         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs May 8, 2001

                  STATE OF TENNESSEE v. JOYCE ANN RICE

                  Direct Appeal from the Circuit Court for Madison County
                            No. 98-883    Roger A. Page, Judge



                     No. W2000-01766-CCA-R3-CD - Filed June 26, 2001


The defendant, a construction company payroll clerk, was convicted of fourteen counts of forgery,
Class E felonies, and one count of theft of property over $1000, a Class D felony, for utilizing her
position at the company to write and cash invalid checks on her employer’s account. She was
sentenced as a Range II, multiple offender to three years on each forgery conviction, and six years
on the theft conviction, to be served concurrently for an effective sentence of six years. In this
appeal as of right, the defendant argues that the trial court erred in allowing evidence of her prior
crimes to be admitted at trial, and that the evidence was not sufficient to support her convictions.
After a careful review, we conclude that the trial court did not err in allowing the State to impeach
the defendant’s credibility by questioning her about her prior convictions, and that the evidence was
sufficient to support the jury’s verdict. Accordingly, we affirm the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which L. TERRY LAFFERTY, SR.J., joined.
DAVID H. WELLES, J., Not Participating.

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); George Morton Googe, District Public
Defender; and Vanessa D. King, Assistant District Public Defender, Jackson, Tennessee (at trial and
on appeal), for the appellant, Joyce Ann Rice.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General;
James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                              FACTS

       The defendant, Joyce Ann Rice, is a former payroll clerk at Thomson & Thomson,
Incorporated, a bridge construction company in Jackson, Tennessee. Thomson & Thomson
accountant David Wyman testified at trial that the defendant was the primary employee responsible
for preparing and printing the payroll checks for the company’s employees. According to Wyman,
company procedure called for a supervisor to periodically review the payroll checks prepared by the
defendant to ensure that they were being written to current employees. However, when Wyman
asked the defendant on September 3, 1998, how the process was working, she told him that the
supervisor had quit reviewing the checks. Wyman therefore requested that the defendant bring the
checks to him. In his review, he noted a payroll check made out to “Noe Garza.” The next day, he
noticed that the check made out to Garza was missing. When asked, the defendant denied any
knowledge of its whereabouts, and told Wyman that it had been with the other payroll checks when
she left work the preceding day.

        Upon investigating, Wyman discovered that Noe Garza had only briefly worked for the
company, from April 15, 1998, until May 6, 1998. From May 29 through August 28, 1998, however,
time sheets had been prepared for him, and fourteen payroll checks made out to him had been issued
on the company’s payroll account. Wyman stated that the defendant had been responsible for issuing
each of these fourteen checks, and that she had not been authorized to issue checks to an employee
who was no longer on the payroll. Copies of the cashed checks, which ranged in amounts from
$234.52 to $612.97, were identified by Wyman and introduced into evidence.

        William Smith, a bridge foreman for Thomson & Thomson, testified that he had supervised
Garza from April 15, 1998, until May 6, 1998, the last day that Garza worked for the company. He
had filled out and turned in the last time sheet for Garza on May 7, 1998. He had not authorized any
further time sheets for Garza, and did not recognize the time sheets that had been turned in after May
7.

        Kathy Jarvis, a former employee of Volunteer Bank in Jackson, testified that she had worked
for seven and one-half years at the small Volunteer branch bank located at 2673 North Highland.
She identified the defendant as a customer of the bank who regularly came by the North Highland
branch to make deposits or to cash checks. Jarvis testified that during the relevant time frame, the
defendant came every Friday through the drive-through window of the bank, where she deposited
her paycheck into her checking account and, using a work ID with Garza’s employee identification
number, cashed a paycheck made payable to Noe Garza. Jarvis had recognized Garza’s name
because she had seen Garza in the bank in the past, prior to the time when the defendant started
cashing his checks. During the summer months of 1998, she never saw Garza come to the bank to
cash a paycheck.

         Sergeant Tom Rudder, a criminal investigator for the Madison County Sheriff’s Department,
testified that he interviewed the defendant on September 10, 1998. After being informed of her
rights and signing a waiver of rights form, the defendant gave a statement acknowledging that she
was responsible for cutting the payroll checks for the company’s employees, but denying that she
had ever taken or cashed any check made out to Noe Garza. She remembered receiving time cards
on Garza through September 1, 1998, and said that to her knowledge, he still worked for the
company.


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         Following the trial court’s denial of her motion for judgment of acquittal, the defendant
testified in her own behalf. She denied having created time sheets on Garza, having cashed checks
made payable to him, or having taken any checks other than her own. She stated that she prepared
the payroll checks each week from time sheets that supervisors left in her mailbox, and that she had
added nothing to Garza’s time sheets other than the total hours he worked and his employee number.

        The defendant further testified that at the beginning of the week in which the problem with
the checks was discovered, she had received a letter from the Social Security Administration
informing her that more than ten percent of the social security numbers listed on the company’s
employees’ W-2 forms for the year ending in 1997 did not match the names on file with the Social
Security Administration. When she researched the matter, she found that each of the unmatched
social security numbers belonged to a Mexican employee. She said that she had reported her
findings to Wyman, telling him of her belief that the Mexican employees were illegal aliens, and
that she did not want to continue to sign her name to the certified payrolls being turned in to the
Tennessee Department of Transportation. She testified that Wyman told her that the employees were
not illegal, and that she was to continue to do her job. According to the defendant, the next day
Wyman asked her to bring the payroll checks for his review.

        The defendant introduced medical records to show that she had been undergoing an EKG test
on May 29, 1998 at 1:15 p.m., the same day that one of Garza’s checks had been cashed at 12:49
p.m., and again on June 19, 1998 at 12:56 p.m., the day that another one of Garza’s checks had been
cashed at 12:42 p.m. She stated that she had to wait in her doctor’s office before each EKG, until
“eventually” she was called to the exam room for the test. The defendant could not explain her
signature on the back of two of Garza’s paychecks. She acknowledged that she had had “trouble
with authorities in the past.”

        On cross-examination, the defendant admitted that she was a customer of Volunteer Bank,
and that she had regularly deposited her paycheck with Kathy Jarvis at the bank. She again denied,
however, that she had cashed any of Garza’s checks. She said that she thought that Jarvis was
mistaken, and that she had her confused with someone else. She also denied that she had signed her
name to the back of the two checks on which her signature appeared. In response to questioning by
the State, she acknowledged that she had been convicted of both burglary and theft of property over
$1000 on July 17, 1995, in Madison County Circuit Court, and that she had been sentenced to four
years on each conviction.

        Following deliberations, the jury convicted the defendant of fourteen counts of forgery and
one count of theft of property over $1000 but under $10,000. The trial court sentenced her as a
Range II, multiple offender to three years on each forgery conviction and six years on the theft of
property conviction, with the sentences ordered served concurrently, for an effective sentence of six
years. The defendant filed a timely appeal to this court.

                                           ANALYSIS



                                                -3-
                         I. Evidence of Defendant’s Prior Convictions

        The defendant first contends that the trial court erred in allowing evidence of her prior
convictions at trial. She argues that the jury was improperly influenced in its determination of her
guilt by the similarities between the crimes for which she had previously been convicted and the ones
for which she was presently charged. She also argues that the State improperly used the prior
convictions in its closing argument “as an appeal to the jury to convict [her] because of her prior
criminal history.” In response, the State contends that the convictions were properly admitted by the
trial court and argued by the State for the sole purpose of impeaching the credibility of the
defendant’s testimony.

        This issue is governed by Tennessee Rule of Evidence 609(a), which provides as follows:

               Impeachment by evidence of conviction of crime.–(a) General
               Rule.–For the purpose of attacking the credibility of a witness,
               evidence that the witness has been convicted of a crime may be
               admitted if the following procedures and conditions are satisfied:

                   (1) The witness must be asked about the conviction on cross-
               examination. If the witness denies having been convicted, the
               conviction may be established by public record. If the witness denies
               being the person named in the public record, identity may be
               established by other evidence.

                   (2) The crime must be punishable by death or imprisonment in
               excess of one year under the law under which the witness was
               convicted or, if not so punishable, the crime must have involved
               dishonesty or false statement.

                    (3) If the witness to be impeached is the accused in a criminal
               prosecution, the State must give the accused reasonable written notice
               of the impeaching conviction before trial, and the court upon request
               must determine that the conviction’s probative value on credibility
               outweighs its unfair prejudicial effect on the substantive issues. The
               court may rule on the admissibility of such proof prior to the trial but
               in any event shall rule prior to the testimony of the accused. If the
               court makes a final determination that such proof is admissible for
               impeachment purposes, the accused need not actually testify at the
               trial to later challenge the propriety of the determination.

        That a prior conviction involved the same or similar crime as the one for which the defendant
is being tried does not automatically prevent its use to impeach the defendant’s credibility. State v.
Walker, 29 S.W.3d 885, 889 (Tenn. Crim. App. 1999), perm. to appeal denied (Tenn. 2000) (citing


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State v. Miller, 737 S.W.2d 556, 560 (Tenn. Crim. App. 1987)). The trial court must, however,
carefully weigh whether the possible prejudice to the defendant is outweighed by the probative value
of the evidence on the issue of the defendant’s credibility. Id. at 890 (citing State v. Mixon, 983
S.W.2d 661, 674 (Tenn. 1999) and State v. Farmer, 841 S.W.2d 837, 839 (Tenn. Crim. App. 1992)).
In determining the probative value of the prior convictions, the trial court must assess the similarity
of the crime for which the defendant is on trial and the crime underlying the impeaching conviction.
Farmer, 841 S.W.2d at 839. The court must next analyze the relevance of the impeaching conviction
to the issue of the defendant’s credibility. Id. The trial court’s decision to admit prior convictions
for impeachment purposes will not be reversed on appeal unless it appears from the record that the
trial court abused its discretion. State v. Blanton, 926 S.W.2d 953, 960 (Tenn. Crim. App. 1996).

         The record in this case reflects that the State gave written notice prior to trial of its intent to
use the defendant’s prior convictions for impeachment purposes should the defendant elect to take
the stand. Thereafter, prior to the start of the defendant’s trial, the trial court held a hearing as
mandated by State v. Morgan, 541 S.W.2d 385 (Tenn. 1976), to determine the admissibility of the
convictions. The State sought to use four of the defendant’s prior criminal convictions to impeach
her at trial, all of which occurred in 1995: felony burglary, felony theft of property over $1000,
felony vandalism, and misdemeanor criminal impersonation. The trial court’s ruling shows that it
correctly considered the issues, applying the appropriate balancing test in reaching its decision that
the State could impeach the defendant with her convictions for burglary and theft of property:

                        So in looking at [the] first one and the second one, I’m going
                to find that the probative value on credibility outweighs the unfair
                prejudicial effect on the substantive values as to the burglary. And
                even though theft of property over a thousand is the same crime, we
                have cases that say that even though the crimes are the same, if
                it–impact on credibility is very high, you can still use it.

                        So in this case I’m going to find with respect to the first one
                and the second one, burglary and theft of property over a thousand,
                that the convictions’ probative value on credibility as to each one
                outweighs the unfair prejudicial effect on substantive issues.

                       Now, as to the vandalism count, it is a felony, but I don’t find
                in my study that vandalism has very much to do with credibility, so
                I’m not going to allow that one.

                        Criminal impersonation, in this Court’s opinion the impact on
                credibility in that case is just not high enough to offset the fact that
                it’s a misdemeanor.




                                                    -5-
                      So I guess in essence my ruling is if Mrs. Rice testifies, the
               95-477 conviction on burglary and also the 95-477 conviction on theft
               of property over a thousand can be used to impeach her.

         Our review has revealed no abuse of discretion by the trial court in this matter. The fact that
the theft of property conviction was the same as one of the offenses for which the defendant was
being tried did not preclude its use as impeachment evidence against the defendant. See Walker, 29
S.W.3d at 889. In addition to being felonies, the defendant’s prior convictions for theft of property
and burglary involved crimes of dishonesty, see State v. Miller, 737 S.W.2d 556, 559-60 (Tenn.
Crim. App. 1987) (noting that burglary is a crime of dishonesty); State v. Addison, 973 S.W.2d 260,
268 (Tenn. Crim. App. 1997) (stating that theft is a crime of dishonesty), thereby enhancing their
probative value on the issue of the defendant’s credibility. The trial court clearly took into
consideration the fact that the defendant’s theft of property conviction was for the same offense as
one of the crimes for which she was currently on trial. However, by taking the stand to contradict
Kathy Jarvis’s direct testimony that the defendant had cashed Garza’s checks, the defendant made
her credibility an important issue at trial. We conclude, therefore, that the trial court did not abuse
its discretion in allowing the State to impeach the defendant’s credibility with evidence of her prior
convictions for burglary and theft of property.

        The defendant also contends that the prosecutor argued improper propensity evidence when
referring to her prior convictions in his closing arguments to the jury. As an initial matter, we note
that by failing to object to the prosecutor’s closing comments at trial, the defendant has waived the
issue on appeal. See Tenn. R. App. P. 36(a); State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App.
1992) (stating that failure to object to prosecutor’s alleged misconduct in closing argument waives
any later complaint). Even if not waived, however, the trial transcript makes it clear that the
prosecutor argued only that the defendant’s prior convictions be considered by the jury in its
consideration of the weight to be given the defendant’s testimony:

                       And when you’re considering the credibility of the witnesses,
               the Judge is also going to instruct you that the Defendant has put her
               credibility in issue because she testified today.

                        Now, she does have a prior record, and she’s admitted to that
                prior record and told you that she has a burglary conviction, a theft of
                property conviction over a thousand dollars from I believe it was
                1995.

                       The State’s not asking you–And the law is very clear on this
                and the Judge is going to instruct you. You can’t convict Mrs. Rice
                simply because she’s got a prior record. You can’t do that. You
                shouldn’t do that. That’s not our law.




                                                  -6-
                       But what you can consider, and the Judge is going to instruct
               you regarding credibility of witnesses, is when you’re judging her
               testimony and whether she’s telling you the truth or Mrs. Jarvis is
               telling you the truth or Mr. Wyman is telling you the truth, you can
               consider her prior record in judging her credibility today.

                       And I submit to you, ladies and gentlemen, who told you the
               truth today is Mr. Wyman from Thompson and Thompson, Mr. Smith
               from Thompson and Thompson, and Mrs. Jarvie [sic] from the bank
               when they told you what occurred and how these checks were cashed.

The defendant’s prior convictions were properly admitted as impeachment evidence, and thus proper
for comment by the prosecutor in closing argument. This issue, therefore, is without merit.

                                  II. Sufficiency of the Evidence

        Next, the defendant contends that the evidence was not sufficient to support her convictions
beyond a reasonable doubt. Specifically, the defendant argues that she presented sufficient evidence,
in the form of proof of her EKG exams, to show that it would have been physically impossible for
her to have cashed “at least one” of the checks in issue.

         In considering this issue, we apply the familiar rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court is “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the offense charged beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). See also State v. Evans, 838 S.W.2d
185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn.
R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set
aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a
reasonable doubt.”). All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “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.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the
presumption of innocence with which a defendant is initially cloaked and replaces it with one of
guilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence is
insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        Viewed in the light most favorable to the State, the evidence in this case was sufficient to
support the jury’s verdict. Contrary to the defendant’s assertions, proof that she was undergoing an
EKG test fourteen minutes after a check made payable to Garza was cashed at Volunteer Bank does
not create a reasonable doubt of her guilt. Although the defendant testified that she was forced to
wait in her doctor’s waiting room before beginning the tests, the jury was free to discredit her


                                                  -7-
testimony. The defendant presented no evidence, other than her own testimony, to show that it
would have been impossible for her to have reached her doctor’s office to begin the tests within
fourteen minutes of having gone through the drive-through window of the Highland branch of the
bank. David Wyman testified, and the defendant acknowledged, that she was the employee
responsible for preparing Garza’s checks, including the fourteen payroll checks that were issued after
Garza’s employment had ended. Kathy Jarvis, who testified that she was very familiar with the
defendant, unequivocally identified her as the woman who cashed Garza’s checks. In addition, the
defendant’s signature appeared on the back of two of the checks. This evidence was more than
sufficient for a rational trier of fact to find the defendant guilty of the crimes beyond a reasonable
doubt.

                                          CONCLUSION

        We conclude that the trial court did not err in allowing the State to impeach the defendant’s
credibility with her prior convictions for burglary and theft of property. We further conclude that
the evidence was sufficient to support the defendant’s convictions of forgery and theft of property
over $1000. Accordingly, we affirm the judgment of the trial court.




                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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