State of Tennessee v. Jeffery Combs ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 28, 2015
STATE OF TENNESSEE v. JEFFERY COMBS
Appeal from the Criminal Court for Sullivan County
No. S61248 Robert H. Montgomery, Judge
No. E2014-01175-CCA-R3-CD – Filed May 20, 2015
The Defendant, Jeffery Combs, appeals as of right from his jury convictions for eighteen
counts of forgery and one count of theft of property valued at $1,000.00 or more but less
than $10,000.00, for all of which he received an effective twelve-year sentence. On
appeal, the Defendant challenges only the sufficiency of the convicting evidence, arguing
that his identity was not sufficiently established to support the eighteen counts of forgery;
that one count of forgery was for an electronic check which he did not sign and,
therefore, cannot be guilty of; that he cannot intend to steal property or defraud someone
of their money if that person was known to have died; and that it was improper to
aggregate the amount of each separate forgery to support the conviction for Class D
felony theft. Following our review, we affirm the trial court’s judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.
Steven M. Wallace, District Public Defender, and Leslie S. Hale, Assistant Public
Defender (on appeal), Blountville, Tennessee; and George Todd East (at trial), Kingsport,
Tennessee, for the appellant, Jeffery Combs.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Barry P. Staubus, District Attorney General; and Emily M. Smith, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
Multiple fraudulent transactions, made during a period from February 17, 2011, to
March 23, 2011, were drawn on an account of one Mary Elizabeth Kelly Combs (“Betty
Combs or Ms. Combs”), who had died in August 2010. After the ensuing investigation,
the Defendant, Ms. Combs’s son, was charged with eighteen counts of forgery and one
count of Class D felony theft. See Tenn. Code Ann. §§ 39-14-103, -105, -114. He
proceeded to trial in February 2014.
Crystal Nottingham, Senior Fraud Prevention Coordinator for Eastman Credit
Union, testified that the sole owner of the account in question was Mary E. Combs and
that no one else was authorized to make transactions on that account. According to Ms.
Nottingham, upon Ms. Combs’s death, the account would have gone into her estate given
that there was no beneficiary listed. A signature card for the account, reflecting the
signature of Betty Combs, was entered as an exhibit to Ms. Nottingham’s testimony.
Mr. James P. Kelly, the executor of Ms. Combs’s estate, went into the credit union
in March 2011 and reported to Ms. Nottingham that he believed someone had been
making fraudulent transactions on the account. According to Ms. Nottingham, Mr. Kelly
presented the death certificate and the letter of testamentary from Ms. Combs. They then
reviewed multiple transactions to determine if fraud had in fact occurred. Eighteen of the
checks that Ms. Nottingham reviewed with Mr. Kelly that day were admitted into
evidence: (1) check no. 1351, dated February 17, 2011, written to Wal-Mart for $20.00,
showing Betty Combs’s signature; (2) check no. 1356, dated February 17, 2011, written
to Ingles for $109.50, showing Betty Combs’s signature and a Tennessee driver’s license
number 074433276 across the top; (3) check no. 1357, dated February 17, 2011, written
to Ingles for $108.18, showing Betty Combs’s signature and a Tennessee driver’s license
number 074433276 across the top; (4) check no. 1362, dated February 21, 2011, written
to The Chop House for $100.00, showing Betty Combs’s signature; (5) check no. 1363,
dated February 21, 2011, written to Ingles for $83.61, showing Betty Combs’s signature
and a Tennessee driver’s license number 074433276 across the top; (6) check no. 1364,
dated February 21, 2011, written to Ingles for $102.10, showing Betty Combs’s
signature; (7) check no. 1365, dated February 23, 2011, written to Ingles for $159.67,
showing Betty Combs’s signature and a Tennessee driver’s license number 074433276
across the top; (8) check no. 1366, dated February 24, 2011, written to Ingles for
$112.02, showing Betty Combs’s signature and a Tennessee driver’s license number
074433276 across the top; (9) check no. 1376, dated February 28, 2011, written to Ingles
for $131.40, showing Betty Combs’s signature and a Tennessee driver’s license number
074433274 across the top; (10) check no. 1380, dated February 28, 2011, written to IGA
for $77.72, showing Betty Combs’s signature and a Tennessee driver’s license number
074433274 across the top; (11) electronic check no. 1381, dated March 23, 2011, to
Burlington Store #108 for $200.00, stating, “This Draft Authorized by Your Depositor,
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NO SIGNATURE REQUIRED”; (12) check no. 1382, dated February 28, 2011, written
to The Chop House for $200.00, showing Betty Combs’s signature; (13) check no. 1384,
dated February 28, 2011, written to IGA for $117.36, showing Betty Combs’s signature
and a Tennessee driver’s license number 074433274 across the top; (14) check no. 1385,
dated February 28, 2011, written to Wal-Mart for $40.00, showing Betty Combs’s
signature and a Tennessee driver’s license number 074433274 across the top; (15) check
no. 1394, dated March 2, 2011, written to IGA for $108.49, showing Betty Combs’s
signature and a Tennessee driver’s license number 074433276 across the top; (16) check
no. 1395, dated March 6, 2011, written to IGA for $99.62, showing Betty Combs’s
signature and a Tennessee driver’s license number 074433273 across the top; (17) check
no. 1397, dated March 6, 2011, written to IGA for $108.00, showing Betty Combs’s
signature and a Tennessee driver’s license number 074433273 across the top; and (18)
check no. 1400, dated either March 2 or 7, 2011,1 written to Zoomers for $70.36, showing
Betty Combs’s signature and a Tennessee driver’s license number 074433273 across the
top.
Ms. Nottingham testified that some checks were returned due to insufficient funds
in the account; however, the remaining checks that were paid by the credit union were
treated as forged checks, and those amounts were credited back into Ms. Combs’s
account, according to Ms. Nottingham. The aggregate amount of these eighteen checks
was $1,947.99. Ms. Nottingham stated that “the merchants [were] at a loss for all of
them.” Normally, once an account has been compromised, that account is closed,
according to Ms. Nottingham, although she did not have the exact date of closure for this
account.
Corporal Ed Ragsdale of the Kingsport Police Department testified that he was
assigned as a detective to investigate these fraudulent checks on Ms. Combs’s account.
Cpl. Ragsdale originally met with Mr. Kelly, the executor, who provided him with copies
of the checks, all of which were passed at local Kingsport businesses. After reviewing
these checks and speaking with Mr. Kelly, the Defendant was identified as a suspect,
according to Cpl. Ragsdale. Cpl. Ragsdale stated that he attempted to get footage from
video surveillance cameras from each of the locations where the checks were passed, but
he was only able to obtain security footage from IGA because either the other businesses
did not have video surveillance cameras or their equipment was broken during the
relevant time frame. Cpl. Ragsdale stated that he had previous photographs of the
Defendant and viewed the footage provided. Cpl. Ragsdale testified that he also
interviewed the Defendant’s sister, Angie Roberts, and showed her the security footage as
well as pictures developed from that footage.
1
The exact date is unclear from the check.
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Cpl. Ragsdale confirmed that the Defendant’s address as listed on his driver’s
license was “in proximity to the center of Kingsport pretty much.” He also noted that the
driver’s license number given on many of the checks was the same except for the last
number, which was either a 3, 4, or 6. According to Cpl. Ragsdale, none of the given
driver’s license numbers ending in a 3, 4, or 6 were registered to a person in Tennessee,
and the Defendant’s driver’s license number was 074433278, which was the same to
those given on the checks except for the last number. A certified copy of the Defendant’s
driving history was entered as an exhibit to Cpl. Ragsdale’s testimony.
Charles Robinette testified that he was a district manager for “Houchens
Industries, IGA, and Price Less Foods.” During the relevant time period, he was the store
manager of the IGA in Kingsport. He was contacted by the Kingsport Police Department
regarding the fraudulent checks and provided the police with security footage
corresponding to the dates and the amounts of those checks. Video recordings of three
separate transactions were played for the jury—one from March 2, 2011, and two from
March 6, 2011.
Mr. Robinette was also able to procure the receipts from those transactions. Those
three receipts were entered into evidence. The first receipt showed a $108.49-purchase
made on March 2, 2011, at 4:52 p.m. for two cartons of cigarettes—one box of “MARL
BP MN KG FILT” and one box of “NEWPORT 100S BOX CARTON.” The next
receipt reflected a purchase of two cartons of “MARL BP KING BOX” for $99.62 at
5:22 p.m. on March 6, 2011. The third receipt showed a $108.00-purchase of two $50.00
Verizon gift cards made later on March 6, 2011, at 6:50 p.m.
On cross-examination, Mr. Robinette was asked about the March 6, 2011 receipt
for two cartons of “MARL BP KING BOX.” When asked what kind of Marlboro
cigarettes these were, Mr. Robinette stated that these cigarettes were “[m]ore than likely .
. . going to be probably the Reds in a box”; he based this likelihood on the location from
which the clerk retrieved the cartons off the shelf. Mr. Robinette was unable to tell from
the video recording the exact color on the box of Marlboro cigarettes, which came in an
array of colors, according to Mr. Robinette.
Mr. Robinette testified that, pursuant to policy, IGA employees were supposed to
get a driver’s license number when issued a check and were supposed to match the name
on the check with the driver’s license. However, he was unable to confirm that IGA
employees did this “every time” as instructed. It appeared from one of the video clips
that the license number was already written on the check when it was presented to the
IGA employee.
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James P. Kelly, the executor of the Betty Combs’s estate, was the last witness to
testify for the State. Mr. Kelly was Ms. Combs’s brother and the Defendant’s uncle. A
death certificate was entered as an exhibit to Mr. Kelly’s testimony, which reflected that
Mary Elizabeth Kelly Combs died on August 26, 2010. Mr. Kelly testified that Ms.
Combs’s will named her three children as beneficiaries to her estate—the Defendant,
Angie Roberts, and Kelly Combs. The Defendant was present at his mother’s funeral,
according to Mr. Kelly.
Ms. Combs owned a condominium in Kingsport, which Mr. Kelly intended on
selling for the estate. Mr. Kelly stated that “the bulk” of Ms. Combs’s “personal property
[or] tangible things” was kept in the condominium after her death; he stated that he took
some of Ms. Combs’s jewelry from the condominium, which he intended to distribute
later. He was unaware of any checkbooks left at the residence. Regarding the
distribution of Ms. Combs’s personal property, Mr. Kelly conveyed, “[The heirs] agreed
to take whatever they had felt that their mother had designated for them or what they
wanted. So that worked real well.” Mr. Kelly agreed that the three children “would have
kind of just had access, been in agreement . . . to take whatever property they wanted[.]”
According to Mr. Kelly, he was not aware of any burglary or theft at the condominium
during the relevant time period.
Mr. Kelly confirmed that he had a set of keys to the condominium and that the
lawyer for the estate also had a set. According to Mr. Kelly, the condominium needed to
be renovated before it could be sold, so “there were instances where” work had to be
performed, and either he or the lawyer would provide keys to the necessary personnel.
The Defendant agreed to help with the renovations, which included painting, installing a
new stove, and other “odds and ends[.]” Mr. Kelly was unsure if the Defendant was
alone during these time periods.
According to Mr. Kelly, both Ms. Combs’s mortgage payment and the electric bill
came out of the Eastman Credit Union account, so he left the account open and “put
monies in as needed as the months went on.” He monitored the account online and
eventually discovered that there had been some fraudulent transactions. Mr. Kelly stated
that he never wrote checks from that account and that no one else was authorized to do
so. Mr. Kelly was unaware that any other checks for the account existed because he had
destroyed all of the checks that he had access to.
Mr. Kelly was shown the video clips from IGA, but he was unable to positively
identify the individual depicted therein, who was wearing a baseball cap, as the
Defendant. He confirmed that the person in the recordings was of the same sex and race
as the Defendant and that the individual was of similar age and build. Mr. Kelly agreed
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that the individual in the recordings was neither of the other two heirs, Angie Roberts or
Kelly Combs.
The Defendant called his sister, Angie Roberts, as his only witness. Ms. Roberts
testified that Cpl. Ragsdale did not show her any video recordings of the suspect but only
showed her “a picture on a computer screen.” According to Ms. Roberts, she was not
able to identify this individual for Cpl. Ragsdale. Furthermore, she “couldn’t say at
100% certain[,]” or even that it was “more likely than not[,]” that the picture shown to
her by Cpl. Ragsdale was her brother.
She was then shown the first video clip and responded, “No, that is not my
brother[,]” and that there was “no doubt” in her mind. She was not able to identify her
brother in either of the additional clips. According to Ms. Roberts, this was the first time
she had seen the recordings. She testified that the Defendant usually stood with “his hand
on his hip[,]” which was different from how the individual in the video was standing with
his feet crossed. She further stated that the Defendant smoked “Marlboro Special
Blend[,]” which were “the gold kind[,]” and that she had never known her brother to buy
a carton of cigarettes, only packs.
On cross-examination, Ms. Roberts was asked if the individual could be her
brother, and she equivocated, “I would say that it was a man, that’s what I would say. I
could tell that it was a—a man or a boy.” Ms. Roberts confirmed that she saw her brother
often and, at times, had “helped him cover some bills[.]” She reiterated that she did not
tell Cpl. Ragsdale that she “was almost certain” that the individual in the photograph was
her brother. According to Ms. Roberts, she asked if Cpl. Ragsdale had a better picture
where she could see the individual’s face.
When asked about the type of clothing her brother would wear, Ms. Roberts said
that the clothing of the person in the video was consistent with her brother’s style of
dress, although she could not identify the particular clothes as belonging to the
Defendant. She also stated that she had seen a baseball cap similar to the one in the video
clips before in a box of the Defendant’s “stuff” but that she had also “seen another person
. . . that ha[d] that same hat.” She confirmed that her brother was a smoker during the
relevant time frame.
Ms. Roberts was shown the fraudulent checks and stated that the signature looked
like her mother’s handwriting. Ms. Roberts said that she had no criminal record, not even
a speeding ticket. On redirect, Ms. Roberts testified that she believed that the
condominium was “completely empty” when her brother painted it.
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Cpl. Ragsdale was called by the State in rebuttal, and he contradicted Ms. Roberts’
testimony. Cpl. Ragsdale said that he reviewed the video clips and the “still images”
with Ms. Roberts and that, after taking as much time as she needed, she said that she
“was almost positive that it was her brother[.]” He agreed that she did ask for “another
clearer picture[,]” which he was unable to provide.
Following the conclusion of the proof, the jury found the Defendant guilty as
charged. Thereafter, the trial court imposed concurrent terms of six years for each
forgery conviction and twelve years for the Class D felony theft conviction as a Range
III, persistent offender, to be served at 45%. This timely appeal followed.
ANALYSIS
On appeal, the Defendant challenges the sufficiency of the evidence supporting his
convictions. An appellate court’s standard of review when a 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.” Id.; State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). “This [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). The
standard of proof is the same whether the evidence is direct or circumstantial. State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the
convicting evidence “is the same whether the conviction is based upon direct or
circumstantial evidence.” Id. (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)). 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).
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The Defendant makes multiple factual challenges to the sufficiency of the
convicting evidence for his eighteen forgery convictions. Specifically, he argues as
follows: (1) that there was no surveillance video available for any of the checks except
for the three that were passed at IGA; (2) that he could not be positively identified in the
IGA video clips by either his uncle or his sister, that his sister was a credible witness with
no criminal history, and that the “video clip itself [was] not sufficient to justify a
conviction”; (3) that there was no proof from the recordings or otherwise that he signed
his mother’s name on seventeen of the checks, that his sister testified that the signature
looked like her mother’s handwriting, and that he was not charged with passing or
uttering the checks; (4) that there was no proof that he had access to any of the checks
because his uncle believed that the checks had been destroyed, because the attorney also
had a set of keys and keys were given to workmen, and because his sister testified that
she believed the condominium was empty when the Defendant painted it; (5) that,
because his sister helped him pay bills, it was plausible his mother had also helped him
pay bills and, therefore, that his “license number could have been available to third
parties”; (6) that his sister testified that she also knew someone else who had a baseball
cap like the one in the video clips and that she was unable to recognize the clothing worn
by the individual in those recordings; (7) that he smoked a different type of cigarettes
than those purchased at IGA and usually bought cigarettes by the pack not the carton; (8)
that “the evidence about the license numbers [was] not sufficient to support the
conviction[s]” because “any license presented should have been identification
information for Betty Combs, not [the Defendant]”; (8) that there was no proof that he
intended to defraud his mother because he was aware that she was deceased and “that he
could not defraud a person known to be deceased” and, furthermore, that “his mother no
longer legally owned the account monies by the time the checks were passed”; and (9)
regarding count 11, that it was a draft, not a check, to Burlington with no signature
required and that it bore “[neither] handwriting from any source” nor information as to
who received the $200.00.
A person commits forgery who “forges a writing with intent to defraud or harm
another.” Tenn. Code Ann. § 39-14-114(a). As relevant here, “forge” means to:
(b)(1)(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;
....
(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
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subdivision (b)(1)(C)[.]
Tenn. Code Ann. § 39-14-114(b)(1). “A forged check is uttered or transferred by the
action of presenting it for payment.” State v. McDowell, 664 S.W.2d 310, 313 (Tenn.
Crim. App. 1983) (citing Girdley v. State, 29 S.W.2d 255 (Tenn. 1930)).
The crux of many of the Defendant’s allegations outlined above is that there was
little proof to positively identify him as the individual who passed the forged checks. “It
is well-established that the identification of a defendant as the person who committed the
offense for which he is on trial is a question of fact for the determination of the jury upon
consideration of all competent proof.” State v. Strickland, 885 S.W.2d 85, 87 (Tenn.
Crim. App. 1993) (citing State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App.
1982)). Furthermore, “[t]he credible testimony of one identification witness is sufficient
to support a conviction if the witness viewed the accused under such circumstances as
would permit a positive identification to be made.” State v. Radley, 29 S.W.3d 532, 537
(Tenn. Crim. App. 1999) (citing Strickland, 885 S.W.2d at 87-88).
The Defendant makes much ado that neither his sister nor uncle was able to
identify him from the video clips shown at trial and that video recordings from the other
businesses did not exist. However, this argument presupposes that his identity must be
established conclusively by direct evidence in the form of a video recording from
surveillance footage. He also contends that his sister was a credible witness and that her
testimony that it was not him in the video should have been believed by any rational
juror. Again, credibility determinations are for the jury, not for this court.
Ms. Roberts’ testimony was contradicted by Cpl. Ragsdale. Cpl. Ragsdale stated
that Ms. Roberts was shown the video clips and several photographs and that, after
sufficient time to view those items, she positively stated that the Defendant was the
individual therein. Cpl. Ragsdale did not dispute that the individual’s face was covered
by a baseball cap in the recordings and that the Defendant’s sister asked for additional
images of the person’s face, but Cpl. Ragsdale maintained that she was still able to
identify the Defendant. The jury, as was their prerogative, accredited Cpl. Ragsdale’s
testimony. Moreover, the jury was able to view the video clips and compare the
individual with the Defendant’s appearance, and the Defendant’s uncle confirmed that the
individual in the recordings was of the same race and sex as the Defendant and was of
similar age and build.
The Defendant notes that his sister testified that she knew someone else who had a
hat just like the one worn in the videos and that she could not identify the clothing worn
by the individual as the Defendant’s. However, the Defendant fails to observe that Ms.
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Roberts also testified that she saw a baseball cap like the one in the video clips in a box
of the Defendant’s belongings and that she opined that the clothing worn by the person
was similar to the Defendant’s style of dress. He also comments that he did not smoke
the type of cigarettes purchased by the individual and that he only bought cigarettes by
the pack. However, this testimony was of marginal relevance given that it was
established that he was a smoker and that three different kinds of cartons of cigarettes
were purchased at IGA.
The Defendant also argues that there was no proof that he was the person who
affixed Betty Combs’s signature to the seventeen checks. He can be seen in the
recordings writing on the checks that were presented at IGA. Although he contends that
it was possibly his mother’s signature on the checks, it is highly unlikely that she signed
seventeen checks, not in numerical sequence, prior to her death to help the Defendant pay
his bills, as the Defendant posits. There was testimony that the Defendant’s sister helped
him pay bills sometimes, but none that his mother ever did so. The Defendant’s
contentions reject all plausible inferences in favor of the State and carry the testimony
presented at trial to illogical extremes.
As observed by the Defendant, thirteen of the checks had a driver’s license
number written on them, which was similar to the Defendant’s number in every way
except for the very last number. Nonetheless, he submits that this evidence was
insufficient to establish his identity because there was little proof he had access to the
checks and that someone else may have had access to his driver’s license number if his
mother had also helped him pay bills. Mr. Kelly testified that all three children had
access to Ms. Combs’s condominium after her death to divide her personal items and that
the division took place amicably. Also according to Mr. Kelly, the Defendant was
allowed inside the residence to do renovations to ready the property for resale. The jury
again was free to reject testimony that the property was “completely empty” when the
Defendant worked on the condominium. Testimony established that the Defendant had
sufficient access to the checks.
The Defendant also contends that any employee who checked his license would
have been able to see that he was not Betty Combs, the identified owner of the account on
the checks, and would likely not have accepted the check. However, on one of the video
clips the Defendant can be seen presenting a check that already had a driver’s license
number written on it, presumably in an effort to defraud the cashier. Evidence that the
Defendant’s driver’s license number appeared on thirteen of the checks, except that the
last number was altered, was strong evidence of his identity as the individual who passed
these checks. He offers no rational explanation why a third party would need to alter the
last number of his driver’s license number in order for that third party to avoid detection.
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It was also a rational inference for the jury to conclude that the Defendant passed
the additional five instruments, including count 11, the electronic check, that did not
contain any driver’s license number or identifying information given that he was
adequately identified, from the evidence cited above, as passing thirteen such checks
from the same account and during the same time period. We conclude that the
Defendant’s identity was sufficiently established through circumstantial evidence.
Regarding count 11, the Defendant contends that, because the document displayed
“[no] handwriting from any source[,]” and because the presentment charged that he
forged Betty Combs’s signature to the document, the evidence was insufficient to support
that conviction. As noted above, “forge” is defined in Tennessee Code Annotated section
39-14-114(b)(1)(A) as to “[a]lter, make, complete, execute or authenticate any writing so
that it purports to . . . [b]e the act of another who did not authorize that act” or in
subsection (b)(1)(C) to “[i]ssue, transfer, register the transfer of, pass, publish, or
otherwise utter a writing that is forged within the meaning of subdivision (b)(1)(A)[.]” A
“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)(2). These definitions
encompass the electronic check passed by the Defendant. Moreover, as also noted above,
“[a] forged check is uttered or transferred by the action of presenting it for payment.”
McDowell, 664 S.W.2d at 313 (citation omitted). The proof was sufficient to establish
the elements of the offense charged in count 11.
The Defendant’s argument could also be construed as one alleging that a fatal
variance existed between the evidence presented at trial and the elements of the offense
as charged in the presentment for count 11. See State v. March, 293 S.W.3d 576, 588
(Tenn. Crim. App. 2008). Specifically, a variance is not fatal “if (1) the defendant is
sufficiently informed of the charges levied against him so that he can adequately prepare
for trial and, (2) the defendant is protected against a subsequent prosecution for the same
offense based on double jeopardy grounds.” State v. Mayes, 854 S.W.2d 638, 640 (Tenn.
1993) (citations omitted). A variance occurs “only if the prosecutor has attempted to rely
upon theories and evidence at the trial that were not fairly embraced in the allegations
made in the charging instrument.” State v. Shropshire, 45 S.W.3d 64, 71 (Tenn. Crim.
App. 2000).
We conclude that there was no variance between the presentment on count 11 and
the proof at trial. Here, the presentment provided the date, the number, the place, and the
amount of the check, the account on which the check was written, the owner of the
account, and alleged forgery of the check and referenced the appropriate statute.
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Accordingly, the Defendant was sufficiently informed of the charge to allow him to
prepare for trial and protected against subsequent prosecution.
Finally, the Defendant argues that the State failed to establish the relevant mens
rea for forgery, i.e., that he had no intent to commit the forgeries because he could not
have intended to defraud a known dead person. Initially, as noted, but then ignored, by
the Defendant in his appellate brief, the presentment charged the Defendant with the
intent to defraud Eastman Credit Union, each individual business, and Betty Combs. The
forgeries were complete when the writings were executed, which obviously was done
with the intent to defraud. See State v. James, 688 S.W.2d 463, 466 (Tenn. Crim. App.
1984) (“The offense is complete by the forgery with fraudulent intent, whether any third
person be actually injured or not.”). “It is sufficient the instrument forged, with the
fraudulent intent, might have been prejudicial to the rights of another.” Id. (citation
omitted).
Clearly, the intent was to defraud the businesses and the credit union as well as
Ms. Combs’s estate. Ms. Nottingham testified that some checks were never paid out of
the account due to insufficient funds and that those that were paid were refunded to Ms.
Combs’s account. According to Ms. Nottingham, it was ultimately the individual
businesses that suffered the losses for all eighteen of these checks, thus, clearly being
harmed by the Defendant’s actions. The fact that money was taken from Ms. Combs’s
estate rather than Ms. Combs is of little consequence. As we concluded above, the
presentment adequately informed the Defendant of the charges against him. Mr. Kelly
was named as the personal representative for the estate, and Ms. Combs’s personal
property vested with her representative upon her death. See Tenn. Code Ann. § 31-2-
103. Mr. Kelly testified that he did not authorize the Defendant to make any of the
eighteen transactions from the decedent’s account. There was sufficient evidence in the
record to indicate that the Defendant intended to deceive and defraud others when he
executed the forged instruments.
Based on the evidence presented at trial, a reasonable juror could have concluded
that Defendant committed all eighteen acts of forgery. He is not entitled to relief on this
issue.
Suffice to say, the Defendant also challenges the sufficiency of the evidence
supporting his theft conviction. To support the Defendant’s conviction for theft of
property valued at $1,000.00 or more but less than $10,000.00, the State was required to
prove that Defendant violated Tennessee Code Annotated section 39-14-103, which
states: “[a] person commits theft of property if, with intent to deprive the owner of
property, the person knowingly obtains or exercises control over property without the
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owner’s effective consent.” This count referenced the taking of money from Betty
Combs, and the Defendant again argues that he could not intend to deprive a known dead
person of her property and notes that he was her heir under the will. However, we
similarly dispense with this argument as we did so above; the fact that the presentment
gave the name of the decedent rather than the decedent’s estate is of little consequence
once again. The Defendant was adequately advised of the charge against him in this
count, being provided with the time frame, the property taken, the person from whom it
was taken, and reference was made to the appropriate statute. We conclude that the
property was of the “same ownership” as it passed to Ms. Combs’s personal
representative upon her death. See, e.g., State v. Sterett, 295 P. 182, 185 (Wash. 1931)
(“[The defendant] did appropriate, as the jury was fully warranted in finding under the
evidence, the sum of $50 belonging either to Horn or to Horn’s estate, which, for present
purposes, we think should be held to be the same ownership.”). Again, Mr. Kelly
testified that he did not authorize any of the transactions, and the Defendant cannot
misappropriate those funds simply because he was one of three named beneficiaries in
Ms. Combs’s will.
Finally, with regard to the theft count, the Defendant contends that it was error to
aggregate the amount of the eighteen checks ($1,947.99). Theft of property is a Class D
felony if the value of the property obtained is $1,000.00 or more but less than $10,000.00.
Tenn. Code Ann. § 39-14-105(3). The State may aggregate the value of stolen property
taken in separate thefts “when separate acts of theft are: (1) from the same owner; (2)
from the same location; and (3) are pursuant to continuing criminal impulse or a single
sustained larcenous scheme.” State v. Cattone, 968 S.W.2d 277, 279 (Tenn. 1998) (citing
State v. Byrd, 968 S.W.3d 290, 291 (Tenn. 1998)); see also State v. Nelson, 344 S.W.2d
540, 542 (Tenn. 1960) (“[W]here it appears that successive takings are actuated by a
single, continuing, criminal impulse or intent or are pursuant to the execution of a general
larcenous scheme, it has been held . . . that such successive takings constitute a single
larceny, regardless of the extent of the time which may have elapsed between takings.”).
Whether a series of successive takings constitute “several thefts or one single crime must
be determined by the particular facts and circumstances of each case.” Nelson, 344
S.W.2d at 542.
The forgeries in this case occurred during a period of about a month and were all
drawn on the same account of Ms. Combs’s. We think it clear from the proof presented
at trial that the State sufficiently established that the Defendant’s conduct was part of a
single, continuous larcenous scheme. The Defendant submits that the “alleged forgeries
were involving value loss from the individual businesses” at different times and at
different locations and that, therefore, aggregation was improper. He relies on our
supreme court’s decision in Cattone, 968 S.W.2d 277, and argues “that the value of stolen
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services from different owners cannot be aggregated to upgrade the offense.” However,
this case is factually different from Cattone because this case does not involve the
aggregation of stolen services from different owners.
Here, the property alleged to have been taken was from the same location and
belonged to the same owner, i.e., currency from Ms. Combs’s Eastman Credit Union
account. The Defendant observes that Ms. Combs’s estate and the credit union ultimately
suffered no loss. However, the Defendant will not be rewarded just because the
Defendant was found out and the money returned to Ms. Combs’s account, resulting in
financial losses to the businesses alone. Such facts are immaterial as to whether he
intended to deprive her account of the money at the time he passed the checks.
Aggregation was appropriate, and the Defendant is not entitled to relief. See, e.g., State
v. Kenna Jean Parrott, No. M2004-00723-CCA-R3-CD, 2005 WL 1848481, at *7-8
(Tenn. Crim. App. Aug. 5, 2005) (deeming evidence sufficient to support theft of
property conviction over $60,000.00 where for a period of nine months, which
corresponded with defendant’s term of employment, approximately 272 checks were
issued to another individual totaling in excess of $60,000.00, over 200 of which were
signed by defendant as weigh master).
CONCLUSION
Based upon the foregoing reasoning and authorities, we conclude that the evidence
was sufficient to support the Defendant’s convictions and affirm the judgments of the
trial court.
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D. KELLY THOMAS, JR., JUDGE
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