State v. Moore, No. M2008-00703-CCA-R3-CD (Tenn. Crim. App. 2/10/2010)
| Decision Date | 10 February 2010 |
| Docket Number | No. M2008-00703-CCA-R3-CD.,M2008-00703-CCA-R3-CD. |
| Parties | STATE OF TENNESSEE, v. LARRY EDWARD MOORE, JR. |
| Court | Tennessee Court of Criminal Appeals |
Dawn Deaner, District Public Defender; Emma Rae Tennent, Assistant Public Defender; Ginny Flack, Assistant Public Defender; and Katie Weiss, Assistant Public Defender, Nashville, Tennessee, for the appellant, Larry Edward Moore, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; Deborah Housel, Assistant District Attorney General; and Latasha Alexander, Assistant District Attorney General, for the appellee, the State of Tennessee.
OPINION
Following a jury trial, Defendant, Larry Edward Moore, Jr., was convicted of carjacking, a Class B felony. The trial court sentenced Defendant as a Range III, career offender, to thirty years. On appeal, Defendant challenges the sufficiency of the convicting evidence and also argues that the trial court erred (1) in not redacting certain statements from Defendant's statement to the police which was introduced as an exhibit at trial; (2) in limiting Defendant's cross-examination of the victim about her use of drugs and whether she had received any compensation from the Victim's Compensation Fund; and (3) in denying Defendant's motion for a mistrial. After a thorough review, we affirm the judgment of the trial court.
Alysia Blackburn, the victim, testified that on December 27, 2006, she went to a jewelry store on Gallatin Road at approximately 4:15 p.m. to inquire about adjusting a bracelet she had received as a birthday present the day before. The victim left the engine to her grey 1999 Nissan Altima running while she went into the store. From inside the store, the victim observed Defendant walk by and look at her vehicle, so she went outside, turned the engine off, and locked the vehicle. The victim returned to the store, and Defendant entered the business as she was talking to the store's owner, Howard Lane. Defendant asked Mr. Lane if he could use Mr. Lane's telephone to call his wife because his vehicle would not start. When Defendant was unsuccessful in reaching his wife, the victim asked Defendant if she could help, and Defendant responded, "Yeah." The victim and Defendant got into the victim's Altima, and Defendant directed her to drive to a house on Riverwood Drive. The victim said that Defendant told her that he "really appreciate[d] it." The victim stated that she was "just being nice" because she had previously been in a similar situation.
The victim pulled into the driveway indicated by Defendant and began to feel uneasy. The victim stated that Defendant suddenly struck her several times in the face. The victim struggled with Defendant as he attempted to move from the passenger seat to the driver's seat. The victim reached for her purse in the backseat, and Defendant struck her again. The victim stated that she gave up at that point and ceased struggling. She got out of the Altima, and Defendant drove off.
Eugene Skaggs came out of his house and asked the victim if she was all right. The victim said that she was crying, and she told Mr. Skaggs that Defendant had stolen her vehicle. The victim stated:
[a]nd they kept staring at me, and I'm like, "Is my face messed up?" And he was, like, "Yes, ma'am." So that really made me cry. And I knew that my family [was] going to be upset because I tried to help somebody out.
The victim said that Mr. Skaggs had trouble understanding her because her face was swollen. Mr. Skaggs called the police and the victim's family. The victim was transported to the hospital by ambulance, and the emergency technician was concerned that the victim's jaw was broken. The victim told police officers that Defendant's vehicle was parked at the jewelry store. The victim also told them that her purse was in her vehicle, and it contained, among other items, $212, two cell phones, and a debit card.
The records for the victim's cell phone were introduced as an exhibit at trial and showed that an outbound call was made with the victim's cell phone at 5:22 p.m. on December 27, 2006. The victim stated that she did not recognize the telephone number which received the call. The victim said that she identified Defendant as the perpetrator from a photographic lineup on December 27, 2006.
The victim stated that her jaw was not broken, but her face was bruised and swollen for approximately one and one-half weeks, and people had difficulty understanding her when she tried to speak. The victim said that she never recovered her Altima or any of the items in the vehicle. The victim stated that she did not give Defendant permission to take her vehicle.
On cross-examination, the victim acknowledged that she did not tell the investigating officers that she observed Defendant looking at her vehicle before he entered the store. The victim stated that she did not report the theft of the credit cards to her bank and acknowledged that she was never notified that the credit cards had been used. The victim said that Defendant told Mr. Lane that the alternator on his vehicle was not working, and Mr. Lane and Defendant discussed the location of the nearest car parts store. The victim acknowledged that Defendant did not make any threatening remarks on the drive to Riverwood Drive, and she described him as "nice."
Mr. Skaggs testified that he lived at 1140 Riverwood Drive. Mr. Skaggs stated that he was working at his computer on December 27, 2006, when he noticed on his computer screen the reflection of a vehicle pulling into his driveway. Mr. Skaggs did not recognize the vehicle and thought the driver would turn around. Mr. Skaggs observed a man and woman in the vehicle and believed at first that the man was slapping the woman playfully. Mr. Skaggs then realized that the man was striking the woman, and he went outside. Mr. Skaggs said that the man got out of the vehicle and pulled the victim out. The man then got back in the vehicle and drove off. Mr. Skaggs said that he gave the victim ice for her face and called 911. Mr. Skaggs stated that he was unable to identify the man who drove off in the victim's vehicle.
Howard Lane testified that he owned a jewelry store on Gallatin Road. Mr. Lane knew the victim because she had visited the store before the incident. Mr. Lane said that the victim stopped by the store on December 27, 2006, to check on a bracelet's repair. Mr. Lane said that Defendant entered the store while he was talking to the victim and asked to use Mr. Lane's telephone because his vehicle would not start. Mr. Lane handed Defendant his cell phone, but Defendant was not able to reach anyone. Mr. Lane described Defendant as "cordial," and he, the victim, and Defendant conversed between ten and fifteen minutes. Mr. Lane said that the victim did not have any injuries to her face while she was in the store. Mr Lane later identified Defendant from a photographic lineup as the man who left his store with the victim on December 27, 2006.
Officer Jason L. Smith, with the Metro Nashville Police Department, stated that the victim was "crying and very afraid" when he arrived at the residence on Riverwood Drive. Officer Smith observed a contusion on the victim's cheek which was bleeding. Based on the information provided by the victim and Mr. Skaggs, Officer Smith drove to the jewelry store on Gallatin Road. He located a van matching the victim's description and recorded the vehicle's VIN, which he relayed to Detective Michael Windsor with the Metro Police Department. On cross-examination, Officer Smith acknowledged that on his incident report, he indicated that the victim had sustained an "apparent minor injury."
Detective Windsor interviewed the victim at the hospital. Detective Windsor testified that the victim had a large amount of swelling around her cheek and a small laceration in the middle of the swelling. Detective Windsor identified the owner of the van parked near Mr. Lane's jewelry store through its VIN. Detective Windsor developed Defendant as a suspect based on the information received from the vehicle's owner. Detective Windsor prepared a photographic line-up, and the victim identified Defendant as the perpetrator.
Detective Windsor arrested Defendant on December 28, 2006. Defendant was read his Miranda rights and executed a written waiver of those rights. A redacted version of the videotape of Defendant's interview was played for the jury. Detective Windsor stated that he determined that the outbound call made by the victim's cell phone on December 27, 2006, at 5:22 p.m. was made to Defendant's home telephone number.
Defendant argues that the evidence was insufficient to support his conviction of carjacking. Specifically, Defendant contends that the evidence failed to show that Defendant used either force or intimidation to take the victim's vehicle. Defendant submits that at most he is guilty of the unauthorized use of a vehicle.
When a defendant challenges the sufficiency of the convicting evidence, we must review the evidence in a light most favorable to the prosecution in determining whether a rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). Once a jury finds a defendant guilty, his or her presumption of innocence is removed and replaced on appeal with a presumption of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991). The defendant has the burden of overcoming this presumption, and...
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