### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs M

ay 8, 2001
STATE OF TENNESSEE v. JOYCE ANN RICE
Direct Appeal from the Circuit Court for Madison County

No. 98-883 Roger A. Page, Judge

No. W2000-01766-CCA-R3-CD - Filed June 26, 2001

The defendant, a construction company payroll clerk, wa s convicted of

fou rte en co unt s of for gery, Class E felonies, and one count of theft of property over

$1000, a Class D felony, for utilizing her position at the company to write and cash invalid checks on her employ er’s account. She was sente nced a s a Ran ge II, multiple offender to three years on each forger y conviction, and six years
on the theft conviction, to be served concurr ently for a n effective sen

tence of six y

ears. In this appeal as of right, the defendant argues that the trial court erred in allowing evidenc e of her prior crimes to be admitted at trial, and that the evidence was not sufficient to support her convictions. After a careful review, we conclude that the trial court did not err in allowing the State to

impeach the defendant’s credibility by questioning her about her prior convictions, and that the evidence was sufficient to supp

ort the jury ’s verdict. Acc ordingly, we affirm the jud

gment of the tria

l court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

A LAN E. G LENN , J., d elive red th e opin ion of the co urt, i n whic h L. T ERRY LAFFERTY , S R .J., joined. D AVID H. W ELLES , J., Not P articipati ng.
Clifford K. McGown, Jr., Waverly, Tennessee (on appeal);George Morton G ooge, District Pu

blic Defender; and Vanessa D. K ing, Assistant Dis

trict Public

Defender, Jackson, Tennessee (at trial and on appeal), for the appellant, Joyce Ann Rice.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistan t Attorney G

eneral; James G. Woodall , D istrict Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS

The defendant, Joyce Ann Rice, is a former p ayroll clerk at Thomson & Thomson, Incorporated, a brid ge construction company in Jackson, Tennessee. Thomson & Thomson-2-

accountant

David Wyman te

stified at trial tha

t the defendant w

as the primary

employee r

esponsible for preparing and printing the payroll checks for the company’semployees. According to Wyman, company procedure called for a

supervisor to periodically review the payroll checks prepared by the defendant to e nsure that they were being written to current employ ees. However, when Wyman asked the defen dant on September 3, 1998, how the pro

cess was working

, she told him that th

e supervisor

had quit reviewing the checks. Wyman therefore requested that the defendant bring the checks to him. In hisreview, he noted a payroll check made out to “Noe Ga rza.” The next day, he noticed that the check madeout to Ga rza was missing. When asked, the defendant denied any knowledge of its whereabouts, an d told Wyman tha

t it had been with the

other payr

oll checks when she left work the preceding day. Upon investigat ing, Wyman discovered that Noe Garza had only briefly worked for the
com pan y, from April 15, 1998, until May 6, 1998. From May 29 through August 28, 1998, however, time sheets had been p

repared for him

, and fourteen payroll checks made out to him had been issued
on the company’s payroll acc ount. Wyman stated

that the defendant had been responsible for issuing eachof these fourtee

n checks, and that she had not been authorized to issue checks to an employee who was no longer on the payroll. Copies of the cashe d check s, which ranged in amounts from $234.52 to $612.97, were identified by Wyman and introduced into evidenc e.
William Smith, a bridge foreman for Thomson & Thomson, testified that he had supervised Garza from April 15, 1998, until May 6, 1998, the last day that

Garza worked for the company. He had filled out and turned in the last time sheet for Garza on May 7, 1998. He had not authorized any further time sheets

for Garza, and di

d not recognize the time sheets that had been turned in after May 7. Kathy

Jarvis, a former employee of Volunteer Bank in Jackson, testified that she had worked for seven and one-half years at the small Volunteer branc h bank located at 2673 North H ighla nd. She identified the defendant as a customer of the bank who regularly came by the North Highland branchto make deposits or to cash checks. Jarvis testified that during the relevant time frame, the defendant came every Friday

through the drive-through window of the bank, where she deposited her paycheck into her checking account and, using a work ID with Garza’s employee identifica tion number, cashed a paychec k made payable to N

oe Garza. Jarvis ha

d recognized Ga

rza’s name because she had seen Garza in the bank in the past, prior to the time when the def endant started cashing his checks. During the summer months of 1998, she never saw Garza come to the bank to cash a paycheck. Sergeant Tom Rudder, a crim

inal investigato

r for th e Madison C ounty Sherif f’s Department, testified that he interviewed the defendant on Septembe r 10, 1998. A fter being informed of her rights and s igning a waiver of righ ts form, the defendant gave a statement acknowledging that she
was responsible for c

utting the pay

roll checks fo r the company’s employees, but deny ing that she had ever taken

or cashed any check made out to Noe Garza. She remembered receiving time cards
on Garza through September 1, 1998, and said tha t to her knowledge, he still worked for the
com pan y.-3-

Following the trial court’s denial of her motion fo r judgment of acquittal, the defendant testified in her own behalf. She denied having created time sheets on Garza, having cashed checks made payable to him, or having taken any checks other than her

own. She stated that she prepared the payroll

checks each week from time sheets that supervisors left in her mailbox, and that she had addednothing to Garza’s time sheets other than the total hours he worked and his employee number.

The defendant further testified that at the beginning of the week in whic h the problem with the checks was discovered, she had received a letter from the Social Security Administration informing her that more tha n ten percent of t

he socia l security nu mbers listed on the company’s employees’ W-2 forms for the year ending in 1997 did not match the names on file with

the Social Security Administration. When she re searched the matter, she found that each of the unmatched social security numbers belonged to a Mexica n employee. She said that she had reported her findings to Wyman, tel ling him of h er belief that the Mexican employees were illegal aliens, and that she did not want to c

ontinue to sign he

r name to th

e certified payrolls being turned in to the Tennessee Department of Transportation. She testified that Wyman told her that the employ ees were notillegal, and that she was to continue to do her job. According to the defendant, the nex t day Wyman asked her to bring the pay roll checks for his review.

The defendant introduced medical record

s to show that she had be

en undergoing

an EKG test
on May 29, 1998 at 1:15 p.m., the same day that one of Ga rza’s checks had been cashed at 12:49 p.m., and again on June 19, 1998 at 12:56 p.m., the day that another one of Garza’s checks had been cashed at 12:42 p.m. She stated that sh e had to wait in her doctor’s off

ice before eac

h EKG, until “eventual ly” she was called to the exam room for the test. The defendant could not explai n he r signatureon the back of two of Garza’s paychecks. She ackn owledge d that she had had “ trouble with authorities in the past.”

On cross-examination, the defendant admitted that she was a customer of Volunteer Bank, and that she had regularly deposited her pay check with Kathy

Jarvis at the bank. She again denied, however, that sh

e had c ashed a ny of Garza’ s chec

ks. She said th at she t hough t that Ja rvis was mistaken, and that she had her confused with someone else. She also denied that she had signed her
name to the back of the two checks on which her signature appeared. In response to questioning by the State, she acknowledged that she had been convicted of both burglary and theft of property over $1000 on July 17, 1995, in Madison County Circuit Court, and that she had been sentenced to four years on each conviction. Following deliberations, the jury convicted the defendant of fourteen counts of forg ery and
one count of theft of p

roperty ove

r $1000 but under $1 0,000. The tria l court se ntenced her as a Range II, multipl e offender t o three years on each forger y conviction and six years on the theft of property conviction, with the sentences ordered served concurrently, for an

effective sent

ence of six years. The defendant filed a timely appeal to this court.
ANALYSIS-4- I. Evidence of Defendant ’s Prior Convic

tions

The defendant fir

st co ntends that the trial court erred in allowing evidence of her prior convictions at trial. She arg ues that the jury

was improperly

influenced in its

determination of her guilt by the similarities between the crimes for which she had

previously been convicted and the ones for which sh e was presently charged. She also arg ues that the State improperly used the prior convictions in its clo s ing argument “as an appeal to the jury to convict [her] beca use of her prior criminal history.” In response, the State contends that the convictions were properly admitted by the trial court and argue d by the State for the sole purpose of impeaching the credibility of the defendant’s testimony.

This issue is governed by Tennessee Rule of Evidence 6

09(a), which pro

vides as follows: Impea chment

by evidence of conviction of crime. –(a) Gener a l Rule.–For

the purpose of att

acking the credibility

of a witness, evidence that th e witness has been convicted of a crime may be admitted if the following procedures and conditions are satisfied: (1) The witness must be asked about the convictio

n on crossexamination. If the witness denies having bee n co nvicted, the conviction may be established by public record. I

f the witness

denies being the person named in the public record, identity may be established by other evidence. (2) The crime mus

t be punishable by

death or imprisonme

nt in
excess of one year under the law under which t he witne ss was convictedor, if not so punishable, the cr ime must have involved dishonesty or

false statement. (3) If the wi

tness tobe impe ached is the accused in a criminal prosecution, the State must give the accused r easo nable written notice of the impeaching conviction before trial, and the court upon

request must determine that the

conviction’s prob

ati ve valu e on credibility outweighs its unfair prejudicial effect on thesubstantive issues. The court may rule on the admissibility of such proof prior t

o the trial but in any event shall

rule prior to the testimony of the accused. If the court makes a final determination that such pro of is ad missible for impeachment

purposes, the ac

cused need not ac

tually testif

y at the trial to later challenge the propriety of the determination.

That a prior conviction involved the same or similar crime as the one for which the defendant is being tried does not automatically prevent its use to impeach the defendant’s credibility. State v. Walker , 29 S.W.3d 885, 889 (Tenn. Crim. App. 1999), perm. to appeal denied(Tenn. 2000) (citing-5-

Statev. Miller , 737 S.W.2d 556, 560 (T enn. Crim. App. 1987

)). The tria

l c ourt must, however, carefully weigh whether

the possible preju

dice to the defen

dant is outweighed by the

probative value of the evidence on the issue o f the defendant’s credibility. Id. at 890 (cit ing State v. Mixon , 983 S.W.2d 661, 674 (Tenn. 1999) and State v. Farmer , 841 S.W.2d 837, 839 (Tenn. Crim. App. 1992)). In determining the probative value of the prior convictions, the trial court must assess the simila

rity of the crime for whi

ch the defendan

t is on trial and the cr

ime underlying the impeaching conviction. Farmer , 841 S.W.2d at 839. The court must

next analyze the relevance of the impeaching convic tion to the issue of the defendant’s credibility. Id. The trial court’s decision to admit prior convictions for impeachment purposes will not be reversed on appeal unless it appears from the record that the trial court abused its discretion. State v. Blanton , 926 S.W.2d 953, 960 (Tenn. Crim. App. 1996).

The record in this ca

se reflects that

the State gave w

ritten notice prio

r to trial of its intent to
use the defendant’s prior

convictions for impeachment purposes should the defendant elect to take the stand. Thereafter, prior to the start of the defendant’s trial, the t ri al court held a hearing as mandatedby State v. Morgan , 541 S.W.2d 385 (Tenn. 1976), to determine the admissibility of the convictions. The State sought to use four

of the defendant’s prior criminal convictions to impeach her at trial, all of which occurred in 1995: felony burglary , felony theft of pr

operty over $1 000, felony vandalism, and misdemeanor criminal impersonation. The trial court’s ruling shows that it correctly considered the issues, applying the appropriate balancing test in reaching its decision that the State could impe

ach the defenda

nt with her convic

tions for burgla

ry and thef

t of property :
So in looking at [the] first one and the second one, I’m going to find th at the probative v alue on credibili

ty outweig

hs the unfair prejudicial effect on the substantive values as to the burglary . And
even though theft of p

roperty ove

r a thousand is

the same crime, we have cases that say that even though the cri mes a re the same, if it–impact on cred

ibility is ver

y high, y ou can still use it. So in this case I’m going to find with respect to the first

one and the second one, bur glary and theft of property over a thousand, that th e conv ictions’ probative value on credibility as to each one outweighs the unfair prejudicial effect on substantive issues.
Now, as to t he v and ali sm c oun t, i t is a fel ony, but I don’t find in my stud

y t hat vandalism has v

ery much to d

o with credibility

, so I’m not going to allow that one.

Criminal impersonation, in this Court’s opinion the impact on credibility

in that case is just not high enough to offset the fact that it’s a misdemeanor.-6- So I guess in es sence my ru ling is if Mrs. Rice

testif ies, t he 95-477 conv icti on on burglary and also the 95-477 conviction on theft of property over a thousand can be used to impeach her.

Our review has revealed no abuse of discretion by the trial court in this matter. The fact that the theft of property conviction was the same as one of the off enses for which the defendant was being tried did

not preclude its use as impeachment evidence against the defendant. See Walker , 29 S.W.3d at 889. In addition to being felonies, the defendant’s prior convictions for th

eft of property and burglary involved crimes of dishonesty , see State v. Miller , 737 S.W.2d 556, 559-60 (Tenn. Crim. App. 1987) (noting that burglary is a crime of

dishonesty) ; State v. Addison , 973 S.W.2d 260, 268 (Tenn. Crim. App. 19 97) (stating that theft is a cri me of dishonesty

), thereby enhancing thei

r probative value on the issue o f the defendant’ s credib i lity. The tria l court clearly

took into consideration the fact that the defendant’s theft of property conviction was for the same

offense as one of the crimes for

which she was currently on trial. However, by taking the stand to contradict Kathy Jarvis’s direct testimony

that the defendant had cashed Garza’s checks, the defendant made her credibility an important issue at trial. We conclu

de, therefore,

that the trial cour

t did not abuse its discretion in allowing the State to impeach the defendant’s credibility with evidence of he r prior
con vic tio ns f or b urgl ary an d th eft of p rop ert y.
The defendant also contends that the prosecutor argued

improper propensity evidence when referringto her prior convi ctions in his closing

arguments to

the jury. As

an initial matter, w

e note that by failing to object to the prosecutor’s closing comments at trial, the defendant has waived the issue on appeal. See

Tenn. R. App. P. 36(a); State v. Little , 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992) (stating that fa

ilure to object to prosecutor’s alleged misconduct in closing argument waives any later complaint). Even if not waived, however, the trial transcript makes it clear that the prosecutor

arg ued on ly that the de fendant’s prior

convictions be co

nsidered by

the jury in its
con sid erat ion of t he w eigh t to be gi ven the defe nda nt’ s te sti mon y:

And when you’re considering the credibility of

the witnesses, the Judge is also going to instruct you that the Defendant has put her cred ibi lit y in i ssu e bec aus e sh e te sti fie d to day.
Now, she does have a prior record, and she’s admitted to

that prior record and told

you that she has a burglary conviction, a theft of property conviction over a

thousand dollars f

rom I belie

ve it was 1995. The State’s not asking you–And the law is very clear on

this and the Judge is going to instruct you. You can’t convict Mrs. Rice sim ply because she’s got a prior record. You can’t do that. Yo u shouldn’t do that. That’s not our law.-7- But what you can consider, and the Judge is going to instruct you regarding c

redibility of

wit nesses , is when you’re judging her testimonyand whether she’s telling you the truth or Mrs . Jarvis is tell in g you the truth or Mr. Wyman is telling y ou the truth, you can consider her prior record in judging her credibility today.

And I submit to you, ladies and gentlemen, who told you the truth today is Mr. Wyman fr

om Thompson and Thom

pson, Mr. Smith from Thompson and Thomps

on, and Mrs. Jarvie [sic] from the bank when they told you what occurred a nd how these

checks were cashed.

The defendant’s prior convictions were properly admitted as impeachme n t evi dence, and thus proper for comment by

the prosecutor in

closing argum

ent. This issue, the

refore, is withou

t merit. II. Sufficiency of the Evidence
Next, the defendant c

ontends that the ev

idence was not suf

ficient to support her

convictions beyond a reasonable do

ubt. Specific all y, the defendant argues that she presented suff icient evidence, in the form of proof

of her EKG exams, to

show that it would

have been phy

sically impossible for her to have cashed “at least one” of the checks in issue.

In considering this issue, we apply the familiar rule that where sufficiency of the convicting evidence is challenged, the relevant question of the reviewing court is “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt.” Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). See also State v. Evans , 838 S.W.2d 185, 190-92 (Tenn. 199

2); State v. Anderson , 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992) ; Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the tria l court or jury shall be set aside if the e vidence is insufficient to support the findings by the trier of fact of guilt bey ond a reasonable

doubt.”). All questions involving the credibility of witnesses, the weight and value to be giventhe evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) . “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 t he State.” State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence w it h which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal,

a convicted def

endant has the bur

den of demonstrat

ing that the evide

nce is insufficient. See State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).

Viewed in the light most fa

vorable to the Stat

e, the evidence

in this case

was sufficient

to support the jury’s v

erdict. Contrary to the defendant’s assertions, proof that she was undergoing an EKG test fourteen minutes after a check made payable to Ga rza was cashed at

Volunteer Bank

does notcreate a reasonable doubt of her guilt. Although the defendant testified that she was forc

ed to wait in he r doctor’s waiting room before beginning the tests, the jury wa s free to discredit her-8-

tes tim ony. The defendant pr esented no evide

nce, other than h

er own test

imo ny, to show that it would have been impossible for her to have reached her doctor’s offi c e to begin the tes

ts within fourteen minutes of having gone through the drive-through window of the Hig hland branch of the bank. David Wyman testified, and the defendant acknowledged, that she wa s the employee responsible

for preparing Garza’ s checks, in cluding the fourteen payroll checks that were issued a fter Garz a’s employment

had ended. Kathy Jarvis, who testified that she was very familiar with the defendant,

unequivocally identified her as the woman who cashed Garza’s checks. In addition, the defendant’s signature appeared on the back of two of the checks. This evi dence w as more than sufficient for a rational trier of fact to find the defendant guilty of the crimes beyond a reas on able doubt.
CONCLUSION

We conclude that the trial court did not e rr in allowing the

Stateto impeach the defendant’s credibility

with her prior convictions for bur gl ary and theft of property . We further conclude that the evidence was sufficient to support the defendant’s convictions of forgery and theft of property over $1000. Accordingly, we affirm the judgment of the trial court.

___________________________________ ALAN E. GLENN, JUDGE