IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1998 SESSION
February 8, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9803-CC-00131
Appellee, )
) MARSHALL COUNTY
VS. )
) HON. CHARLES LEE,
WILEY ANTHONY TIPTON, ) JUDGE
)
Appellant. ) (Violation of W orthless Check Law -
Over One-Thousand ($1000.00)
Dollars)
FOR THE APPELLANT: FOR THE APPELLEE:
GREGORY D. SMITH JOHN KNOX WALKUP
Contract Appellate Defender Attorney General & Reporter
One Public Square, Suite 321
Clarksville, TN 37040 DARYL J. BRAND
(On Appeal) Asst. Attorney General
Cordell Hull Bldg., 2nd Fl.
DONNA HARGROVE 425 Fifth Ave. North
District Public Defender Nashville, TN 37243
MICHAEL D. RANDLES MIKE MCCOWN
Asst. District Public Defender District Attorney General
P.O. Box 1119
Fayetteville, TN 37334 WEAKLEY E. BARNARD
(At Trial & On Appeal) Asst. District Attorney General
Marshall County Courthouse
Lewisburg, TN 37091
OPINION FILED:
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was found guilty by a jury of passing a worthless check in
violation of T.C.A. § 39-14-121. The trial court sentenced the defendant as a Range I
standard offender to two and one-half years in the Tennessee Department of Correction
with all but sixty days suspended and four years probation. The defendant filed a motion
for a new trial, which was denied by the trial court. The defendant now appeals and
argues that the evidence was insufficient to sustain his conviction and that his sentence
is excessive.
After a review of the record and the applicable law, we find no merit to the
defendant’s contentions and thus affirm the judgment of the court below.
The defendant’s conviction arose out of a business transaction with the
victim, Alpha Sign Company. The defendant was a sticker vendor and regularly sold
merchandise produced by the victim. Normally the defendant would place an order for
certain stickers and the victim would fill the order on a consignment basis. The defendant
was not required to pay for the stickers until after he had sold them. However, in April
1995, the defendant had a substantial outstanding balance regarding the volume of
stickers he had in his possession versus the amount he had paid the victim for those
stickers. As such, the owners and operators of Alpha Sign Company had a meeting with
the defendant in order to come to some type of agreement regarding payment. The
owners of Alpha Sign Company, Mr. and Mrs. Hamilton, testified that they decided to
continue doing business with the defendant on the condition that he pay up front for any
stickers he ordered that day instead of paying on a consignment basis. The defendant
then gave Mr. and Mrs. Hamilton a check for fourteen hundred dollars ($1400), which
they later deposited in their account. The Hamiltons testified that the check was payment
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for the stickers they sold to him on the day of the meeting. The check subsequently
“bounced.” At trial the defendant admitted that he gave the Hamiltons the check, but that
he asked them to hold it until he was able to pay its balance. However, Mr. and Mrs.
Hamilton testified that the defendant insisted the check was “good” when he gave it to
them and without such an assurance they never would have let the defendant leave their
place of business with any of their inventory.
The defendant first contends that the evidence with which he was
convicted was insufficient to sustain his conviction because the victims had good and
sufficient reason to believe the check would bounce before they tried to deposit it.
A defendant challenging the sufficiency of the proof has the burden of
illustrating to this Court why the evidence is insufficient to support the verdict returned by
the trier of fact in his or her case. This Court will not disturb a verdict of guilt for lack of
sufficient evidence unless the facts contained in the record and any inferences which
may be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact
to find the defendant guilty beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).
When an accused challenges the sufficiency of the convicting evidence, we
must review the evidence in the light most favorable to the prosecution in determining
whether “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 (1979). We do not
reweigh or re-evaluate the evidence and are required to afford the State the strongest
legitimate view of the proof contained in the record as well as all reasonable and
legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d
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832, 835 (Tenn. 1978).
The defendant contends that he told the Hamiltons to hold the check and
therefore they were on notice that the check would bounce if they tried to deposit it. The
defendant further argues that although the Hamiltons testified that the defendant never
told them to hold the check or indicated in any way that the check might bounce, they
were lying. However, questions concerning the credibility of witnesses, the weight and
value to be given to the evidence, as well as factual issues raised by the evidence are
resolved by the trier of fact, not this Court. Cabbage, 571 S.W.2d 832, 835. A guilty
verdict rendered by the jury and approved by the trial judge accredits the testimony of the
witnesses for the State, and a presumption of guilt replaces the presumption of
innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). As it appears that the
jury accredited the Hamiltons’ testimony over that of the defendant, as is within their
province, this contention is without merit.
The defendant next argues that his sentence is excessive. The trial court
sentenced the defendant to two and one-half years in the Tennessee Department of
Correction to be served as four years on probation and sixty days in jail. The defendant
argues he should have been given the minimum presumptive sentence of two years on
probation.
When a defendant complains of his or her sentence, we must conduct a
de novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden
of showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-
401(d) Sentencing Commission Comments. This presumption, however, “is conditioned
upon the affirmative showing in the record that the trial court considered the sentencing
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principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991).
In this case, it is clear the trial court carefully considered applicable
enhancement and mitigating factors and all relevant facts and circumstances. The trial
court noted the defendant’s previous criminal history and behavior as a factor in
determining the length of the sentence. The defendant had been arrested in Texas for
possession of marijuana and admitted entering a guilty plea to that charge. The
defendant also admitted to illegal drug use in the past. In addition, the trial court noted
the defendant’s apparent untruthfulness regarding supposed exculpatory evidence that
was never produced. As such, the defendant has failed to overcome the presumption
that his sentence was correct. There being no abuse of discretion on behalf of the trial
court, we affirm the defendant’s sentence.
For the foregoing reasons, we affirm the defendant’s conviction and
sentence.
_________________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
GARY R. WADE, Presiding Judge
______________________________
JERRY L. SMITH, Judge
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