          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON              FILED
                       SEPTEMBER 1997 SESSION
                                                     October 10, 1997

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
STATE OF TENNESSEE,         )
                            )    NO. 02C01-9609-CC-00316
      Appellee,             )
                            )    HARDEMAN COUNTY
VS.                         )
                            )
                            )    HON. JON KERRY BLACKWOOD, JUDGE
GARY POPLAR,                )
                            )    (Forgery)
      Appellant.            )




FOR THE APPELLANT:                     FOR THE APPELLEE:

STEPHEN L. HALE                        JOHN KNOX WALKUP
James T. “Jim” Sanderson               Attorney General and Reporter
 & Associates, P.C.
P. O. Box 331                          CLINTON J. MORGAN
101 Market Street                      Assistant Attorney General
Bolivar, Tennessee 38008               450 James Robertson Parkway
                                       Nashville, TN 37243-0493

                                       ELIZABETH T. RICE
                                       District Attorney General

                                       JERRY W. NORWOOD
                                       Assistant District Attorney General
                                       302 Market Street
                                       Somerville, Tennessee 38068




OPINION FILED:



AFFIRMED AS MODIFIED



JOE G. RILEY,
JUDGE
                                       OPINION


       Defendant was convicted by a Hardeman County jury of forgery in the amount

of $1,000, a Class D felony. The jury assessed a fine of $2,000, and the trial court

sentenced defendant to forty (40) months as a Range II, Multiple Offender.

Defendant presents for our review the issues of sufficiency of the evidence and the

denial of alternative sentencing. We affirm the judgment of the trial court in all

respects, except we modify the judgment to impose the minimum four (4) year

sentence for this Range II offense.



                                        FACTS



       Through the testimony of the victim, Joseph Harris, the state adduced the

following proof. The victim and defendant had reached an agreement whereby

defendant was to repair the victim’s twenty foot by thirty foot (20' X 30') chicken

house for $500. The victim supplied the material. As the work progressed defendant

did additional repair work for the agreed amount of $50. Defendant worked on this

project only two partial days with his helper and nephew working with him.

       When the work was completed, the ninety-five (95) year-old victim had

difficulty writing the check. On the third attempt, he asked defendant to fill in the

check. Defendant obliged and showed the victim the face of the check which

reflected the numeric and written amount of $550. The memo line was blank. With

the victim’s permission, defendant kept the pen he had used to write the check.

When the defendant cashed the check, the amount had been altered to $1,550. The

memo line read “Remolding [sic] house.” Upon receipt of the canceled check, the

victim discovered the discrepancy.

       The defendant did not testify. Neither of the two witnesses for the defense

actually heard the victim and defendant discuss the amount of payment. Donnie

Wellington, defendant’s helper, testified that the victim had said that other bids on the

job had come in between $1,700 and $1,800. The victim had testified that one bid

was $600 and another was $750.

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       Defendant’s fifteen-year-old nephew testified that defendant cashed the check

but showed him the check on the way to the bank. He testified that he remembered

the numbers on the face of the check, “the $1,550,” and that he had not seen

defendant change it.



                         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 of Tennessee 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 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.



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

476.

       This case clearly turned on the credibility of the witnesses. The jury accredited

the testimony of the victim and rejected the version given by the defendant’s

witnesses. This was their prerogative. The evidence clearly supported the jury’s

guilty verdict of forgery in the amount of $1,000. This issue is without merit.



                                   SENTENCING



       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances. State

v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       The burden is upon the appealing party to show that the sentence is improper.

Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments. In conducting

our review, we are required, pursuant to Tenn. Code Ann. § 40-35-210, to consider

the following factors in sentencing:

       (1)   [t]he evidence, if any, received at the trial and the sentencing
       hearing;

       (2)    [t]he presentence report;

       (3)    [t]he principles of sentencing and arguments as to sentencing
              alternatives;

       (4)    [t]he nature and characteristics of the criminal conduct involved;

       (5)   [e]vidence and information offered by the parties on the
       enhancement and mitigating factors in §§ 40-35-113 and 40-35-
       114; and

       (6)   [a]ny statement the defendant wishes to make in his own behalf
       about sentencing.


       Although not addressed in the briefs of the parties, this Court notes that the

forty (40) month sentence is not authorized for a Range II, Multiple Offender, for a

Class D felony. The proper range of punishment is from four (4) to eight (8) years.



                                           4
Tenn. Code Ann. § 40-35-112(b)(4). The judgment must, therefore, be modified to

reflect a sentence of four (4) years.

       The sole issue then is whether the trial court erred in denying alternative

sentencing. Under the 1989 Sentencing Act, sentences which involve confinement

are to be based on the following considerations contained in Tenn. Code Ann. § 40-

35-103(1):

       (A) [c]onfinement is necessary to protect society by restraining a
       defendant who has a long history of criminal conduct;

       (B) [c]onfinement is necessary to avoid depreciating the seriousness
       of the offense or confinement is particularly suited to provide an
       effective deterrence to others likely to commit similar offenses; or

       (C) [m]easures less restrictive than confinement have frequently or
       recently been applied unsuccessfully to the defendant.

See State v. Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).

       In the case before us, the defendant had a lengthy criminal history, including

four (4) prior felony (forgery) convictions as well as numerous misdemeanors. In its

written Sentencing Order the trial court also noted that past efforts on probation were

unsuccessful and that suspension of this sentence would “depreciate the seriousness

of the offense.” We wholeheartedly agree. This issue is without merit.



                                   CONCLUSION



       The judgment of the trial court is affirmed in all respects, except the case is

remanded for entry of a modified judgment reflecting a sentence of four (4) years

instead of forty (40) months.




                                                 JOE G. RILEY, JUDGE




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CONCUR:



JOE B. JONES, PRESIDING JUDGE




DAVID H. WELLES, JUDGE




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