# FILED
January 13, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 02C 01-9801-CR-00013 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. CHRIS CRAFT, GRACE MA

TTHEWS, ) JUDGE ) Appellant. ) (Vandalism - Property Under Five Hundred Dollars)

FOR THE APPE LLANT: FOR THE APPELLEE:
MARK A . MESLER JOHN KNOX WALKUP 200 Jefferson Ave., Suite 1250 Attorney General & Repor ter Memphis, TN 38103 DOUGLAS D. H IMES Asst. Attorney General 425 Fifth Ave., North Nashville, TN 37243-0493 WILLIAM E. GIB SON District Attorney General DAN BYER Asst. District Attor

ney General Criminal Justice Center, 3rd Fl. 201 Poplar Ave. Memphis, TN 38103

OPINION FILED:

AFFIRMED JOHN H. PEAY, Judge1 In li eu of four months of i ncarcerati on, the defen dant’s sent ence was suspended and she was placed on el even months and twenty -nine day

s probation

. 2 

### O P I N I O N

On October 6 , 1998, t he defe ndant was convicted by a jury o f v andalism in the amount of f ive hundred dollars ($500) or less. At a sentencing hea ring held on December

9, 1997, the d efendant was sentenced to four mo nths o f incarceration 1 and
a four hundred ($400) dollar fine. In this appeal as of right, the defendant contends that the jury’s verdict

was contrary to t he weight of the evidence and that the defendant’s Fifth Amendment right was vi olated.

After a review

of the record and applicable law, we affirm the defendant’s conviction.

The defendant’s conviction stems from an incident that occurre d o n December

24, 1996. The defendant went to the apartment of Ryan Thomas, a Memphis police officer. Mr. Thomas and the defendant had had a relationship and have a child together. Mr. Thomas had evidently neglect

ed to pick the defendant up from work that evening. Although thedefendant had paged Mr. Thomas sever al times and left several messag es on his answering mach ine, Mr. Thomas had not responded. At about 7:30 that evening, the defendant went to Mr. Thomas’ a partment. When Mr. Thomas came to the door he g ave the defend ant somebatteries he had promised to purchase for their son’s Christmas presents. When the de fendant tried to talk to Mr. Thomas he said, “I don’t want to hear that Gr ace,” and shut the door.
Approximately ten minutes later, the defendant retur ned to M r. Thomas’ apartment an d beg an ringing the doorbell and knocking on the door. Although Mr.3

Thomas was home, he did not answ er the door. Instead, he wa ited until the knocking stopped and then went to the wind ow beside the door. It was at this point that Mr. Thomas observed the defendant walk closely around his car with something in her hands. Mr. Thomas realized that the defendant had scratched his car and reported the incident when he arrived at work la ter that evening.

The defendant n ow conten ds that the jury “v erdict was contrary

to the evidence that was adduced at trial in that the eviden ce, consider ed in its to tality, preponderated in favor of the innoc ence of the accused rather than her guilt.”

A defendant

challe nging the suffi ciency of the p roof has the burden of illustratingto this Court why the evidence is insufficient to support the ve rdict returned by the trier of fact in his or her case. This Court w ill not disturb a

verdict of guilt for l ack of sufficient evidence unless t he fact s contained in the record and any inferences which maybe drawn from the facts are ins ufficient, as a matter of law, for a rati onal trier of fact to find the defendant guilty bey ond a reasona ble d oubt. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).

When an accused challenges the sufficiency of the convic ting evidence , we must review the evi dence in the light most favor able to t he pr osecution in determining whether “ any rational trier of fact could have fo und 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-e

valuat e the evidence a nd are r equired to aff ord the Sta te the strongest legitimate view of the proof contained in the record as well as all reasonab le inferences and legitimate inferences w hich may be drawn there from. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).4 The defendant contends that Mr. Thomas’s inconsistent testimony and his lackof trustworthiness are such that no rational finder of fact c ould ha ve fo und the defendant guilty beyond a reaso nable do ubt. However, ques tions concerning the credibility

of witnesses, the wei ght and value to be giv en to the evidence, as well as factual issues raised by the e vidence are resolv

ed by the trier

of fa ct, 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 pr esumption of innocence. Stat e v. Gr ace , 493 S.W.2d 474, 476 (Tenn. 1973). As such, this c ontention is without meri t.

The defendant further contends tha t her Fifth Amendment rights were vio lated by comments made by the State dur ing its closing ar

gument. The defend an t argues that these comments directly implicated her failure to testify and were therefore improper. The comments at issue were made as follows:

Credibility of the w

itnesses. Because one of the things -- becausethis is what he said, what came from the stand is the world of information that you have to deal w ith. I mean that’s all. Y our conj ecture, your thoughts, you k

now that things like

this don’t happen or do happen, everything that y

ou have to consider whe ther or not this occurre d, came from the witness stand. And s o the credibility, the nature of the proof, the witnesses wh o testified, is what y ou are going to have to make your determination from. Because he said it happened. And the only proof offered at all that could make th at -- to rebut that was the sister’s testimony that she saw a scratch on the side of the car. Although the defendant’s attorney objecte d to these comments at the trial, the trial judge overruled the objection but later instructedthe jury that the defendant had a r ight not to testify and the jury was to place no significance on or draw any in fer ence from the fact the defendant chose not to testify.

Generall y, references to thedefendant’s failure to testify or any arguments,5

direct or indirect, to the jur y that such failure to test ify should be taken as an inferenc e of guilt are prohibi ted un der the Tennessee Constitution and the Fifth Amendment to the Constitution of the United States. Howev er, in the case at bar

there was

no reference to the defendant’s failure to testify or any argument that such f ail ure to testify should be taken as an inference of guilt. The State merely commented that the only evidence the juryhad was the testimony of the victim. The State’s co mments were an argument that the evidence was

unrefuted or uncontradicted and, as suc h, are proper comments on the defendant’s failure to testify. See Lundy v. State , 752 S.W.2d 98, 103 (Tenn. Crim. App. 1987); State v. Blackmon , 701 S.W.2d 228, 23 3 (Tenn. Cri m. App. 1985); Taylor v. State , 582 S.W.2d 98, 100 (Tenn. Crim. App. 1979). Therefore, this contention is also without merit.
Accordingly, w e affirm the defendant’s conviction.

____________________ ___________

_ _ JOHN H. PEAY, Judge

CONCUR:

______________________________ DAVID G. HAYES, Jud ge

______________________________ L. T. LAFFERTY, Senior Judge