State v. Brown

737 S.W.2d 301, 1987 Tenn. Crim. App. LEXIS 2610
CourtCourt of Criminal Appeals of Tennessee
DecidedJune 10, 1987
StatusPublished

This text of 737 S.W.2d 301 (State v. Brown) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brown, 737 S.W.2d 301, 1987 Tenn. Crim. App. LEXIS 2610 (Tenn. Ct. App. 1987).

Opinion

OPINION

BIRCH, Judge.

The defendant, Melvin Brown, was convicted by jury in two cases, tried separately, of passing worthless checks over $100. The trial judge sentenced him as a persistent offender, Range II, to eight and one-half (8V2) years imprisonment in each case, with the sentence in the second consecutive to the first. In both cases, he raises two issues:

1. The sufficiency of the evidence

2. The length of the sentences

Much of the testimony is the same in each case, and we have therefore consolidated the two cases for discussion and decision.

THE SUFFICIENCY OF THE EVIDENCE

On December 21, 1984, the defendant, Melvin Brown, submitted the appropriate application to the Commercial and Industrial Bank in Memphis, and was assigned checking account number 041257544. His initial deposit was $100. He selected check style and binder, and the bank provided him with checks. No additional funds were ever credited to this account.

In the trial of the first case, Karen Taylor, an employee of Central Hardware Store, identified the defendant as the person who gave her a check for $196.06 on June 29, 1985. She was positive of her identification because she had obtained a driver’s license number as well as a social security number from the defendant when she accepted the check.

Brenda Rounds, also employed at the Central Hardware Store, testified that the defendant gave her a check for $110 on [302]*302June 30, 1985. She was positive of her in-court identification of the defendant.

The second case was based on the testimony of Alvin Westbrooks that the defendant gave him a check for $358.68 on July 8, 1985, in payment for services rendered, He was a contract worker for Sears, and the check was payable to Sears.

Not one of the checks was honored, the accounts having been closed on January 18, 1985, some six months or so before the first check was passed.

The defendant testified in each case, emphatically denying any connection with the account, the checks, or the transactions. Though vague and uncertain regarding his prior convictions, he admitted having been convicted of at least four felonies occurring within a ten-year period immediately preceding the commission of the instant offense.

The defendant contends that the proof is insufficient to support convictions for passing worthless checks in an amount greater than $100. When the sufficiency of the evidence is challenged, the standard for appellate review is whether, after considering the evidence in a light most favorable to the state, any rational trier of fact could have found the essential elements of the crime of passing a worthless check over $100 beyond a ’•easonable doubt. On appeal, the state is entitled to the strongest legitimate view of the evidence, and all reasonable and legitimate inferences which may be drawn from the proof. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). In a criminal action, a conviction will be set aside only where the reviewing court finds that the “evidence is insufficient to support the finding by the trier of fact of guilt beyond a reasonable doubt.” Tennessee Rules of Appellate Procedure 13(e). In a jury trial, a guilty verdict, approved by the trial judge, accredits the testimony of the state’s witnesses and resolves all conflicts in testimony in favor of the theory of the state. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn.1978).

The defendant contends that the proof is not sufficient to support the jury verdicts because the witnesses relied on recollections older than one year, because there was no line-up, because the state’s identification proof was “weak and shakey , and because the defendant denied all involvement.

The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the testimony, however, are matters entrusted exclusively to the jury as the triers of fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn.Crim.App.1978). The juries in these cases chose to accredit the testimony of the prosecution witnesses and reject the testimony of the defendant. The evidence fully supports their verdicts. We conclude that any rational trier of fact could have found the essential elements of the crimes of passing a worthless check over $100 beyond a reasonable doubt. See TenmCode Ann. § 39-3-301 (1982). The evidence of the defendant’s guilt in each case more than satisfies the standard prescribed in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and Tennessee Rules of Appellate Procedure 13(e).

LENGTH OF SENTENCE

Secondly, the defendant insists that his sentences were excessive and should be modified. He argues not only that each sentence was excessive, but also that they are cumulatively excessive. The defendant does not question the finding of the trial judge that he is a persistent offender and thus punishable in Range II.

Challenges to the length of sentence require this court to conduct a de novo review of the sentence without a presumption of correctness. Tenn.Code Ann. § 40-35-402(d) (1982). This de novo review must include a consideration of the following:

1. The evidence, if any, received at the trial and sentencing hearing;
2. The pre-sentence report;
[303]*3033. The principles of sentencing and arguments as to sentencing alternatives;
4. The nature and characteristics of the criminal conduct involved;
5. Evidence and information offered by the parties on the mitigating and enhancement factors in Tenn.Code Ann. §§ 40-35-110 and 40-35-111 (1982); and
6. Any statement the defendant wishes to make in his own behalf about sentencing. (See generally, Tenn.Code Ann. §§ 40-35-102, 40-35-111, 40-35-210 (1982)).

The trial judge found the defendant to be a persistent offender based on his prior criminal record, his history of unwillingness to comply with the conditions of a sentence involving release in the community, and the need for deterrence.

The trial judge also found as mitigating factors that the defendant’s criminal conduct neither caused or threatened serious bodily injury and that the defendant did not contemplate that his criminal conduct would cause or threaten serious bodily injury. The defendant asserts that because the crimes were non-violent, because of his age, and because his criminal conduct has generally been non-violent, he should receive the minimum Range II sentence of seven (7) years in each case.

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Gray v. State
538 S.W.2d 391 (Tennessee Supreme Court, 1976)
State v. Moss
727 S.W.2d 229 (Tennessee Supreme Court, 1986)
Byrge v. State
575 S.W.2d 292 (Court of Criminal Appeals of Tennessee, 1978)
State v. Hatchett
560 S.W.2d 627 (Tennessee Supreme Court, 1978)
State v. Cabbage
571 S.W.2d 832 (Tennessee Supreme Court, 1978)

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Bluebook (online)
737 S.W.2d 301, 1987 Tenn. Crim. App. LEXIS 2610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brown-tenncrimapp-1987.