State of Tennessee v. Gregory Ricardo McDonald, III ( 2017 )


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  •                                                                                        10/12/2017
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs April 26, 2017 at Knoxville
    STATE OF TENNESSEE v. GREGORY RICARDO MCDONALD III
    Appeal from the Circuit Court for Coffee County
    No. 40,443F     Vanessa A. Jackson, Judge
    No. M2015-02004-CCA-R3-CD
    Following a bench trial, the Defendant, Gregory Ricardo McDonald III, was convicted of
    one count of criminal impersonation, a Class B misdemeanor; two counts of forgery of
    $500 or less, a Class E felony; and one count of identity theft, a Class D felony. See
    Tenn. Code Ann. §§ 39-14-105, -14-114, -14-150, -16-301 (2012). The trial court
    subsequently imposed a total effective sentence of twelve years. In this appeal as of
    right, the Defendant contends (1) that the evidence was insufficient to sustain his
    convictions and (2) that his statement to police should have been excluded because “there
    was not an adequate waiver executed in acknowledgement of his” Miranda v. Arizona,
    
    384 U.S. 436
    (1966), warnings. Discerning no error, we affirm the judgments of the trial
    court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
    D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT L.
    HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
    John E. Nicoll, District Public Defender; Jesse Stockwell, Assistant District Public
    Defender (at trial); and C. Brent Keeton, Manchester, Tennessee (on appeal), for the
    appellant, Gregory Ricardo McDonald III.
    Herbert H. Slatery III, Attorney General and Reporter; Ruth Ann Thompson, Senior
    Counsel; Charles Craig Northcott, District Attorney General; and Marla R. Holloway,
    Assistant District Attorney General, for the appellee, State of Tennessee.
    OPINION
    FACTUAL BACKGROUND
    Greta Curbow testified at trial that she was a supervisor at the Tennessee
    Department of Safety and Homeland Security’s Driver Services Center in Tullahoma,
    Tennessee. Ms. Curbow reviewed an application for a driver license that was submitted
    at the Driver Services Center on September 10, 2012. The name listed on the application
    was Brian Lyle McDonald. The application was also signed Brian Lyle McDonald. For
    proof of identity, it was noted on the application that a certified California birth
    certificate for Brian Lyle McDonald had been presented. The application also noted that
    the social security number provided on the form matched the name and date of birth for
    Brian Lyle McDonald.
    Ms. Curbow testified that a learner permit was issued that day because there was
    no one available at the Driver Services Center to administer the required road test for a
    driver license. The name Brian Lyle McDonald and the social security number provided
    were not in the Department of Safety and Homeland Security’s database, so a new license
    number was issued for the learner permit. The learner permit was signed Brian Lyle
    McDonald using a computer signature pad at the Driver Services Center. Ms. Curbow
    identified the Defendant as the man in the photograph on the learner permit issued under
    the name Brian Lyle McDonald. Ms. Curbow admitted that she did not personally assist
    the Defendant with the application or speak to the Defendant on September 10, 2012.
    Detective Jennifer West of the Murfreesboro Police Department (MPD) testified
    that she knew the Defendant and interviewed him about the learner permit. Det. West
    recalled that she Mirandized the Defendant before interviewing him. Det. West
    explained that she turned the rights waiver form toward the Defendant and read it to him.
    Det. West further explained that she waited for the Defendant to acknowledge each right
    before moving on to the next one. Det. West believed that the Defendant understood his
    rights. Det. West admitted that the Defendant had signed the rights waiver form on the
    “name printed” line. However, Det. West testified that signing on the wrong line was a
    common mistake. A video recording of the interview was played for the trial court. The
    Defendant told Det. West that he got the learner permit in an attempt to help him find
    employment because his status as a registered sex offender made it hard for him to get a
    job.
    Rick Jones testified that in 2012, he was employed in the Tennessee Highway
    Patrol’s identity crimes unit. Mr. Jones was contacted by the MPD after the Defendant
    was arrested and his fingerprints did not match the name on the learner permit he
    provided the arresting officer. Mr. Jones confirmed the Defendant’s fingerprints and that
    Brian Lyle McDonald was an actual person. However, Mr. Jones admitted that he was
    unable to locate or speak to Brian Lyle McDonald.
    Based upon the foregoing, the trial court convicted the Defendant of criminal
    impersonation, two counts of forgery of $500 or less, and identity theft. Following a
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    sentencing hearing, the trial court sentenced the Defendant to six months and imposed the
    statutorily mandated fine of $500 for the criminal impersonation conviction. The trial
    court sentenced the Defendant to six years for each of the forgery convictions and twelve
    years for the identity theft conviction. The trial court ordered all of the Defendant’s
    sentences to run concurrently with his sentence for identity theft, for a total effective
    sentence of twelve years. This timely appeal followed.
    ANALYSIS
    I. Sufficiency of the Evidence
    The Defendant contends that the evidence was insufficient to sustain his
    convictions. Regarding his criminal impersonation conviction, the Defendant argues that
    there was no evidence that he intended to injure or defraud the State of Tennessee
    because he sought to “simply have a form of identification . . . [so] he could obtain a job
    and a legal source of income.” Likewise, the Defendant argues that there was no
    evidence that he intended to defraud or harm the State of Tennessee with respect to the
    forgery convictions. Regarding the identity theft conviction, the Defendant again argues
    that there was no evidence that he intended to commit an unlawful act by obtaining a
    learner’s permit with the personal identifying information of another person. The
    Defendant also argues that there is no proof that Brian Lyle McDonald did not consent to
    the use of his identifying information or that the Defendant had used that information
    without “lawful authority.” The State responds that the evidence was sufficient to sustain
    the Defendant’s convictions.
    A. Standard of Review
    An appellate court’s standard of review when the defendant questions the
    sufficiency of the evidence on appeal 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 crime beyond a reasonable doubt.” Jackson v. Virginia, 
    443 U.S. 307
    ,
    319 (1979). This court does not reweigh the evidence, rather, it presumes that the jury
    has resolved all conflicts in the testimony and drawn all reasonable inferences from the
    evidence in favor of the State. See State v. Sheffield, 
    676 S.W.2d 542
    , 547 (Tenn. 1984);
    State v. Cabbage, 
    571 S.W.2d 832
    , 835 (Tenn. 1978). Questions regarding witness
    credibility, conflicts in testimony, and the weight and value to be given to evidence were
    resolved by the jury. See State v. Bland, 
    958 S.W.2d 651
    , 659 (Tenn. 1997).
    A guilty verdict “removes the presumption of innocence and replaces it with a
    presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
    evidence is insufficient to support the jury’s verdict.” 
    Bland, 958 S.W.2d at 659
    ; State v.
    Tuggle, 
    639 S.W.2d 913
    , 914 (Tenn. 1982). A guilty verdict “may not be based solely
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    upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 
    736 S.W.2d 125
    , 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State’s
    proof be uncontroverted or perfect.” State v. Williams, 
    657 S.W.2d 405
    , 410 (Tenn.
    1983). Put another way, the State is not burdened with “an affirmative duty to rule out
    every hypothesis except that of guilt beyond a reasonable doubt.” 
    Jackson, 443 U.S. at 326
    .
    The foregoing standard “applies to findings of guilt based upon direct evidence,
    circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
    State v. Pendergrass, 
    13 S.W.3d 389
    , 392-93 (Tenn. Crim. App. 1999). Both “direct and
    circumstantial evidence should be treated the same when weighing the sufficiency of
    such evidence.” State v. Dorantes, 
    331 S.W.3d 370
    , 381 (Tenn. 2011). The duty of this
    court “on appeal of a conviction is not to contemplate all plausible inferences in the
    [d]efendant’s favor, but to draw all reasonable inferences from the evidence in favor of
    the State.” State v. Sisk, 
    343 S.W.3d 60
    , 67 (Tenn. 2011).
    B. Criminal Impersonation
    As pertinent to our review, “[a] person commits criminal impersonation who, with
    intent to injure or defraud another person . . . [a]ssumes a false identity.” Tenn. Code
    Ann. § 39-16-301(a)(1). As used here, the term “person” includes any “governmental
    subdivision or agency.” Tenn. Code Ann. § 39-11-106(a)(27). This type of criminal
    impersonation is a Class B misdemeanor. Tenn. Code Ann. § 39-16-301(c)(1).
    However, “if the criminal impersonation was committed to falsely obtain a driver license
    or photo identification license, the maximum fine of five hundred dollars . . . shall be
    imposed.”1 
    Id. The Defendant
    contends that there was no evidence that he intended to injure or
    defraud the State of Tennessee by falsely obtaining a learner permit because he obtained
    the learner permit so “he could obtain a job.” However, “[t]o establish the offense of
    criminal impersonation, the [S]tate is not required to show proof of why the defendant
    sought to defraud the [victim], only that he intended to misrepresent his true identity.”
    State v. Brooks, 
    909 S.W.2d 854
    , 859 (Tenn. Crim. App. 1995). Furthermore, our
    legislature has deemed the act of falsely obtaining a driver license or photo identification
    license by criminal impersonation so harmful in and of itself that it has imposed a
    mandatory minimum sentence of a $500 fine. See Tenn. Code Ann. § 39-16-301(c)(1).
    1
    On appeal, the Defendant contends that this provision prohibits any incarceration for criminal
    impersonation committed to falsely obtain a driver license. However, there is no language in the statute
    prohibiting incarceration, and it is clear from the plain language of the statute that this provision provides
    a mandatory minimum sentence of a $500 fine for such criminal impersonation. As such, we conclude
    that there is no merit to the Defendant’s contention.
    -4-
    Here, there was ample evidence that the Defendant intended to misrepresent his true
    identity when he obtained a learner permit under the name Brian Lyle McDonald.
    Accordingly, we affirm the Defendant’s conviction for criminal impersonation.
    C. Forgery
    The offense of forgery occurs when a person “forges a writing with intent to
    defraud or harm another.” Tenn. Code Ann. § 39-14-114(a). The applicable terms
    “forge” and “writing” are defined as follows:
    (1) “Forge” means to:
    (A) Alter, make, complete, execute or authenticate any writing so
    that it purports to:
    (i) Be the act of another who did not authorize that act;
    (ii) Have been executed at a time or place or in number
    sequence other than was in fact the case; or
    (iii) Be a copy of an original when no such original existed;
    (B) Make false entries in books or records;
    (C) Issue, transfer, register the transfer of, pass, publish or otherwise
    utter a writing that is forged within the meaning of subdivision
    (b)(1)(A); or
    (D) Possess a writing that is forged within the meaning of
    subdivision (b)(1)(A) with intent to utter it in a manner specified in
    subdivision (b)(1)(C); and
    (2) “Writing” includes printing or any other method of recording
    information, money coins, tokens, stamps, seals, credit cards, badges,
    trademarks, and symbols of value, right, privilege or identification.
    Tenn. Code Ann. § 39-14-114(b).
    The crime of forgery does not require “actual receipt of property or services” and
    is completed regardless of whether the defendant takes anything from the victim. State v.
    Odom, 
    64 S.W.3d 370
    , 372, 374 (Tenn. Crim. App. 2001). Put another way, “forgery is
    completed by the forgery with fraudulent intent, whether any third person be actually
    injured or not.” 
    Id. at 372
    (quoting State v. James, 
    688 S.W.2d 463
    , 466 (Tenn. Crim.
    App. 1984)) (internal quotation marks omitted).
    The Defendant was convicted of forging the driver license application and the
    learner permit by signing those items Brian Lyle McDonald. The Defendant contends
    that the evidence was insufficient because there was no evidence that he intended to harm
    or defraud the State of Tennessee. As discussed above regarding the criminal
    impersonation conviction, the act of falsely obtaining a form of state-issued identification
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    is in and of itself harmful to the State of Tennessee. Here, the evidence was sufficient to
    establish that the Defendant forged the driver license application and the signature on the
    learner permit with the “fraudulent intent” to falsely obtain the permit. Accordingly, we
    affirm the Defendant’s convictions for forgery.
    D. Identity Theft
    The offense of identity theft is defined as follows:
    A person commits the offense of identity theft who knowingly obtains,
    possesses, buys, or uses, the personal identifying information of another:
    (A) With the intent to commit any unlawful act including, but not
    limited to, obtaining or attempting to obtain credit, goods, services
    or medical information in the name of such other person; and
    (B)(i) Without the consent of such other person; [or]
    (ii) Without the lawful authority to obtain, possess, buy or use
    that identifying information.
    Tenn. Code Ann. § 39-14-150(b)(1).
    The Defendant contends that there was no evidence that he used the personal
    identifying information of Brian Lyle McDonald with the intent to commit an unlawful
    act. However, it is illegal for any person to knowingly make “false or fraudulent
    certification as to the person’s identification[ or] date of birth . . . when making [an]
    application for a driver license or photo identification license.” Tenn. Code Ann. § 55-
    50-321(e). As such, there was sufficient evidence that the Defendant used the personal
    identifying information of another with the intent to commit an unlawful act.
    Likewise, we reject the Defendant’s argument that the State failed to prove that
    Brian Lyle McDonald did not consent to the use of his personal identifying information
    by the Defendant or that the Defendant acted without the “lawful authority” of Brian Lyle
    McDonald. Mr. Jones testified that he was unable to locate or speak to Brian Lyle
    McDonald. However, there can be no “lawful authority” to use a person’s identifying
    information to commit an unlawful act, such as falsely obtaining a learner permit.2
    Accordingly, we conclude that the evidence was sufficient to sustain the Defendant’s
    conviction for identity theft.
    II. Miranda Waiver
    2
    With respect to his forgery convictions, the Defendant similarly argues that there was no evidence that
    Brian Lyle McDonald “did not authorize the alleged act.” However, we reject that argument for the same
    reasons stated here.
    -6-
    The Defendant contends that his statements to Det. West should have been
    excluded because “there was not an adequate waiver executed in acknowledgement of
    [the Defendant’s] Miranda warnings.” The Defendant argues that the rights waiver form
    “was not filled out properly” and that “[t]here is no signature on the waiver” form “where
    the [Defendant] was supposed to sign.” The State responds that the Defendant was
    properly advised of his constitutional rights and waived them before speaking to Det.
    West.
    A defendant’s statements “made during the course of custodial police interrogation
    are inadmissible as evidence in a criminal case unless the State establishes that the
    defendant was advised of certain constitutional rights and waived those rights.” State v.
    Anderson, 
    937 S.W.2d 851
    , 853 (Tenn. 1996) (citing 
    Miranda, 384 U.S. at 444
    ).
    However, “[l]ack of an explicit written waiver of the right to remain silent or the right to
    counsel after Miranda warnings does not per se require exclusion of a confession if
    waiver can be found from facts and surrounding circumstances.” State v. Robinson, 
    622 S.W.2d 62
    , 67 (Tenn. Crim. App. 1980) (citing North Carolina v. Butler, 
    441 U.S. 369
    (1979)).
    Here, the Defendant signed the rights waiver form, albeit on the wrong line, after
    Det. West reviewed the Defendant’s constitutional rights and the rights waiver form with
    him. Det. West testified that she turned the rights waiver form toward the Defendant,
    read it to him, and asked him if he understood each right. Det. West recalled that she
    waited for the Defendant to acknowledge each right before she moved on to the next one.
    Det. West believed that the Defendant understood his rights when he signed the rights
    waiver form. Det. West also testified that it was a common mistake to sign the rights
    waiver form on the “name printed” line. The video recording of Det. West’s interview
    with the Defendant corroborated her testimony. In light of the facts and surrounding
    circumstances, we conclude that the Defendant waived his Miranda rights prior to
    speaking with Det. West and that this issue is devoid of merit.
    CONCLUSION
    Upon consideration of the foregoing and the record as a whole, the judgments of
    the trial court are affirmed.
    _________________________________
    D. KELLY THOMAS, JR., JUDGE
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