State v. Grady Gatlin ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY SESSION, 1999 February 19, 1999
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9807-CC-00287
)
Appellee, )
)
) MARSHALL COUNTY
VS. )
) HON. CHARLES LEE
GRADY PAUL GATLIN, ) JUDGE
)
Appe llant. ) (Direct Appe al - Theft)
FOR THE APPELLANT: FOR THE APPELLEE:
CLIFFORD K. MCGOWN JOHN KNOX WALKUP
113 North Court Squ are Attorney General and Reporter
Wa verly, TN 37185
(On App eal Only) CLINTON J. MORGAN
Assistant Attorney General
JOHN HARWELL DICKEY 425 Fifth Avenu e North
Assistant Public Defender Nashville, TN 38243-0493
105 S. Main Street
Fayetteville, TN 37334 MIKE MCCOWEN
(At Tr ial and of Cou nsel o n App eal) District Attorney General
W.E. BARNARD
Assistant District Attorney
Marshall Co. Courthouse
Lewisburg, TN 37091
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
On March 12, 1998, a Marshall County jury convicted Appellant Grady P.
Gatlin of one count of forgery, one count of transfer of a forged check, and three
counts of theft over $1,000.00. After a sentencing hearing on April 22, 1998, the
trial court imposed concurrent sentences of three years and three months for all
five conviction s. After a hearin g on A ppella nt’s Motion For New Trial on June 3,
1998, the trial court merged the convictions for forgery and transfer of a forged
check into the three theft convictions. Appellant challenges his three remaining
theft convictions, raising the following issues:
1) whether the trial court erred when it failed to dismis s two of the counts
of theft; and
2) whether the trial court erred when it failed to instruct the jury about
division of marital property under Tennessee law.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. FACTS
Judy Gatlin testified that she and Appellant had been married for twen ty-
four or twenty-five years, but they sepa rated in Febru ary of 1 997. S hortly
thereafter Ms. G atlin m oved to Floren ce, Ala bam a and Appe llant m oved to his
mothe r’s house in Lewisb urg, Te nness ee.
Ms. Gatlin testified that she was employed by National Health Corporation
(“NHC”) from 1988 to 1995, and she had a vested retirement account from which
she was en titled to withdra w funds . In April of 1997, Ms. Gatlin received an
application to withd raw re tireme nt fund s that h ad be en se nt to Ap pellan t’s
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moth er’s address in Le wisburg and had then be en forward ed to Ms. G atlin in
Florence, Alabama. Ms. Gatlin then filled out the application to withdraw
$9,114.87 from her retirement account and she mailed the application to NHC.
Shor tly therea fter, the applic ation w as retu rned b ecau se Ms . Gatlin had failed to
sign her name. Ms. Gatlin then signed the application and sent it back to NHC.
When Ms. Gatlin filled out the application, she directed NHC to send the funds
to her in Florence, Alabama.
Ms. Gatlin testified that when she had not received a check by June of
1997, she calle d NHC to inquire about the status of her account. Ms. Gatlin then
learned that NHC had sent a check for $9,114.87 to Appellant’s mother’s address
in Lewisburg pursuant to instructions NHC had received by a telephone call on
May 19, 1997. Ms. Gatlin testified that she had never called NHC to direct them
to mail the check to Appellant’s mother’s address and she had not authorized
anyone to do so on her b ehalf. Ms. Gatlin also testified that someone else had
signed her name without authorization on the postal receipt for the check that had
been delivered to Appellant’s mother’s address.
Ms. Gatlin testified that although the check from NHC had been endorsed
in the names of Ms. Gatlin and Appellant, she had not signed the check and had
not authorized anyone to do so for her. Ms. Gatlin also testified that she
recogn ized Ap pellant’s sig nature o n the che ck.
Jack ie Sellers testified that as the insurance coordinator for NHC, she was
respo nsible for the mailing of retirement checks. Ms. Seller changed the mailing
address on Ms. Ga tlin’s applica tion from an add ress in Flo rence, A labam a to
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Appe llant’s m other’s address in Lewisburg pursuant to a telephone call on May
19, 1997. Ms. S ellers c ould n ot rem emb er who had m ade th e telep hone call.
Ms. Sellers also testified that the check made out to Ms. Gatlin had been
proces sed an d $9,11 4.87 ha d been obtained for the che ck.
Mary Ann P ressn ell testified that while she was working as a mail carrier
on June 12, 1997, she delivered a letter to A ppella nt’s m other’s house that was
addressed to Ms. Gatlin. Appellant signed the postal receipt for the letter and
took po ssessio n of it.
Michael Beech testified that while he was working as a teller at the Bank
of Belfast on June 13, 1997, Appellant came to the bank and opened a joint
savings account in the names of Appellant and Ms. Gatlin. Appellant opened the
account by depositing $8,000.00 from a check for $9,114.87 that was made out
to Ms. G atlin and appeared to be endors ed by both M s. Gatlin and A ppellant. Mr.
Beech testified that Appellant took the remaining $1,114.87 in cash and left the
bank. Mr. Beech also testified that Appellant came to the bank on June 16, 1997,
and with drew an other $7 ,000.00 from the accou nt.
Elaine Allen testified that while she was working as a teller at the Bank of
Belfast on Jun e 13, 19 97, App ellant cam e into the bank at some time after 4:30
p.m. an d withdre w $1,00 0.00 from the joint acc ount.
II. FAILURE TO DISMISS TWO COUNTS OF THEFT
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Appellant conten ds that th e trial court erred when it failed to dismiss two
of the coun ts of theft. Sp ecifically, App ellant argu es that b ecause the jury
convicted him of the theft of $9,114.87 from Ms. Gatlin, “it is improper and unjust
for him to also be convicted of theft from the Bank o f Belfast.”
Appe llant’s argument is inaccurate. The record indicates that Appellant
was neither charged nor convicted of theft from Ms. Gatlin. Count Three of the
indictment charges Appella nt with the th eft of $1,11 4.87 from the Ban k of Belfas t,
Count Four charges Appellant with the theft of $1,000.00 from the Bank of
Belfast, and Count Five charges Appellant with the theft of $7,000.00 from the
Bank of Belfast. The jury convic ted Ap pellan t of thes e three coun ts. This issue
has no merit.
III. JURY INSTRUCTIONS
Appellant contends that the trial court erred when it failed to instruct the
jury abou t the divis ion of m arital property unde r Tennes see Law. H owever,
Appe llant’s counsel admitted at the hearing on the motion for a new trial that he
had never requested any such instruction about marital property. Further, there
is no indication in the record that Appellant ever objected to the jury charge as it
was given. T hus, A ppella nt has waived this iss ue. See State v. Norris , 874
S.W.2d 590, 600 (Tenn. Crim. App. 1993) (“In the absence of an objection or a
special request, a defendant may not later raise an issue regarding an omission
in the co urt’s charge .”); State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App.
1988) (“Upon the failure of the trial court to properly charge the jury on [an] issue,
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however, it becomes the responsibility of the defendant to submit a special
request. His failure to d o so constitutes a waiver of the issue.”). 1
Accordingly, the judgment of the trial court is AFFIRMED.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
JOHN H. PEAY, JUDGE
___________________________________
DAVID H. WELLES, JUDGE
1
Even if A ppellant ha d reque sted su ch an ins truction, he would no t have be en entitled to one.
Division of marital property under Tennessee Code Annotated section 36-4-121 governs only the division
of assets upon divorce, not the determination of property ownership between married persons. Tenn.
Code Ann. § 36-4-1 21(b)(1)(D) (1996).
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