State of Tennessee v. Jamal P. Hicks ( 2018 )

09/13/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 20, 2018
STATE OF TENNESSEE v. JAMAL P. HICKS
Appeal from the Circuit Court for Montgomery County
No. 63CC1-2016-CR-158 William R. Goodman, III, Judge
___________________________________
No. M2017-01628-CCA-R3-CD
___________________________________
Defendant, Jamal P. Hicks, was convicted of sexual battery in 2004. As a result of that
conviction, Defendant was declared a registered sex offender and required to comply
with the Tennessee Sexual Offender and Violent Sexual Offender Registration,
Verification and Tracking Act of 2004. T.C.A. § 40-39-201. et seq. In 2016, Defendant
was convicted by a jury of falsifying a registration form, failing to report a change in
circumstance on a registration form, and perjury. As a result, he received an effective
sentence of three years. On appeal, Defendant argues that the trial court improperly
admitted three exhibits at trial and that the evidence was insufficient to support the
convictions. After a thorough review, we conclude that the trial court improperly
admitted several exhibits at trial and, as a result, the evidence is insufficient to support
the judgments. Consequently, Defendant’s convictions are reversed and vacated.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed
and Vacated
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which D. KELLY THOMAS,
JR. and ROBERT L. HOLLOWAY, JR., JJ., joined.
Adrienne H. Welchance (on appeal) and Joe Tutro (at trial), Clarksville, Tennessee, for
the appellant, Jamal Pele Hicks.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Brett Ligon, District Attorney General; and Lee Willoughby, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Defendant was indicted by the Montgomery County Grand Jury in February of
2016 for one count of violating the Tennessee Sexual Offender and Violent Sexual
Offender Registration, Verification and Tracking Act of 2004 (“the Act”) by
“[f]alsification of a TBI registration form” as stated in Tennessee Code Annotated section
40-39-208(a)(2); one count of violating the Act by “[f]ailure to timely disclose required
information to the designated law enforcement agency” as stated in Tennessee Code
Annotated section 40-39-208(a)(3); and one count of perjury on a Tennessee Sexual
Offender and Violent Sexual Offender Registration/Verification Form as prohibited by
Tennessee Code Annotated section 39-16-702(b)(3).
At trial, Defendant stipulated that he had been on the sex offender registry for ten
years prior to the indictment at issue in this case as a result of a sexual battery conviction.
Jeffrey Morlock of the Montgomery County Sheriff’s Office testified that he was “in
charge of running the sheriff’s office sex offender registration program” and had served
in that capacity for twelve years. Investigator Morlock explained that when someone was
placed on the sex offender registry, the office gave each person a copy of the full statute
as well as a “sex offender instruction form.” Each defendant was required to sign and
acknowledge that they had read and understand the rules “as well as the statement about
perjury.” Investigator Morlock explained that the form included the following language:
“Section H, please read carefully before signing.” It says: “Under penalty
of perjury I declare information provided on this form is true and correct”;
and it says: “T[.]C[.]A[. §] 39-16-702(b)(3),” then below that there’s a spot
for initials and it says: “I acknowledge I have read and understand the
requirements.”
Investigator Morlock explained the reporting and registration requirements for sex
offenders. Each offender was given a copy of the registration requirements and rules at
the time of the initial reporting date. As part of the registration requirement, Defendant
was required to report “anything that change[d] in [his] life” within 48 hours. For
example, Defendant was required to report any change in where he lived, where he
worked, his contact information, and the vehicles he operated in addition to other
information. Specifically, the rules portion of the registration form informed defendants
that they were required to report the following within 48 hours:
This includes, but is not limited to, changes in the offender’s primary or
secondary residences, mailing address, vehicle descriptions, vehicle
information numbers and license tag numbers (this includes both vehicles
used or owned by an offender), the complete listing of the offenders
electronic mail address information or any instant message, chat or other
internet communication name or identity that the person uses or intends to
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use, minors residing in the primary or secondary residence, complete name
and all aliases, including, but not limited to, any names that the offender
may have had or currently has by reason of marriage or otherwise,
including pseudonyms and ethnic or tribal names, copies of all passport and
immigration documents, professional licensing information that authorizes
an offender to engage in an occupation or carry out a trade or business, and
any other registration, verification and tracking information contained on
the registration form.
Investigator Morlock supervised Defendant as a registered sex offender starting in
2006. Investigator Morlock opined that Defendant had reported at least nineteen times
but admitted that he was not present each time Defendant reported and signed the form.
Investigator Morlock recalled that Defendant had issues with compliance in reporting on
three or four occasions over the years but that none of the compliance issues resulted in
convictions.
At the time of the actions giving rise to the indictment in this case, Defendant was
homeless. Investigator Morlock explained that homeless offenders were “required to
report every month in person to verify the forms are true and accurate.” Investigator
Morlock recalled that Defendant never failed to report while he was homeless.
Defendant reported on October 30, 2015. Defendant did not report any changes
on the form. The form filled out by Defendant on October 30, which was entered into
evidence, reflects Defendant’s handwritten name, date of birth, social security number,
and the word “Homeless” written across the box where the primary address would
ordinarily appear. Defendant appeared to have filled out only the portions of the form
that were circled. The rest of the form remained blank. Defendant’s signature appears on
the last page of the form along with the signature of Peggy Macias. It is unclear from the
record who circled portions of the form and/or why those portions are circled.
Investigator Morlock testified that Defendant “never reported a vehicle” despite the
normal practice of going through the list of reporting requirements with a defendant at
every visit. Investigator Morlock admitted that he was not present at the time Defendant
signed the reporting form at issue herein and admitted that he was not sure if Defendant
was told to merely “initial here where it’s circled and then sign at the end” or if he was
instructed to fill out the entire form.
Investigator Morlock testified that on November 19, 2015, he became aware that
Defendant purchased a vehicle. Investigator Morlock secured a “car invoice and bill of
sale from Johnson Auto Sales” in Clarksville, Tennessee. According to the document,
“JP Hicks” purchased a 2006 Black Chevrolet Impala on October 20, 2015, for $3500.85.
The address listed on the “car invoice and bill of sale” was 425 Helton Drive in
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Clarksville, Tennessee. The “car invoice and bill of sale” was not signed or notarized.
Counsel for Defendant objected to the introduction of the document on the basis that it
was hearsay. Counsel for Defendant argued that the document was a business record that
was not self-authenticating and the document was not being entered into evidence via a
custodian of records and, therefore, it was inadmissible hearsay. The trial court overruled
the objection. The document was entered into evidence as Exhibit 5.
Agent Will Evans of the Clarksville Police Department testified that he was called
out to a traffic stop in November of 2015 to a 2006 Chevrolet Impala that was registered
to Defendant. There was no testimony that Defendant was in the vehicle or driving the
vehicle. In fact, no proof was presented as to the identity of a driver or passengers of the
2006 Chevrolet Impala, or where the vehicle was when stopped by an unnamed officer.
No proof was presented as to why Agent Evans was called to the stop.
During the traffic stop, Agent Evans searched the vehicle and took photographs of
both sides of a temporary tag affixed to the rear of the vehicle. On the back of the
temporary tag in the field marked “issued to” appeared the name “JP Hicks” with an
address of 425 Helton Drive. Counsel for Defendant objected to the introduction of the
photographs of the temporary tag, arguing that it was hearsay. The trial court overruled
the objection, and the photographs of the temporary tag were admitted into evidence as
Exhibit 6.
Agent Evans identified an envelope containing other items that he recovered from
the car. There were three pieces of paper inside: “a car invoice and bill of sale from
Johnson Auto Sales”1; a piece of paper with “four lines, dates and names and that . . .
cash has been received”; and a piece of paper containing “some sort of guidelines in the
name of Jamal Hicks in a business known as Cars.” The paper with four lines contained
the following typed statement:
Oct. 20, 2015
I, WILLIAM D. SATTERFIELD HAVE RECEIVED FROM J P HICKS
$3500.00 CASH FOR 2006 CHEVY IMPALA VIN NUMBER
ZG1WB55K169181502 PAID IN FULL.
There was a signature below the typed statement. It appears to be signed by a “William
D,” but the last name is illegible. Again, counsel for Defendant objected to the
introduction of the documents as hearsay, arguing:
1
This document appears to be identical to the car invoice and bill of sale obtained from the
dealership by the officer.
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These are business records and business records have to have the affidavit
of the custodian or they have to be self-authenticated through a custodian
that’s seen that. So that’s with this; this, in addition, is signed by this
person. I don’t have a chance to cross-examine that person about that bill
of sale or anything else. So, you know, if it’s a - - sixth amendment on that
also. And, again, hearsay on it; I’m not able to cross-examine this person
either, the custodian that created this for the salesman. So that’s the
objection made, sixth-amendment, right to cross the witness. . . .
The trial court overruled the objection, finding that the documents were not business
records and, therefore, not hearsay. The car invoice and bill of sale and document
referencing William Satterfield were introduced as Exhibit 7.
After Agent Evans’s testimony, the State rested its case. Counsel for Defendant
made a motion for judgment of acquittal. The trial court overruled the motion.
Defendant declined to testify and did not present any witnesses. The jury convicted
Defendant on all counts as listed in the indictment. At a sentencing hearing, Defendant
was sentenced as a Range II offender to a sentence of three years, to serve, on each count
to run concurrently.
Defendant filed a motion for new trial.2 At the hearing on the motion for new
trial, subsequent trial counsel argued that the trial court erred in admitting Exhibits 5, 6,
and 7 because they were hearsay. The State conceded that Exhibit 5, the bill of sale from
the car dealership, was a business record and was not properly admitted at trial. As to the
other documents, the State argued that their admission was harmless. The trial court
commented:
All right. I remember when we tried this case that, as relates to [E]xhibits
[6] and [7], which was temporary - - temporary tag - - or actually a
photograph of a temporary tag and the bill of sale, for purposes of
establishing the failure of Defendant to report his residence.3 I believe
there was sufficient evidence to support the jury’s verdict as to the
2
Trial counsel also filed a motion to withdraw. Trial counsel was permitted to withdraw and
subsequent trial counsel was appointed.
3
We find it noteworthy that the trial court discusses the failure of Defendant to report his
residence as the crux of the State’s position at trial; however, on appeal, the State’s argument centers
around whether Defendant owned and failed to report ownership of a vehicle and whether that failure to
report constituted perjury on the registration form. We acknowledge Defendant’s marking “Homeless”
on the registration form, if untrue, could be proof of perjury. However, save the temporary tag and bill of
sale, there was no evidence admitted to establish Defendant had a residence.
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admission of [E]xhibit [5]. Which I believe was [a duplicate original of]
the bill of sale; is that right?
....
. . . [5] - - [E]xhibit [5] and [6], which is the temporary tag, we’ve
established the issue about his failure to report his residence. [7], which
was the record from the car lot, was not introduced as a business record, but
I don’t see that as being an error that would have changed the verdict in this
case. It’s harmless. Therefore, your motion is denied.
Subsequent trial counsel also argued that the trial court should grant a motion for arrested
judgment because the indictment did not allege sufficient facts to identify the actions
which amounted to perjury. The trial court denied the motion.
Analysis
I. Admissibility of Exhibits
On appeal, Defendant argues that Exhibits 5, 6, and 7 were improperly admitted
by the trial court because they all constituted hearsay and did not “fall under any
exception to the hearsay rule as presented at trial.” The State disagrees, arguing that the
documents were not hearsay because (1) the documents were admitted to show
Defendant’s knowledge that he owned a car at the time he represented on the registration
form that he did not own a car; (2) the bill of sale and receipt were “legally operative
document[s] with a meaning independent of the truth of the words [they] displayed”; and
(3) the documents acted as admissions by a party opponent. We will examine each
exhibit in turn.
The admissibility of evidence is within the sound discretion of the trial court, and
this Court will not interfere with the exercise of that discretion in the absence of a clear
showing of abuse appearing on the face of the record. See State v. McCoy, 459 S.W.3d 1,
8 (Tenn. 2014); State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v. Van Tran,
864 S.W.2d 465, 477 (Tenn. 1993). An abuse of discretion occurs when the trial court
(1) applies an incorrect legal standard; (2) reaches an illogical or unreasonable decision;
or (3) bases its decision on a clearly erroneous assessment of the evidence. State v.
Mangrum, 403 S.W.3d 152, 166 (Tenn. 2013) (citing Lee Med., Inc. v. Beecher, 312
S.W.3d 515, 524 (Tenn. 2010)).
Of course, in order to be admissible, evidence must satisfy the threshold
determination of relevancy mandated by Rule 401 of the Tennessee Rules of Evidence.
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See, e.g., State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). Rule 401 defines “relevant
evidence” as being “evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Tenn. R. Evid. 401.
With regard to demonstrative and physical evidence, Rule 901(a) of the Tennessee
Rules of Evidence provides that “[t]he requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to the court to
support a finding by the trier of fact that the matter in question is what its proponent
claims.” The testimony of a witness with knowledge “that a matter is what it is claimed
to be” is sufficient. Tenn. R. Evid. 901(b)(1). Once this foundation has been established,
the “trier of fact then makes the ultimate decision of whether the item is actually what it
purports to be.” Cohen et al., Tennessee Law of Evidence § 9.01[2][a].
Authentication − establishing that an item is what it is claimed to be − is
one essential step toward the admissibility of the item. However, as the
philosophers would say, it is a necessary step but not a sufficient step. The
remaining rules of evidence and all other applicable laws must also be
satisfied before the item is admissible into evidence.
Cohen et al., Tennessee Law of Evidence § 9.01[2][b].
The “remaining rule[] of evidence” applicable herein is hearsay. Hearsay is
defined as “a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.
801(c). A written assertion is a “statement” under the hearsay rule. Tenn. R. Evid.
801(a); see State v. Franklin, 308 S.W.3d 799, 811 (Tenn. 2010). In general, hearsay
statements are inadmissible unless they satisfy one of the enumerated exceptions. Tenn.
R. Evid. 802; see Tenn. R. Evid. 803, 804. “The standard of review for rulings on
hearsay evidence has multiple layers.” Kendrick v. State, 454 S.W.3d 450, 479 (Tenn.
2015), cert. denied, 136 S. Ct. 335 (Oct. 13, 2015). The “factual and credibility findings”
that the trial court makes when determining whether a statement is hearsay are “binding
on a reviewing court unless the evidence in the record preponderates against them.” Id.
(citing State v. Gilley, 297 S.W.3d 739, 759-61 (Tenn. Crim. App. 2008)). After making
factual findings, the trial court must determine “whether the facts prove that the statement
(1) was hearsay and (2) fits under one of the exceptions to the hearsay rule.” Id. (citing
State v. Schiefelbein, 230 S.W.3d 88, 128 (Tenn. Crim. App. 2007); Keisling v. Keisling,
196 S.W.3d 803, 721 (Tenn. Ct. App. 2005)). “These are questions of law subject to de
novo review.” Id.; see also Gilley, 297 S.W.3d at 760 (determining that review of trial
court’s classification of a statement as hearsay is a question of law).
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A. Exhibits 5 and 7
During the direct examination of Investigator Morlock, counsel for the State asked
when the investigator was “made aware of the fact that [Defendant] had a vehicle that he
had not reported.” Investigator Morlock replied, “November 19th[,] 2015.” Counsel for
Defendant objected to the date, arguing that without some kind of foundation it was
hearsay. Counsel for the State explained that Investigator Morlock was “provided a
purchase sale form from a drug agent” on November 19, 2015. The trial court
commented that the investigator could “identify a bill of sale that was furnished to him.”
Counsel for Defendant argued that the bill of sale was still hearsay because it was “being
offered for the truth.” The trial court commented that “at that point it’s not being offered
[for] the truth of the matter. That’s just the document. . . .” The trial court went on to
opine the document was being offered to show “[Defendant] knows he bought the car; he
knows he received a copy of this document that purports to be a bill of sale, but that - - at
that point the date of - - of acquisition, of purchase, has been established.” Counsel for
Defendant replied, “Okay. So the date is not established at that point. That’s fine. All
right. Thank you.”4
The direct examination of Investigator Morlock continued. He explained that he
did not receive the bill of sale from Agent Evans but rather procured the bill of sale
directly from the car dealership. Counsel for Defendant again objected to the
introduction of the document, arguing that the document was a “business record” that was
not self-authenticating. The trial court overruled the objection. The bill of sale was
introduced as Exhibit 5. It reflected a date of October 20, 2015, as the purchase date of
the vehicle. Investigator Morlock went on to explain that Defendant had until the end of
business on October 22, 2015, to report the purchase of the vehicle.
Next, during the testimony of Agent Evans, the State sought to introduce “three
pieces of paper” that were found in the “interior of the vehicle” during the traffic stop.
The first piece of paper was a “car invoice and bill of sale from Johnson Auto Sales.”
The second piece of paper contained “four lines, dates and names and that . . . cash has
been received. And the [third] was a notice - - some sort of guidelines in the name of
Jamal Hicks in a business known as Cars.” Counsel for Defendant objected on the basis
that the documents were hearsay. During a bench conference, both counsel for the State
and Defendant informed the trial court that they were unaware of the existence of the
“third” piece of paper. The State did not think that the third page was “relevant” so it
was removed from consideration. The trial court “did not understand” Defendant’s
hearsay objection. Counsel for Defendant argued that the documents were business
4
We are somewhat confused as to this statement from trial counsel in response to the trial court’s
understanding that the bill of sale was being introduced to show that Defendant knew he bought the car on
a certain date.
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records and had to be introduced through a custodian so that Defendant could cross-
examine someone about the authenticity of the documents. In addition, counsel for
Defendant argued that the introduction of the document accompanying the bill of sale
violated the sixth amendment right to confrontation because the person who signed the
document was not present to testify. The trial court found that the documents were not
business records but that the documents went “to the proof of the ownership of the
vehicle.” The trial court went on to advise counsel for Defendant, “Of course, you’re
allowed to put on proof to rebut.” The document was introduced as Exhibit 7.
The trial court initially determined that the bill of sale obtained from the
dealership by Investigator Morlock, Exhibit 5, and the bill of sale found in the interior of
the vehicle, Exhibit 7, were not hearsay. In our view, both Exhibits 5 and 7 were
admitted for the truth of the matter asserted − to prove that Defendant owned a vehicle on
a certain date. The State argues on appeal that the bill of sale was offered to “show
[Defendant’s] awareness that he owned a vehicle on October 30, 2015, the time of his
false statement.” If we adopted the hyper-technical, hair-splitting application of the
hearsay rule argued by the State, the resulting endless ways to circumvent the hearsay
rule would render it useless. In our view, this is the same thing as introducing the bill of
sale to show that Defendant owned a car, the very truth of the matter asserted. Therefore,
both Exhibits 5 and 7 are hearsay.
Moreover, we determine that either copy of the bill of sale does not fit within any
exception to the hearsay rules. There was some discussion at trial that either exhibit
could be admitted via the hearsay exception embodied in Tennessee Rule of Evidence
803(6), also known as the business records exception. This exception is rooted in the
common understanding that records kept in the ordinary course of business are inherently
trustworthy and reliable. Hill v. National Life & Accident Ins. Co., 11 Tenn. App. 33, 37-
38 (1929). Tennessee Rule of Evidence 803(6) provides that records of regularly
conducted activities are not excluded under the hearsay rule and includes the following as
records of regularly conducted activities:
A memorandum, report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses made at or near the time by or
from information transmitted by a person with knowledge and a business
duty to record or transmit if kept in the course of a regularly conducted
business activity and if it was the regular practice of that business activity
to make the memorandum, report, record or data compilation, . . . .
We have no trouble in concluding that a bill of sale for a vehicle is a business
record. According to the rule, a business record may be admitted as an exception to the
hearsay rule through “the testimony of the custodian or other qualified witness.” Tenn.
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R. Evid. 803(6). Without testimony from the record’s custodian, a business record may
be admissible pursuant to Tennessee Rule of Evidence 902(11), which requires “an
affidavit of its custodian or other qualified person” that the record “(A) was made at or
near the time of the occurrence of the matters set forth by, or from information
transmitted by, a person with knowledge of and a business duty to record or transmit
those matters; (B) was kept in the course of the regularly conducted activity; and (C) was
made by the regularly conducted activity as a regular practice.”
In this case, there was neither an assertion on behalf of the State that Investigator
Morlock was employed as the record’s custodian for Johnson Auto Sales, nor did he
testify as to his knowledge of their record keeping procedure. Similarly, Agent Evans did
not testify as a record’s custodian for Johnson Auto Sales. Moreover, neither bill of sale
was accompanied by an affidavit from the record’s custodian or “other qualified person”
that complied with Tennessee Rule of Evidence 902(11). Thus, Exhibit 5 and Exhibit 7
were not properly admitted into evidence by the trial court.5
B. Exhibit 6
During the testimony of Agent Evans, the State introduced Exhibit 6, photographs
of each side of a temporary tag on a 2006 Chevy Impala. Agent Evans explained that he
was called out to a traffic stop in November of 2015. During his investigation, he took
photographs of the temporary tag. The tag listed that it was “issued to” JP Hicks with an
address of “425 Helton Drive.” Counsel for Defendant objected on the basis that the
“information contained on the tag” was hearsay. The trial court overruled the objection
without explanation.
With respect to Exhibit 6, the photographs of the temporary tag, we again
determine that the trial court erred by determining that the evidence was not hearsay. In
our assessment, the temporary tag was an out of court statement introduced to prove the
truth of the matter asserted. Explained differently, the temporary tag was introduced for
the sole purpose of showing that Defendant owned a vehicle and lived at 425 Helton
Drive on October 30, 2015, the date on which he completed the Sex Offender Registry
reporting form which led to his indictment. As such, the temporary tag was hearsay. We
have been unable to identify any exception to the hearsay rule under which the temporary
tag would be admissible.
We acknowledge that in State v. Walter Collins, No. W2016-01819-CCA-R3-CD,
2018 WL 1876333, at *14-15 (Tenn. Crim. App. Apr. 18, 2018), perm. app. denied
5
We acknowledge that there was some discussion, and even a concession on the part of the State
at the hearing on the motion for new trial, that Exhibit 5 was improperly admitted hearsay. The trial
court, however, upheld its ruling on the admission of the evidence.
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(Tenn. Aug. 8, 2018), a panel of this Court determined that a temporary tag on a car that
was found at the scene of the crime was admissible to show the car belonged to the
codefendant even though it was hearsay. In Walter Collins, the court determined that the
“temporary tag contain[ed] a written statement, namely a name and address,” and that
“the State offered the information on the temporary tag for its truth, namely that the tag
for the Monte Carlo was issued to [the codefendant]” and tended to show that the
codefendant was at the crime scene. Id. at *15. The court concluded that the tag itself
was hearsay but deemed the tag admissible as a public record under Tennessee Rule of
Evidence 803(8) and/or as a self-authenticating document under Rule 902(1), (7), or (10).
Id. We agree that the tag in Walter Collins was hearsay. As we will explain below,
however, we distinguish the temporary tag at issue in this case from the apparent tag at
issue in Walter Collins.
While the temporary tag in this case is certainly relevant, we decline to find the
temporary tag is a self-authenticating document under Tennessee Rule of Evidence
902(1), (7), or (10) for the following reasons. Rule 902(1) is entitled “Domestic Public
Documents Under Seal” and provides:
A document bearing a seal purporting to be that of the State of Tennessee,
the United States (or of any other state, district, commonwealth, territory,
or insular possession thereof, or the Panama Canal Zone, or the Trust
Territory of the Pacific Islands), or of a political subdivision, department,
office, or agency thereof, and a signature purporting to be an attestation or
execution.
Here, the temporary tag has a seal from the Tennessee Department of Revenue, but it
does not have a signature “purporting to be an attestation or execution” as required by the
rule. This provision for self-authentication does not apply to a temporary tag that has
been completed to indicate the name of the person to whom the tag was issued, the date
upon which it was issued, and the address of the person to whom it was issued where that
tag is not signed. See State v. Troutman, 327 S.W.3d 717, 724 (Tenn. Crim. App. 2008)
(noting that if a “certificate is to be self-authenticated under [R]ule 902(1), it must bear a
seal of a domestic governmental agency and a signature purporting to be an attestation of
execution”).
Rule 902(7), entitled “Trade Inscriptions and the Like,” provides that
“[i]nscriptions, signs, tags, or labels purporting to have been affixed in the course of
business and indicating ownership, control or origin” are self-authenticating. The
Tennessee Supreme Court has determined that printed cash register receipts bearing the
name and address of the issuing store were admissible in a murder case under this Rule.
State v. Reid, 91 S.W.3d 247, 296 (Tenn. 2002), reh’g denied (Tenn. Dec. 19, 2002). The
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receipts, seized from the defendant’s residence, were admitted to show that the defendant
had spent a “large amount of money in a short period of time after the murders despite
the fact that he was in dire financial trouble at the time.” Id. at 296. In our view, a blank
temporary tag is a self-authenticating document because it is a document used by the
State of Tennessee in the course of business that bears information indicating the
ownership or the origin of the temporary tag. However, once that temporary tag has been
filled out and altered by the car dealership, it is no longer self-authenticating because the
information written or typed into the blanks on a temporary tag, presumably by someone
at the car dealership, are not statements of the State that would be authenticated by a
trade inscription showing ownership by the State or origin from the State.
Lastly, Rule 902(10), entitled “Presumptions Under Acts of Congress or the
Legislature,” provides that “[a]ny signature, document, or other matter declared by Act of
Congress or the Tennessee Legislature to be presumptively or prima facie authentic” are
self-authenticating. We are unaware of any Act of Congress or the Tennessee Legislature
that proclaims a temporary tag to be “presumptively or prima facie authentic.”
Even more important than our conclusion that the temporary tag is not a self-
authenticating document is our conclusion that the temporary tag does not comply with
the public records exception to the hearsay rule. Tennessee Rule of Evidence 803(8)
provides that the following information is not excluded by the hearsay rule:
Public Records and Reports. Unless the source of information or the
method or circumstances of preparation indicate lack of trustworthiness,
records, reports, statements, or data compilations in any form of public
offices or agencies setting forth the activities of the office or agency or
matters observed pursuant to a duty imposed by law as to which matters
there was a duty to report, excluding, however, matters observed by police
officers and other law enforcement personnel.
Temporary operation permits are issued by the Department of Revenue to “an applicant
desiring to operate a motor vehicle otherwise subject to registration” for a temporary
period of thirty days under Tennessee Code Annotated section 55-4-115. “The
commissioner or the commissioner’s designee is authorized to prescribe by regulation the
method by which temporary operation permits shall be issued.” Id. The county clerk
acts as a deputy to the registrar of motor vehicles. T.C.A. § 55-6-104(a). We
acknowledge that a blank temporary tag, issued to an applicant at the car dealership from
the Tennessee Department of Revenue and containing the seal of the State of Tennessee
is most likely a public record befitting the protection of Rule 803(6) as an exception to
the hearsay rule. However, in our view, once the items on the temporary tag are filled in,
presumably by someone at the dealership, the “circumstances of preparation indicate lack
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of trustworthiness” unless the preparer of the document is present to testify as to the
document’s veracity. For whatever reason, the State did not present a preparer to testify
as to the document’s veracity.
Moreover, it does not appear that the information contained on the temporary tag
is reported to or kept anywhere that would be deemed a public office.6 Therefore, in our
view, a completed temporary tag introduced to show the truth of the matter asserted, i.e.
the name or address of the person to whom it was issued, cannot be admitted as a public
record because the circumstances of preparation indicate a lack of trustworthiness. Much
of the information included on the temporary tag came from a private business, the car
dealership, and not a public office or agency. That information was the evidence that was
being offered for the truth of the matter asserted – that Defendant was the owner of the
vehicle and that he lived at 425 Helton Drive. Thus the temporary tag, as altered by the
car dealership, lacked trustworthiness and the trial court erred in admitting it.
Improperly admitted evidence is reviewed under a non-constitutional harmless
error analysis. State v. Jeff Carter, No. M2009-02399-CCA-R3-CD, 2010 WL 5343212,
at *13 (Tenn. Crim. App. Dec. 16, 2010) (citing State v. Powers, 101 S.W.3d 383, 397
(Tenn. 2003)), no perm. app. filed. In determining whether a non-constitutional error is
harmless, “Tennessee law places the burden on the defendant who is seeking to invalidate
his or her conviction to demonstrate that the error ‘more probably than not affected the
judgment or would result in prejudice to the judicial process.’” Id. at 372 (quoting Tenn.
R. App. P. 36(b)). While substantial evidence of the defendant’s guilt makes it difficult
for “the defendant to demonstrate that a non-constitutional error involving a substantial
right more probably than not affected the outcome of the trial,” the harmless error inquiry
“does not turn upon the existence of sufficient evidence to affirm a conviction or even a
belief that the jury’s verdict [wa]s correct.” Id. Rather, “the crucial consideration is what
impact the error may reasonably be taken to have had on the jury’s decision making.” Id.
Here, because we have determined that Exhibits 5, 6, and 7 were all improperly admitted
by the trial court, and these exhibits formed the lion’s share of the State’s case against
Defendant, we cannot find the error harmless. The only thing left to determine is whether
the remaining evidence presented by the State is sufficient to support any of the
convictions. Tenn. R. App. P. 36(b).
II. Sufficiency of the Evidence
6
Temporary tags are, obviously, completely different than the actual registration of a vehicle.
Vehicle registrations are filed by “[t]he department” after being received from the county clerk and kept
on record for a “period of at least five (5) years” as set forth in Tennessee Code Annotated section 55-4-
106. Vehicle registrations would likely qualify as public records.
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Defendant argues that the evidence is insufficient to support the perjury conviction
because there was no testimony at trial that Defendant “purchased the vehicle in his name
and failed to report such with the intent to deceive.” The State disagrees, arguing that the
signed sexual offender registration form “on which [Defendant] did not declare his
possession of a vehicle,” when viewed in conjunction with the bill or sale and temporary
tag, prove that Defendant was guilty of perjury. Though Defendant does not specifically
challenge his remaining convictions for violating the sex offender registry, we hold that
the properly admitted evidence is insufficient to support all of Defendant’s convictions in
this case.
Well-settled principles guide this Court’s review when a defendant challenges the
sufficiency of the evidence. A guilty verdict removes the presumption of innocence and
replaces it with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992). The burden is then shifted to the defendant on appeal to demonstrate why the
evidence is insufficient to support the conviction. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The relevant question the reviewing court must answer is whether any
rational trier of fact could have found the accused guilty of every element of the offense
beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979). On appeal, “the State is entitled to the strongest legitimate view of the
evidence and to all reasonable and legitimate inferences that may be drawn therefrom.”
State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). As such, this Court is precluded from
re-weighing or reconsidering the evidence when evaluating the convicting proof. State v.
Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990). “In the absence of direct evidence, a criminal offense
may be established exclusively by circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (citing Duchac v.State, 505 S.W.2d 237, 241 (Tenn.
1973)). Moreover, we may not substitute our own “inferences for those drawn by the
trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further,
questions concerning the credibility of the witnesses and the weight and value to be given
to evidence, as well as all factual issues raised by such evidence, are resolved by the trier
of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
“The standard of review ‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” Dorantes, 331 S.W.3d at 379 (quoting State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009)).
Defendant was convicted in Count 1 of failing to timely report a change of
information as required by Tennessee Code Annotated section 40-39-203(a). See T.C.A.
§ 40-39-208(a)(3). Defendant was convicted in Count 2 of “unlawfully, feloniously, and
knowingly” falsifying information on a sex offender registration form. See T.C.A. § 40-
39-208(a)(2). Defendant was convicted in Count 3 of perjury. Perjury, as relevant here,
is making, with the intent to deceive, a “false statement, not under oath, but on an official
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document required or authorized by law to be made under oath and stating on its face that
a false statement is subject to the penalties of perjury.” T.C.A. § 39-16-702(a)(3). A sex
offender registration form may qualify as such an official document. See T.C.A. § 39-16-
702(b)(3).
Viewing the evidence in a light most favorable to the State, without the admission
of Exhibits 5, 6, or 7, the proof shows that Defendant reported on October 30, 2015, as
required by statute. At that time, Defendant filled out the portions of the sex offender
registry that were circled, including his name, date of birth, and social security number in
“Section A – Registrant Information” and indicating “HOMELESS” in the portion of
Section B asking for his address. All other portions of the form were left blank, including
“Section C” asking for information for any “Vehicle, Mobile Home, Trailer or
Manufactured Home, Vessel, Live-Aboard Vessel, or Houseboat.” Additionally,
Defendant initialed that he had “read and underst[oo]d the requirements.” An “X”
appears next to a statement that the “requirements h[ad] been read to [Defendant] and
[he] underst[oo]d the requirements.” The form was signed and dated by Defendant and
by the reporting officer “Peggy Macias.” The State did not present Ms. Macias as a
witness. The State called only two witnesses, neither of whom was present when
Defendant completed the registration form on October 30, 2015. “Section I” of the
registration form contains a statement warning Defendant that any “person who, with the
intent to deceive, makes any false statement on the TBI Registration Form is guilty of the
felony offense of perjury.” Without any proof to show that the actual information on the
form – i.e., Defendant’s name, date of birth, social security number, or his status as
“HOMELESS” – are false or that Defendant had the intent to deceive, the evidence is
insufficient to support his conviction for perjury. Moreover, there is no proof that
Defendant failed to report a change in information or that he falsified any information on
the form. Consequently, the judgments of the trial court are reversed, and Defendant’s
convictions are vacated.
Conclusion
Because the trial court erred in admitting hearsay evidence at trial, the remaining
evidence is insufficient to support Defendant’s convictions. As a result, the judgments of
the trial court are reversed, and Defendant’s convictions are vacated.
____________________________________
TIMOTHY L. EASTER, JUDGE
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