State v. Wiley Tipton ( 2010 )


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  •              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 3
    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
    4
    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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