           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                          SEPTEMBER 1997 SESSION
                                                          FILED
                                                          October 13, 1997

                                                          Cecil Crowson, Jr.
STATE OF TENNESSEE,              )                        Appellate C ourt Clerk
                                 )   NO. 02C01-9610-CR-00353
      Appellee,                  )
                                 )   SHELBY COUNTY
VS.                              )
                                 )
                                 )   HON. CHRIS CRAFT, JUDGE
STEPHANIE Y. DOWAGIAC,           )
                                 )   (Theft under $500)
      Appellant.                 )




FOR THE APPELLANT:                         FOR THE APPELLEE:

MARK ALBERT MESLER, II                     JOHN KNOX WALKUP
Ballin, Ballin & Fishman, P.C.             Attorney General and Reporter
200 Jefferson Avenue
Suite 1250                                 CLINTON J. MORGAN
Memphis, Tennessee 38103                   Assistant Attorney General
                                           450 James Robertson Parkway
                                           Nashville, TN 37243-0493

                                           WILLIAM GIBBONS
                                           District Attorney General

                                           RHEA CLIFT
                                           Assistant District Attorney General
                                           201 Poplar Street
                                           Suite 300
                                           Memphis, Tennessee 38103




OPINION FILED:


AFFIRMED


JOE G. RILEY,
JUDGE
                                      OPINION



        Defendant, Stephanie Y. Dowagiac, was convicted by a Shelby County jury of

theft of property under $500, a Class A misdemeanor. The trial court deferred

imposition of sentence and placed defendant on judicial diversion for eleven (11)

months and twenty-nine (29) days. Defendant presents for our review the issues of

sufficiency of the evidence and the propriety of comments made by the trial court.

We affirm the judgment of the trial court.



                                       FACTS



        Atwood Rawls, an off-duty Memphis police officer, was a security officer for

Dillard’s department store on the date of the offense, January 2, 1995. He observed

defendant take four (4) Perry Ellis vests from a display rack and go into a dressing

room. Rawls went to the door of the dressing room and heard a snapping sound like

that made when the anti-theft sensors are removed from clothing. Defendant came

out of the dressing room carrying only two (2) vests, which she returned to the display

rack. When she left the store, the alarm did not sound. Because Rawls could not

find the two (2) missing vests or the broken sensors in the dressing room, he

searched the pockets of the vests defendant had replaced on the rack. He found two

broken sensors and the price tags from the missing vests. He found defendant in the

mall.   When he asked her about the missing vests, she said she had them

underneath her coat. Rawls told her she was under arrest and took her back to

Dillard’s.

        Mary Pickens, also a Memphis police officer, was on patrol at the mall and

accompanied Rawls and defendant back to Dillard’s. She heard the defendant say

that she had popped the sensors with her fingers, and that she had one vest for

herself and one for her boyfriend.

        Defendant married her boyfriend prior to trial. He testified that he and the




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defendant had bought the two vests as Christmas gifts for each other but could not

find the receipt. He produced undated Polaroid snapshots showing them unwrapping

and wearing their vests with a Christmas tree in the background. He testified the

pictures were taken during Christmas 1994. They had both been wearing these vests

on January 2, 1995, and as she dropped him off at work, he had given her his vest

to wear due to the cold. She drove away wearing both vests according to the

husband’s testimony.

       Defendant also testified that she and her husband had given each other Perry

Ellis vests for Christmas 1994. As she dropped him off at work the day of her arrest,

he had given her his vest which she wore over her vest. She went to Dillard’s to look

for washable vests. She tried on two vests and replaced them on the rack. After

leaving Dillard’s, she was grabbed by Rawls. She denied confessing to Rawls and

Officer Pickens that she took the vests.



                        SUFFICIENCY OF THE EVIDENCE



       When an accused challenges the sufficiency of the evidence, this court must

review the record to determine if the evidence adduced during the trial was sufficient

“to support the findings by the trier of fact of guilt beyond a reasonable doubt.” Tenn.

R. App. P. 13(e). This rule is applicable to findings of guilt predicated upon direct

evidence, circumstantial evidence or a combination of direct and circumstantial

evidence. State v. Brewer, 932 S.W.2d 1,19 (Tenn. Crim. App. 1996).

       In determining the sufficiency of the evidence, this court does not reweigh or

reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor

may this court substitute its inferences for those drawn by the trier of fact from

circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859

(1956). To the contrary, this court is required to afford the state the strongest

legitimate view of the evidence contained in the record as well as all reasonable and

legitimate inferences which may be drawn from the evidence. State v. Tuttle, 914




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S.W.2d 926, 932 (Tenn. Crim. App.1995).

       Questions concerning the credibility of the witnesses, the weight and value to

be given the evidence as well as all factual issues raised by the evidence are

resolved by the trier of fact, not this court. Id. In State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973), the Tennessee Supreme Court stated, “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.”

       Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, the accused has the burden in this court of illustrating

why the evidence is insufficient to support the verdict returned by the trier of fact.

State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace, 493 S.W.2d at

476.

       The jury obviously accredited the testimony of the state’s witnesses and

rejected the version given by the defendant and her husband. The state’s proof

certainly was sufficient to support the jury’s guilty verdict of theft of property under

$500. This issue is without merit.



                            TRIAL COURT STATEMENTS



       Defendant complains that she was prejudiced by comments made by the trial

judge. The motion for new trial simply alleges: “The trial judge’s conduct and

statements toward defense witnesses constitute improper comments on the

evidence.” The only comments actually mentioned at the motion for new trial related

to defendant’s requests for a lie-detector test. On appeal defendant alleges other

examples. Any alleged errors as to these other examples have been waived for

failure to specifically raise them in the motion for new trial. See Tenn. R. App. P.

3(e); State v. Gauldin, 737 S.W.2d 795, 798 (Tenn. Crim. App. 1987). However, our

review of these comments does not reveal any reversible error.

       The comments before us on appeal consist of the trial court’s warning




                                            4
defendant to refrain from referring to her alleged offer to take a “lie-detector test.”

Defendant claims these comments constituted an improper comment on the weight

of the evidence. The challenged exchange consisted of the following:


       [DEFENDANT]: Yes, she [Pickens] said--she said, “How did you get
       those sensors off:” And I said, “You’ve got the wrong person.” I said,
       “We can clear all this up by giving me a lie-detector test.” I said, “I’ll
       take a lie-detector test. Just please get someone in here right now and
       [I’ll] take a lie-detector test.” And when I said that--

       THE COURT: Ms. Dowagiac, if you mention the lie detector again, I’m
       going to find you in contempt of court. Do not mention that word again.
       All right, ma’am?

....

       When defense counsel attempted to resume his direct examination, the

defendant referred to the subject again: “Well, right before she--when I said that last

statement that I’m not supposed to say--.” The court reminded her again not to refer

to anything having to do with this subject.

       The trial judge at the motion for new trial explained that he was presented with

an emergency situation of the defendant’s making and felt from the look on her face

and her attitude that she knew it was improper but did it anyway. We give great

deference to the trial judge who, unlike this Court, was able to observe the demeanor

of the witness.

       An offer to take a polygraph test is not admissible in a criminal proceeding.

State v. Campbell, 904 S.W.2d 608, 614-615 (Tenn. Crim. App. 1995). The trial

judge had to act immediately. While the trial court should not have threatened the

witness with contempt of court in the presence of the jury, we find that the trial court’s

admonition did not affect the results of this trial. Tenn. R. App. P. 36(b). This issue

is without merit.



                                    CONCLUSION



       The judgment of the trial court is affirmed in all respects.




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                                    JOE G. RILEY, JUDGE




CONCUR:




JOE B. JONES, PRESIDING JUDGE




DAVID H. WELLES, JUDGE




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