             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



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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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