IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBER 1997 SESSION FILED October 13, 1997
Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate C ourt Clerk ) NO. 02C01-9610-CR-00353 Appellee, ) ) SHELBY COUNTY VS. ) ) ) HON. CHRIS CRAFT, JUDGE STEPHANIE Y. DOWAGIAC, ) ) (Theft under $500) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
MARK ALBERT MESLER, II JOHN KNOX WALKUP Ballin, Ballin & Fishman, P.C. Attorney General and Reporter 200 Jefferson Avenue Suite 1250 CLINTON J. MORGAN Memphis, Tennessee 38103 Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493
WILLIAM GIBBONS District Attorney General
RHEA CLIFT Assistant District Attorney General 201 Poplar Street Suite 300 Memphis, Tennessee 38103
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE OPINION
Defendant, Stephanie Y. Dowagiac, was convicted by a Shelby County jury of
theft of property under $500, a Class A misdemeanor. The trial court deferred
imposition of sentence and placed defendant on judicial diversion for eleven (11)
months and twenty-nine (29) days. Defendant presents for our review the issues of
sufficiency of the evidence and the propriety of comments made by the trial court.
We affirm the judgment of the trial court.
FACTS
Atwood Rawls, an off-duty Memphis police officer, was a security officer for
Dillard’s department store on the date of the offense, January 2, 1995. He observed
defendant take four (4) Perry Ellis vests from a display rack and go into a dressing
room. Rawls went to the door of the dressing room and heard a snapping sound like
that made when the anti-theft sensors are removed from clothing. Defendant came
out of the dressing room carrying only two (2) vests, which she returned to the display
rack. When she left the store, the alarm did not sound. Because Rawls could not
find the two (2) missing vests or the broken sensors in the dressing room, he
searched the pockets of the vests defendant had replaced on the rack. He found two
broken sensors and the price tags from the missing vests. He found defendant in the
mall. When he asked her about the missing vests, she said she had them
underneath her coat. Rawls told her she was under arrest and took her back to
Dillard’s.
Mary Pickens, also a Memphis police officer, was on patrol at the mall and
accompanied Rawls and defendant back to Dillard’s. She heard the defendant say
that she had popped the sensors with her fingers, and that she had one vest for
herself and one for her boyfriend.
Defendant married her boyfriend prior to trial. He testified that he and the
2 defendant had bought the two vests as Christmas gifts for each other but could not
find the receipt. He produced undated Polaroid snapshots showing them unwrapping
and wearing their vests with a Christmas tree in the background. He testified the
pictures were taken during Christmas 1994. They had both been wearing these vests
on January 2, 1995, and as she dropped him off at work, he had given her his vest
to wear due to the cold. She drove away wearing both vests according to the
husband’s testimony.
Defendant also testified that she and her husband had given each other Perry
Ellis vests for Christmas 1994. As she dropped him off at work the day of her arrest,
he had given her his vest which she wore over her vest. She went to Dillard’s to look
for washable vests. She tried on two vests and replaced them on the rack. After
leaving Dillard’s, she was grabbed by Rawls. She denied confessing to Rawls and
Officer Pickens that she took the vests.
SUFFICIENCY OF THE EVIDENCE
When an accused challenges the sufficiency of the evidence, this court must
review the record to determine if the evidence adduced during the trial was sufficient
“to support the findings by the trier of fact of guilt beyond a reasonable doubt.” Tenn.
R. App. P. 13(e). This rule is applicable to findings of guilt predicated upon direct
evidence, circumstantial evidence or a combination of direct and circumstantial
evidence. State v. Brewer, 932 S.W.2d 1,19 (Tenn. Crim. App. 1996).
In determining the sufficiency of the evidence, this court does not reweigh or
reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor
may this court substitute its inferences for those drawn by the trier of fact from
circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859
(1956). To the contrary, this court is required to afford the state the strongest
legitimate view of the evidence contained in the record as well as all reasonable and
legitimate inferences which may be drawn from the evidence. State v. Tuttle, 914
3 S.W.2d 926, 932 (Tenn. Crim. App.1995).
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 fact, not this court. Id. In State v. Grace, 493 S.W.2d 474,
476 (Tenn. 1973), the Tennessee Supreme Court stated, “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.”
Because a verdict of guilt removes the presumption of innocence and replaces
it with a presumption 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. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace, 493 S.W.2d at
476.
The jury obviously accredited the testimony of the state’s witnesses and
rejected the version given by the defendant and her husband. The state’s proof
certainly was sufficient to support the jury’s guilty verdict of theft of property under
$500. This issue is without merit.
TRIAL COURT STATEMENTS
Defendant complains that she was prejudiced by comments made by the trial
judge. The motion for new trial simply alleges: “The trial judge’s conduct and
statements toward defense witnesses constitute improper comments on the
evidence.” The only comments actually mentioned at the motion for new trial related
to defendant’s requests for a lie-detector test. On appeal defendant alleges other
examples. Any alleged errors as to these other examples have been waived for
failure to specifically raise them in the motion for new trial. See Tenn. R. App. P.
3(e); State v. Gauldin, 737 S.W.2d 795, 798 (Tenn. Crim. App. 1987). However, our
review of these comments does not reveal any reversible error.
The comments before us on appeal consist of the trial court’s warning
4 defendant to refrain from referring to her alleged offer to take a “lie-detector test.”
Defendant claims these comments constituted an improper comment on the weight
of the evidence. The challenged exchange consisted of the following:
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBER 1997 SESSION FILED October 13, 1997
Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate C ourt Clerk ) NO. 02C01-9610-CR-00353 Appellee, ) ) SHELBY COUNTY VS. ) ) ) HON. CHRIS CRAFT, JUDGE STEPHANIE Y. DOWAGIAC, ) ) (Theft under $500) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
MARK ALBERT MESLER, II JOHN KNOX WALKUP Ballin, Ballin & Fishman, P.C. Attorney General and Reporter 200 Jefferson Avenue Suite 1250 CLINTON J. MORGAN Memphis, Tennessee 38103 Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493
WILLIAM GIBBONS District Attorney General
RHEA CLIFT Assistant District Attorney General 201 Poplar Street Suite 300 Memphis, Tennessee 38103
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE OPINION
Defendant, Stephanie Y. Dowagiac, was convicted by a Shelby County jury of
theft of property under $500, a Class A misdemeanor. The trial court deferred
imposition of sentence and placed defendant on judicial diversion for eleven (11)
months and twenty-nine (29) days. Defendant presents for our review the issues of
sufficiency of the evidence and the propriety of comments made by the trial court.
We affirm the judgment of the trial court.
FACTS
Atwood Rawls, an off-duty Memphis police officer, was a security officer for
Dillard’s department store on the date of the offense, January 2, 1995. He observed
defendant take four (4) Perry Ellis vests from a display rack and go into a dressing
room. Rawls went to the door of the dressing room and heard a snapping sound like
that made when the anti-theft sensors are removed from clothing. Defendant came
out of the dressing room carrying only two (2) vests, which she returned to the display
rack. When she left the store, the alarm did not sound. Because Rawls could not
find the two (2) missing vests or the broken sensors in the dressing room, he
searched the pockets of the vests defendant had replaced on the rack. He found two
broken sensors and the price tags from the missing vests. He found defendant in the
mall. When he asked her about the missing vests, she said she had them
underneath her coat. Rawls told her she was under arrest and took her back to
Dillard’s.
Mary Pickens, also a Memphis police officer, was on patrol at the mall and
accompanied Rawls and defendant back to Dillard’s. She heard the defendant say
that she had popped the sensors with her fingers, and that she had one vest for
herself and one for her boyfriend.
Defendant married her boyfriend prior to trial. He testified that he and the
2 defendant had bought the two vests as Christmas gifts for each other but could not
find the receipt. He produced undated Polaroid snapshots showing them unwrapping
and wearing their vests with a Christmas tree in the background. He testified the
pictures were taken during Christmas 1994. They had both been wearing these vests
on January 2, 1995, and as she dropped him off at work, he had given her his vest
to wear due to the cold. She drove away wearing both vests according to the
husband’s testimony.
Defendant also testified that she and her husband had given each other Perry
Ellis vests for Christmas 1994. As she dropped him off at work the day of her arrest,
he had given her his vest which she wore over her vest. She went to Dillard’s to look
for washable vests. She tried on two vests and replaced them on the rack. After
leaving Dillard’s, she was grabbed by Rawls. She denied confessing to Rawls and
Officer Pickens that she took the vests.
SUFFICIENCY OF THE EVIDENCE
When an accused challenges the sufficiency of the evidence, this court must
review the record to determine if the evidence adduced during the trial was sufficient
“to support the findings by the trier of fact of guilt beyond a reasonable doubt.” Tenn.
R. App. P. 13(e). This rule is applicable to findings of guilt predicated upon direct
evidence, circumstantial evidence or a combination of direct and circumstantial
evidence. State v. Brewer, 932 S.W.2d 1,19 (Tenn. Crim. App. 1996).
In determining the sufficiency of the evidence, this court does not reweigh or
reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor
may this court substitute its inferences for those drawn by the trier of fact from
circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859
(1956). To the contrary, this court is required to afford the state the strongest
legitimate view of the evidence contained in the record as well as all reasonable and
legitimate inferences which may be drawn from the evidence. State v. Tuttle, 914
3 S.W.2d 926, 932 (Tenn. Crim. App.1995).
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 fact, not this court. Id. In State v. Grace, 493 S.W.2d 474,
476 (Tenn. 1973), the Tennessee Supreme Court stated, “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.”
Because a verdict of guilt removes the presumption of innocence and replaces
it with a presumption 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. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace, 493 S.W.2d at
476.
The jury obviously accredited the testimony of the state’s witnesses and
rejected the version given by the defendant and her husband. The state’s proof
certainly was sufficient to support the jury’s guilty verdict of theft of property under
$500. This issue is without merit.
TRIAL COURT STATEMENTS
Defendant complains that she was prejudiced by comments made by the trial
judge. The motion for new trial simply alleges: “The trial judge’s conduct and
statements toward defense witnesses constitute improper comments on the
evidence.” The only comments actually mentioned at the motion for new trial related
to defendant’s requests for a lie-detector test. On appeal defendant alleges other
examples. Any alleged errors as to these other examples have been waived for
failure to specifically raise them in the motion for new trial. See Tenn. R. App. P.
3(e); State v. Gauldin, 737 S.W.2d 795, 798 (Tenn. Crim. App. 1987). However, our
review of these comments does not reveal any reversible error.
The comments before us on appeal consist of the trial court’s warning
4 defendant to refrain from referring to her alleged offer to take a “lie-detector test.”
Defendant claims these comments constituted an improper comment on the weight
of the evidence. The challenged exchange consisted of the following:
[DEFENDANT]: Yes, she [Pickens] said--she said, “How did you get those sensors off:” And I said, “You’ve got the wrong person.” I said, “We can clear all this up by giving me a lie-detector test.” I said, “I’ll take a lie-detector test. Just please get someone in here right now and [I’ll] take a lie-detector test.” And when I said that--
THE COURT: Ms. Dowagiac, if you mention the lie detector again, I’m going to find you in contempt of court. Do not mention that word again. All right, ma’am?
....
When defense counsel attempted to resume his direct examination, the
defendant referred to the subject again: “Well, right before she--when I said that last
statement that I’m not supposed to say--.” The court reminded her again not to refer
to anything having to do with this subject.
The trial judge at the motion for new trial explained that he was presented with
an emergency situation of the defendant’s making and felt from the look on her face
and her attitude that she knew it was improper but did it anyway. We give great
deference to the trial judge who, unlike this Court, was able to observe the demeanor
of the witness.
An offer to take a polygraph test is not admissible in a criminal proceeding.
State v. Campbell, 904 S.W.2d 608, 614-615 (Tenn. Crim. App. 1995). The trial
judge had to act immediately. While the trial court should not have threatened the
witness with contempt of court in the presence of the jury, we find that the trial court’s
admonition did not affect the results of this trial. Tenn. R. App. P. 36(b). This issue
is without merit.
CONCLUSION
The judgment of the trial court is affirmed in all respects.
5 JOE G. RILEY, JUDGE
CONCUR:
JOE B. JONES, PRESIDING JUDGE
DAVID H. WELLES, JUDGE