             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                           FEBRUARY 1998 SESSION
                                                      FILED
                                                         April 22, 1998

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,                )
                                   )    C.C.A. NO. 02C01-9702-CR-00066
             Appellee,             )
                                   )    SHELBY COUNTY
VS.                                )
                                   )    HON. JOHN P. COLTON, JR.
ROCKIE SMITH,                      )    JUDGE
                                   )
             Appellant.            )    (Assault)



FOR THE APPELLANT:                      FOR THE APPELLEE:


ALAN BRYANT CHAMBERS                    JOHN KNOX WALKUP
        -and-                           Attorney General & Reporter
HANDEL R. DURHAM, JR.
200 Jefferson Ave., Suite 750           GEORGIA BLYTHE FELNER
Memphis, TN 38103                       Counsel for the State
                                        425 Fifth Ave., North
                                        Cordell Hull Bldg., Second Floor
                                        Nashville, TN 37243-0493

                                        JOHN W. PIEROTTI
                                        District Attorney General

                                        LORRAINE CRAIG
                                        Asst. District Attorney General
                                        201 Poplar, Suite 301
                                        Memphis, TN 38103




OPINION FILED:____________________



AFFIRMED - RULE 20


JOHN H. PEAY,
Judge
                                       OPINION



                The defendant was indicted in May 1995 on two counts of aggravated

assault. A jury found him guilty of one count of simple assault. The trial judge sentenced

him to eleven months, twenty-nine days in the county workhouse, but then suspended

that sentence and placed the defendant on probation. In this appeal as of right, the

defendant argues that the evidence presented at trial was not sufficient to support a

conviction for simple assault. After a review of the record and applicable law, we find the

evidence entirely sufficient and affirm the conviction pursuant to Rule 20 of the Court of

Criminal Appeals.



                The defendant’s conviction stemmed from an incident in which he argued

with his boss, Mark Bintz, at the Piggly Wiggly where he was employed in the meat

department. Bintz testified that the defendant struck him twice in the face requiring him

to seek medical attention and obtain stitches. The defendant, in turn, testified that Bintz

had threatened him with a trash can and a box cutter, and the defendant had hit Bintz in

self-defense.



                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).




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              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).



              This case simply hinged upon who the jury believed. That the jury chose

not to believe the defendant’s story of self-defense is certainly within the jury’s province

to do. It is the function of the jury to weigh the testimony of the witnesses and render a

verdict accordingly. This verdict is fully supported by the evidence, thus, we find no

reason to disturb the jury’s finding of guilt. We affirm the judgment of the court below

pursuant to Rule 20.



                                                  ______________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



______________________________
JOSEPH B. JONES, Judge



______________________________
THOMAS T. WOODALL, Judge




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