureau of

the Memphis Police Department, testified that the crime scene officer did not

check Mosley’s home for fingerprints . As such , the Defe ndant’s fin gerprints were

not linked to the scene of the crime.



      On May 30, 1995, the Defendant was indicted on charges of aggravated

burglary and theft of property. He was tried from February 20 to February 22,

1996. After considering the proof prese nted at trial, the jury found the Defendant

guilty as charged.



      In his first issue on appeal, the Defendant argues that the evidence was

legally insufficient to support the verdicts. In particular, he contends that the

proof was no t sufficient to esta blish his ide ntity as the p erpetrato r. He ass erts

that eyewitness identification testimony is inherently untrustworthy, citing United

States v. Wade, 388 U.S. 218, 87 S.Ct. 19 26, 18 L .Ed.2d 1 149 (19 67). He p oints

out that none of the victim’s property was recovered from his vehicle and no

scien tific fingerprint evidence linked him to the scene of the crime. Thus, given

that it was e yewitn ess te stimo ny that lin ked h im to the crime, he argues that the

eyewitness testimony offered at trial was insufficient to justify a rational trier of

fact in finding guilt beyon d a reas onable doubt.



      W hen an ac cuse d cha llenge s the s ufficien cy of the convic ting evid ence,

the standard is whether, after reviewing the evid ence in the ligh t mos t favora ble

to the prosecu tion, any rational trier of fact could have found the essential

                                          -4-
eleme nts of the crime beyond a reaso nable d oubt. Jack son v. V irginia, 443 U.S.

307, 319 (19 79). Questions concerning the credibility of the witnesses, the

weight and value to be given the evidence, as well as all factual issues raised by

the evidence, are resolved by the trier of fa ct, not this co urt. State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987).            Nor may this court reweigh or

reevalua te the evide nce. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 197 8).




      A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474,

476 (Tenn . 1973). O n appe al, the State is entitled to th e strong est legitim ate

view of the evidence and all inferences therefrom . Cabbage, 571 S.W.2d at 835.

Because a verdic t of guilt removes the presumption of innocence and replaces

it with a pres umptio n of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Grace, 493

S.W.2d at 476.



      Applying these principles to the case sub judice, we believe that the

evidence was legally sufficient to support the verdicts. The Defendant was

positive ly identified by two eyew itnesses as the individual who entered the

victim’s home on March 2, 1995. He approached the home carrying nothing but

returned to his car carrying a blue duffel bag and a brown box resembling a

briefcase. The v ictim returned home shortly after the Defe ndant’s d eparture to

find that her front door had been pried open and her bedroom ransacked. Among

the numerous ite ms m issing from th e hom e was a blue duffel b ag. Th e victim

                                          -5-
estimated the value of the missing items at seven thousand dollars ($7000). The

Defendant was arrested the following day. At the time of his arrest, he was

driving a car matching the general description given by the witnesses. Mo reover,

the license plate number matched the one taken from the car at the scene of the

crime.



         It is well-established in Tennessee that the identity of the accused as the

perpetrator of the offense charged is a question of fact for the determination of

the jury. State v. Shelley, 628 S.W .2d 436, 438 (Tenn. Crim . App. 1981 ); State

v. Livingston, 607 S.W.2d 489, 491 (Tenn. Crim. App. 1980). After considering

the record, we can only conclude that there was sufficient pro of for the jury to

have found the elements of aggravated burglary and theft of property beyond a

reaso nable doubt.       See Tenn . Code Ann. §§ 39-14-403(a), 39-14-103.

Furthermore, there was sufficient proof to establish that the Defendant was the

perpetra tor of the offe nses. T he De fendan t’s first issue the refore lack s merit.



         In his second issue on appeal, the Defendant argues that the trial court

erred in ruling that his prior co nviction s were adm issible for impeachment

purposes. It appears from the record that the Defendant had a prior conviction

for petit larceny and several prior convictions for burglary. Prior to trial, the

Defendant moved the trial court to exclude his prior convictions for impeachment

purposes. The tr ial cou rt initially granted the Defendant’s motion, finding that the

prejudicial effect of the prior convictions, given their similarity to the offenses

charged, outweighed their proba tive value. See Tenn. R. Evid. 609(a)(3). On the

following day, the prosecutor presented research on the issue and requested that

the trial judge reconsider his ruling. After considering the research offered by the

                                          -6-
prosecutor, the trial judge qualified his ruling, stating that he would allow the

prosecutor to impeach the Defendant by asking him if he had been convicted of

“felonies involving disho nesty.” The s pecific nature of the p rior con victions would

not be revea led. The trial court based the ruling on State v. Sum mera ll, 926

S.W.2d 272 (Tenn. Crim. App. 1995), and State v. Ross Jones, C.C.A. N o.

01C01-9405-CR-00175, Davidson Coun ty (Tenn . Crim. A pp., Nashville, Feb. 8,

1995), perm . to app eal de nied c oncu rring in re sults o nly (Tenn. 1995). In the

wake of this ru ling, the Defe ndan t electe d not to testify at tr ial.



       On appeal, the Defendant contends that the trial court erred in ruling that

his prior convictions were admissible for impeachment purposes. He asserts that

given the similarity between the prior convictions and the offenses charged, the

admission of the p rior con victions would result in undue prejudice outweighing

their probative value. Furthermore, he argues that the trial court’s attempt to

minimize the prejudicial effect by limiting referral to the prior convictions only as

“felonies involving dishonesty” was improper.            Citing State v. Barnard , 899

S.W.2d 617, 622 (Ten n. Crim . App. 1 994), h e alleg es tha t the us e of “ge neric

felonies” for impeachment purposes is misleading and promotes confusion in that

it invites speculation on the part of the jury as to the nature of the prior

convictions.



       Of course, the Tennessee Rules of Evidence do provide that the State may

use a judgm ent of con viction to im peach the testim ony of the defendant. See

Tenn. R. Evid. 609 . Rule 60 9, howe ver, sets forth several conditions which must

be satisfied to a llow for suc h impe achm ent. Am ong these conditions are the

following:

                                            -7-
              (2) The crime mus t be pu nisha ble 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
       dishon esty or false statem ent.
              (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 d etermin e 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 a ny event s hall rule prior to the testimony of the
       accused. If the court makes a final determ ination that su ch pro of is
       admis sible for impeachment purposes, the accused need not
       actua lly testify at the trial to later challenge the propriety of the
       determination.

Tenn. R. Evid. 609(a)(2 ) - (3). In determinin g wheth er the pro bative valu e of a

prior conviction on the issue of credibility outw eighs its unfair 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 releva nce the impea ching co nviction ha s to the issue of cr edibility.”

State v. Farmer, 841 S.W .2d 837, 839 (Tenn. Crim. App. 1992); Neil P. Cohen

et al., Tennessee Law of Evidence § 609.9, at 376 (3d ed. 1995 ).



       In the case sub judice, the trial court determined that because of the

similarity betwee n the charged offenses and the Defendant’s prior convictions,

the probative value of th e prior convictions on credibility did not outweigh the

unfair prejudicial effect on the substantive issues. Thus, the trial court ruled that

the State c ould not impe ach the Defen dant with re ference to the specific nature

of his prior convictions.      We believe the trial judg e was correc t in this

determination. The trial court did, however, rule that the State could impeach the

Defen dant with re ference to his con victions as “felonies inv olving dish onesty.”




                                          -8-
       Such a proc edure was fo llowed in a very similar case recently before

another panel of th is Court. See State v. Ross Jones, C.C.A. No. 01C01-9405-

CR-00175, Davidso n Cou nty (Ten n. Crim. A pp., Nas hville, Feb. 8 , 1995), perm.

to appeal denied conc urring in resu lts only (Tenn. 1995). In Jones, the defendant

was charge d with agg ravated b urglary.         Id. at 2.   He had six prior burg lary

convictions. Id. at 8. The trial court ruled that the State could not refer to the

spec ific nature of the prior convictions when impe achin g the d efend ant, bu t could

ask him if he had been convicted o f “felonies involving dishon esty.” Id. On

appe al, this Court stated that although “this method of identifying the convictions

for impeachment purposes is not specifically provided for by Rule 609 of the

Tennessee Rules of Evidence, we are unable to conclude that this action

constitutes error un der the circum stances of this ca se.” Id.



       The Defendant nevertheless contends that allowin g the Sta te to impeach

him with reference to “felonies involving dishonesty” was improper. Citing State

v. Barnard, 899 S.W.2d 617, 622 (Tenn. Crim. App. 1994), he argues that the

use of “generic felonies” for impeachment purposes is misleading to the jury and

prom otes c onfus ion of th e issue s at trial b ecau se it invites the jury to specu late

as to the natur e of the im peach ing felonie s. In Barnard, the defendant was found

guilty of first degree murder, aggravated robbery and aggravated sexual battery.

Id. at 620. At trial, the State was permitted to impeach the defendant based on

his conviction for sexual battery in C alifornia. Th e trial court a llowed the State to

elicit the fact of the conviction without referring to the specific nature of the

offense . Id. at 621. On appeal, a panel of this Court concluded that the limited

admission of the fact that the defendant had a prior felony conviction was e rror.

Id. at 622. This Court commented as follows:

                                           -9-
             Although we agree that the trial court minimized the
      prejudicial impact by limiting impeachment evidence to the mere fact
      that appellant had a prior felony conviction, we believe admission in
      this instance was error. As previously noted, the probative value of
      appe llant’s prior conv iction on th e issue o f credibility was slight.
      Moreover, the prejudicial effect, while mitigated, could have allowed
      the jury to unne cess arily spe culate as to th e type o f felony a ctually
      committed. As such, the unfair prejudicial effect of the prior
      conviction outweighed its probative value.

Id.



      Barnard was decided shortly before the filing of Jones. Shortly after the

filing of Jones, another pan el of this Court confro nted a situation sim ilar to

Barnard. See State v. Sum mera ll, 926 S.W.2d 272 (Tenn. Crim. A pp. 199 5). In

Sum mera ll, the defendant was indicted for first degree murder and convicted of

second degree m urder. Id. at 274 . At trial, the State was permitted to impeach

the defend ant bas ed on a prior conv iction for sec ond de gree m urder. Id. at 276.

The trial court allowed the State to ask the defendant on cross-examination if he

was “the sam e Ron ald Su mm erall wh o was convic ted in Indictment number 89-

06732, February 23 , 1990, for a felony.” Id. On appeal, the Summ erall court

noted the prior decisions in both Barnard and Jones, pointing out that the case

before them was “m ore clo sely aligned with the facts in Barnard” because the

impeaching conviction did not invo lve dishon esty. Id. at 277. Based on the

analysis of Barnard and Jones, the Sum mera ll court we nt on to sta te that “it

would appear that a ‘generic’ felony provides inadequate information for the jury

to properly weigh its probative value. Wh ile this is a clo se ca se, the ruling in

Barnard , which bears the approval of our suprem e court, is the mo re persuasive

authority.” Id. As a result, the Sum mera ll court concluded that it was error for the

State to impea ch the de fendan t with reference to his conviction “for a felony.” Id.




                                         -10-
       Applying the principles from Barnard , Jones and Sum mera ll to the case

sub judice, we believe the trial court did not err in permitting the State to impeach

the Defendant with reference to “felonies involving dishonesty.” The case at bar,

like Jones, is distinct from Barnard and Sum mera ll.             In both Barnard and

Sum mera ll, the impeaching conviction did not involve dishonesty and, as a result,

was of minim al proba tive value on the issue of credibility.           Summerall, 926

S.W.2d at 276-2 77; Barnard , 899 S.W .2d at 622 . In the pres ent case, as in

Jones, the impeaching convictions do involve dishon esty. Jones, C.C.A. No.

01C01-9405-CR-00175, slip op. at 8; see State v. Miller, 737 S.W.2d 556, 559

(Tenn. Crim. App. 1987) (stating that burglary is a crime involving dishonesty for

impeachment purposes). Obviously, the probative value of a prior conviction

involving dis hones ty on the iss ue of cre dibility is significan t.



       Furthermore, in both Barnard and Sum mera ll, the State wa s perm itted to

impeach the defen dant with reference on ly to “a felony.” Sum mera ll, 926 S.W.2d

at 276-77 ; Barnard , 899 S.W .2d at 621 -22. In the present case, as in Jones, the

Defendant was to be impeached by reference to “felonies involving dishone sty.”

Jones, C.C.A. No. 01C01-9405-CR-00175, slip op. at 8. W e belie ve that th is

method of impeachment not only minimizes unfair prejudicial impact by

concealing the specific nature of prior convictions similar to the charged offense,

but also minimizes the possibility of speculation by the jury as to the nature of the

prior conviction . Impea chme nt with refere nce to “felonies involving dishon esty”

rather than simply “felonies” focuses the jury’s attention on the relevant issue,

nam ely the credibility of the witness, rather than on the mere fact that the witness

has a prior conviction.       Coupled with a general jury instruction that such

impeachment evidence may be considered only on the issue of credibility and not

                                           -11-
as substantive evidence of guilt, we be lieve tha t the im peac hing e videnc e’s

potential fo r an unfa ir prejudicial e ffect on the substan tive issues is slight.



        In the case sub judice, the impeaching convictions, although similar to the

charged offenses, were highly relevant to the issue of credibility because they

were crimes involving dishonesty. The trial court determined that under the

restrictions governing the use of the Defendant’s prior convictions for

impea chme nt, their pro bative v alue o n the is sue o f credib ility outwe ighed their

unfair prejudicial effect on the s ubstantive issues. We cannot conclude that the

trial court abused its discretion in ruling that the prior convictions would be

admissible, in a limited manner, for the purpose of impeachment if the Defendant

chose to testify. 2



        Moreover, even if we were to conclude that it was error to permit the State

to impeach the Defendant with reference to “felonies involving dishonesty,” the

error is harm less und er the circu mstan ces of this c ase. See Tenn. R. App. P .

36(b); Tenn. R. Crim. P. 52(a). The p roof of th e Def enda nt’s gu ilt is quite strong.

In addition, the Defendant did not make an offer of proof as to his proposed trial

testimony. As such, we are una ble to asse ss the full imp act of th e trial co urt’s

ruling that his prior convictions w ere admis sible for im peach ment p urpose s. See

State v. Abraham Galmore , C.C.A. N o. 02C 01-960 7-CR -00230 , Shelby C ounty

(Tenn. C rim. App., Jack son, Sept. 9, 19 97).




        2
           The Defendant also argues that evidence of his prior convictions should have been excluded
becau se its prob ative value w as sub stantially outwe ighed by the dange r of unfair p rejudice . See
Tenn. R. Evid. 403. Having already concluded that the trial court did not err in determining that the
probative value of the limited impeachment evidence on credibility outweighed any unfair prejudicial
effe ct on the s ubs tantiv e issu es, w e can not c onc lude t hat th e pro bative value was subs tantia lly
outweigh ed by the d anger o f unfair pre judice. T he De fendan t’s argum ent lack s me rit.

                                                    -12-
       For the reasons set forth in the discussion above, we conclude that the

Defe ndan t’s issues on appeal lack merit. We therefore affirm the ju dgme nt of the

trial court.




                                 ____________________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE



___________________________________
JOE G. RILEY, JUDGE




                                        -13-
