# FILED
April 23, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE APRIL SESSION, 1998

STATE OF TENN ESSEE ) C.C.A. NO. 01C 01-9707-CR-00254 ) Appellee, ) WILSON COUNTY ) VS. ) (No. 96-0 580 B elow) ) THOMAS CONGDON, ) The Hon. J. O. Bond ) Appellant. ) (Vandalism under $500)

FOR THE APPELLANT : FOR THE APPELLEE : J. ROBERT HAMILTON JOHN KNOX WALKUP Stallings, Hamilton & F ox, P.A. Attorney General and Repor ter 225 East Main Street Lebanon, TN 37087 GEORGIA BLYTHE FELNER Assistant Attorney Gener al Cordell Hull Buildi ng, Second Floor 425 Fifth Avenue North Nashville, TN 37243-0493 TOM P. THOMPSON, JR. District Attorney General ROBERT N. H IBBETT Assistant District A

ttorney General 111 Cherry Street Lebanon, TN 37087

OPINION FILED _______________________

AFFIRMED
TERRY L. LAFFERTY, SPEC IAL JUDGE1 O P I N I O N

The defendant, Thomas Congdon, appeals as of rig ht pursuant toT.R.A.P. 3 from his conviction for v andalism under $500. On appeal, the defendant argues that the evidence was insufficient to support the verdict and that the tr ial court erred by

denying his motion to sever offenses. We disagree and affirm the j udgment.

The proof sh owed that the def endant’ s ex-wife, C onnie Hay, and herfatherin-law, Paul Hay, were st anding inside the

criminal justice center in Lebanon, Tennes see, looking down at

the parking lot on Mar

ch 20, 1996. Both saw the defendant walk over to Connie Hay’s 1994

Nissan Centra, whi ch was parked next to Paul Hay’s vehicle, check the license plate on Connie Hay’s v ehicle, and then walk cl osely up the side of the veh icle on the passenger side. Conni e Hay testified that the defendant had an object in his hands. When Connie Hay and Paul Hay went down to the parki ng lot, they di scovered a long scratch along the passenger sid e of the v ehicle. Connie Hay es timated the damage at approximately $500. According to the loc al newspaper, it had

sn owed most of that d ay. Based on this proof, the jury convicted th e defendan t of vandalism u nder $500. Alth ough a second indictment is not included in the record, it appears that the defendant was also indicted for vandalism under $1000. The proof rega rding this offe nse concerned damage to Michael Hay’s v

ehicle on December 26, 1995. The jury found the defendant not guilty of this offense.

On appeal, the state is entitled to the s trongest legitimate v iew of the evidence an d to all reasonable inferences which might be draw n therefrom. State v. Cabbage , 571 S.W.2d 832, 836 (Tenn. 1978). When th e sufficiency of the evidence is challenged, the relevant question for the appellate court is whether, after review ing the evidence in a light most favorable to the prosecution,any rational trier of fact could have found the essential elements of the cri me beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983); T.R.A.P. 13(e). In the present case, the proof ov erwhelmingly sup ports2

the jury’s verdi ct.

The defendant also argues that the offenses should have been severed and he should have been t ried se parately for each offense. Althoug h the jury acquitted the defendant of vandalism under $1000, he arg ues that the “carry-ov er effect” of the other charge seriously a

ffected his right to a fair tri al and an impartial jury . We disagree.

Pursuantto Tenn. R. Crim. P. 14, (b)(1), if two or more offenses have been joined or consolidated for trial pursuant to Rule 8(b), the defendant shall have a rig ht to a
severance of the offenses unless the offenses are part of a common s cheme or plan and the evidence of one would be admis sible upon the trial of the other s. Atrial court’s denial of a motion for severance does not const itute reve rsible err or unless a defen dant sho ws that he was clearly

prejudiced. State v. Hodgkinson , 778 S.W.2d 54, 61 ( Tenn. Crim. App. 1989). In the present case, the tri al court instructed the jury th at the defendant was charged in two separate indictments, that each indict ment was a separate and distinct offense, and that the jury must decide each cr ime charged separately on the evidence and law applicable to it. Althoug h the defendant argues that the carry-over betw een the indictments seriously

prejudiced

him, the jury instructions were clear and comprehens ive. Moreover, given the jury's not guilty verdi ct on the offense of vandalism under $1000, it is clear that the jury und erst ood their instructions and gave individuali zed consideration to each offense. See State v. Wiseman , 643 S.W.2d 354, 362-63 (Tenn. Crim. App. 1982). Accordingly, w

e affirm the trial court.

TERRY L. LAFFERTY, SPEC IAL JUDGE
CONCUR:
GARY R. WADE, JUDGE
THOMAS T. WOODALL, JUDGE