             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                            OCTOBER 1998 SESSION
                                                      FILED
                                                       January 13, 1999

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,                 )
                                    )   C.C.A. NO. 02C01-9801-CR-00013
             Appellee,              )
                                    )   SHELBY COUNTY
VS.                                 )
                                    )   HON. CHRIS CRAFT,
GRACE MATTHEWS,                     )   JUDGE
                                    )
             Appellant.             )   (Vandalism - Property Under
                                        Five Hundred Dollars)



FOR THE APPELLANT:                      FOR THE APPELLEE:


MARK A. MESLER                          JOHN KNOX WALKUP
200 Jefferson Ave., Suite 1250          Attorney General & Reporter
Memphis, TN 38103
                                        DOUGLAS D. HIMES
                                        Asst. Attorney General
                                        425 Fifth Ave., North
                                        Nashville, TN 37243-0493

                                        WILLIAM E. GIBSON
                                        District Attorney General

                                        DAN BYER
                                        Asst. District Attorney General
                                        Criminal Justice Center, 3rd Fl.
                                        201 Poplar Ave.
                                        Memphis, TN 38103



OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                         OPINION



               On October 6, 1998, the defendant was convicted by a jury of vandalism

in the amount of five hundred dollars ($500) or less. At a sentencing hearing held on

December 9, 1997, the defendant was sentenced to four months of incarceration1 and

a four hundred ($400) dollar fine. In this appeal as of right, the defendant contends that

the jury’s verdict was contrary to the weight of the evidence and that the defendant’s Fifth

Amendment right was violated.



               After a review of the record and applicable law, we affirm the defendant’s

conviction.



               The defendant’s conviction stems from an incident that occurred on

December 24, 1996. The defendant went to the apartment of Ryan Thomas, a Memphis

police officer. Mr. Thomas and the defendant had had a relationship and have a child

together. Mr. Thomas had evidently neglected to pick the defendant up from work that

evening. Although the defendant had paged Mr. Thomas several times and left several

messages on his answering machine, Mr. Thomas had not responded. At about 7:30

that evening, the defendant went to Mr. Thomas’ apartment. When Mr. Thomas came

to the door he gave the defendant some batteries he had promised to purchase for their

son’s Christmas presents. When the defendant tried to talk to Mr. Thomas he said, “I

don’t want to hear that Grace,” and shut the door.



               Approximately ten minutes later, the defendant returned to Mr. Thomas’

apartment and began ringing the doorbell and knocking on the door. Although Mr.

       1
          In lieu of four months of incarceration, the defendant’s sentence was suspended and she was
placed on eleven months and twenty-nine days probation.

                                                 2
Thomas was home, he did not answer the door. Instead, he waited until the knocking

stopped and then went to the window beside the door. It was at this point that Mr.

Thomas observed the defendant walk closely around his car with something in her hands.

Mr. Thomas realized that the defendant had scratched his car and reported the incident

when he arrived at work later that evening.



               The defendant now contends that the jury “verdict was contrary to the

evidence that was adduced at trial in that the evidence, considered in its totality,

preponderated in favor of the innocence of the accused rather than her guilt.”



               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 inferences

and legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978).



                                               3
              The defendant contends that Mr. Thomas’s inconsistent testimony and his

lack of trustworthiness are such that no rational finder of fact could have found the

defendant guilty beyond a reasonable doubt.         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 such, this contention is without merit.



              The defendant further contends that her Fifth Amendment rights were

violated by comments made by the State during its closing argument. The defendant

argues that these comments directly implicated her failure to testify and were therefore

improper. The comments at issue were made as follows:

              Credibility of the witnesses. Because one of the things -- because
              this is what he said, what came from the stand is the world of infor-
              mation that you have to deal with. I mean that’s all. Your conjecture,
              your thoughts, you know that things like this don’t happen or do hap-
              pen, everything that you have to consider whether or not this occurred,
              came from the witness stand. And so the credibility, the nature of the
              proof, the witnesses who testified, is what you are going to have to
              make your determination from. Because he said it happened. And
              the only proof offered at all that could make that -- to rebut that was
              the sister’s testimony that she saw a scratch on the side of the car.


Although the defendant’s attorney objected to these comments at the trial, the trial judge

overruled the objection but later instructed the jury that the defendant had a right not to

testify and the jury was to place no significance on or draw any inference from the fact

the defendant chose not to testify.



              Generally, references to the defendant’s failure to testify or any arguments,



                                            4
direct or indirect, to the jury that such failure to testify should be taken as an inference of

guilt are prohibited under the Tennessee Constitution and the Fifth Amendment to the

Constitution of the United States. However, in the case at bar there was no reference to

the defendant’s failure to testify or any argument that such failure to testify should be

taken as an inference of guilt. The State merely commented that the only evidence the

jury had was the testimony of the victim. The State’s comments were an argument that

the evidence was unrefuted or uncontradicted and, as such, are proper comments on the

defendant’s failure to testify. See Lundy v. State, 752 S.W.2d 98, 103 (Tenn. Crim. App.

1987); State v. Blackmon, 701 S.W.2d 228, 233 (Tenn. Crim. App. 1985); Taylor v.

State, 582 S.W.2d 98, 100 (Tenn. Crim. App. 1979). Therefore, this contention is also

without merit.



              Accordingly, we affirm the defendant’s conviction.



                                                    _________________________________
                                                    JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID G. HAYES, Judge



______________________________
L. T. LAFFERTY, Senior Judge




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