IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED SEPTEMBER 1997 SESSION October 10, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) NO. 02C01-9609-CC-00316 Appellee, ) ) HARDEMAN COUNTY VS. ) ) ) HON. JON KERRY BLACKWOOD, JUDGE GARY POPLAR, ) ) (Forgery) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
STEPHEN L. HALE JOHN KNOX WALKUP James T. “Jim” Sanderson Attorney General and Reporter & Associates, P.C. P. O. Box 331 CLINTON J. MORGAN 101 Market Street Assistant Attorney General Bolivar, Tennessee 38008 450 James Robertson Parkway Nashville, TN 37243-0493
ELIZABETH T. RICE District Attorney General
JERRY W. NORWOOD Assistant District Attorney General 302 Market Street Somerville, Tennessee 38068
OPINION FILED:
AFFIRMED AS MODIFIED
JOE G. RILEY, JUDGE OPINION
Defendant was convicted by a Hardeman County jury of forgery in the amount
of $1,000, a Class D felony. The jury assessed a fine of $2,000, and the trial court
sentenced defendant to forty (40) months as a Range II, Multiple Offender.
Defendant presents for our review the issues of sufficiency of the evidence and the
denial of alternative sentencing. We affirm the judgment of the trial court in all
respects, except we modify the judgment to impose the minimum four (4) year
sentence for this Range II offense.
FACTS
Through the testimony of the victim, Joseph Harris, the state adduced the
following proof. The victim and defendant had reached an agreement whereby
defendant was to repair the victim’s twenty foot by thirty foot (20' X 30') chicken
house for $500. The victim supplied the material. As the work progressed defendant
did additional repair work for the agreed amount of $50. Defendant worked on this
project only two partial days with his helper and nephew working with him.
When the work was completed, the ninety-five (95) year-old victim had
difficulty writing the check. On the third attempt, he asked defendant to fill in the
check. Defendant obliged and showed the victim the face of the check which
reflected the numeric and written amount of $550. The memo line was blank. With
the victim’s permission, defendant kept the pen he had used to write the check.
When the defendant cashed the check, the amount had been altered to $1,550. The
memo line read “Remolding [sic] house.” Upon receipt of the canceled check, the
victim discovered the discrepancy.
The defendant did not testify. Neither of the two witnesses for the defense
actually heard the victim and defendant discuss the amount of payment. Donnie
Wellington, defendant’s helper, testified that the victim had said that other bids on the
job had come in between $1,700 and $1,800. The victim had testified that one bid
was $600 and another was $750.
2 Defendant’s fifteen-year-old nephew testified that defendant cashed the check
but showed him the check on the way to the bank. He testified that he remembered
the numbers on the face of the check, “the $1,550,” and that he had not seen
defendant change it.
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 of Tennessee 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 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.
3 State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace, 493 S.W.2d at
476.
This case clearly turned on the credibility of the witnesses. The jury accredited
the testimony of the victim and rejected the version given by the defendant’s
witnesses. This was their prerogative. The evidence clearly supported the jury’s
guilty verdict of forgery in the amount of $1,000. This issue is without merit.
SENTENCING
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles and all relevant facts and circumstances. State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
The burden is upon the appealing party to show that the sentence is improper.
Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments. In conducting
our review, we are required, pursuant to Tenn. Code Ann. § 40-35-210, to consider
the following factors in sentencing:
(1) [t]he evidence, if any, received at the trial and the sentencing hearing;
(2) [t]he presentence report;
(3) [t]he principles of sentencing and arguments as to sentencing alternatives;
(4) [t]he nature and characteristics of the criminal conduct involved;
(5) [e]vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35- 114; and
(6) [a]ny statement the defendant wishes to make in his own behalf about sentencing.
Although not addressed in the briefs of the parties, this Court notes that the
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED SEPTEMBER 1997 SESSION October 10, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) NO. 02C01-9609-CC-00316 Appellee, ) ) HARDEMAN COUNTY VS. ) ) ) HON. JON KERRY BLACKWOOD, JUDGE GARY POPLAR, ) ) (Forgery) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
STEPHEN L. HALE JOHN KNOX WALKUP James T. “Jim” Sanderson Attorney General and Reporter & Associates, P.C. P. O. Box 331 CLINTON J. MORGAN 101 Market Street Assistant Attorney General Bolivar, Tennessee 38008 450 James Robertson Parkway Nashville, TN 37243-0493
ELIZABETH T. RICE District Attorney General
JERRY W. NORWOOD Assistant District Attorney General 302 Market Street Somerville, Tennessee 38068
OPINION FILED:
AFFIRMED AS MODIFIED
JOE G. RILEY, JUDGE OPINION
Defendant was convicted by a Hardeman County jury of forgery in the amount
of $1,000, a Class D felony. The jury assessed a fine of $2,000, and the trial court
sentenced defendant to forty (40) months as a Range II, Multiple Offender.
Defendant presents for our review the issues of sufficiency of the evidence and the
denial of alternative sentencing. We affirm the judgment of the trial court in all
respects, except we modify the judgment to impose the minimum four (4) year
sentence for this Range II offense.
FACTS
Through the testimony of the victim, Joseph Harris, the state adduced the
following proof. The victim and defendant had reached an agreement whereby
defendant was to repair the victim’s twenty foot by thirty foot (20' X 30') chicken
house for $500. The victim supplied the material. As the work progressed defendant
did additional repair work for the agreed amount of $50. Defendant worked on this
project only two partial days with his helper and nephew working with him.
When the work was completed, the ninety-five (95) year-old victim had
difficulty writing the check. On the third attempt, he asked defendant to fill in the
check. Defendant obliged and showed the victim the face of the check which
reflected the numeric and written amount of $550. The memo line was blank. With
the victim’s permission, defendant kept the pen he had used to write the check.
When the defendant cashed the check, the amount had been altered to $1,550. The
memo line read “Remolding [sic] house.” Upon receipt of the canceled check, the
victim discovered the discrepancy.
The defendant did not testify. Neither of the two witnesses for the defense
actually heard the victim and defendant discuss the amount of payment. Donnie
Wellington, defendant’s helper, testified that the victim had said that other bids on the
job had come in between $1,700 and $1,800. The victim had testified that one bid
was $600 and another was $750.
2 Defendant’s fifteen-year-old nephew testified that defendant cashed the check
but showed him the check on the way to the bank. He testified that he remembered
the numbers on the face of the check, “the $1,550,” and that he had not seen
defendant change it.
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 of Tennessee 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 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.
3 State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace, 493 S.W.2d at
476.
This case clearly turned on the credibility of the witnesses. The jury accredited
the testimony of the victim and rejected the version given by the defendant’s
witnesses. This was their prerogative. The evidence clearly supported the jury’s
guilty verdict of forgery in the amount of $1,000. This issue is without merit.
SENTENCING
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles and all relevant facts and circumstances. State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
The burden is upon the appealing party to show that the sentence is improper.
Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments. In conducting
our review, we are required, pursuant to Tenn. Code Ann. § 40-35-210, to consider
the following factors in sentencing:
(1) [t]he evidence, if any, received at the trial and the sentencing hearing;
(2) [t]he presentence report;
(3) [t]he principles of sentencing and arguments as to sentencing alternatives;
(4) [t]he nature and characteristics of the criminal conduct involved;
(5) [e]vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35- 114; and
(6) [a]ny statement the defendant wishes to make in his own behalf about sentencing.
Although not addressed in the briefs of the parties, this Court notes that the
forty (40) month sentence is not authorized for a Range II, Multiple Offender, for a
Class D felony. The proper range of punishment is from four (4) to eight (8) years.
4 Tenn. Code Ann. § 40-35-112(b)(4). The judgment must, therefore, be modified to
reflect a sentence of four (4) years.
The sole issue then is whether the trial court erred in denying alternative
sentencing. Under the 1989 Sentencing Act, sentences which involve confinement
are to be based on the following considerations contained in Tenn. Code Ann. § 40-
35-103(1):
(A) [c]onfinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;
(B) [c]onfinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or
(C) [m]easures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant.
See State v. Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).
In the case before us, the defendant had a lengthy criminal history, including
four (4) prior felony (forgery) convictions as well as numerous misdemeanors. In its
written Sentencing Order the trial court also noted that past efforts on probation were
unsuccessful and that suspension of this sentence would “depreciate the seriousness
of the offense.” We wholeheartedly agree. This issue is without merit.
CONCLUSION
The judgment of the trial court is affirmed in all respects, except the case is
remanded for entry of a modified judgment reflecting a sentence of four (4) years
instead of forty (40) months.
JOE G. RILEY, JUDGE
5 CONCUR:
JOE B. JONES, PRESIDING JUDGE
DAVID H. WELLES, JUDGE