             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT NASHVILLE               FILED
                                  APRIL SESSION, 1998
                                                                  April 23, 1998

                                                              Cecil W. Crowson
                                                             Appellate Court Clerk
STATE OF TENNESSEE                         )   C.C.A. NO. 01C01-9707-CR-00254
                                           )
      Appellee,                            )   WILSON COUNTY
                                           )
VS.                                        )   (No. 96-0580 Below)
                                           )
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 & Fox, P.A.            Attorney General and Reporter
225 East Main Street
Lebanon, TN 37087                          GEORGIA BLYTHE FELNER
                                           Assistant Attorney General
                                           Cordell Hull Building, Second Floor
                                           425 Fifth Avenue North
                                           Nashville, TN 37243-0493

                                           TOM P. THOMPSON, JR.
                                           District Attorney General

                                           ROBERT N. HIBBETT
                                           Assistant District Attorney General
                                           111 Cherry Street
                                           Lebanon, TN 37087




OPINION FILED _______________________



AFFIRMED



TERRY L. LAFFERTY, SPECIAL JUDGE
                                       OPINION



              The defendant, Thomas Congdon, appeals as of right pursuant to T.R.A.P.

3 from his conviction for vandalism under $500. On appeal, the defendant argues that the

evidence was insufficient to support the verdict and that the trial court erred by denying his

motion to sever offenses. We disagree and affirm the judgment.



              The proof showed that the defendant’s ex-wife, Connie Hay, and her father-

in-law, Paul Hay, were standing inside the criminal justice center in Lebanon, Tennessee,

looking down at the parking lot on March 20, 1996. Both saw the defendant walk over to

Connie Hay’s 1994 Nissan Centra, which was parked next to Paul Hay’s vehicle, check the

license plate on Connie Hay’s vehicle, and then walk closely up the side of the vehicle on

the passenger side. Connie Hay testified that the defendant had an object in his hands.

When Connie Hay and Paul Hay went down to the parking lot, they discovered a long

scratch along the passenger side of the vehicle. Connie Hay estimated the damage at

approximately $500. According to the local newspaper, it had snowed most of that day.

Based on this proof, the jury convicted the defendant of vandalism under $500. Although

a second indictment is not included in the record, it appears that the defendant was also

indicted for vandalism under $1000. The proof regarding this offense concerned damage

to Michael Hay’s vehicle on December 26, 1995. The jury found the defendant not guilty

of this offense.



              On appeal, the state is entitled to the strongest legitimate view of the

evidence and to all reasonable inferences which might be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978). When the sufficiency of the evidence is

challenged, the relevant question for the appellate court is whether, after reviewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime 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 overwhelmingly supports



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the jury’s verdict.



               The defendant also argues that the offenses should have been severed and

he should have been tried separately for each offense. Although the jury acquitted the

defendant of vandalism under $1000, he argues that the “carry-over effect” of the other

charge seriously affected his right to a fair trial and an impartial jury. We disagree.



               Pursuant to 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 right to a

severance of the offenses unless the offenses are part of a common scheme or plan and

the evidence of one would be admissible upon the trial of the others. A trial court’s denial

of a motion for severance does not constitute reversible error unless a defendant shows

that he was clearly prejudiced. State v. Hodgkinson, 778 S.W.2d 54, 61 (Tenn. Crim. App.

1989). In the present case, the trial court instructed the jury that the defendant was

charged in two separate indictments, that each indictment was a separate and distinct

offense, and that the jury must decide each crime charged separately on the evidence and

law applicable to it. Although the defendant argues that the carry-over between the

indictments seriously prejudiced him, the jury instructions were clear and comprehensive.

Moreover, given the jury's not guilty verdict on the offense of vandalism under $1000, it is

clear that the jury understood their instructions and gave individualized consideration to

each offense. See State v. Wiseman, 643 S.W.2d 354, 362-63 (Tenn. Crim. App. 1982).

Accordingly, we affirm the trial court.




                                              TERRY L. LAFFERTY, SPECIAL JUDGE


CONCUR:



GARY R. WADE, JUDGE



THOMAS T. WOODALL, JUDGE



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