State of Tennessee v. Courtney Anderson ( 2001 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 5, 2000
STATE OF TENNESSEE v. COURTNEY ANDERSON
Direct Appeal from the Criminal Court for Shelby County
Nos. 97-08497, 97-08498 Joseph B. Dailey, Judge
No. W2000-00244-CCA-R3-CD - Filed January 30, 2001
The defendant was convicted by a Shelby County jury of theft of property valued greater than $10,000
and forgery. The trial court sentenced him to consecutive sentences of 15 years for theft as a
persistent offender and six years for forgery as a career offender. In this appeal as a matter of right,
defendant alleges (1) the evidence is not sufficient to support the convictions, and (2) his sentence
is excessive. After a thorough review of the record, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOE G. RILEY, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ROBERT
W. WEDEMEYER , JJ., joined.
William L. Johnson, Memphis, Tennessee, for the appellant, Courtney Anderson.
Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Amy P. Weirich, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
In this appeal as a matter of right, the defendant claims that there is insufficient evidence to
sustain his theft and forgery convictions, and his sentence is excessive. After a thorough review of
the record, we affirm the defendant’s convictions and sentences.
I. FACTS
On December 20, 1996, someone rented a $30,000 Cadillac Sedan Deville from Avis Car
Rental under the stolen identity of Steven Michael Hawks. For proof of identity, the person supplied
Avis with a major credit card with Hawks’ name, and a Tennessee driver’s license with the
defendant’s photo and Hawks’ license and social security numbers. The vehicle was not returned at
the end of the seven-day rental period.
Jack Bell, an employee at Whitehaven Liquor, testified that the defendant tried to cash a check
on February 1, 1997. After the defendant handed Bell the check and a driver’s license, Bell
recognized the check as being drawn on a batch reported stolen. Accordingly, Bell proceeded to his
office, phoned the drawer’s bank, and determined the check was stolen. He returned to the counter,
but the defendant was gone. Bell phoned the police, and he gave them the check and the driver’s
license that the defendant left on the counter. A copy of the license was produced at trial, and it
contained Hawks’ name, driver’s license number, and social security number, but it contained the
defendant’s photo. Bell identified the defendant as the person who tried to cash the check.
During the night hours on February 10, 1997, Memphis police officers noticed a Cadillac
traveling in the opposite direction without use of its headlamps. When the officers turned on their
emergency lights to pursue the Cadillac, it accelerated to a high rate of speed. The officers saw the
vehicle turn into a residence, and the driver exited the vehicle and fled on foot. The officers arrested
the two passengers, but the driver was not apprehended. The Cadillac was the vehicle leased from
Avis.
Vickie Gregory was one of the passengers arrested. At trial, she testified that there were four
persons in the car; the driver was a friend of the front passenger; she did not know that the car was
stolen; and she only saw the driver a few times, so she could not identify the driver as the defendant.
Memphis Police Lieutenant Milton D. Jones acquired handwriting samples from the
defendant. Tom Vastrick, an expert forensic document examiner, testified he was provided three
documents to examine. The provided documents were (1) the driver’s license, (2) the signed Avis
rental agreement, and (3) the defendant’s handwriting samples. Vastrick opined that all three samples
were written by the same person.
II. SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
Defendant contends that the evidence is insufficient to sustain the jury’s guilty verdicts of theft
over $10,000 and forgery. We respectfully disagree.
When a defendant challenges the sufficiency of the convicting evidence, we must review the
evidence in the light most favorable to the prosecution to determine whether "any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt." Jackson v.
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Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979). We do not reweigh
or reevaluate the evidence and are required to afford the state the strongest legitimate view of the
proof contained in the record as well as all reasonable and legitimate inferences which may be drawn
therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). It is the defendant's burden to show
this court why the evidence is insufficient to support the verdict returned by the trier of fact in his or
her case. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
Although the evidence of the defendant’s guilt is circumstantial in nature, circumstantial
evidence alone may be sufficient to support a conviction. State v. Tharpe, 726 S.W.2d 896, 899-900
(Tenn. 1987); State v. Gregory, 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993). However, in order
for this to occur, the circumstantial evidence must be not only consistent with the guilt of the accused
but it must also be inconsistent with innocence and must exclude every other reasonable theory or
hypothesis except that of guilt. Tharpe, 726 S.W.2d at 900. In addition, “it must establish such a
certainty of guilt of the accused as to convince the mind beyond a reasonable doubt that [the
defendant] is the one who committed the crime.” Id. (quoting Pruitt v. State, 460 S.W.2d 385, 390
(Tenn. Crim. App. 1970)).
While following the above guidelines, this court must remember that the jury decides the
weight to be given to circumstantial evidence and that “[t]he inferences to be drawn from such
evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with
innocence are questions primarily for the jury.” Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958);
see also Gregory, 862 S.W.2d at 577; State v. Coury, 697 S.W.2d 373, 377 (Tenn. Crim. App. 1985);
Pruitt, 460 S.W.2d at 391.
B. Analysis
Prior law contained numerous separate offenses involving theft. See Tenn. Code Ann. §§
39-3-1103 (1982) (grand and petit larceny); 39-3-1106 (1982) (larceny from the person);
39-3-1112,1113 (1982) (receiving and concealing stolen property); 39-3-1118 (1982) (fraudulent
appropriation by one having custody); and 39-3-1121 (1982) (embezzlement). The 1989 Criminal
Code abolished the distinctions among these various offenses and denominated them as the single
offense of "theft". Tenn. Code. Ann. § 39-14-101 (1997).
In order for the defendant to be convicted of theft, the state must prove that the defendant,
acting “with intent to deprive the owner of property, . . . knowingly obtain[ed] or exercise[d] control
over the property without the owner's effective consent.” Tenn Code Ann. § 39-14-103.
In order for the defendant to be convicted of forgery, the state must prove the defendant
“forge[d] a writing with intent to defraud or harm another.” Tenn. Code Ann. § 39-14-114(a).
The evidence clearly shows that someone forged Hawks’ signature to the Avis agreement and
committed theft by unlawfully obtaining the automobile and exercising control over it long after the
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lease expired. The only real issue in this case is whether the state proved the defendant’s identity as
the perpetrator. We conclude the defendant’s identity was sufficiently established.
The defendant was identified as the person in possession of the fraudulent driver’s license
which had his picture on it, but other information identifying Hawks. The forensic document
examiner testified that the signatures on the driver’s license and Avis rental agreement matched the
handwriting of the defendant. The jury could, therefore, conclude that the defendant was the person
who forged the Avis agreement and obtained the automobile. The jury could also reasonably
conclude that the defendant obtained the automobile by “deception,” thereby establishing that he did
not have Avis’ “effective consent” to have the vehicle. See Tenn. Code Ann. § 39-11-106(9)(A). The
jury could further conclude that the defendant unlawfully exercised control over the automobile both
immediately after the taking and after the rental period terminated.
This issue is without merit.
III. SENTENCING
The defendant challenges both the length and consecutive nature of his sentences. For the
offense of theft over $10,000, a Class C felony, the defendant was sentenced as a Range III persistent
offender to the maximum term of 15 years. For the offense of forgery, a Class E felony, the defendant
was sentenced to six years as a career offender. We see no reason to disturb the sentences imposed
by the trial court.
A. Standard of Review
This court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial
court fails to comply with the statutory directives, there is no presumption of correctness and our
review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
B. Length of Sentences
In his brief, the defendant contends he “takes issue with the length of the sentences.”
However, he offers no argument about or reference to enhancement or mitigating factors.
Furthermore, he does not challenge the trial court’s determinations that he was a persistent offender
with regard to the offense of theft over $10,000, and a career offender with regard to the offense of
forgery. The defendant had at least 15 prior felony convictions. We also note that six years was the
only possible punishment for the Class E felony of forgery as a career offender. See Tenn. Code Ann.
§ 40-35-108(c). We see no reason to disturb the length of each sentence.
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C. Consecutive Sentencing
The defendant further alleges error in the imposition of consecutive sentences. The trial court
applied multiple convictions factor one (professional criminal) and factor two (extensive record of
criminal activity). See Tenn Code Ann. § 40-35-115(b)(1), (2). Defendant claims that there is no
evidence that he was a professional criminal, but he overlooks his testimony during the sentencing
hearing. When asked if his career was identity theft, he replied that it was his career “at that present
time.” He went on to explain that he was in the business of producing fraudulent driver’s licenses
and had a contact in the department of motor vehicles who assisted him. The record shows that
defendant, age 31, had been convicted of at least 15 felonies since the age of 18. Thus, it is
abundantly clear that he has an extensive history of criminal activity, which alone makes consecutive
sentencing proper.
Specific findings that an extended sentence is necessary to protect society and is reasonably
related to the severity of the offenses are prerequisites to consecutive sentencing under the “dangerous
offender” category in Tenn. Code Ann. § 40-35-115(b)(4). State v. Wilkerson, 905 S.W.2d 933, 939
(Tenn. 1995). However, such specific factual findings are not required for the other categories of
Tenn. Code Ann. § 40-35-115(b). State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999). Nevertheless, the
general principles of sentencing require that the length of sentence be “justly deserved in relation to
the seriousness of the offense” and “be no greater than that deserved for the offense committed.” Id.
at 460 (citing Tenn. Code Ann. §§ 40-35-102(1) and 103(2)).
We conclude the trial court properly exercised its discretion when it sentenced the defendant
to consecutive sentences, for an effective sentence of 21 years. Furthermore, we find that the
aggregate sentence was justly deserved and was no greater than that deserved for the offenses the
defendant committed. See Lane, 3 S.W.3d at 460.
This issue is without merit.
IV. CONCLUSION
Based upon the foregoing, we hold there was sufficient evidence to sustain defendant’s
convictions for theft over $10,000 and forgery, and the trial court correctly sentenced the defendant.
Thus, the judgment of the trial court is affirmed.
.
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JOE G. RILEY, JUDGE
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