State of Tennessee v. Todd Joseph Sweet a/k/a Jamie Lee Turpin ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
February 15, 2011 Session
STATE OF TENNESSEE v. TODD JOSEPH SWEET a/k/a JAMIE LEE
TURPIN
Direct Appeal from the Circuit Court for Monroe County
No. 08-081 Carroll L. Ross, Judge
No. E2010-00728-CCA-R3-CD - Filed December 16, 2011
A Monroe County jury convicted the Defendant, Todd Joseph Sweet, of two counts of
forgery and two counts of criminal simulation, and the trial court sentenced him to sixteen
years in the Tennessee Department of Correction. On appeal, the Defendant contends: (1)
the trial court improperly denied his motion to dismiss for failing to try him within 180 days
of his transfer, as proscribed by the Interstate Compact on Detainers; (2) the trial court
improperly denied his request for severance; (3) the trial court improperly denied his motion
for a mistrial based on the State’s introduction of evidence of the Defendant’s other crimes;
(4) the trial court improperly refused to strike the State’s “Notice of Intent to Seek Enhanced
Punishment and/or Notice of Impeaching Convictions”; (5) the trial court improperly refused
to excuse six jurors who had media knowledge of other crimes the Defendant allegedly
committed; (6) the trial court improperly allowed the State to re-call witness A.J. Smith in
order to prove venue; (7) the State failed to prove venue; (8) the trial court failed to properly
instruct the jury; (9) the evidence is insufficient to support his convictions; (10) the State
failed to comply with Tennessee Rule of Criminal Procedure 16 when it failed to provide the
Defendant’s trial counsel with letters written by the Defendant and intercepted by the Monroe
County Sheriff’s Department; and (11) the trial court erred when it sentenced him. After a
thorough review of the record and applicable law, we affirm the trial court’s judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the court T HOMAS T. W OODALL, J.,
joined. D AVID H. W ELLES, Sp. J., not participating.
Robert L. Jolley, Jr., Knoxville, Tennessee, for the Appellant, Todd Joseph Sweet.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; Steven Bebb, District Attorney General, and Paul Rush, Assistant District Attorney
General, for the Appellee, State of Tennessee.
OPINION
I. Facts
A. Indictment, Compact Request, & Pre-trial Hearings
This case arises from the Defendant passing fraudulent checks. Based on this
conduct, on April 3, 2008, a Monroe County grand jury indicted the Defendant in Case
Number 08-0811 with four counts of criminal simulation and four counts of forgery, all
charges alleged to have occurred in Monroe County. We summarize the supporting facts in
each of the indictments as follows:
Count 1 charged the Defendant with forging a check in the amount of
$175,500 on February 19, 2008, written to victim James David Poe from the
account of “Ms. Jamie Turpin” without Ms. Turpin’s consent.
Count 2 charged the Defendant with committing criminal simulation
involving an amount greater than $60,000 through his use of a check numbered
“501” on February 19, 2008, written to victim James David Poe on the account
of “Ms. Jamie Turpin” by altering the name to appear as “Mr. Jamie Turpin”
so that the instrument appeared valid.
Count 3 charged the Defendant with forging a check in the amount of
$2,000,000 on February 18, 2008, written to victim James David Poe from the
account of “Ms. Jamie Turpin” without Ms. Turpin’s consent.
Count 4 charged the Defendant with committing criminal simulation
involving an amount greater than $60,000 through his use of a check numbered
“503” on February 18, 2008, written to victim James David Poe from the
account of “Ms. Jamie Turpin” by altering the name to “Mr. Jamie Turpin” to
make the instrument appear valid.
Count 5 charged the Defendant with forging a check in the amount of
$250,000 on February 19, 2008, to victim A.J. Smith from the account of “Ms.
Jamie Turpin” without Ms. Turpin’s consent.
Count 6 charged the Defendant with committing criminal simulation
involving an amount greater than $60,000 through his use of a check numbered
“1000” on February 19, 2008, written to victim A.J. Smith from the account
of “Ms. Jamie Turpin” by altering the name to “Mr. Jamie Turpin” to make the
1
Also pending before this Court is the Defendant’s appeal from his indictment in case number
08-082, which alleged that he committed theft over $10,000. Oral arguments in both cases were heard in
February 2011, and this Court will file a separate opinion in case 08-082, the appeal number of which is
E2010-00729-CCA-R3-CD.
2
instrument appear valid.
Count 7 charged the Defendant with forging a check in the amount of
$27,000,000 on February 19, 2008, to victim A.J. Smith from the account of
“Ms. Jamie Turpin” without Ms. Turpin’s consent.
Count 8 charged the Defendant with committing criminal simulation
involving an amount greater than $60,000 through his use of a check numbered
“1001” on February 19, 2008, written to victim A.J. Smith from the account
of “Ms. Jamie Turpin” by altering the name to “Mr. Jamie Turpin” to make the
instrument appear valid.
On April 6, 2008, Arizona law enforcement arrested the Defendant for charges against
the Defendant pending in the state of Arizona. The Defendant waived extradition. On
September 16, 2008, the Defendant, who remained in Arizona state custody, sent a request
pursuant to the Interstate Compact on Detainers for disposition of the “4 Counts Criminal
Simulation” and “4 Counts Forgery” pending against him in Monroe County. The Monroe
County Criminal Court Clerk received a copy of this request on September 22, 2009. On
October 10, 2008, the Monroe County District Attorney General’s Office also received a
copy of the Defendant’s Interstate Compact request.2
On November 13, 2008, the Defendant was transported from Arizona to Monroe
County. The Defendant was arraigned in Monroe County on this case on November 17,
2008. During his arraignment, the State informed the trial court that the public defender’s
office had been appointed to represent the Defendant but, due to a conflict, was unable to
represent the Defendant. When the trial court questioned the Defendant concerning his
financial resources, the Defendant told the trial court he had millions of dollars in Malaysian
bank accounts as well as other assets:
[trial court]: Do you have any cash in any banks anywhere?
[the Defendant]: Not in the U.S.
[trial court]: Do you own a vehicle–pardon?
[the Defendant]: Not in the U.S.
[trial court]: Not in the U.S.? Where do you have cash in any banks?
[the Defendant]: Malaysia.
[trial court]: In Malaysia? In other countries you have–how much
cash do you have in Malaysia?
2
The record includes a U.S. Postal Service Certified Mail Receipt reflecting that District
Attorney General Steve Bebb received the Defendant’s request for disposition of his Monroe County charges
on October 10, 2008. The record also contains, however, a letter dated October 6, 2008, from Assistant
District Attorney General Paul Rush requesting the Defendant be sent from Arizona to Monroe County.
3
[the Defendant]: I don’t know.
[trial court]: You don’t know?
[the Defendant]: I don’t know.
[trial court]: Well, give me a good guess.
[the Defendant]: Multi-millions.
[trial court]: Well, then you’ll have to hire your own attorney, sir.
[the Defendant]: Okay.
[trial court]: If you’re worth millions of dollars, I’m not going to
appoint you an attorney to represent you in these matters,
so . . . we’ll set you an attorney status for January the
26 th .
Accordingly, the proceedings were concluded, and the Defendant’s attorney status update
hearing was set for January 26, 2009.
At his attorney status hearing on January 26, 2009, the Defendant acknowledged that
he had not yet hired an attorney. At the trial court’s request, the Defendant filled out an
affidavit of indigency. In the affidavit, the Defendant claimed to own automobiles valued
at over $100,000 and to possess several million dollars in offshore bank accounts. When
asked why he did not use his financial resources to hire an attorney, the Defendant responded
that he could not access his accounts from the U.S. The trial court stated that it believed the
Defendant was “playing with the court” and announced that it would appoint a lawyer for the
Defendant. At this point, the State’s attorney interjected, asserting that, under the Interstate
Compact, Monroe County had “six months from the date that [it got the Defendant] from
Arizona” in which to try the Defendant. Based upon the Defendant’s arrival date to Monroe
County on November 13, 2008, the State estimated that the Defendant’s trial on these matters
must be held before May 13, 2009. Accordingly, the State requested that the trial court set
the Defendant’s trial on or before April 14, 2009. The trial court set the Defendant’s trial for
February 24, 2009, and appointed counsel, noting that counsel would “have to take some
time” to prepare for trial. Counsel who the trial court appointed was not present during this
hearing.
On February 23, 2009, at a status hearing update, the Defendant and his appointed
counsel indicated they were ready for trial, but the State moved to continue the trial until
April 13, 2009, in order to arrange for a witness to travel from Canada to testify. The trial
court noted its displeasure with the State’s delay, but it granted the motion to continue. The
trial court scheduled a status hearing for April 13, 2009, and the first day of trial for April
14, 2009. On March 23, 2009, the State filed a “Notice of Intent to Seek Enhanced
Punishment and/or Notice of Impeaching Convictions.” In its notice, the State declared its
intent to seek an enhanced punishment based upon the following convictions against the
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Defendant in the state of Michigan: three convictions from 2003 and 2006 for larceny by
conversion in an amount over $1000; one 1995 conviction for larceny in an amount over
$1000; one 1994 conviction for carrying a concealed weapon; and two 1996 convictions for
larceny by check.
On April 9, 2009, the Defendant moved to dismiss the charges against him in this case
based on the State’s failure to commence trial within the 180-day Interstate Compact period,
and it moved to strike the State’s “Notice of Intent to Seek Enhanced Punishment and/or
Notice of Impeaching Convictions,” arguing that the State should have filed this notice
before the day trial was originally set to begin.
At the April 13 status hearing, the trial court heard arguments on the Defendant’s
motions. The Defendant argued his motion to dismiss should be granted because, due to the
fact that the District Attorney’s Office received the Defendant’s Interstate Compact request
on October 10, 2008, the 180-day period in which the Defendant could be tried expired on
April 8, 2009. The trial court denied this motion, finding that the Defendant was responsible
for delaying the trial for two months by “insist[ing] that he wanted to hire his attorney” and
that the State in “good faith” requested a continuance in order to arrange for a witness to
travel from Canada.
The Defendant also argued that the trial court should grant his motion to strike the
State’s “Notice of Intent to Seek Enhanced Punishment and/or Notice of Impeaching
Convictions” because the State should have filed its notice ten days before the original
February 24 trial date. The State responded that it was delayed in discovering the
Defendant’s prior convictions because the Defendant had operated under a variety of aliases.
The Defendant responded that the Defendant’s convictions were under the name “Todd
Joseph Sweet,” the same name under which he was indicted in the present case. The record
includes copies of the Defendant’s criminal convictions from Michigan, which indeed list
the Defendant’s name as “Todd Joseph Sweet.” The trial court found that the State complied
with Tennessee Rule of Criminal Procedure 12.3’s notice provisions and refused to grant the
Defendant’s motion.
B. Motion to Sever
The following day, the Defendant moved for a severance of the eight counts of the
Indictment, which the indictment identified as having been committed on two separate dates,
February 18, 2008, and February 19, 2008. The Defendant argued first that no common plan
or scheme existed and second that the proof of one would not be admissible in the trial of the
other if the cases were tried separately. The State argued that all the alleged conduct was part
of a common plan or scheme, asserting that the offenses occurred within one day of each
5
other. The trial court found that, based on the dates in the indictment, the alleged offenses
occurred within one day of each other. The trial court explained that, in its view, the alleged
conduct was “the kind of thing that the State [could] proceed [upon in] one indictment as one
set of factual situations,” and it found that the conduct was part of a “common scheme or
plan.” It noted that the facts would be “intermingled as far as who did what and who said
what and where things happened.” The trial court denied the Defendant’s motion to sever
the offenses listed in the indictment.
C. Trial
The Defendant’s case proceeded to trial on April 14, 2009, and the following evidence
was presented: A.J. Smith testified that he lived on a dairy farm known as “Springbrook
Farm” in Sweetwater, Tennessee. In February 2008, the Defendant, whom he knew as
“Jamie Turpin,” came to Mr. Smith’s farm, offering to purchase the farm. After Mr. Smith
told the Defendant that the farm was not for sale, the Defendant told Mr. Smith he had
recently married Donna Poe, the daughter of Danny Poe, who owned land adjacent to Smith’s
land. The Defendant told Mr. Smith that he had been wounded during his military service
in Iraq. He explained that his wife liked Mr. Smith’s farm and that he intended to buy it for
her. The Defendant told Mr. Smith the financial resources he would use to purchase the farm
were comprised from a recent inheritance he received and the proceeds from the sale of his
home in Canada, which netted him a large sum of money. The Defendant asked Mr. Smith
to price the farm, and Mr. Smith agreed, telling the Defendant he would give the Defendant
an answer within the next four or five days. Mr. Smith testified that this meeting took place
in the kitchen of his home.
A few days later, the Defendant returned to Mr. Smith’s home, and Mr. Smith
suggested the two drive around the farm in order to take a look at the property. As the two
got into Mr. Smith’s truck, the Defendant tossed a pistol into the truck’s bed, explaining to
Mr. Smith that he had to protect himself because he was carrying a large amount of money.
After the two drove around examining Mr. Smith’s property, Mr. Smith suggested the price
of $25,000,000 for the entire farm. The Defendant agreed to this price and offered to make
a down payment of $5,000,000 toward the price of the farm at the time the two signed a
contract reflecting the sale of the property.
Later the same day, the Defendant brought Donna Poe over to Mr. Smith’s property,
wishing to show her around the farm. Mr. Smith and Ms. Poe, who were already acquainted,
had a brief conversation during which Ms. Poe confirmed the Defendant’s story about his
finances. During this afternoon visit, the Defendant and Mr. Smith agreed that the
$25,000,000 asking price would include all of the houses on the property.
6
Following this meeting, the Defendant and Mr. Smith spoke on a daily basis, gradually
developing the terms of the contract of sale for Mr. Smith’s farm. At the Defendant’s
request, Mr. Smith allowed him and Ms. Poe to move into a house on his property, that
belonged to one of Mr. Smith’s sons, while the two finalized the terms of the sale.
Ultimately, the Defendant and Ms. Poe stayed in this house for three weeks. At some point
during this time, the Defendant introduced Mr. Smith to a woman named “Jen” whom he said
he employed. By this time, Ms. Smith was not sure whether the Defendant’s claims of vast
financial resources were true. Hoping to ease his growing suspicion that the Defendant was
lying about his finances, Mr. Smith privately commented to the woman that the Defendant
“must have sold an awful big house” in Canada, and the woman responded, “Yeah, it was
a monster.” In the courtroom during trial, Mr. Smith identified witness Jamie Turpin as the
woman introduced to him as “Jen.”
In connection with this sale, the Defendant gave Mr. Smith three checks, only two of
which are at issue in this case. The first check, dated February 19, 2008, was for
$27,000,000. The memo line of the first check reads, “Hold on Springbrook Farm.” Mr.
Smith observed the Defendant sign his name as “Jamie Turpin” on the check. Later, Mr.
Smith realized that the printed name of the account holder on the check had been altered
from “Ms.” to “Mr.” Jamie Turpin. The next day, the Defendant gave Mr. Smith a second
check, which was dated February 19, 2008, and written in the amount of $250,000.3 As with
the first check, the Defendant signed the check as “Jamie Turpin” in Mr. Smith’s presence,
and Mr. Smith later realized that the “Ms.” had been altered to “Mr.”
In the three weeks following the Defendant’s transfer of the checks to Mr. Smith, the
men communicated on a daily basis regarding the terms of the sale of Mr. Smith’s property.
During this time, the Defendant continued to identify himself as “Jamie Turpin,” never
indicating that the checks he had written to Mr. Smith belonged to anyone but himself. At
the advice of the realty company preparing the documents of sale for the transaction, Mr.
Smith did not attempt to deposit or cash the checks he received from the Defendant. Because
the transaction ultimately fell through, Mr. Smith never deposited or cashed the checks.
During the State’s initial direct examination of Mr. Smith, Mr. Smith did not specify
whether he and the Defendant were in Loudon or Monroe County when the Defendant gave
him the two checks at issue. At the close of its case in chief, the State moved to reopen its
proof and re-call Mr. Smith in order for him to testify for the limited purpose of establishing
the county in which he received the checks. Over the Defendant’s objection, the State was
allowed to re-call Mr. Smith. On re-call, Mr. Smith testified that his property, Springbrook
3
We note that the amounts in which these checks were written vary from the payments Mr. Smith
testified he and the Defendant agreed to. The record does not explain this variance.
7
Farm, lay in both Monroe and Loudon Counties. He testified that the initial meeting in the
kitchen of his home took place in Loudon County. He testified that the meetings during
which the Defendant gave him the checks at issue in this case, however, took place on a farm
building located in Monroe County. Mr. Smith said this farm building was located about one
mile from his home. He explained that he was sure the farm building lay within Monroe
County because he paid Monroe County property taxes on the building every year.
Counts One through Four of the indictment concerned instruments the Defendant
passed to James David Poe. Mr. Poe testified that, in 2007, the Defendant began dating his
daughter, Donna Poe. By 2008, Donna was pregnant, and she and the Defendant began
living with Mr. Poe in his house in Loudon County. Mr. Poe and the Defendant began
planning to open a dairy farm together. Mr. Poe testified that, in January 2008, the
Defendant gave Mr. Poe a $2,000,000 check written from the credit card account of “Jamie
Turpin” while the two were in his Loudon County home. He testified that, though the
Defendant never indicated “what payment” the $2,000,000 check was supposed to cover, it
was written in conjunction with their plan to open a dairy farm together. Mr. Poe testified
that the Defendant gave him a second check in the amount of $175,000 from the same credit
card account as the first. The Defendant made the second check payable to “Poe Turpin
Dairy, RE: James David Poe.” Mr. Poe testified that this check was intended to cover the
start-up costs of the dairy farm they planned to open on the land the Defendant was to
purchase from Mr. Smith. He said he also received this check while in his Loudon County
home.
At this point in the testimony the parties held a jury-out hearing where it was
determined that, because the conduct underlying Counts One through Four took place in
Loudon County, the Monroe County District Attorney did not have jurisdiction to prosecute
Counts One through Four. Accordingly, the State agreed to dismiss Counts One through
Four of the indictment with prejudice. The trial court issued the following instruction to the
jury:
[B]efore we took the last recess, there was a mention of a check allegedly
taken out of Loudon County. An objection was made. I have sustained that
objection. Whatever’s alleged to have occurred that did not occur in [Monroe
County], I would instruct you at this time you should disregard any testimony
from this witness about any check in Loudon County. Whether or not that
check exists is not a matter for your concern in this trial.
At a later point during trial, the Defendant moved for a mistrial based upon the State’s
introduction of Mr. Poe’s testimony, and the trial court denied the Defendant’s motion.
8
The State resumed with its case in chief, and Jamie Turpin testified that she is
Canadian and that she is a registered nurse in Canada. In May of 2007, Ms. Turpin
frequently patronized restaurants, shops, and bars, in Sault St. Marie, Michigan. One night
when she was in a bar in Sault St. Marie, her ex-boyfriend introduced her to the Defendant,
who first identified himself as “Douglas Clegg” but soon thereafter told her his name was
“Joseph Draggone.” The Defendant told Ms. Turpin that he was a business owner and that
he and his brother had been in the area on business but that, after an argument, his brother
left town with the Defendant’s wallet, ID, money, and truck. The Defendant also told Ms.
Turpin that he would give Ms. Turpin’s ex-boyfriend a job.
The Defendant and Ms. Turpin soon began a romantic relationship. During this time,
the Defendant told Ms. Turpin he was a millionaire and that he worked for a man in the mob.
Later, he told Ms. Turpin that this man had died, leaving him with $5,000,000. He also said
that he was in “special forces” with the U.S. Coast Guard. Initially, Ms. Turpin continued
working full-time and the pair met in hotel rooms, for which Ms. Turpin paid. Ms. Turpin
soon took time off from work and began traveling with the Defendant across the United
States. At some point during this time, the Defendant asked Ms. Turpin for $10,000 for
“security” purposes, and Ms. Turpin gave him the money from her savings. The Defendant
also induced Ms. Turpin to obtain and allow him access to a $15,000 line of credit, telling
her that, because his bank accounts were under surveillance, he could not obtain such credit
himself. After Ms. Turpin provided the Defendant with this money and credit, the Defendant
warned Ms. Turpin she and her family were in danger because they were under heavy
surveillance and security. The Defendant convinced Ms. Turpin she must travel with him
to Flagstaff, Arizona, in order to flee those who were pursuing her. The Defendant intimated
that he would pay for this trip, but upon arriving in Arizona, Ms. Turpin realized the
Defendant was merely using the money she had given him for “security” to pay for the trip.
The Defendant and Ms. Turpin spent about a week in Arizona, during which time the
Defendant told Ms. Turpin that he was being pursued by seven men, and he appeared to make
phone calls to individuals he told Ms. Turpin were military personnel. After a week in
Arizona, Ms. Turpin and the Defendant traveled to Ohio where they stayed with Ms. Turpin’s
relatives. In late September or early October 2007, the Defendant told Ms. Turpin that the
mob had been monitoring his cousin, Donna Poe, where she lived in Pigeon Forge,
Tennessee, and that the two must travel to Pigeon Forge to protect her.
At this point in the Defendant and Ms. Turpin’s relationship, the Defendant did not
allow Ms. Turpin to access the internet or to go to her bank without his permission, and he
had convinced Ms. Turpin to give him access to her online banking accounts. Without her
authorization, the Defendant withdrew money from her banking accounts and took out
several credit cards in her name. Ms. Turpin testified that she never gave the Defendant
9
permission to write checks against her accounts. On one occasion, Ms. Turpin tried to access
her online accounts through a computer, but the Defendant became very angry, screaming
at Ms. Turpin for having tried to access her accounts.
The pair traveled to Pigeon Forge, where they rented a cabin for ten days using Ms.
Turpin’s credit card. After staying at the cabin for only a few days, the Defendant warned
Ms. Turpin that she must leave because a “military bust” was imminent. Ms. Turpin left and
rented a room at a nearby hotel. After staying at the hotel for a week, she returned to the
cabin. When she entered, she found the Defendant lying on the bed with another woman.
Though both the Defendant and the woman were dressed and lying on top of the covers, Ms.
Turpin became extremely upset. The Defendant told Ms. Turpin that the woman was his
cousin Donna Poe. On October 17, 2007, Ms. Turpin returned to Canada, though she
remained in constant contact with the Defendant, sending the Defendant money as he needed
it.
In February 2008, the Defendant told Ms. Turpin that he was ready to start a new life
with her. At the Defendant’s request, Ms. Turpin traveled to Loudon, Tennessee, where she
would stay in a series of hotel rooms for the next several weeks. When Ms. Turpin reunited
with the Defendant, he instructed her that she would need to go by the name “Jen” while in
Loudon and that she would need to tell people that she was the wife of the Defendant’s “head
of security” in Canada. Ms. Turpin heard the Defendant identify himself as “Jamie” during
this time. Ms. Turpin asked the Defendant to explain why they had to go by assumed names,
but the Defendant refused to explain anything, saying that if she cooperated, they could start
their life together soon. Ms. Turpin confirmed that she met Mr. Poe and Mr. Smith during
this time and that she identified herself as “Jen” to the men.
Ms. Turpin testified that, at one point during her relationship with the Defendant, a
credit card company sent her a set of blank checks to use against a $5,000 credit account she
had with the credit card company. When the Defendant told Ms. Turpin he needed the
checks, she gave them to him, but she testified she did not believe the Defendant would use
the checks for anything other than groceries. She testified that she was frightened of the
Defendant at this time. At the State’s request, Ms. Turpin reviewed the two checks the
Defendant wrote to Mr. Smith, which the State had introduced as exhibits at trial. Ms.
Turpin confirmed that these checks were from the set she received from her credit card
company, but she testified that she did not authorize the Defendant to write the checks at
issue. Ms. Turpin confirmed that the credit card checks at issue in this case were never sent
to her credit card company for payment and that, as such, she never had to pay her credit card
company for anything related to these checks.
At the conclusion of trial, the jury convicted the Defendant of two counts of criminal
10
simulation and two counts of forgery.
D. Sentencing
Before being sentenced in this case, and in a separate trial in June of 2009, the
Defendant was convicted of theft greater than $10,000 in Case Number 08-082. The trial
court held a sentencing hearing wherein it sentenced the Defendant in this case and in Case
Number 08-082. The following evidence was presented relevant to this case: The
Defendant’s presentence report indicated that the Defendant, who was thirty-six at the time
of sentencing, dropped out of school in the eleventh grade, that he has gone by at least eight
different aliases, and that, at the time of sentencing, an “escape from prison” charge was
pending against him in Michigan.
The report included copies of seven Michigan judgments of convictions entered
against the Defendant. According to these judgments, between 1993 and 2006, the
Defendant was adjudged guilty of the following offenses in Michigan: one count of “larceny
by conversion $1,000-$20,000,” for which the Defendant received a five-year probation
sentence; one count of “larceny by conversion-$10” as a “habitual offender 4th con [sic],”
for which the Defendant was sentenced to a minimum of forty months and a maximum of
twenty years and ordered to pay $16,500 in restitution; one count of “larceny by conversion
-$10” as a “habitual offender 4th con [sic],” for which the Defendant was sentenced to a
minimum of forty months and a maximum of twenty years; one count of “weapons-carrying
concealed,” for which the Defendant received a twenty-four month probation sentence; two
counts of “false pretenses 0/$100.00,” for which the Defendant received two sentences of
confinement for a minimum of five years and a maximum of fifteen years and was ordered
to pay $12,200 in restitution; one count of “check no account,” for which the Defendant
received a sentence of confinement for a minimum of one year and a maximum of two years;
and one count of “attempted uttering & publishing,” for which the Defendant received a
two-year probation sentence and was ordered to pay $3,486.21 in restitution.
The officer who prepared the presentencing report noted that the Michigan
Department of Corrections website indicated that at least three of the Defendant’s larceny
by conversion convictions were for “larceny by conversion-$10,000 to $20,000.”
The report also indicated that in May 2009 the Defendant was convicted in Arizona
of the following offenses: identify theft; theft up to $500; convicted felon in possession of
a weapon; and theft of vehicle. The Defendant received a total effective sentence of
three-years and six-months for these convictions, and he was ordered to serve one year of this
sentence in confinement. The conduct underlying the Arizona convictions took place after
the Defendant committed the crimes in this case and fled to Arizona from Tennessee.
11
The Defendant reported to the probation officer preparing the report that he suffered
from post-traumatic stress disorder from childhood abuse and that, as an adult, he had been
treated for depression and bi-polar mood disorder. The Defendant reported that he had been
hospitalized three times due to his mental health issues, the impetus for one of these
hospitalizations being a suicide attempt. Because the Defendant refused to authorize the
officer preparing the report to access his medical records, the Defendant’s description of his
mental health history could not be confirmed.
The Defendant’s report indicated he had one child with Donna Poe, who the
presentence report identified as the Defendant’s “cohabiting spouse,” and he had two
children from a previous marriage. He reported having been the owner/operator of a self-run
business, “Finishline Custom Auto” and head of public relations for “Fabrizio Boccardi” in
Las Vegas, Nevada. No record could be found of Finishline Custom Auto, and Mr. Boccardi
of “Fabrizio Boccardi” denied ever having met or employed the Defendant.
The Defendant reported having over $1,000,000 worth of “4x4 trucks,” “vehicles,”
and “sporting and water craft,” all of which he claimed were tied up “in probate.” He
declined to include information about his bank accounts on the basis that “any and all bank
accounts are not subject to U.S. tax laws.” He claimed, however, that he had in his control
$3,500,000, all of which he said was “illegally obtained” and which he was “willing to pay
. . . to the victims and or court.”
The trial court admitted a victim-impact statement from Jamie Turpin into evidence
during sentencing. Ms. Turpin indicated that by “exploit[ing]”and “manipulating” her over
a period of nine months, the Defendant ultimately induced her to give him $19,000 of her
savings, quit her job as a nurse, take on $70,000 of debt, and convince her parents to give
him $20,000. She reported that the methods the Defendant used to manipulate her, stories
of mob ties and of being under constant surveillance, terrified her and led her and her parents
to believe they were in danger. Ms. Turpin recalled that she was “terrified” of the Defendant,
due to what he led her to believe he was capable of doing and to the fact that he carried a
gun. She reported suffering from persistent anxiety and paranoia as a result of her
relationship with the Defendant. Due to the notorious nature of the Defendant’s crimes,
details of her relationship with the Defendant and his crimes were published in newspapers
across the United States and Canada, including her hometown of Saul Ste. Marie, Ontario.
Ms. Turpin was unable to obtain employment in her hometown, and she was forced to move
elsewhere to work and obtain counseling for emotional issues arising from her relationship
with the Defendant. She stated that the Defendant was a “cold, calculating man” who “does
not experience emotion as most people do and . . . is incapable of empathizing with his
victims in any way.” She asked that the Defendant be required to serve the maximum
sentence for his actions.
12
At the sentencing hearing, the parties disagreed about whether the Defendant was a
Range II offender, with defense counsel arguing that the State failed to establish that at least
two of the Defendant’s Michigan convictions were the equivalent of Class C felonies or
higher under Tennessee law. A major source of conflict between the parties was whether the
Michigan certified judgments of conviction reflecting two convictions for “larceny by
conversion-$10,” one of which ordered restitution in the amount of $16,200, were actually
convictions for “larceny by conversion-$10,000 to $20,000,” but whose offense description
was truncated on the judgment form.
In more testimony related to the Defendant’s previous convictions, Sean Patrick
Moore, a probation officer with the Tennessee Department of Probation and Parole, testified
that he completed the Defendant’s presentence report in this case. The officer testified that
he spoke with Yourvette Price, an employee of the Muskegon County Prosecutor’s Office
in Michigan in order to confirm the Defendant’s criminal history in Michigan. He confirmed
that the Defendant was considered an “escaped felon” in Michigan because he escaped from
state custody while serving a sentence for crimes he committed in Michigan between 2002
and 2006.
On cross-examination, Officer Moore confirmed that he had never met Ms. Price of
the Muskegon County Prosecutor’s Office and that he did not know the nature of her
employment with the prosecutor’s office. He recalled that, in order to verify the Defendant’s
criminal record, he gave Ms. Price the case number associated with each of the Defendant’s
Michigan criminal convictions he was aware of, and Ms. Price searched through “their
records” to find the criminal conviction associated with the case number. She confirmed the
details Officer Moore possessed about the Defendant’s criminal record, in particular that he
had three convictions for larceny by conversion involving an amount between $1000 and
$20,000. Officer Moore did not know the exact nature of the database Ms. Price used to
retrieve the Defendant’s convictions. Officer Moore confirmed that he also used the
Michigan Department of Corrections website, a public-access website, to obtain information
about the Defendant’s criminal history.
After hearing argument from both sides, the trial court found that the Defendant’s two
1996 false pretenses convictions from Michigan were Class C felonies and, on that basis,
found that the Defendant was a Range II offender. The trial court noted that the Tennessee
Code’s classification of several of the Defendant’s remaining convictions from Michigan was
“not as clear.” Based on the Defendant’s criminal record as a whole, the trial court applied
enhancement factor (1), that the Defendant had a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the appropriate range. T.C.A.
§ 40-35-114(1).
13
The trial court also applied the following enhancement factors: enhancement factor
(3), that the offense involved more than one victim; enhancement factor (8), that, before
sentencing, the Defendant failed to comply with the conditions of a sentence involving
release into the community; enhancement factor (13), that, at the time the felony was
committed, the Defendant was on escape status; and (14), that the Defendant abused a
position of private trust. The trial court noted that it “[did] not really put any emphasis” on
enhancement factor (14). T.C.A. § 40-35-114(3), (8), (13), and (14).
For each of his convictions in this case, which included two counts of forgery and two
counts of criminal simulation, the trial court imposed a sixteen-year sentence, to be served
concurrently to one another. For his conviction for theft over $10,000 in Case Number
08-802, the trial court imposed a six-year sentence, to be served consecutively to his
sentences in this case, for a total effective sentence of twenty-two years. The trial court
specified that the Defendant’s twenty-two year sentence in these cases would be consecutive
to any sentence he might receive from a conviction stemming from the escape charge
pending against him in Michigan. The trial court imposed a fine of $110,000.
Although the length of the Defendant’s sentence made a sentence of alternative
release unavailable, the trial court nonetheless noted that the following three statutory
justifications for imposing confinement applied: (a) that confinement was necessary to
protect society by restraining a [defendant] who has a long history of criminal conduct; (b)
that confinement was necessary to avoid depreciating the seriousness of the offense, or
confinement is particularly suited to provide an effective deterrence to others likely to
commit serious offenses; and © that measures less restrictive than confinement have
frequently or recently been applied unsuccessfully to the defendant. See T.C.A. §
40-35-103(a)-© (2006).
Finally, the trial court found that the Defendant’s attitude during trial and sentencing
was “totally offensive” and that the continued dishonesty regarding his finances and
disrespect toward the court was “consistent with his total arrogance that he showed the whole
judicial system every time [he was in court].”
E. Motion for New Trial
The Defendant filed a timely motion for new trial, wherein the Defendant alleged that
the Monroe County Sheriff’s Department seized letters written before trial by the Defendant
to his trial attorneys, and the Defendant argued that this disruption of his communication with
his attorneys resulted in unreasonable delay in bringing him to trial outside the Interstate
Compact period. A hearing was held on this motion wherein the following proof was
presented: The parties agreed that Detective Pat Henry of the Monroe County Sheriff’s
14
Department seized letters written by the Defendant while he was incarcerated in the Monroe
County jail. The Defendant had been assisting Detective Henry in the investigation of an
unrelated Monroe County homicide. Photocopies of these sealed envelopes were entered into
evidence. The letters included: one letter to Monroe County Sheriff’s detective Pat Henry;
three letters to the FBI; two letters to the ATF; one letter to the warden of the Arizona State
Prison; one letter to an attorney in Arizona, Steven J.A. August; and one letter to an attorney
in Athens, Tennessee, Randy Rogers. The letter to the Arizona attorney was dated January
27, 2009, and the letter to the Tennessee attorney was dated February 4, 2009.
Monroe County Sheriff Bill Bivens testified that, after Detective Henry retired,
another officer was cleaning out Detective Henry’s office and found the letters the detective
had apparently intercepted from the Defendant. The sheriff testified that his office
immediately handed over the letters to the District Attorney General’s Office. Sheriff Bivens
could not recall the date he gave possession of the letters to the District Attorney General’s
Office. He did not remember whether this occurred before or after the Defendant’s trial in
this case.
Tennessee Bureau of Investigation Agent Jason Legg testified that he investigated the
incidents of mail interception at the Monroe County jail. He determined that Detective Henry
had been writing letters to the Defendant from the “Law Office of Paul Harris” in which
Detective Henry represented himself to be an attorney.
Captain Pat Wilson of the Monroe County Sheriff’s Department testified that all
outgoing and incoming mail to inmates was logged on a computer system. He said the
computer log reflected only four of the eleven letters sent by the Defendant.
The Defendant requested that the trial court open and consider the content of the
intercepted letters to Tennessee attorney Randy Rogers and Arizona attorney Steven August.
The trial court refused this request and denied the Defendant’s motion for new trial. This
timely appeal ensued.
II. Analysis
On appeal, the Defendant contends: (1) the trial court improperly denied his motion
to dismiss for failure to comply with the Interstate Compact on Detainers; (2) the trial court
improperly denied his request for severance ; (3) the trial court improperly denied his motion
for a mistrial based on the State’s introduction of evidence of the Defendant’s other crimes;
(4) the trial court improperly refused to strike the State’s “Notice of Intent to Seek Enhanced
Punishment and/or Notice of Impeaching Convictions”; (5) the trial court improperly refused
to excuse six jurors who had media knowledge of other crimes the Defendant allegedly
15
committed; (6) the trial court improperly allowed the State to re-call witness A.J. Smith in
order to prove venue; (7) the State failed to prove venue; (8) the trial court failed to properly
instruct the jury; (9) the evidence was insufficient to support his convictions; (10) the State
failed to comply with Tennessee Rule of Criminal Procedure 16 when it failed to provide the
Defendant’s trial counsel with letters written by the Defendant and intercepted by the Monroe
County Sheriff’s Department; and (11) the trial court erred when it sentenced him. We
address each contention in turn.
A. Compliance with Interstate Compact on Detainers
As his issue on appeal, the Defendant contends that, because the State failed to try him
within 180 days of its receipt of his Interstate Compact request, the State was without
jurisdiction to prosecute this case, and his convictions should be reversed. Due to the
complex nature of the Interstate Compact’s provisions and, as a result, that of the parties’
arguments, we first describe the Interstate Compact before describing in more detail the
parties’ arguments.
The Interstate Compact on Detainers is a uniform agreement, adopted by forty-eight
states including Tennessee, which facilitates the interstate transfer of a prisoner for the
purpose of disposing of the prisoner’s pending out-of-state criminal charges, which may
preclude the prisoner from early release consideration or alternatives to confinement. See
T.C.A. § 40-31-101, et seq. (2006); Nelms v. State, 532 S.W.2d 923, 927 (Tenn. 1976). The
stated purpose of the Interstate Compact is “to encourage the expeditious and orderly
disposition of [outstanding] charges and determination of the proper status of any and all
detainers based on untried indictments, informations or complaints.” T.C.A. § 40-31-101,
art. I. This Court is to construe the provisions of the Interstate Compact liberally in favor of
the defendants it was intended to protect. Garmon, 972 S.W.2d at 710. Its protections,
however, are statutory, rather than constitutional or jurisdictional. Id. (citing Grizzell v.
Tennessee, 601 F. Supp. 230 (M.D. Tenn. 1984)).
Describing the interaction of the “sending” state in which a defendant is incarcerated
and the “receiving” state that has lodged a detainer against a defendant, the Interstate
Compact provides a process whereby the prisoner may demand that the receiving state
dispose of charges relating to detainers lodged against the defendant by the receiving state
during his temporary transfer to the receiving state. T.C.A. § 40-31-101, art. III(a)-(f). This
demand, if carried out according to the procedure set out in the Interstate Compact, obliges
the receiving state to try the defendant within 180 days or else forfeit prosecution of not only
the charges underlying the detainer but also any other charge arising from the same criminal
transaction. T.C.A. § 40-31-101, art. III(a); art. V(d). The 180-day period begins to run on
the date the petition is received by the court and district attorney in the county where the
16
charges are pending. State v. Moore, 774 S.W.2d 590, 593 (Tenn. 1989).
Further, once the defendant has been temporarily transferred under the Interstate
Compact to the receiving state, return of the prisoner to the sending state permanently bars
the receiving state from prosecuting those charges, regardless of whether 180 days have
passed. T.C.A. § 40-31-101, art. III(d). A defendant’s failure to object to a date for a trial
set beyond the 180-day period precludes the prisoner from later arguing that the Interstate
Compact bars prosecution of the charges. State v. Garmon, 972 S.W.2d 706, 710 (Tenn.
Crim. App. 1998).
The 180-day period in which the State must try the defendant is not absolute; rather,
it is subject to the trial court’s ability to grant “any necessary or reasonable continuance” for
“good cause shown”:
[Once a person has triggered the Compact’s protections by causing both the
State and the trial court to receive a copy of his Compact request,]the person
shall be brought to trial within one hundred eighty days, . . . provided, that for
good cause shown in open court, the prisoner or the prisoner’s counsel being
present, the court having jurisdiction of the matter may grant any necessary or
reasonable continuance.
T.C.A. § 40-31-101, art. III(a). Neither a crowded docket nor the State’s negligence
constitutes “good cause” for a delay. State v. Gipson, 670 S.W.2d 637 (Tenn. Crim. App.
1984); State v. Green, 680 S.W.2d 474 (Tenn. Crim. App. 1984), overruled on other grounds
by Stave v. Moore, 774 S.W.2d 590 (Tenn. 1989). Also, delay “occasioned by the defendant”
tolls the running of the180-day period. State v. Dillon, 844 S.W.2d 139, 142 (Tenn. 1992).
Tennessee courts have discussed the circumstances under which pre-trial delay is
“occasioned by the defendant” or, alternately, necessitated by “good cause.” See Dillon, 844
S.W.2d at 142. In State v. Bobo, we held that “good cause” for delay existed, in general,
where the State did not act in bad faith or fail to exercise due diligence and “[t]he defendant’s
actions contributed to a substantial part of the delay.” State v. Bobo, 724 S.W.2d 760, 763
(Tenn. Crim. App. 1981). In State v. Marlow Williams, we held that where the defendant’s
counsel had a conflict of interest, and trial was continued for twenty-eight days in order for
new counsel to be appointed, the delay was a “reasonable and necessary continuance.” No.
W2005-02803-CCA-R3-CD, 2007 WL 2781720, *5 (Tenn. Crim. App., at Jackson, Mar. 6,
2007), perm. app. denied (Tenn. Apr. 7, 2008). In Williams, this Court also held that the
unavailability of a witness was “good cause” justifying a delay in bringing a defendant to
trial under the Interstate Compact. Id. at *6. In Dillon, our supreme court held that delay
caused by pre-trial motions brought by the defendant are excluded from the time computation
17
under the Interstate Compact. 844 S.W.2d at 142; see Hershel Clark v. State, No. 02C01-
9112-CR-00273, 1993 WL 188052, *8 (Tenn. Crim. App., at Jackson, June 2, 1993) (holding
that delay requested by the defendant in order to obtain medical/scientific proof was
“occasioned by the defendant”), no Tenn. R. App. P. 11 application filed.
The Defendant contends the trial court erred when it refused to dismiss the charges
in this case before trial based on the State’s failure to try him within the 180-day period
mandated by the Interstate Compact on Detainers. In essence, he argues that, because the
actions of the trial judge and the State’s attorney delayed his trial, the reasons for the delay
were not attributable to him and did not constitute “good cause for delay.” See State v.
Garmon, 972 S.W.2d 706, 709 (Tenn. Crim. App. 1998).
Regarding the first delay, the trial court’s suspension of proceedings from the
Defendant’s November 17, 2008, arraignment to January 26, 2009, in order for the Defendant
to retain private counsel, the Defendant argues that this delay was not attributable to him
because his claim of having “multi-millions” in Malaysian bank accounts did not amount to
a request to be allowed to retain private counsel. He further argues that the Monroe County
Sheriff’s Department’s interception of his attorney communication interfered with his ability
to retain counsel and, thereby, augmented the State’s responsibility for the delay of his trial.
The State responds that the Defendant’s claim of vast financial resources precluded
the trial court from appointing counsel for the Defendant and that, as such, the two-month
period the trial court gave the Defendant to retain private counsel was “attributable to the
Defendant.”
Regarding the second delay, the trial court’s grant of a continuance on the eve of the
original trial date for the State to transport witness Jamie Turpin from Canada, the Defendant
argues this delay was due to the State’s negligence and, thus, was not a “necessary or
reasonable continuance” for “good cause shown.” See T.C.A. § 40-31-101, Art. III; Garmon,
972 S.W.2d 706, 710 (Tenn. Crim. App. 1998).
In response, the State draws this Court’s attention to its previous holding that the
unavailability of a witness is “good cause” justifying a delay in bringing a defendant to trial
under the Compact. Given the trial court’s finding that the State sought the continuance in
“good faith” because witness Turpin was not yet available to testify due to the necessity of
acquiring a passport in order to travel to the United States, the State argues that the
continuance, which resulted in a fifty-day delay, was “necessary or reasonable.”
The Defendant also argues the delay of his trial past his original trial date, which was
within the 180-day time period enumerated by the Interstate Compact, prejudiced him in that
18
it gave the State the opportunity to file a “Notice of Intent to Seek Enhanced Punishment,”
which it had not filed before his original trial date. In his reply brief, the Defendant argues
that witness Turpin’s testimony at trial established that she heard of the charges against the
Defendant only five days before his June 2009 trial. He contends, based on this testimony,
that the State did not actually try to transport witness Turpin until one week before the
Defendant’s April trial and that, as such, the State’s request for a continuance was a result
of its negligence and not made in “good faith.”
Our review of the record shows that the State and the Monroe County Clerk’s Office
had both received the Defendant’s request for final disposition of his pending Monroe
County charges by October 10, 2008. Thus, the 180-day period during which the State could
lawfully prosecute the Defendant in this case commenced on October 10, 2008. Thus, were
there no circumstances that tolled this period, the period in which the Defendant could be
tried would have expired on April 8, 2009.
Reviewing the record, there appear to be two circumstances that delayed the
Defendant’s trial. First, when questioned during his arraignment about his financial
resources, the Defendant claimed to possess vast financial resources in the form of foreign
bank accounts and high-value commercial vehicles. The trial court refused to appoint the
Defendant an attorney in light of this information and scheduled a status hearing to take place
in two months in order for the Defendant to obtain counsel. During this period, the Monroe
County Sheriff’s Department intercepted several letters the Defendant wrote to attorneys.
When the Defendant appeared at the status hearing, he had not yet hired an attorney. He
filled out an affidavit upon which he again claimed to have vast financial resources,
including multiple vehicles. After expressing a lack of belief that the Defendant’s claims
were truthful, the trial court appointed counsel and set trial, at the State’s request, for
February 2009.
When the parties reconvened in February, another complicating factor arose. The
Defendant and his appointed counsel appeared as ordered at the hearing and stated their
willingness to proceed to trial on that day. The State, however, requested more time to
transport witness Jamie Turpin from Canada. The trial court granted the State a continuance
in order for it to transport witness Turpin from Canada. During this hearing, defense counsel
objected to continuing the proceedings, drawing the court’s attention to the running of the
180-day period in which the Defendant could be tried. The trial court granted the State’s
motion and set a status hearing update for April 13, 2009, and a trial date for April 14, 2009.
In March 2009, the State filed its “Notice of Intent to Seek Enhanced Punishment and/or
Notice of Impeaching Convictions,” and on April 9, 2009, defense counsel moved the trial
court to dismiss the charges against his client based on the State’s failure to try the Defendant
within 180 days. The trial court denied the motion to dismiss, and the Defendant’s trial took
19
place on April 16, 2009.
We conclude both reasons for the delay of the Defendant’s trial constitute “good
cause” within the meaning of the Interstate Compact. First, the Defendant “occasioned” the
first delay of two months by representing to the trial court that he had sufficient funds to hire
his own attorney. Based on this representation, the Defendant did not meet the requirements
to have an attorney appointed for him, so the trial court declined to do so and gave the
Defendant an opportunity to retain an attorney with the funds that he purported to possess.
The trial court properly relied upon the Defendant’s claims when it required him to hire
counsel. As such, we conclude that the trial court’s first delay of the proceedings in order
for the Defendant to obtain private counsel was for “good cause” within the meaning of the
Interstate Compact because it was “occasioned” by the Defendant’s claim of financial
resources that obligated the trial court to require the Defendant to pay for his own attorney.
See Dillon, 844 S.W.2d at 142.
The interception of the Defendant’s letters, which is addressed later in the opinion,
did not contribute to the delay of proceedings because, even had the Defendant appeared with
privately retained counsel at the January 2009 attorney status hearing, the State was not
prepared for trial on this date, as its request for a continuance at the February hearing
revealed. Thus, even had private counsel appeared for the Defendant at his January hearing,
the Defendant’s case would not have proceeded to trial until April 16, 2009. As such, we
conclude that the interception of the Defendant’s attorney communications did not further
delay the Defendant’s trial and, as such, is not relevant to his claim that he was not tried in
compliance with the Interstate Compact.
We further conclude that the trial court had “good cause” to delay the trial again when
the State informed the trial court that it could not transport witness Turpin from Canada in
time for the trial. We first note that the State had limited time in which to procure the
witness, in part because the parties were attempting to set the trial date between January 26,
2009, the date that the Defendant’s attorney was appointed, and April 8, 2009, the date that
his 180-day time expired. The fact that the State had limited time in which to transport
witnesses, therefore, is again attributable to the Defendant’s delay of the proceedings by
insisting that he was not indigent. See Dillon, 844 S.W.2d at 142.
Further, contrary to the Defendant’s interpretation of the record, our review of the
record does not indicate that witness Turpin testified the State contacted her in connection
with this case only one week before trial. Witness Turpin simply testified, “[T]he first time
that [the State] told me about [the checks] was on the phone last week.” This testimony
alone establishes neither that the State contacted witness Turpin for the first time only a week
before trial nor that the State was not already engaged in arranging for witness Turpin’s
20
travel before it spoke with her on this occasion. Therefore, in our view, the record does not
support the Defendant’s assertion that the State’s February 2008 request for a continuance
in order to transport witness Turpin from Canada was in bad faith or that it failed to exercise
due diligence in transporting witness Turpin. As such, we conclude that the second reason
for delay was for “good cause” shown. See Williams, 2007 WL 2781720, *5.
In summary, the Defendant’s actions contributed to a substantial part of the delay of
his trial, and the State’s request for a continuance was not in bad faith or the result of a lack
of diligence. Taking these considerations into account, we conclude that “good cause”
existed for the delay of the Defendant’s trial beyond the 180-day period contemplated by the
Interstate Compact. See Bobo, 724 S.W.2d at 760. Because the Defendant’s prosecution in
this case did not violate the Interstate Compact, the trial court properly denied the
Defendant’s motion to dismiss. The Defendant is not entitled to relief on this issue.
B. Severance of Counts Related to Loudon County
The Defendant argues the trial court erred when it denied his motion to sever the
counts of the Indictment that concerned checks he passed to Mr. Poe from the counts that
concerned checks he passed to Mr. Smith. The Defendant argues that, because he passed the
checks to Mr. Poe more than one month before he passed the checks to Mr. Smith, and the
events were not otherwise related, his interaction with each man was not a “common plan or
scheme.” He also contends that the trial court erred by denying his motion to sever without
considering whether evidence of Counts One through Four would be admissible in the trial
of Counts Five through Eight. The Defendant argues that, because no evidence of his
conduct with respect to the checks he gave Mr. Poe would have been “relevant to a material
issue” in the trial of his charges relating to the checks he gave Mr. Smith, evidence of Counts
One through Four would not be admissible in the trial on Counts Five through Eight. He
asserts he was entitled to severance not only because his actions with respect to Mr. Poe and
Mr. Smith were not part of a common scheme or plan but also because evidence of his
actions with respect to one gentleman would not be admissible in the trial on his charges
relating to the other. He contends the trial court abused its discretion in refusing to sever the
counts and that he was severely prejudiced by this refusal because the jury heard evidence
supporting Counts One through Four, although the counts ultimately were dismissed for
failure of venue.
The State responds that the trial court did not abuse its discretion when it denied
severance because, as the trial court found, the Defendant’s conduct with respect to each man
occurred with close temporal proximity and proof of each part of his conduct would be
“intermingled.”
21
The issue of whether the Defendant is entitled to relief based upon the consolidation
of the counts in this case involves several inquiries. First, we must determine whether the
trial court undertook the correct procedures and applied the correct legal standards when it
disposed of the Defendant’s motion to sever. Second, we must determine whether, under an
application of the correct legal standards, the Defendant was entitled to a severance. Finally,
we must determine whether any error made by the trial court when it denied a severance was
harmless.
We review a trial court’s denial of a motion for severance for an abuse of discretion.
See State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). As such, a trial court’s refusal to sever
offenses will not be reversed unless the court applied an incorrect legal standard, reached an
illogical conclusion, based its ruling on a clearly erroneous standard assessment of the proof,
or applied reasoning that caused injustice to a complaining party. State v. Jordan, 325
S.W.3d 1, 39 (Tenn. 2010). Also, a trial court abuses its discretion when it fails to consider
the factors provided by a higher court as guidance for determining a particular issue. State
v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007).
1. Trial Court’s Procedure & Legal Analysis
Tennessee Rules of Criminal Procedure 8 and 13(a) allow for the consolidation of two
or more indictments where the offenses either are part of a “common scheme or plan” or are
of the “same or similar character.” However, under Tennessee Rule of Criminal Procedure
14(b)(1), a defendant “shall have a right” to a severance of offenses that have been
consolidated unless: (1) the offenses are “part of a common scheme or plan”; and (2) “the
evidence of one would be admissible upon the trial of the others.” When a defendant seeks
a severance, the burden is on the State to show that the offenses should not be severed. State
v. Denton, 149 S.W.3d 1, 13 (Tenn. 2004).
“[I]rrespective of whether a defendant formally moves for severance or whether a
defendant merely objects to the [S]tate’s pre-trial motion for consolidation, the issue properly
preserved is one of severance,” which we evaluate under Tennessee Rule of Criminal
Procedure 14. Spicer v. State, 12 S.W.3d 438, 444 (Tenn. 2000). Thus, if a defendant
objects to the consolidation of offenses that would otherwise be permissible under Rule 8(b),
the offenses may not be tried together unless the two criteria listed in Rule 14(b)(1) are
present: (1) “the offenses are parts of a common scheme or plan”; and (2) “the evidence of
one would be admissible in the trial of the others.” The primary issue is whether “evidence
of one offense would be admissible in the trial of the other if the two offenses remained
severed.” Id. at 445 (citing State v. Burchfield, 664 S.W.2d 284, 286 (Tenn. 1984)). Thus,
“[i]n its most basic sense, . . . any question as to whether offenses should be tried separately
22
pursuant to Rule 14(b)(1) is ‘really a question of evidentiary relevance.’” Id. (citing State v.
Moore, 6 S.W.3d 235, 239 (Tenn. 1999)).
In order to determine whether “evidence of one [offense] would be admissible in the
trial of the other,” a trial court, in essence, must determine whether proof of a defendant’s
alleged bad act may be admitted in his trial for another alleged bad act. See State v. Dotson,
254 S.W.3d 378, 387 (Tenn. 2008). Thus, this determination implicates Tennessee Rule of
Evidence 404(b), which bars the admission of “[e]vidence of other crimes, wrongs, or acts
. . . to prove the character of a person in order to show action in conformity with the character
trait.” Rule 404(b)’s purpose is to avoid “the inherent risk of the jury convicting a defendant
of a crime based upon his or her bad character or propensity to commit a crime, rather than
the strength of the proof of guilt of the specific charge.” Id. Given that this risk of unfair
prejudice is even higher where the defendant’s bad act is similar to the crime for which the
defendant is on trial, “any doubt about the propriety of the consolidation of similar offenses
over a defendant’s objection should be resolved in favor of the Defendant.” State v. Garrett,
331 S.W.3d 392, 403 (Tenn. 2011).
In summary, a trial court must determine that the following three things are true in
order to deny a defendant’s motion for severance:
(1) the multiple offenses constitute parts of a common scheme or plan, Tenn.
R. Crim. P. 14(b)(1); (2) evidence of [one] offense is relevant to some material
issue in the trial of all the other offenses, Tenn. R. Evid. 404(b)(2); Moore, 6
S.W.3d at 239; and (3) the probative value of the evidence of other offenses
is not outweighed by the prejudicial effect that admission of the evidence
would have on the defendant, Tenn. R. Evid. 404(b)(3).
Spicer, 12 S.W.3d at 445. The State bears the burden of producing evidence to establish the
existence of these three circumstances. State v. Toliver, 117 S.W.3d 216, 228 (Tenn. 2003).
In order to determine whether the State has met its burden of production, the trial court
“must” hold a hearing. Garrett, 331 S.W.3d at 403. This hearing requirement is “well
established,” and it ensures that an appellate court will have an adequate record upon which
to review the trial court’s denial of severance. Id. Normally, because a trial court determines
whether to consolidate offenses based on the evidence presented at the hearing, “appellate
courts should usually only look to that evidence, along with the trial court’s findings of fact
and conclusions of law, to determine whether the trial court abused its discretion by
improperly joining the offenses.” Garrett, 331 S.W.3d at 403. However, where no hearing
is conducted or where evidence is not otherwise available to a trial court disposing of a
motion for severance, an appellate court’s analysis “necessarily requires review of the
23
evidence at trial.”4 Toliver, 117 S.W.3d at 228, fn.4 (reviewing trial evidence where
proceedings on severance issue were “shortened” due to issue being raised only shortly
before trial); Garrett, 331 S.W.3d at 404 (reviewing trial evidence where no hearing was
conducted on severance issue).
Before trial in this case, the Defendant orally moved for severance of the charges in
the indictment. The State introduced no evidence but argued that all of the alleged conduct
occurred within the same twenty-four hour period and that, as such, the conduct was part of
a “common scheme or plan.” The trial court found that “based on what [it had] heard of the
evidence so far,” the alleged crimes occurred within one day of each other and that “it is the
kind of thing that the State can proceed on [in] one indictment as one set of factual
situations.” The trial court also found that “a lot of the facts are going to be intermingled as
far as who did what and who said what and where things happened.” The trial court denied
the Defendant’s request for a severance.
We conclude that the trial court’s legal analysis was incomplete when it disposed of
the Defendant’s motion to sever. The trial court rejected the Defendant’s request for
severance based largely on its conclusion that the Defendant’s alleged conduct constituted
“part of a common scheme or plan.” Although the trial court noted that “a lot of the facts are
going to be intermingled as far as who did what and who said what and where things
happened,” this analysis falls short of the analysis necessary to determine whether “the
evidence of one would be admissible in the trial of the others.” This analysis requires the
trial court to determine whether, if the counts remained severed, Rule of Evidence 404 would
allow the introduction of evidence of one set of conduct during his trial for the other. See
Spicer, 12 S.W.3d at 444.
2. Whether Severance was Necessary under Rule 14(b)(1)
In light of the trial court’s incomplete analysis of the Defendant’s request for a
severance, we must determine, pursuant to a complete analysis under Tennessee Rule of
Criminal Procedure 14(b)(1), whether the Defendant was entitled to severance. Because the
hearing on the Defendant’s motion to sever was cursory and because the State failed to
produce any evidence in support of its assertion that the Defendant’s conduct was part of a
“common scheme or plan,” we analyze the severance issue based on the evidence introduced
at trial. See Toliver, 117 S.W.3d at 228.
4
As a caveat, we note that, where offenses are alleged in an open-date indictment, the State may
not rely on the evidence introduced at trial to meet its burden of production, and “this Court will not look
to such evidence to determine whether consolidation was proper.” Spicer, 12 S.W.3d at 447.
24
Based upon the evidence introduced at trial, the counts regarding Mr. Poe as the
victim occurred in Loudon County, rather than Monroe County, where the indictment was
returned and the trial was held. Accordingly, the State agreed to dismissal of these four
counts with prejudice. It is worth noting that had the State requested the trial court to
properly follow the procedures mandated for severance hearings, the venue issue might have
come to light before a trial. Implicit in the State’s agreement that the “Poe counts” should
be dismissed with prejudice is the fact that none of the elements of the crimes alleged
occurred in Monroe County. Therefore, absent a waiver of venue by the Defendant, the “Poe
Counts” could not be tried in Monroe County without violating the Defendant’s rights
guaranteed in Article I, section 9 of the Constriction of Tennessee. (Among the rights of the
accused in a criminal prosecution is the right to a public trial” by an impartial jury of the
county in which the crime shall have been committed.”) Therefore, even if factors exist
which would normally justify consolidation of offenses or denial of a motion to sever
offenses if venue of one or more offenses is not in the county where the indictment is
returned, consolidation of that offense(s) would never be proper absent a defendant’s waiver
of venue.
Accordingly, based upon the evidence we must review, under the particular facts of
this case, we have no choice but to conclude that the trial court erred by denying the motion
for severance. Thus, we must analyze the issue of whether the error was harmless error. In
addition, in case of further review, we will address the issue as if venue for the “Poe Counts”
was in Monroe County.
As discussed above, consolidation of charges is only proper where: (1) “the multiple
offenses constitute parts of a common scheme or plan”; (2) “evidence of [one] offense is
relevant to some material issue in the trial of all the other offenses”; and (3) “the probative
value of the evidence of other offenses is not outweighed by the prejudicial effect that
admission of the evidence would have on the defendant.” Spicer, 12 S.W.3d at 445.
We first consider whether each of the offenses listed in the indictment were “part of
a common scheme or plan.” Three types of “common scheme or plan” relationships exist:
(1) “offenses that reveal a distinctive design or are so similar as to constitute ‘signature’
crimes”; (2) “offenses that are part of a larger, continuing plan or conspiracy”; and (3)
“offenses that are all part of the same criminal transaction.” Shirley, 6 S.W.3d at 248. First,
a series of crimes are considered “signature” where they involve a modus operandi “so
unique and distinctive” with “such unusual particularities” that a reasonable person would
conclude that a different person would not likely commit the crimes in the manner in which
they were committed. Moore, 6 S.W.3d at 240. Second, offenses are “part of a larger,
continuing plan or conspiracy” where they are directed at a “common goal or purpose.” State
v. Hoyt, 928 S.W.2d 935, 943 (Tenn. Crim. App. 1995), overruled on other grounds by
25
Spicer, 12 S.W.3d at 447. Proof of a working plan, operating towards the future with such
force as to make probable the crime for which the defendant is on trial is essential to
establish the existence of a “larger, continuing plan or conspiracy.” Id. Finally, to be part
of the “same criminal transaction,” the crimes must occur “within the same criminal
episode.” Id.
The continuing plan or conspiracy category “has typically been restricted to cases
involving crime sprees, where the defendant commits several crimes quite closely in time to
one another.” Id. (citing State v. Hall, 976 S.W.2d 121, 146 (Tenn.1998) (appendix)). See
generally Hall, 976 S.W.2d 146 (appendix) (joinder of trials for burglaries, larcenies, and
murder proper where defendants committed offenses following escape from prison; larger
plan was to flee the country and avoid capture); State v. William Arthur Shelton, No.
E2005-02014-CCA-R3-CD, 2006 WL 3246100, at *4 (Tenn. Crim. App., at Knoxville, Nov.
9, 2006) (joinder of kidnapping, vandalism, and murder trials proper where defendant
detained occupants of a residence in an attempt to lure murder victim to the residence;
defendant also vandalized car to prevent kidnapping victims from escaping), app. denied
(Tenn.2007); State v. William Ramsey, No. M2001-02735-CCA-R3-CD, 2003 WL
21658589, at *9 (Tenn. Crim. App., at Nashville, July 15, 2003) (joinder of aggravated
robbery and theft offenses occurring four months apart proper where defendant committed
offenses in attempt to retaliate against victim, who had abused former codefendant's
stepsister); State v. Mario Antoine Leggs, No. M2002-01022-CCA-R3-CD, 2003 WL
21189783, at *5 (Tenn. Crim. App., at Nashville, May 21, 2003) (joinder of multiple offenses
including aggravated robbery, reckless aggravated assault, and theft proper where defendant,
over a three-week period, stole several women’s purses in the parking lot of a particular store
at a particular mall; “offenses were part of a larger, continuing plan to steal women's purses”
at that particular location).
In this case, Counts One through Four of the Indictment charged the Defendant with
committing one count of forgery and one count of criminal simulation on February 18, 2008,
and one count of forgery and one count of criminal simulation on February 19, 2008. Counts
5 through 8 charged the Defendant with forging two additional checks and committing two
additional counts of criminal simulation on February 19, 2008. In the proceedings leading
up to trial, the State indicated Counts One through Four were based on checks written to
David Poe, and Counts Five through Eight were based on checks written to A.J. Smith.
At trial, Mr. Poe testified that the Defendant wrote him two checks, one for
$2,000,000 and another for $175,000, and that each of these checks was intended to cover
expenses related to the dairy farm they intended to operate together on the land the Defendant
26
planned to purchase from Mr. Smith. The $2,000,000 check was dated February 18, 2008,5
and the $175,000 check was dated February 19, 2008.6 In February 2008, the Defendant
approached Mr. Smith with an offer to buy Mr. Smith’s land, saying he wished to buy the
land for his wife, who admired the property. Within a week, the Defendant and Mr. Smith
agreed that the Defendant would buy Mr. Smith’s property for $25,000,000. Mr. Smith
confirmed that, a week or so after the Defendant initially contacted him, the Defendant gave
him a $27,000,000 check dated February 19, 2008. The next day, the Defendant gave him
a $250,000 check, also dated February 19, 2008. The evidence proved that the Defendant
contacted Mr. Smith a week before writing him the checks and that he was also negotiating
with Mr. Poe during over this same time period.
The trial court denied severance, finding that “the State can proceed on one indictment
as one set of factual situations” and that “the facts are going to be intermingled as far as who
did what and who said what and where things happened.” We infer that the trial court found
that the crimes were part of a common scheme or plan. We agree. The evidence proved that
the Defendant intended to fraudulently obtain land upon which he could live and operate a
dairy farm. In pursuit of this goal, the Defendant used Jamie Turpin’s credit card checks,
which he altered from “Ms. Jamie Turpin” to “Mr. Jamie Turpin” to procure land upon which
to operate a dairy farm. He wrote two checks dated February 19, 2008, to purchase the land.
On February 18 and 19, he wrote two similar checks to cover the operating expenses of the
dairy farm he intended to operate on the land. We find that this set of facts shows that the
Defendant was acting with the “common goal or purpose” of fraudulently acquiring and
5
On the checks written to Mr. Poe, copies of which accompany the record in this case, a shaded
area printed with “DD/MM/YYYY” appears in the upper right-hand corner. On the $2,000,000 check, this
space has been filled with the handwritten numbers “18/02/2008.” The Defendant argues in his brief,
however, that the record shows that the $2,000,000 check to Mr. Poe was written on January 8, 2008. Our
review of the record reveals the source of this confusion. During his testimony, Mr. Poe was asked to read
the date that appeared on the front of the check. Mr. Poe, in error, read aloud “18/02/0008.” Next, the State
asked Mr. Poe whether this date represented “February 18, 2008,” but Mr. Poe responded, “January the8th.”
The State continued with its examination without commenting on or resolving this contradiction. In our
view, Mr. Poe likely read only the first two digits of the numerical sequence and ignored or overlooked the
first “2" appearing on the check. In keeping with the customary method of dating in the U.S., Mr. Poe then
testified that the check reflected a date of “January 8th.” Mr. Poe did not account for and likely was unaware
of the fact that, in Canada, where this check originated, the month and year are commonly transposed when
writing dates. Because Mr. Poe’s testimony that the check was written on January 8 was based upon his
interpretation of the date written on the check rather than his independent recollection of when the Defendant
wrote the check, we are satisfied that the evidence establishes that the check was written on February 18,
2008.
6
As mentioned above, the counts based on the checks Mr. Poe received were dismissed with
prejudice after Mr. Poe testified that he actually received the checks in Loudon County, which precluded
the District Attorney in Monroe County from prosecuting charges based on the checks.
27
operating a dairy farm.
Because we have so concluded, we turn to address whether “evidence of [one] offense
is relevant to some material issue in the trial of all the other offenses” and whether “the
probative value of the evidence of other offenses is not outweighed by the prejudicial effect
that admission of the evidence would have on the defendant.” Spicer, 12 S.W.3d at 445. The
second prong of Rule 14(b)(1) of the Tennessee Rules of Criminal Procedure requires that
“the evidence of one [of the offenses would] be admissible in the trial of the other[s].” T. R.
Crim. P. 14(b)(1). We conclude that, in fact, the evidence of each offense would have been
admissible at the trial of the other to show proof of the Defendant’s fraudulent intent. The
Defendant’s intent was a material and contested issue at trial. See e.g., State v. Roger
Knoblock, No. E2004-01961-CCA-R3-CD, 2005 WL 1968444, (Tenn. Crim. App., at
Knoxville, Aug. 16, 2005), no Tenn. R. App. P. 11 application filed. We further conclude
that the probative value of the offenses was not outweighed by the prejudicial effect that the
admission had upon the Defendant. Accordingly, the trial court’s error in denying the motion
to sever was harmless error. The Defendant is not entitled to relief on this issue.
C. Mistrial Based upon Introduction of Mr. Poe’s Testimony
The Defendant contends the trial court erred when it refused to grant a mistrial based
upon the State’s introduction of Mr. Poe’s testimony about the crimes alleged in Counts One
through Four, which were dismissed after the trial court determined the alleged crimes
occurred in Loudon County. He argues that, because this evidence was not relevant to any
issue in his trial on the Monroe County crimes, the evidence constituted propensity evidence
barred by Tennessee Rule of Evidence 404. He argues the evidence of his Loudon County
conduct particularly prejudiced him because the crimes alleged to have occurred in Loudon
County were similar to the Monroe County crimes for which the Defendant was being tried.
The Defendant contends that Mr. Poe’s testimony prevented the jury from reaching an
impartial verdict and, thereby, created the “manifest necessity” of granting a mistrial. As a
result, he argues the trial court abused its discretion when it refused to grant a mistrial based
on Mr. Poe’s testimony.
The State responds that the trial court did not abuse its discretion in denying a mistrial.
It argues that, because the State introduced Mr. Poe’s testimony to support Counts One
through Four rather than to show “other acts,” which Rule 404 would bar, the trial court
correctly determined a mistrial was unnecessary because the evidence indeed supported the
charges alleged in Counts One through Four.
The decision on whether to grant a mistrial lies within the sound discretion of the trial
court. State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994). We will not interfere with the trial
28
court’s decision to refuse to grant a mistrial “absent clear abuse appearing on the face of the
record.” State v. Burns, 979 S.W.2d 276, 293 (Tenn. 1998). In determining whether to grant
a mistrial, the trial court would determine “[i]f it appears that some matter has occurred
which would prevent an impartial verdict from being reached . . . .” Arnold v. State, 563
S.W.2d 792, 794 (Tenn. Crim. App. 1977). Additionally, this Court has stated that a mistrial
should be declared if there will be a miscarriage of justice if it were not. See Burns, 979
S.W.2d at 293; State v. Allen, 976 S.W.2d 661, 668 (Tenn. Crim. App. 1997).
When determining whether a mistrial is necessary after a witness has injected
improper testimony, this Court has often considered the following factors: (1) whether the
improper testimony resulted from questioning by the State or whether it was a gratuitous
declaration; (2) the relative strength or weakness of the State’s case; and (3) whether the trial
court promptly gave a curative instruction. See State v. Paul Hayes, No.
W2001-02637-CCA-R3-CD, 2002 WL 31746693, at *4 (Tenn. Crim. App., at Jackson, Dec.
6, 2002), perm. app. denied (Tenn. May 27, 2003).
At trial, Mr. Poe testified he knew the Defendant as “Jamie Turpin” and that he and
the Defendant, who was married to Mr. Poe’s daughter, planned to open a dairy farm. Mr.
Poe testified that, in connection with this plan, the Defendant gave him one check for
$2,000,000 and another check for $250,000, both of which were written on the account of
“Jamie Turpin.” To the surprise of both parties, Mr. Poe testified that the Defendant gave
him these checks in Loudon County. After it was determined that the Monroe County
District Attorney’s Office lacked jurisdiction to prosecute the Defendant for the checks he
wrote to Mr. Poe, the trial court dismissed Counts One through Four of the indictment with
prejudice. The Defendant immediately objected to the introduction of Mr. Poe’s testimony,
and the trial court issued a curative instruction to the jury. The trial court said, “Whatever’s
alleged to have occurred that did not occur in [Monroe County], I would instruct you at this
time you should disregard any testimony from this witness about any check in Loudon
County. Whether or not that check exists is not a matter for your concern in this trial.” The
Defendant moved for a mistrial based on the introduction of Mr. Poe’s testimony about the
Defendant’s conduct supporting Counts One through Four. The trial court denied this motion
without issuing additional findings.
The testimony of Mr. Poe was not introduced as propensity evidence. It was
introduced to prove the crimes charged in Counts One through Four in the indictment. It was
only after Mr. Poe testified that the Defendant’s conduct that was the basis for Counts One
through Four occurred in Loudon County, apparently to the surprise of all, that the testimony
became evidence of alleged criminal conduct by the Defendant that the Monroe County jury
was no longer required to consider as part of the trial evidence. Due to these unique
circumstances, the ususal Tennessee Rule of Evidence 404(b) procedures for dealing with
29
evidence of other crimes was not followed. In our view, however, the trial court did not
abuse its discretion in denying the Defendant’s motion for a mistrial.
As previously stated, the trial court’s determination not to sever Counts One through
Four from the remaining counts of the indictment was harmless error. Because we concluded
that the evidence in Counts One through Four was admissible at trial as part of a common
scheme or plan with Counts Five through Eight, the “error” only arose when the venue issue
arose. The State elicited Mr. Poe’s testimony to prove the charges against the Defendant in
Counts One through Four, not as propensity evidence. The proof of the Defendant’s guilt
in Counts Four through Eight was strong. Finally, the trial court issued an appropriate
curative instruction. Because the record does not suggest that Mr. Poe’s testimony resulted
in a miscarriage of justice, we will not reverse the trial court’s refusal to grant a mistrial. The
Defendant is not entitled to relief on this issue.
D. Motion to Strike the State’s “Notice of Intent to Seek Enhanced Punishment
and/or Notice of Impeaching Convictions”
The Defendant contends the trial court erred when it denied his motion to strike the
State’s notice of its intent to use the Defendant’s prior convictions to impeach him and to
seek an enhanced sentence. He argues that the State’s notice was not timely filed because
it was filed after the original trial date, when the State obtained a continuance in order to
transport witness Jamie Turpin from Canada. The Defendant argues the State’s negligence
in arranging for the transportation of Turpin made this continuance necessary. He argues
that, by refusing to strike the State’s notice of its intent to impeach the Defendant and seek
enhanced punishment based upon the Defendant’s prior convictions, the trial court
“rewarded” the State with ample time to file pre-trial motions that he argues the State waived
by failing to file before the original trial date.
The State responds that the trial court did not err when it denied the Defendant’s
motion to strike the State’s notice of its intent to seek enhanced punishment because the
Defendant had “reasonable written notice” of the State’s intent before his April 14, 2009,
trial and because the trial court conducted a hearing to weigh the probative value of the
evidence against its prejudicial effect.
Tennessee law requires the State provide written notice not less than ten days before
trial to a defendant that the State intends to seek enhanced punishment if the defendant is
convicted. T.C.A. § 40-35-202(a) (2009). The notice must be given at least ten days before
trial and should provide the types of convictions, dates of convictions, and identity of the
courts of conviction. Id. The purpose of the statutory notice of intent to seek enhanced
sentencing is: (1) to provide fair notice to an accused that he is exposed to other than
30
standard sentencing; (2) to inform decisions to enter a guilty plea; and (3) to aid trial strategy.
State v. Adams, 788 S.W.2d 557, 559 (Tenn. 1990). “Notice is important not only in
preparation for a sentencing hearing, but in evaluating the risks and charting a course of
action before trial.” Id. A defendant waives any objection to a late-filed notice by not
moving for a continuance after the late-filing. State v. Stephenson, 752 S.W.2d 80, 81 (Tenn.
1988). Further, a trial court is only precluded from enhancing a defendant’s sentence based
on prior convictions that were not the subject of a timely-filed notice by the State where the
defendant demonstrates prejudice from the late filing. Id. Essentially, the notice statute
requires “fair” rather than “perfect” notice. State v. Taylor, 63 S.W.3d 400, 413 (Tenn. Crim.
App. 2001).
In this case, the Defendant’s original trial was set to begin in February 2009.
However, at the State’s request, the trial was delayed to allow the State additional time to
transport a witness from Canada. On March 23, 2009, the State filed its notice of intent to
seek enhanced punishment and to impeach the Defendant based upon his prior convictions.
The Defendant moved to strike the State’s notice, but the trial court, finding that the notice
was filed more than ten days prior to trial, denied the Defendant’s motion and determined
that the prior convictions would be admissible for impeachment and sentencing purposes.
The statute creates a duty on the part of the State to give “fair” notice to the Defendant
that it intends to use his prior convictions at trial and sentencing. Taylor, 63 S.W.3d at 413.
Thus, the State did not waive its ability to rely on the Defendant’s convictions by not filing
its notice before the original trial date in this case. Rather, when the Defendant’s trial date
shifted from February to April, the time frame for State’s duty to provide notice likewise
shifted. The State filed its notice of its intent to seek enhanced punishment on March 23,
2009, well over ten days before the Defendant’s April 13, 2009, trial. Thus, the State fully
complied with the notice requirement of section 40-35-202(a). Having determined the State
filed a timely notice of its intent to use the Defendant’s prior convictions, an inquiry into
prejudice is unnecessary. We conclude that the trial court did not err when it denied the
Defendant’s motion to strike the State’s “Notice of Intent to Seek Enhanced Punishment
and/or Notice of Impeaching Convictions.” The Defendant is not entitled to relief on this
issue.
E. Removal of Jurors for Cause
The Defendant argues the trial court erred when it refused to excuse “for cause” six
jurors who had previous knowledge of the Defendant’s criminal history. He argues that the
jurors’ exposure to his criminal history created “a substantial risk that his or her judgment
[would] be affected.” The Defendant argues the trial court erred when it allowed the six
jurors he challenged “to remain on the panel.” The State responds the trial court properly
31
refused to excuse the six jurors at issue for cause based upon its finding that all of the
challenged jurors had satisfactorily testified that they could set aside what they had
previously heard about the Defendant and base their decision for a verdict only on the
evidence presented at trial.
During voir dire, six jurors acknowledged that they had heard or read information
about the Defendant’s prior or unrelated criminal conduct before being summoned for jury
duty:
Juror Matthew West said that his friends at a local car dealership told him that the
Defendant had “bought some cars” from the dealership but had thereafter disappeared. Juror
West said, however, that “if the facts prove [the Defendant] innocent, you know, I could, I
would agree with it.”
Juror Hildegard McLemore said she had read in local newspapers that the Defendant
had used checks that “bounced” to buy cars, but she “believe[d]” she could lay aside anything
she learned about the Defendant before trial.
Juror Janice Millsaps said she had learned through “gossip” among other potential
jurors that the Defendant had “embezzled” money. When asked whether she would “have
any difficulty in returning a not guilty verdict if [she] felt the State didn’t prove its case,”
Juror Millsaps responded, “Well, see, this is all new to me. I don’t really know.” After
further discussion with Juror Millsaps regarding the State’s burden of proof, the trial court
asked the juror whether she would have “any hesitancy in returning a not guilty verdict” if
she felt the State did not prove its case, Juror Millsaps responded, “Probably not.”
Juror Cecilia Fadeley said that she had read and heard about the Defendant’s case and
specifically remembered reading the headline, “Con man having a jury,” in reference to the
Defendant. Regarding what she had heard about the Defendant, Juror Fadeley said, “I just
remember him embezzling money from some people in Sweetwater and taking off with the
daughter of the man.” Juror Fadeley insisted, however, that she could base her decision as
to the Defendant’s guilt only on the evidence presented at trial.
Juror Grady Butler said that he had heard through rumors “something about somebody
kidnapped a lady and took her to Canada or something like that” and that he associated the
Defendant’s name with this incident. Juror Butler said he would have no difficulty
disregarding what he had previously heard about the case in reaching a verdict in the
Defendant’s case.
Juror Elizabeth Davidson said that she had read about the Defendant’s case, which she
32
heard involved “somebody embezzling money or something through Jacky Jones [car
dealership], and then fleeing to Arizona or somewhere.” Juror Davidson associated the
Defendant’s name with the embezzling activity she had heard about. She confirmed,
however, that she could reach an impartial verdict, saying, “I’ve got an open mind on it. I
don’t really have a clue what happened.”
The Defendant challenged each of these six jurors for cause, arguing that each juror’s
pre-trial exposure to the Defendant’s other alleged criminal acts prevented him or her from
reaching an impartial verdict. The trial court refused to remove the jurors for cause, finding
that they had satisfactorily testified that they would reach a decision based only upon the
evidence introduced at trial. The Defendant exercised three of his peremptory strikes to
strike Jurors West, McLemore, and Butler. Juror Fadeley served as an alternate juror, but
Jurors Davidson and Millsaps did not serve on the jury.
Article I, section 9 of the Tennessee Constitution guarantees a criminal defendant the
right to trial “by an impartial jury.” In fact, every accused is guaranteed “a trial by a jury free
of . . . disqualification on account of some bias or partiality toward one side or the other of
the litigation.” State v. Akins, 867 S.W.2d 350, 354 (Tenn. Crim. App. 1993) (citing Tooms
v. State, 270 S.W.2d 649, 650 (Tenn. 1954)). In Tennessee, challenges to juror qualifications
generally fall into two categories: propter defectum, “on account of defect”; or propter
affectum “for or on account of some affection or prejudice.” Carruthers v. State, 145
S.W.3d 85, 94 (Tenn. Crim. App. 2003); Akins, 867 S.W.2d at 355. General disqualifications
such as alienage, family relationship, or statutory mandate are classified as propter defectum
and must be challenged before the return of a jury verdict. Akins, 867 S.W.2d at 355. An
objection based upon bias, prejudice, or partiality is classified as propter affectum and may
be made after the jury verdict is returned. Id. “Where a juror is not legally disqualified or
there is no inherent prejudice, the burden is on the defendant to show that a juror is in some
way biased or prejudiced.” State v. Caughron, 855 S.W.2d 526, 539 (Tenn. 1993) (citing
Bowman v. State, 598 S.W.2d 809, 812 (Tenn. Crim. App. 1980). The defendant bears the
burden of proving a prima facie case of bias or partiality. Id. (citing Taylor, 669 S.W.2d at
700).
Relative to challenges of prospective jurors for cause, Rule 24(b), Tennessee Rules
of Criminal Procedure, provides in part as follows:
Any party may challenge a prospective juror for cause if:
(1) There exists any ground for challenge for cause provided by law; or
(2) The prospective juror’s exposure to potentially prejudicial
information makes him unacceptable as a juror. Both the degree of
33
exposure and the prospective juror’s testimony as to his state of mind
shall be considered in determining acceptability. A prospective juror
who states that he will be unable to overcome his preconceptions shall
be subject to challenge for cause no matter how slight his exposure. If
he has seen or heard and if he remembers information that will be
developed in the course of the trial, or that may be inadmissible but is
not so prejudicial as to create a substantial risk that his judgment will
be affected, his acceptability shall depend on whether his testimony as
to impartiality is believed. If he admits to having formed an opinion,
he shall be subject to challenge for cause unless the examination shows
unequivocally that he can be impartial.
Although jurors may be excluded for cause if they have formed an opinion which will
prevent impartiality, “[j]urors need not be totally ignorant of the facts of the case on which
they sit [and even] the formation of an opinion on the merits will not disqualify a juror if [the
juror] can lay aside [his or her] opinion and render a verdict based on the evidence
presented.” State v. Howell, 868 S.W.2d 238, 249 (Tenn. 1993). The United States Supreme
Court has made the following observation:
In these days of swift, widespread and diverse methods of communication, an
important case can be expected to arouse the interest of the public in the
vicinity, and scarcely any of those best qualified to serve as jurors will not
have formed some impression or opinion as to the merits of the case. This is
particularly true in criminal cases. To hold that the mere existence of any
preconceived notion as to the guilt or innocence of an accused, without more,
is sufficient to rebut the presumption of a prospective juror’s impartiality
would be to establish an impossible standard.
Irvin v. Dowd, 366 U.S. 717, 722-23 (1961). Thus, so long as a juror can set aside any
previously-formed opinions and render a verdict based upon the evidence presented in court,
the juror may properly participate in the case. Id. Irrespective of whether the trial judge
should have excluded the challenged jurors for cause, any possible error is harmless unless
the jury who actually heard the case was not fair and impartial. Howell, 868 S.W.2d at 248;
State v. Thompson, 768 S.W.2d 239, 246 (Tenn. 1989). The failure to correctly excuse a
juror for cause is grounds for reversal only if the defendant exhausts all of his peremptory
challenges and an incompetent juror is forced upon him. Ross v. Oklahoma, 487 U.S. 81, 89
(1988); State v. Jones, 789 S.W.2d 545, 549 (Tenn. 1990).
In the case under submission, the Defendant did, in fact, exhaust all of his peremptory
34
challenges. There is no evidence, however, that the jury who heard the case was not fair and
impartial. This alone prevents him the relief he seeks. As noted above, none of the
challenged prospective jurors actually sat on the Defendant’s jury. Even were their pre-trial
knowledge of the Defendant’s rumored criminal conduct so prejudicial as to require excusal
under Rule 24(b)(2), because the prospective jurors did not ultimately serve on the jury, no
actual bias or prejudice resulted from the trial court’s failure to excuse them for cause.
Further, all of the jurors except one expressed statements of impartiality. Jurors
Fadeley, West, McLemore, Butler, and Davidson unequivocally stated that he or she could
render an impartial verdict. Juror Millsaps, in contrast, repeatedly said she “did not really
know” whether she could remain neutral. Even after the trial court extensively questioned
the juror as to her ability to render an impartial verdict, Juror Millsaps responded only that
she “probably [would] not” hesitate to return a not guilty verdict were the evidence to fall
short of proving the Defendant’s guilt. This statement does not seem to be one of
impartiality, and Juror Millsaps should have been excused. As previously stated, however,
Juror Millsaps did not sit on the jury. We, therefore, conclude that any error is harmless
because the Defendant has not proven that the jury who actually heard the case was not fair
and impartial. See Howell, 868 S.W.2d at 248; Thompson, 768 S.W.2d at 246. He is not
entitled to relief on this issue.
F. State’s Re-call of Witness A.J. Smith to Establish Venue
The Defendant contends the trial court abused its discretion by allowing the State to
re-call witness A.J. Smith to testify that the events about which he had earlier testified
occurred in Monroe County. The Defendant argues that allowing the State to re-call Smith
was improper because it allowed Smith to add to his original testimony rather than merely
clarify a misstatement in his original testimony. The Defendant contends that re-calling
Smith after the trial court dismissed Counts One through Four for failure to establish venue
gave the State the opportunity to inform the witness, whose property lay in three counties,
of its failure to prove venue for Counts One through Four.
The State responds that, even if the trial court abused its discretion in allowing the
State to re-call witness Smith, the error was harmless because Smith was re-called “for the
limited purpose of clarifying venue.”
The trial court has discretion in determining whether it will allow a party to recall a
witness, and it does not constitute error absent an abuse of discretion. State v. Reid, 213
S.W.3d 792, 845 (Tenn. 2006); Lillard v. State, 528 S.W.2d 207, 212 (Tenn. Crim. App.
1975). We note that this court has upheld a trial court’s decision to allow the State to reopen
its case specifically to present proof of venue. See Clariday v. State, 552 S.W.2d 759, 770-
35
71 (Tenn. Crim. App. 1977); State v. Robert Glen Grissom, No. 02C01-9204-CC-00076,
1993 WL 64276, *4 (Tenn. Crim. App., at Jackson, Mar. 10, 1993), no Tenn. R. App. P. 11
application filed; State v. H.B. Calhoun, No. 278, 1990 WL 120114, *1 (Tenn. Crim. App.,
at Knoxville, Aug. 21, 1990), perm. app. denied (Tenn. Dec. 10, 1990).
When victim A.J. Smith testified at trial about the contemplated land sale that led to
the charges in this case, he specified neither the county in which he initially met with the
Defendant nor the county in which the Defendant gave him fraudulent checks. At the close
of the State’s proof, the trial court allowed the State to reopen its proof and re-call Smith to
testify in order to “clarify location and venue.” Smith explained that the Monroe County and
Loudon County dividing line lies on his property. He testified that his house, where he and
the Defendant initially met, was in Loudon County and that the farm building, where the
Defendant gave him the fraudulent checks, was in Monroe County. He testified that his
office and his house are approximately one mile apart.
The Defendant suggests that the State had the opportunity to “coach” Mr. Smith
before he was recalled, instructing him to testify that the Defendant gave him the checks at
issue while the two were standing in Monroe County. We find nothing in the record to
support the Defendant’s assertion that the State coached witness Smith, and we do not find
the circumstances surrounding the State’s request to recall witness Smith to be otherwise
suspicious. Thus, we conclude that the trial court did not abuse its discretion when it allowed
the State to recall Mr. Smith. The Defendant is not entitled to relief on this issue.
G. Proof of Venue
The Defendant contends the evidence was insufficient to establish that the events
alleged in Counts Five through Eight occurred in Monroe County. He argues that proof of
venue was “tenuous at best” because it was based on Mr. Smith’s testimony that his farm
building was “just over” the Monroe County line and that he paid property taxes on the
building to Monroe County. As such, the Defendant contends, the State failed to properly
establish venue.
The State responds that witness Smith’s testimony established by a preponderance of
the evidence that his office building was in Monroe County and that, as such, the record
supports the trial court’s determination that venue was proper in Monroe County.
“Proof of venue is necessary to establish the jurisdiction of the court, but it is not an
element of any offense and need only be proved by a preponderance of the evidence.” State
v. Young, 196 S.W.3d 85, 101 (Tenn. 2006) (quoting State v. Hutcherson, 790 S.W.2d 532,
535 (Tenn. 1990) and citing T.C.A. § 39-11-201(e)). “Venue is a question for the jury and
36
may be proven by circumstantial evidence.” Id. at 101-02 (internal citations omitted).
“Slight evidence” satisfies the State’s burden if the evidence is uncontradicted. State v.
Bennett, 549 S.W.2d 949, 951 (Tenn. 1977). In determining venue, the jury is entitled to
draw reasonable inferences from the evidence. Young, 196 S.W.3d at 102.
As discussed above, on direct examination, Mr. Smith testified that the Defendant
gave him fraudulently altered checks during business meetings conducted in a farm building
on Mr. Smith’s property. He did not specify the county in which the farm building was
located. When the State re-called Mr. Smith at the close of its proof, Mr. Smith testified that
his property was located in both Loudon and Monroe Counties, but that his farm building,
for which he paid a property tax to Monroe County, lay just inside Monroe County.
Having concluded that the trial court properly allowed the State to recall witness
Smith in order to establish venue, we consider Mr. Smith’s testimony on recall in evaluating
the strength of the evidence supporting venue. The record contains adequate proof to
establish by a preponderance of the evidence that venue was properly established as Monroe
County: Mr. Smith testified that the office building where he and the Defendant were
meeting when the Defendant gave him the checks at issue was located in Monroe County.
Although this testimony alone satisfied the State’s burden of establishing venue, Mr. Smith’s
further testimony that he paid property taxes on the office building to Monroe County gave
further evidentiary support to the transaction having occurred in Monroe County. We
conclude that the evidence does not preponderate against the jury’s finding that Counts Five
through Eight took place in Monroe County. The Defendant is not entitled to relief on this
issue.
H. Jury Instructions
The Defendant contends the trial court failed to provide the jury with a “correct and
complete charge of the law” in the following ways: (I) instructing the jury that the “apparent
value” of the checks at issue determined the value range of the Defendant’s alleged
commission of forgery and that, as such, the value range of the checks was “over $60,000”
for sentencing purposes; (ii) failing to include an instruction on facilitation, attempt; or the
unauthorized use or possession of a credit card; and (ii) instructing the jury that all witnesses
were presumed to be truthful. We address each contention in turn.
A trial court has the duty, in criminal cases, to fully instruct the jury on the general
principles of law relevant to the issues raised by the evidence. See State v. Burns, 6 S.W.3d
453, 464 (Tenn. 1999); State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); State v. Elder,
982 S.W.2d 871, 876 (Tenn. Crim. App. 1998). Nothing short of a “clear and distinct
exposition of the law” satisfies a defendant’s constitutional right to trial by jury. State v.
37
Phipps, 883 S.W.2d 138, 150 (Tenn. Crim. App. 1994) (quoting State v. McAfee, 737 S.W.2d
304 (Tenn. Crim. App. 1987) (quoting Strady v. State, 45 Tenn. 300, 307 (1868))). In other
words, the court must instruct the jury on those principles closely and openly connected with
the facts before the court, which are necessary for the jury’s understanding of the case.
Elder, 982 S.W.2d at 876. Because questions of the propriety of jury instructions are mixed
questions of law and fact, our standard of review here is de novo, with no presumption of
correctness. State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001); State v. Smiley, 38 S.W.3d
521, 524 (Tenn. 2001).
Generally, “a defendant has a constitutional right to a correct and complete charge of
the law.” State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990), superceded by statute on other
grounds as stated in State v. Reid, 91 S.W.3d 247 (Tenn. 2002). When reviewing jury
instructions on appeal to determine whether they are erroneous, this Court should “review
the charge in its entirety and read it as a whole.” State v. Hodges, 944 S.W.2d 346, 352
(Tenn. 1997) (citing State v. Stephenson, 878 S.W.2d 530, 555 (Tenn. 1994)). The
Tennessee Supreme Court, relying on the words of the United States Supreme Court, has
noted that:
[J]urors do not sit in solitary isolation booths parsing instructions for subtle
shades of meaning in the same way that lawyers might. Differences among
them in interpretation of instructions may be thrashed out in the deliberative
process, with commonsense understanding of the instructions in the light of all
that has taken place at the trial likely to prevail over technical hairsplitting.
Id. (quoting Boyde v. California, 494 U.S. 370, 380-81 (1990)). A jury instruction is
considered “prejudicially erroneous,” only “if it fails to fairly submit the legal issues or if it
misleads the jury as to the applicable law.” Id. Even if a trial court errs when instructing the
jury, such instructional error may be found harmless. State v. Williams, 977 S.W.2d 101, 104
(Tenn. 1998).
1. Apparent versus Actual Value
The Defendant contends that the trial court erroneously instructed the jury that the
range of the Defendant’s offenses for sentencing purposes would depend upon the “apparent
value” of the checks passed in this case whereas, the Defendant argues, the actual value of
the checks determines the value range of the Defendant’s convictions.
The State, citing State v. Odom, responds that the “apparent” value of a forged object
is the proper value upon which to determine the value range of a theft-related conviction and
that, as such, the trial court correctly instructed the jury to consider the apparent value of the
38
checks in this case. State v. Odom, 64 S.W. 370, 374 (Tenn. 2001).
In Odom, the Tennessee Supreme Court held that, because the Legislature intended
to punish both forgery and criminal simulation “according to the apparent value” of the
writing forged of the object made or altered, “the references to the theft statute . . . require
grading the crimes of forgery and criminal simulation according to the apparent value of the
writing or object . . . .” Id.
In this case, the trial court informed the jury that if it found the Defendant guilty of
forgery it would then be tasked with fixing “the range of value” of the forged item. Based
on this range of value, the jury would then use the theft grading statute to determining the
class level of the offense for sentencing purposes and sentence the Defendant. It instructed
the jury that the “value of property in a forged count is the apparent value of the writing
forged or the object made or altered.” The trial court cautioned the jury that the State had the
burden of proving the value of the forged object beyond a reasonable doubt. The trial court
issued the same instruction on fixing the range of value for the offenses of criminal
simulation.
Reviewing the record de novo with no presumption of correctness, we find no error
in the trial court’s jury instruction about the value to be considered in setting the value range
of the Defendant’s forgery and criminal simulation convictions. The trial court’s instruction
that the jury should consider the “apparent” value of the forged and altered items is squarely
in line with Odom’s mandate. See id. As such, we conclude that the trial court’s instruction
was nothing short of a “clear and distinct exposition of the law” and that, as such, the trial
court properly instructed the jury in this respect. See Phipps, 883 S.W.2d at 150. The
Defendant is not entitled to relief on this issue.
2. Omission of Instruction on Facilitation, Attempt,
and Fraudulent Use of a Credit Card
The Defendant contends the trial court erred when, based on its finding that “an actual
passing” of the checks took place in this case, it declined to instruct the jury on the lesser
included offenses of facilitation and attempt. The Defendant argues that, because Ms. Turpin
suffered no pecuniary loss and the Defendant received no pecuniary gain, the proof at trial
would have supported a conviction for attempted forgery or criminal simulation.
The Defendant also argues the trial court erred when, based on its finding that “the
unauthorized use or possession of a credit card” was not charged in the indictment and did
not appear on the list of lesser-included offenses of forgery, it declined to instruct the jury
on said offense. He argues that the unauthorized use or possession of a credit card is a lesser
39
included offense of forgery and that, because the proof showed that “no property, credit,
goods, or services [were] actually received or obtained,” the proof supported an instruction
on the unauthorized use or possession of a credit card. The Defendant does not, however,
address whether the credit card law applies where, as here, a credit card check is used.
The State responds that the trial court properly refused to give instructions on
facilitation and attempt because the evidence demonstrated that the checks in this case were
actually passed. It responds that the trial court correctly refused to instruct the jury on the
unauthorized use or possession of a credit card.
A trial judge has a mandatory duty to instruct the jury on all lesser included offenses
of the offense charged that are supported by the evidence. State v. Burns, 6 S.W.3d 453, 467,
470 (Tenn. 1999). Both attempt and facilitation are lesser included offenses of the completed
offenses of forgery and criminal simulation. Id. A person is criminally responsible for the
facilitation of a felony if, “knowing that another intends to commit a specific felony, but
without the intent required for criminal responsibility under § 39-11-402(2), the person
knowingly furnishes substantial assistance in the commission of the felony.” T.C.A. §
39-11-403 (2009). The circumstances under which it is error not to charge attempt and
facilitation are narrow. State v. Banks, 271 S.W.3d 90, 127 (Tenn. 2008). With regard to
attempt, which is an inchoate offense, where the evidence clearly establishes the completion
of the crime, it is unnecessary for the trial court to charge the jury as to attempt. Id.
The State presented evidence that clearly established the completion of all four of the
charged offenses. The Defendant committed two acts of forgery when he executed two
checks without Ms. Turpin’s authorization, and he committed two acts of criminal simulation
when he altered the checks to appear to be from the account of “Mr. Jamie Turpin” rather
than “Ms. Jamie Turpin.” Because the evidence does not suggest that the crimes were
attempted but not completed, the record does not support an instruction on attempt. See
Banks, 271 S.W.3d at 127. The Defendant neither presented evidence nor elicited testimony
on cross-examination suggesting the applicability of facilitation of the forgeries and criminal
simulations. Because facilitation was not fairly raised by any proof submitted at trial, the
trial court had no duty to instruct the jury with respect to it. See Burns, 6 S.W.3d at 470. As
such, we conclude that the omission of attempt and facilitation instructions from the jury
instructions in this case did not prevent the instructions from being a “correct and complete
charge of the law.” See Teel, 793 S.W.2d at 249.
The Defendant next contends that fraudulent use of a credit card is a lesser included
offense of forgery and that, as such, the trial court should have instructed the jury on
fraudulent use of a credit card. In Burns, the Tennessee Supreme Court adopted a test for
determining whether a particular offense is a lesser included offense of another offense.
40
State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999). Where the offense is not attempt,
facilitation, or solicitation, which are all lesser included offenses of the completed or
principle offense, an offense is lesser included where:
(a) all of its statutory elements are included within the statutory elements of the
offense charged; or
(b) it fails to meet the definition in part (a) only in the respect that it contains
a statutory element or elements establishing
(1) a different mental state indicating a lesser kind of culpability; and/or
(2) a less serious harm or risk of harm to the same person, property or
public interest
Id.
Tennessee Code Annotated section 39-14-114 (2006) provides that a person commits
forgery where he or she “forges a writing with intent to defraud or harm another.” “Forge”
means 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.” T.C.A. § 39-14-114(b)(1)(A)(I)
(2006). Forgery is a Class C felony if the amount involved is between $10,000 and $60,000,
and forgery is a Class B felony if the amount involved is $60,000 or more. T.C.A. §§
39-14-105, -114© (2006).
“A person commits the crime of illegal possession of a credit or debit card who,
knowing the person does not have the consent of the owner or issuer, takes, exercises control
over or otherwise uses such card or information from such card.” T.C.A. § 39-14-118(a)
(2006). Fraudulent use of a credit card is punishable as theft pursuant to Tennessee Code
Annotated section 39-14-105 depending on the amount of property, credit, goods, or services
obtained. T.C.A. § 39-14-118(c)(1). If no property, credit, goods, or services is actually
received or obtained, fraudulent use of a credit card is a Class B misdemeanor for offenses
committed prior to May 1, 2008, and a Class A misdemeanor for offenses committed on or
after that date. T.C.A. § 39-14-118(c)(2).
Applying part (a) of the test announced in Burns, we first examine whether all of the
statutory elements of the fraudulent use of a credit card are included within the statutory
elements of forgery. Neither of the parties on appeal addresses whether the offense of the
fraudulent use of a credit card requires that the accused have used a credit card rather than
a check from a credit account. The language of Tennessee Code Annotated section 39-14-
118(a) criminalizes the fraudulent use of a “credit or debit card.” “When the statutory
language is clear and unambiguous, we must apply its plain meaning in its normal and
accepted use, without a forced interpretation that would limit or expand the statute’s
41
application.” Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). In such
a case, our obligation is to enforce the written language without reference to the broader
statutory intent, the history of the legislation, or other sources. Abels ex rel. Hunt v. Genie
Indus. Inc., 202 S.W.3d 99, 102 (Tenn. 2006). In our view, the language of Tennessee Code
Annotated section 39-14-118(a) is “clear and unambiguous.” Therefore, we apply the plain
meaning of “credit or debit card” in determining the statutory elements of the fraudulent use
of a credit card. See Eastman Chem Co., 151 S.W.3d at 507. We do not think it accidental
that the Legislature used the language “credit or debit cards” rather than the language “any
instrument relating to a credit or debit account.” Though a credit card and a credit card check
are both drawn from a credit account, they are distinct instruments with distinct methods of
use and access. Thus, interpreting the plain meaning of section 39-14-118(a), we conclude
that the offense of fraudulent use of a credit card includes the statutory element of the use of
a card. The use of a check or other instrument relating to a credit or debit account will not
suffice to satisfy this statutory element.
Given our holding that the use of an actual credit card is a statutory element of the
fraudulent use of a credit card, it is clear that the offense of forgery, which requires only that
a person forge a writing with the intent to defraud another, does not include all the statutory
elements of the fraudulent use of a credit card. See T.C.A. § 39-14-114. Thus, the fraudulent
use of a credit card fails to meet the definition in part (a) of the Burns test for lesser included
offenses. See Burns, 6 S.W.3d at 466. Further, we perceive no way in which the use of a
credit card, which is the statutory element absent from the offense definition of forgery,
establishes either “a differing mental state” or “a less serious harm or risk of harm to the
same person, property or public interest” for the offense of the fraudulent use of a credit card.
See id. Having examined the Burns factors, we conclude that the fraudulent use of a credit
card is not a lesser-included offense of forgery. Thus, the trial court did not err when it
declined to charge the jury on the elements of the fraudulent use of a credit card. The
Defendant is not entitled to relief on this issue.
3. Instruction on Presumed Truthfulness of All Testifying Witnesses
The Defendant argues that the trial court’s instruction that all witnesses are presumed
to be truthful undermines his constitutional right to not testify against himself and his right
against arguments that his decision to not testify should be taken as an inference of guilt.
The State responds that this Court has held that an instruction that every witness is
presumed truthful does not violate the United States or Tennessee Constitution. See State
v. Torrance Johnson, No. 02C01-9610-CR-0030, 1998 WL 32687, at *4 (Tenn. Crim. App.,
at Jackson, Jan. 30, 1998) (citing Lundy v. State, 752 S.W.2d 98, 104 (Tenn. Crim. App.
1987)), perm. app. denied (Tenn. Nov. 2, 1998); and State v. Glebock, 616 S.W.2d 897, 906
42
(Tenn. Crim. App. 1981)).
A criminal defendant’s rights against involuntary self-incrimination includes the right
not to testify against oneself and the right against inferences of guilt being drawn therefrom.
The Defendant in this case argues that the instruction that every witness was presumed
truthful “infringed on his constitutional right” against involuntary self-incrimination and was
an “improper comment on the evidence by the trial court.” However, where a jury is charged
“fully and explicitly on the presumption of innocence and the State’s duty to prove guilt
beyond a reasonable doubt,” an instruction that all testifying witnesses are presumed truthful
is “constitutionally sound.” Lundy v. State, 752 S.W.2d 98, 103 (Tenn. Crim. App. 1987).
See State v. Glebock, 616 S.W.2d 897, 906 (Tenn. Crim. App. 1981) (citing Cupp v.
Naughton, 414 U.S. 141 (1973)).
In this case, the trial court instructed the jury on the issue of reasonable doubt on each
charged offense and all applicable lesser included offenses. The trial court also instructed
the jury on the burden of proof imposed upon the State to rebut the Defendant’s presumption
of innocence and the obligation of the State to prove him guilty beyond a reasonable doubt.
We conclude that the trial court “fully and explicitly” charged the jury on the Defendant’s
presumption of innocence and the State’s burden of proving the charges beyond a reasonable
doubt. As such, the trial court’s instruction that all testifying witnesses were presumed
truthful did not violate the Defendant’s right against involuntary self-incrimination and was
not an improper commentary upon the evidence. See Lundy, 752 S.W.2d at 103. The
Defendant is not entitled to relief on this issue.
I. Sufficiency of the Evidence
The Defendant contends the evidence is not sufficient to support his convictions for
forgery and criminal simulation. We will address his specific contentions, and the State’s
responses, below.
When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,
“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); see Tenn. R. App. P.
13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This rule 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). In determining the
sufficiency of the evidence, this Court should not re-weigh or re-evaluate the evidence. State
v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this Court substitute
43
its inferences for those drawn by the trier of fact from the evidence. State v. Buggs, 995
S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956).
“Questions concerning the credibility of the witnesses, the weight and value of the evidence,
as well as all factual issues raised by the evidence are resolved by the trier of fact.” State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at 859. “A guilty verdict by
the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the theory of the State.” State v. Cabbage, 571 S.W.2d 832,
835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn. 1973). The Tennessee
Supreme Court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given
to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view
of the evidence contained in the record, as well as all reasonable inferences which may be
drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant
bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).
1. Evidence Supporting the Defendant’s Convictions for Forgery
The Defendant contends the evidence was insufficient to support his convictions for
forgery because the evidence showed neither that he acted “without authorization” nor that
he acted “with the intent to defraud” Jamie Turpin.
To support the Defendant’s forgery conviction in this case, the State had to prove
beyond a reasonable doubt that he forged a writing with the intent to defraud or harm
another. See T.C.A. § 39-14-114(a) (2006). A writing is forged when it is completed or
executed so that it purports to be the act of another who did not authorize the act. T.C.A. §
39-14-114(b)(1)(A)(I).
a. “Without Authorization” Element
44
The Defendant argues that, pursuant to the doctrine of “cancellation,” witness
Turpin’s testimony that she authorized the Defendant to use her credit card checks cancelled
out her testimony that she did not authorize the Defendant to use her checks. He argues that,
because these conflicting statements were the only evidence offered to prove he acted
without authorization, the proof was insufficient to establish this element, and his conviction
should be reversed.
The State responds that the rule of cancellation did not require the jury to discount Ms.
Turpin’s testimony because other portions of Ms. Turpin’s testimony explained the apparent
contradiction. It argues that Ms. Turpin’s testimony that she was scared of the Defendant and
that he asked to use her checks and told her not to ask any questions explains her apparently
contradictory testimony that she allowed the Defendant to use her checks for groceries but
“did not authorize” the Defendant to use her checks for anything other than groceries.
Contradictory statements made by a witness as to the same fact, in some
circumstances, can cancel each other out. State v. Caldwell, 977 S.W.2d 110, 118 (Tenn.
Crim. App. 1997). However, this rule applies only when inconsistency in a witness’s
testimony is unexplained and when neither version of his testimony is corroborated by other
evidence. Id.
In the present case, Ms. Turpin testified that she received the checks in this case from
her credit card company and that the Defendant, of whom she was frightened, told her he
needed the checks. Ms. Turpin gave the Defendant the checks, expecting that the Defendant
would use the checks for living expenses, such as groceries. At trial, Ms. Turpin reviewed
the checks written to Mr. Smith and testified she did not authorize the Defendant to write the
checks to Mr. Smith.
Initially, we note the problem with the voluntariness of the consent Ms. Turpin gave
the Defendant. The record is clear that the Defendant employed a variety of tactics to
manipulate Ms. Turpin into giving him control over her credit and checking accounts. Thus,
Ms. Turpin’s bare act of allowing the Defendant to use her checks to pay miscellaneous
living expenses was, in a sense, not wholly informed and voluntary. In this sense alone, Ms.
Turpin’s testimony belies the Defendant’s insistence that he acted with her authorization in
writing the checks to Mr. Smith.
Further, Ms. Turpin did not contradict herself when she testified at trial. Even
assuming that her authorization to use the checks for groceries was valid for purposes of the
forgery statute, this authorization had reasonable limits. The scope of the authorization Mr.
Turpin gave the Defendant to use her checks did not include writing checks in the amounts
45
of $250,000 and $27,000,000. Therefore, in our view, rather than being contradictory, Ms.
Turpin’s testimony describes the scope of the consent she gave the Defendant to use her
credit card checks. She had, in essence, fearfully assented to the Defendant’s demand to use
her checks but had never contemplated that he would write checks on her account in excess
of $25,000,000, thus making his use of the checks “without authorization.” We conclude
that Ms. Turpin’s testimony was not contradictory. However, insofar as the testimony was
facially contradictory, we conclude that Ms. Turpin’s testimony, as a whole, explains these
apparent contradictions. As such, the evidence supports the jury’s finding beyond a
reasonable doubt that the Defendant acted without Ms. Turpin’s authorization. See Caldwell,
977 S.W.2d at 118. The Defendant is not entitled to relief on this issue.
b. “Intent to Defraud” Element
The Defendant argues the State failed to prove beyond a reasonable doubt that the
Defendant acted with the intent to defraud Jamie Turpin. He contends that the
“ridiculousness of the amounts assigned to the credit card checks belies any attempt to
defraud Ms. Turpin,” emphasizing that Mr. Smith never cashed the checks given to him by
the Defendant and that Ms. Turpin was never required to pay for the checks written on her
account.
The State responds that, by signing Jamie Turpin’s name to the checks at issue, the
Defendant had the requisite intent to defraud another.
The record is clear that the Defendant possessed the intent to defraud both Ms. Turpin
and Mr. Smith. The evidence viewed in the light most favorable to the State first shows that
the Defendant cultivated a romantic relationship with Ms. Turpin over the course of several
months, during which time he convinced Ms. Turpin that both she and her family were in
danger of being attacked by the mob. The Defendant used both his romantic relationship and
the fear he had instilled in Ms. Turpin to induce Ms. Turpin not only to give him access to
her credit and checking accounts, but also to allow him to create new accounts in her name.
By the time Ms. Turpin received the credit card checks in this case from her Canadian bank,
the Defendant had already woven an intricate web of lies that led Ms. Turpin to believe that
the Defendant was only borrowing money from her long enough to extricate not only himself
but also Ms. Turpin and her family from the danger they faced from his mob ties.
Unbeknownst to Ms. Turpin, the Defendant had no way of repaying Ms. Turpin. Operating
under his guise, the Defendant was easily able to induce Ms. Turpin to give him access to her
credit card checks. With the same intent to defraud Ms. Turpin that he possessed during their
entire relationship, the Defendant wrote the checks at issue in this case, intending that any
charges or fees that resulted from these checks would be charged to Ms. Turpin.
46
Second, the evidence shows that the Defendant wrote the checks at issue in this case,
knowing that the accounts from which the checks were written did not contain sufficient
funds to cover the checks. The amount in which the checks were written unquestionably
raises the question of whether the Defendant could reasonably have expected that the checks
would pass, and Mr. Smith would give him title to the farm. However, in assessing the
mental state possessed by a defendant when taking a particular course of action, we are not
tasked with determining whether the mental state was objectively reasonable. Rather, we are
tasked with determining whether the defendant actually possessed the relevant mental state.
In this case, we conclude that the Defendant gave the checks to Mr. Smith with the intent that
Mr. Smith would believe the checks were legitimate and, in turn, would give him the benefit
of ownership of the farm. Further, though the Defendant argues his intent to defraud is not
obvious from the record because Mr. Smith never deposited the checks, the record shows
that, after the Defendant gave Mr. Smith the checks, the Defendant received the benefit of
living on Mr. Smith’s property for several weeks. Thus, we conclude that the record also
supports the conclusion that the Defendant wrote the checks in this case with the additional
intent of defrauding Mr. Smith into allowing him to live on the farm, while he knew the
checks he wrote Mr. Smith would never be paid.
In summary, the record amply supports the statutory element of “intent to defraud”
in this case. As such, we conclude that the evidence was sufficient to support a finding
beyond a reasonable doubt by the jury that the Defendant was guilty of two counts of forgery.
Goodwin, 143 S.W.3d 771, 775. He is not entitled to relief on this issue.
2. Evidence Supporting the Defendant’s Convictions for Criminal Simulation
The Defendant attacks the sufficiency of the counts of the indictment charging him
with criminal simulation, the proof supporting the elements of criminal simulation, and the
applicability of the offense of criminal simulation given that, in his view, his conduct is
proscribed elsewhere in Tennessee’s criminal code.
The Tennessee Code defines the offense of criminal simulation as follows:
(1) A person commits the offense of criminal simulation who, with intent to
defraud or harm another:
(A) Makes or alters an object, in whole or in part, so that it appears to
have value because of age, antiquity, rarity, source or authorship
that it does not have;
(B) Possesses an object so made or altered, with intent to sell, pass or
otherwise utter it; or
47
© Authenticates or certifies an object so made or altered as genuine or
as different from what it is.
(2) A person commits the offense of criminal simulation who, with knowledge
of its character, possesses:
(A) Any machinery, plates or other contrivances designed to produce
instruments reporting to be credit or debit cards of an issuer who
had not consented to the preparation of the cards; or
(B) Any instrument, apparatus or contrivance designed, adapted or used
for commission of any theft of property or services by fraudulent
means.
T.C.A. § 39-14-115(a) (2006).
a. Sufficiency of the Indictment
The Defendant contends that the counts of the Indictment charging him with criminal
simulation did not allege the essential elements of criminal simulation and, thus, that the
Indictment did not comply with State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991).
An indictment must state the facts of the offense in ordinary and concise language “in
such a manner as to enable a person of common understanding to know what is intended.”
See T.C.A. § 40-13-202.An accused is constitutionally guaranteed the right to be informed
of the nature and cause of the accusation. State v. Lindsey, 208 S.W.3d 432, 437-38 (Tenn.
Crim. App. 2006) (citing U.S. Const. amend. 6, 14; Tenn. Const. art. I, § 9; see Wyatt v.
State, 24 S.W.3d 319, 324 (Tenn. 2000)). An indictment meets constitutional requirements
if it provides sufficient information to: (1) enable the accused to know the accusation to
which an answer is required, (2) furnish the court an adequate basis for the entry of a proper
judgment; and (3) protect the accused from double jeopardy. State v. Hill, 954 S.W.2d 725,
727 (Tenn. 1997). Further, an indictment is statutorily required to “state the facts
constituting the offense in ordinary and concise language, without prolixity or repetition, in
such a manner as to enable a person of common understanding to know what is intended, and
with that degree of certainty which will enable the court, on conviction, to pronounce the
proper judgment.” Id. (citing T.C.A. § 40-13-202). An indictment need not conform to strict
pleading requirements. State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997).
Count Six of the indictment in this case charged:
On or about the 19th day of February, 2008, in Monroe County, Tennessee, and
48
before the finding of this indictment, [the Defendant] did unlawfully and
intentionally, or knowingly, with intent to defraud or harm another, make or
alter an object in whole or in part, to wit: a check numbered “1000,” so that the
object did appear to have a value of more than [$60,000] in violation of T.C.A.
39-14-115, all of which is against the peace and dignity of the State of
Tennessee.
Count Eight of the Indictment charged:
On or about the 19th day of February, 2008, in Monroe County, Tennessee, and
before the finding of this indictment, [the Defendant] did unlawfully and
intentionally, or knowingly, with intent to defraud or harm another, make or
alter an object in whole or in part, to wit: a check numbered “1001,” so that the
object did appear to have a value of more than [$60,000] in violation of T.C.A.
39-14-115, all of which is against the peace and dignity of the State of
Tennessee.
The Defendant argues that, because Counts Six and Eight did not allege that the
checks were altered to appear to have value “because of age, antiquity, rarity, source or
authorship that [they] did not have,” the indictment did not provide the Defendant with
sufficient notice of the charge or the trial court with adequate ground upon which to enter a
judgment. We cannot agree that the indictment in this case was deficient.
We conclude the indictment in this case gave the Defendant sufficient notice of the
charges the State intended to pursue. First, Counts Six and Eight set out the date on which
the Defendant was alleged to have written the checks in issue, the amount in which he was
alleged to have written the checks, and the serial number appearing on each of the checks he
was alleged to have written. Thus, Counts Six and Eight stated the facts constituting the
offense in “ordinary and concise language.” See Lindsey, 208 S.W.2d at 438. Further, the
counts cited the specific code section codifying the offense of criminal simulation. This
reference, coupled with the counts’ allegation that the Defendant, with the intent to defraud,
“ma[d]e or alter[ed] an object in whole or in part” gave the Defendant notice that the State
planned to prosecute him under subsection (a)(1)(A) of the section describing criminal
simulation. The omission of the remaining language of subsection (a)(1)(A) (that the
appearance of value was due to “age, antiquity, rarity, source or authorship that [the object]
did not have ”) from Counts Six and Eight did not prevent the counts from furnishing the
Defendant with sufficient notice of the offense charged and the trial court with adequate
ground upon which to enter its judgment. See Hill, 954 S.W.2d at 727. We conclude,
therefore, that the indictment in this case adequately informed the Defendant of the nature
and cause of the accusations against him. See Lindsey, 208 S.W.2d at 438.
49
b. Element of “Alteration”
The Defendant next contends that, by changing the checks from “Ms. Jamie Turpin”
to “Mr. Jamie Turpin,” he did not “alter” the checks so that they appeared to have value
“because of age, antiquity, rarity, source or authorship that [they] did not have.” He also
argues that a check written on a credit account in the amount of $27,000,000 could not
reasonably “appear to have value.”
The State responds that, by changing the “Ms.” to “Mr.,” the Defendant made it
appear that he owned the checks and that he had the authority to write the checks, thereby
giving the checks a value that they did not have. As such, it argues that the proof supports
his convictions for criminal simulation.
In order to prove the Defendant’s guilt of criminal simulation, the State had to prove
beyond a reasonable doubt that the Defendant “[made] or alter[ed] an object, in whole or in
part, so that it appear[ed] to have value because of age, antiquity, rarity, source or authorship
that it did not have.” T.C.A. § 39-14-115(a)(1)(A).
In this case, the Defendant adopted the alias of “Jamie Turpin” in his dealings with
Mr. Smith. He told Mr. Smith that he possessed vast financial resources as a result of an
inheritance he had recently received and from the sale of a home in Canada. Based on these
representations of wealth, Mr. Smith agreed to sell the Defendant his farm. The Defendant
procured credit card checks from the actual Jamie Turpin. These credit card checks were
printed with the name, “Ms. Jamie Turpin,” indicating that the payor of the check was Ms.
Jamie Turpin. Using a pen, the Defendant changed the “s” to an “r,” thereby making the
checks appear to be written from the account of a “Mr.” Jamie Turpin. The Defendant gave
these checks to Mr. Smith in connection with the contemplated sale of Mr. Smith’s farm to
the Defendant.
By changing the “Ms.” to “Mr.” on the checks in this case, the Defendant “altered”
the checks so that he appeared to be the payor, i.e. the “source” or “author” of the checks,
whereas the true payor was Ms. Jamie Turpin. The Defendant by this time had expended
considerable effort in convincing Mr. Smith that he had sufficient financial resources to buy
Mr. Smith’s farm. By altering the checks so that he appeared to be the payor, the Defendant
made the checks appear to be backed by sufficient funds, the funds he had falsely represented
to Mr. Smith that he had received by inheritance and through the sale of a home. Given the
multiple misrepresentations made by the Defendant it becomes clear that, by altering the
gender of the payor of the checks at issue in this case, the Defendant indeed altered the
checks so that they “appear[ed] to have value because of age, antiquity, rarity, source or
authorship that it did not have.” See T.C.A. § 39-14-115(a)(1)(A).
50
As to the Defendant’s argument that the credit checks could not “reasonably” have
appeared to have their stated values, we note that an accused need not alter an object so that
it “reasonably” appears to have a value due to its authorship or source. See T.C.A. § 39-14-
115(a)(1)(A). The absurd or unreasonable amount of the value to which an accused alters
an object does not prevent the conduct from being criminal under section 39-14-
115(a)(1)(A). As such, we conclude that the evidence sufficiently supports the jury’s finding
that the Defendant “altered” the checks in this case within the meaning of the statute
codifying criminal simulation. He is not entitled to relief on this issue.
c. Codification of Alleged Conduct Elsewhere in Criminal Code
The Defendant offers State v. Mark Walker in support of his contention that the
offense of criminal simulation is not applicable to the facts of this case because his alleged
conduct is “expressly codified elsewhere in the criminal code.” No. M2001-00341-CCA-R3-
CD, 2001 WL 1558515, *8 (Tenn. Crim. App., at Nashville, July 16, 2002), no Tenn. R. App.
P. 11 application filed.
In Walker, this Court explained that the intended purpose of the criminal simulation
statute is “to prohibit theft by fraudulently passing counterfeit objects.” As a consequence,
we held that the Legislature did not intend criminal simulation to be applied where theft or
financial gain does not appear to be the purpose of the use of the counterfeit object. We
emphasized that, where such conduct that does not involve theft is otherwise codified in the
criminal code, criminal simulation is especially inapplicable. Under the facts of Walker, we
concluded that, because the defendant merely presented an officer with a fraudulent I.D.
intending to defraud him into believing the I.D. was authentic, the defendant did not commit
criminal simulation. This Court stated, “[T]he false identifications possessed by the
defendant d[id] not have the type of value contemplated by the [criminal simulation] statute.”
In explaining our conclusion, we also emphasized that the defendant’s conduct was expressly
codified elsewhere in the criminal code as “criminal impersonation.”
In the present case, the Defendant used the counterfeit checks in order to induce Mr.
Smith into proceeding with the sale of Mr. Smith’s farm as contemplated. As part of their
contemplated agreement, Mr. Smith agreed to allow the Defendant and Ms. Poe to live on
a house located on the farm. Thus, the Defendant’s use of the counterfeit checks was for the
purpose of obtaining the financial gain, in the form of immediate use and possession of the
house located on the farm and, eventually, ownership of the farm itself. We conclude that
the counterfeit checks used by the Defendant had the “type of value contemplated by the
[criminal simulation] statute,” and the Defendant used the checks for financial gain. Thus,
the criminal simulation statute applies to the Defendant’s conduct in this case.
51
Further, the Defendant fails to cite to a specific portion of the criminal code that
criminalizes the Defendant’s conduct apart from the criminal simulation statute. Given the
applicability of the criminal simulation statute to the facts of the case and the absence of any
other provision criminalizing the Defendant’s conduct, we conclude that the application of
the criminal simulation statute to the Defendant’s conduct in this case is in keeping with the
Legislature’s intent. See Walker, 2001 WL 1558515, *8. The Defendant is not entitled to
relief on this issue.
J. State’s Compliance with Notice Provisions of Tennessee Rule of Criminal
Procedure 16
The Defendant contends the trial court erred when it denied his motion for new trial
based on the State’s failure to comply with Tennessee Rule of Criminal Procedure 16 by
withholding the Defendant’s letters, which the Monroe County Sheriff’s Department
intercepted while the Defendant was jailed in Monroe County. He argues that before trial
the State either knew or, through the exercise of reasonable diligence, should have known
that the Sheriff’s Department was intercepting his mail. He contends that the State’s failure
to produce these letters, several of which were written to attorneys, violated Rule 16. He
argues that, had he known of the letters before trial, he could have presented them as
evidence that he attempted to obtain counsel and, thus, was not responsible for the delay of
his trial past the 180-day Interstate Compact period. Thus, he argues, the State’s failure to
disclose these letters’ existence caused him prejudice, and the trial court erred in denying his
motion for new trial based on the State’s failure to comply with Rule 16.
The State responds that it did not violate Rule 16 because none of the seized letters
were addressed to defense counsel and, as the letters remained sealed, only the Defendant
knew of the letters’ content. It also responds that the Defendant fails to demonstrate how
possession of the letters at issue would have altered his defense strategy.
Tennessee Rule of Criminal Procedure Rule 16(a)(1)(F) describes the circumstances
under which the State must disclose certain “documents and objects”:
(F) Documents and Objects. Upon a defendant’s request, the state shall permit
the defendant to inspect and copy or photograph books, papers, documents,
photographs, tangible objects, buildings, or places, or copies or portions
thereof, if the item is within the state’s possession, custody, or control and:
(I) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-in-chief at trial;
or
52
(iii) the item was obtained from or belongs to the defendant.
Tenn. R. Crim. P. 16(a). Rule 16(a)(1)(F) only applies to documents and tangible objects that
are “within the possession, custody or control of the state.” See, e.g., State v. Hutchison, 898
S.W.2d 161, 167-68 (Tenn. 1994) (holding that where the State did not have certain
documents in its control until the middle of the trial, introduction of the documents did not
violate Rule 16); also see State v. Elizabeth Gay Tindell, No. E2008-02635-CCA-R3-CD,
2010 WL 2516875, *15 (Tenn. Crim. App., at Knoxville, June 22, 2010), perm. app. denied
(Tenn. Nov. 17, 2010).
To enforce Rule 16, Rule 16(d)(2) provides that, if there has been noncompliance, the
trial court may order the offending party to permit the discovery or inspection, grant a
continuance, prohibit the introduction of the evidence not disclosed, or enter such other order
as the court deems just under the circumstances. See State v. Leon Goins, No.
W1999-01681-CCA-R3-CD, 1999 WL 1531111, at *2 (Tenn. Crim. App., at Jackson, Dec.
27, 1999), perm. app. denied (Tenn. July 17, 2000). Whether a defendant has been
prejudiced by the State’s failure to disclose information is a significant factor in determining
an appropriate remedy. State v. Smith, 926 S.W.2d 267, 270 (Tenn. Crim. App. 1995). The
Defendant bears the burden of showing “the degree to which the impediments to discovery
hindered trial preparation and defense at trial.” State v. Brown, 836 S.W.2d 557, 560 (Tenn.
1993). The determination of the appropriate remedy is left to the sound discretion of the trial
judge, which is exercised upon examination of the circumstances presented in that particular
case. State v. Underwood, 669 S.W.2d 700, 703 (Tenn. Crim. App. 1984) (citing McBee v.
State, 372 S.W.2d 173 (Tenn. 1963)). “Thus, it is clear that the court has wide discretion to
fashion a remedy that is appropriate for the circumstances of each case and the sanction must
fit the circumstances of that case.” Id. (citations omitted); see State v. James, 688 S.W.2d
463, 466 (Tenn. Crim. App. 1984).
I n t h is case, Tennessee officials took custody of the Defendant on November 13,
2008. The Defendant remained in the custody of the Monroe County Sheriff’s Department
while he awaited trial. His trial commenced on April 14, 2009, and he was convicted of the
charges in this case. At the Defendant’s motion for new trial hearing, proof submitted by the
parties established that, while the Defendant awaited trial in the Monroe County Sheriff’s
Department, the Sheriff’s Department intercepted several letters the Defendant attempted to
send from jail. These letters included: one letter to Monroe County Sheriff’s detective Pat
Henry; three letters to the FBI; two letters to the ATF; one letter to the warden of the Arizona
State Prison; one letter to an attorney in Arizona, Steven J.A. August; and one letter to an
attorney in Athens, Tennessee, Randy Rogers. The letter to the Arizona attorney was dated
January 27, 2009, and the letter to the Tennessee attorney was dated February 4, 2009. The
trial court refused to allow the parties to open and inspect the letters, and it denied the
53
Defendant’s motion for new trial.
The Defendant’s letters can be characterized as “document or object” “obtained from
or belong[ing] to the defendant,” whose disclosure Tennessee Rule of Criminal Procedure
16 (a)(1)(B) describes. Upon the State’s failure to comply with Rule 16, in order for the trial
court to determine an appropriate remedy, the Defendant bears the burden of showing “the
degree to which the impediments to discovery hindered trial preparation and defense at trial.”
Brown, 836 S.W.2d at 560. From our review of the record, we discern no manner in which
the Defendant was prejudiced by not having the letters. As we discussed above in our
analysis of the State’s compliance with the Interstate Compact, the interception of the
Defendant’s letters does not alter our conclusion that the Defendant was lawfully tried within
the time prescribed by the Compact. Thus, in this respect, even had he possessed these letters
before trial, the letters would not have aided him in preparing a defense based on the State’s
failure to try him within the Compact period. The Defendant fails to cite to any other way
in which discovery of the letters would have altered or aided the preparation of his defense
in this case. As such, we conclude that the Defendant has precluded our review of this issue.
K. Sentencing
The Defendant objects to the length of his sentence, contending that: (1) the trial court
erred when it sentenced him as a Range II, Multiple Offender; and (2) his sentence violates
the due process and excessive punishment clauses of the Tennessee and United States
Constitutions.
When a defendant challenges the length, range, or manner of service of a sentence,
this Court must conduct a de novo review on the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-
35-401(d) (2006). This presumption, however, is conditioned upon the affirmative showing
in the record that the trial court properly sentenced the defendant. State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). As the Sentencing Commission Comments to this section
note, the burden is on the appealing party to show that the sentencing is improper. T.C.A.
§ 40-35-401, Sentencing Comm’n Cmts. If the trial court followed the statutory sentencing
procedure, made findings of facts which are adequately supported in the record, and gave due
consideration to the factors and principles relevant to sentencing under the 1989 Sentencing
Act, we may not disturb the sentence even if a different result was preferred. T.C.A. § 40-
35-103 (2006), State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001). The presumption does not
apply to the legal conclusions reached by the trial court in sentencing a defendant or to the
determinations made by the trial court which are predicated upon uncontroverted facts. State
v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001); State v. Butler, 900 S.W.2d 305, 311
(Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994). In
54
the event the record fails to demonstrate the required consideration by the trial court,
appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.
In conducting a de novo review of a sentence, we must consider: (1) the evidence, if
any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by the
parties on the mitigating and enhancement factors set out in Tennessee Code Annotated
sections 40-35-113 and -114; (6) any statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) any
statement the defendant made in the defendant’s own behalf about sentencing. See T.C.A.
§ 40-35-210 (2009); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).
The Criminal Sentencing Act of 1989 and its amendments describe the process for
determining the appropriate length of a defendant’s sentence. Under the Act, a trial court
may impose a sentence within the applicable range as long as the imposed sentence is
consistent with the Act’s purposes and principles. T.C.A. § 40-35-210(c)(2) and (d) (2006);
see State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008).
In order to ensure “fair and consistent sentencing,” the trial court must “place on the
record” what, if any, enhancement and mitigating factors it considered as well as its “reasons
for the sentence.” T.C.A. § 40-35-210(e). Before the 2005 amendments to the Sentencing
Act, both the State and a defendant could appeal the manner in which a trial court weighed
enhancement and mitigating factors it found to apply to the defendant. T.C.A. § 40-35-
401(b)(2) (2003). The 2005 amendments deleted as grounds for appeal, however, a claim
that the trial court did not properly weigh the enhancement and mitigating factors. See 2005
Tenn. Pub. Acts ch. 353, §§ 8-9. In summary, although this Court cannot review a trial
court’s weighing of enhancement factors, we can review the trial court’s application of those
enhancement factors. T.C.A. § 40-35-401(d) (2006); see Carter, 254 S.W.3d at 343.
1. Multiple Offender Status
The Defendant contends the trial court erred in the following three respects when it
determined that he had four previous Class C felony convictions from the state of Michigan
and, thus, was a Multiple Offender. He asserts: (1) the State failed to list two convictions
used to determine his status as a Multiple Offender in its notice of intent to seek enhanced
punishment; (2) the trial court improperly determined that his two false pretenses convictions
from Michigan were Class C felonies in Tennessee; (3) the trial court based its determination
that the Defendant had two Class C felony criminal simulation convictions from Michigan
upon unreliable hearsay.
55
a. Notice of False Pretenses Convictions
Earlier in this opinion, we determined that the State’s notice of its intent to seek
enhanced punishment was timely filed and, thus, that the trial court did not err when it denied
the Defendant’s motion to strike this notice. Under the sentencing portion of his brief, the
Defendant again attacks the State’s notice of its intent to seek enhanced punishment, arguing
that, because the notice did not list two false pretenses convictions that the trial court used
to determine his offender status, he had insufficient notice and the trial court erred when it
found that the Defendant was a Multiple Offender based on these false pretenses convictions.
The State responds that its notice listed, among others, two convictions of “larceny
by check” and, thereby, substantially complied with the requirements of Tennessee Code
Annotated section 40-35-202(a) because it was not misleading, and it listed the offenses,
where they occurred, and their general time frame. Further, the State contends, even were
the notice insufficient, the Defendant’s previous convictions for criminal simulation
sufficiently support his classification as a Multiple Offender.
As discussed in our analysis dealing with the Defendant’s objection to the timeliness
of the State’s filing of its notice of intent to seek enhanced punishment, Tennessee law
requires the State to provide written notice to a defendant that the State intends to seek
enhanced punishment if the defendant is convicted. T.C.A. § 40-35-202(a). The notice
provision requires, at a minimum, that: (1) the State file written notice; (2) that the notice
clearly express the State’s intention to seek sentencing outside of the standard offender
range; and (3) that the notice set forth the nature of the prior felony conviction, the dates of
conviction, and the identity of the court of the conviction. State v. Livingston, 197 S.W.3d
710, 713 (Tenn. 2006). When a detail of the required information is omitted or incorrect, the
inquiry should be whether the notice was “materially misleading.” Adams, 788 S.W.2d at
559. The supreme court specifically held that “when the State has substantially complied
[with the notice requirement], an accused has a duty to inquire about an ambiguous or
incomplete notice and must show prejudice to obtain relief.” Id. In other words, the notice
statute requires “fair” rather than “perfect” notice. Taylor, 63 S.W.3d at 413.
In this case, the State filed its “Notice of Intent to Seek Enhanced Punishment and/or
Notice of Impeaching Convictions” more than ten days before the Defendant’s trial. The
notice listed the following convictions:
4-22-1994 Carrying concealed weapon 14 th Circ/Muskegon Co., MI
5-22-1996 Larceny by check x 2 14 th Circ/Muskegon Co., MI
3-10-2003 Larceny by conversion > $1,000 same
56
4-20-2006 Larceny by conversion > $1,000 same
10-31-1995 Larceny > $1,000 same
6-26-2006 Larceny by conversion > $1,000 x 2 same
At the Defendant’s sentencing hearing, a presentence report and copies of the Defendant’s
judgments of conviction from Michigan were entered as exhibits. The presentence report
indicated that the Defendant had twice been convicted of false pretenses in Michigan, and
a judgment of conviction from Michigan reflected that on May 8, 1996, the Defendant was
convicted of two counts of false pretenses under $100 in the 14th Judicial Circuit Court of
Michigan in Muskegon County. Based on this evidence, the trial court determined that the
Defendant had two false pretenses convictions from 1996 in Michigan. As we will discuss
in greater detail below, the trial court determined that, because the judgment forms reflected
the Defendant was ordered to pay $12,200 in restitution in connection with these convictions,
the convictions were the equivalent of Class C felony theft convictions in Tennessee. Based
on these two Class C felony convictions, the trial court declared the Defendant a Multiple
Offender.
In Michigan, a person commits “false pretenses” where he or she “with the intent to
defraud or cheat makes or uses a false pretense . . . [to obtain] a person’s signature on a
forged written instrument.” Michigan Compiled Laws Service § 750.218(1)(b) (2009). The
use of a check would qualify as a “forged written instrument” under this statute. M.C.L.S.
§ 750.218(1)(b). A person commits “check no account” where he or she, “with the intent to
defraud,” makes or draws “any check . . . for the payment of money, to apply on an account
or otherwise, upon any bank or other depository, if at the time . . . he or she does not have an
account in or credit with the bank . . . for the payment of the check . . . .” M.C.L.S. §
750.131(a) (2009).
Our review of the Defendant’s judgments of conviction from Michigan reveals that
he has three convictions from 1996: two May 8 convictions for “false pretenses 0/$100.00”
and one May 22 conviction for “check no account.” For the year 1996, the State’s notice of
its intent to use the Defendant’s past criminal convictions listed only “larceny by check x 2,”
and it assigned the date of May 22, 1996, to these convictions. Obviously, this description
of the Defendant’s 1996 convictions constitutes a defect in the State’s notice. Despite listing
the wrong offense name for the convictions, the notice listed the correct year, month, and
court of conviction. Also, we note the notice clearly sets out the State’s intent to seek a
sentence outside the standard sentencing range. See Livingston, 197 S.W.3d at 713. Further,
“larceny by check” could reasonably be understood to refer to either the crime of false
pretenses, which can be committed by using a check under false pretenses with the intent to
defraud, or the crime of “check no account,” which can be committed by writing a bad check.
M.C.L.S §§ 750.218(1)(b), 750.131(a). We conclude that the similarity between the offenses
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named in the notice and those named on the Michigan judgment forms supports the trial
court’s finding that, in listing the larceny by check convictions from 1996 on its notice, the
State “set forth the nature” of the prior felony convictions it intended to use in its
prosecution. See Livingston, 197 S.W.3d at 713 (emphasis added). In light of this
conclusion and in light of the correct recitation of the year, month, and court of conviction,
we conclude that the notice was not “materially misleading.” See id; Adams, 788 S.W.2d at
559. We note that the objective of the State’s notice of its intent to use a defendant’s
criminal record at trial or sentencing is not to inform the defendant of the existence of his
prior convictions. Rather, the objective is to give him notice of the nature and magnitude of
the enhanced punishment the State will seek in the defendant’s case and the general legal
basis upon which it will do so. We believe this objective was satisfied in this case. The
Defendant is not entitled to relief on this issue.
b. Classification of Michigan False Pretenses Convictions as Class C Felonies
The Defendant argues the trial court erred when it found that his false pretenses
convictions in Michigan were the equivalent of Class C felonies in Tennessee. The certified
copies of the judgments of sentence from Michigan show that the Defendant was convicted
of two counts of false pretenses “0/$100.00 SUPP 2nd” in 1996 for which he was ordered
to pay restitution in the amount of $12,200. The Defendant contends the trial court erred
when it determined that the restitution award of $12,200 represented the value of the checks
underlying his false pretenses convictions and, on that basis, classified each conviction as a
forgery involving an amount greater than $10,000 but less than $60,000, a Class C felony.
The State responds that, even if the trial court erred when it classified the Defendant’s
false pretenses convictions as Class C felony forgeries in Tennessee, the Defendant’s
Michigan convictions for criminal simulation sufficiently support his classification as a
Multiple Offender.
To be classified as a Range II Multiple Offender, a defendant must have “a minimum
of two (2) but not more than four (4) prior felony convictions within the conviction class, a
higher class, or within the next two (2) lower felony classes.” T.C.A. § 40-35-106(a)(1)
(2006). When applying out-of-state convictions to determine the applicable sentencing
range, the code further provides:
Prior convictions include convictions under the laws of any other state,
government or country which, if committed in this state, would have
constituted an offense cognizable by the laws of this state. In the event that a
felony from a jurisdiction other than Tennessee is not a named felony in this
state, the elements of the offense shall be used by the Tennessee court to
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determine what classification the offense is given.
T.C.A. § 40-35-106(b)(5). Because the Defendant in this case was convicted of four Class
B felony offenses, the State had the burden of proving that the Defendant had between two
and four felony convictions from either Class A, Class B, Class C, or Class D. See T.C.A.
§ 40-35-106(a)(1).
The Defendant’s two false pretenses convictions appear on a single judgment form.
Each conviction is listed as “false pretenses 0/$100 SUPP 2nd,” and the Defendant received
a sentence of five to fifteen years for each count. The form also orders the Defendant to pay
$12,200 in restitution.
As mentioned above, in Michigan, a person commits “false pretenses” where he or
she “with the intent to defraud or cheat makes or uses a false pretense . . . [to obtain] a
person’s signature on a forged written instrument.” M.C.L.A. § 750.218(1)(b). Where the
amount involved is between $200 and $1000, false pretenses is punishable by one year of
imprisonment and fine of $2,000 or three times the value of the property stolen. M.C.L.A.
§ 750.218(3)(a). Where the amount involved is between $1,000 and $20,000, false pretenses
is punishable by five years imprisonment and a fine of $10,000 or three times the value of
the property stolen. M.C.L.A. § 750.218(4)(a). If the amount involved is above $20,000,
false pretenses is punishable by ten years imprisonment and a fine of either $15,000 or three
times the value of the property stolen. M.C.L.A. § 750.218(5)(a). In Michigan, an accused
previously convicted of a felony is subject to enhanced sentencing as a “second offender.”
The Defendant appears to have been sentenced as a second offender for his false
pretenses convictions, as each conviction is listed as “false pretenses SUPP 2nd.” Further,
because the Defendant received a sentence of five to fifteen years for each of his convictions,
we infer that the amount involved in each conviction exceeded $1,000. See M.C.L.A. §
750.218(4)(a).
In Tennessee, the grading of theft is based on the value of the property stolen. T.C.A.
§ 39-14-105 (2003). Theft is:
(1) A Class A misdemeanor if the value of the property or services obtained
is five hundred dollars ($500) or less;
(2) A Class E felony if the value of the property or services obtained is more
than five hundred dollars ($500) but less than one thousand dollars
($1,000);
(3) A Class D felony if the value of the property or services obtained is one
59
thousand dollars ($1,000) or more but less than ten thousand dollars
($10,000);
(4) A Class C felony if the value of the property or services obtained is ten
thousand dollars ($10,000) or more but less than sixty thousand dollars
($60,000); and
(5) A Class B felony if the value of the property or services obtained is sixty
thousand dollars ($60,000) or more.
T.C.A. § 39-14-105(1)-(5) (2006).
Based on the evidence introduced at sentencing, the trial court found that the
Defendant had two 1996 false pretenses convictions from Michigan and that these
convictions were the equivalent of theft involving an amount greater than $10,000, which is
a Class C felony in Tennessee. The trial court found that, based on these two Class C felony
convictions, the Defendant was a Range II, Multiple Offender. The trial court noted that the
Tennessee Code’s classification of several of the Defendant’s remaining convictions from
Michigan was “not as clear.”
The record does not support the trial court’s conclusion that the Defendant’s false
pretenses convictions were the equivalent of Class C felony convictions in Tennessee.
Although the false pretenses judgment form contains sufficient indicia that the amount
involved in each offense was at least $1000, the form does not indicate that the amount
involved in each offense was at least $10,000, as a Class C felony theft conviction in
Tennessee requires. Even taking into account the restitution order of $12,200, this fine could
represent an aggregate fine imposed for each count; for example, each count may have only
involved an amount of $6100. In our view, the record does not establish beyond a reasonable
doubt that the amount involved in the false pretenses convictions was $10,000 or more. See
T.C.A. § 40-35-106(b)(5). Thus, we conclude that the trial court erred by finding that the
Defendant’s false pretenses convictions were each the equivalent of a Tennessee Class C
felony theft conviction, which requires the amount involved to be at least $10,000. See
T.C.A. § 39-14-105(4).
Nonetheless, because the record establishes beyond a reasonable doubt that the each
commission of false pretenses involved at least $1000, we conclude that each false pretense
conviction was the equivalent of a Class D felony theft conviction in Tennessee. See T.C.A.
§ 39-14-105(1)-(5). As such, we conclude that the record would nonetheless support the
trial court’s conclusion that the Defendant, based upon the Defendant’s two false pretenses
convictions, was a Range II, Multiple Offender. See T.C.A. § 40-35-106(a)(1). He is not
entitled to relief on this issue.
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c. Evidence Supporting the Existence of Michigan Larceny by Conversion
Convictions
The Defendant contends the trial court erred in finding that the Defendant had two
Michigan convictions for larceny by conversion (the equivalent of criminal simulation in
Tennessee) involving more than $1000 but less than $20,000 where only the “unreliable
hearsay” of the presentencing officer’s testimony supported these convictions and where no
certified copies of these convictions from the state of Michigan were introduced. He argues
that the trial court relied on theses convictions in determining him to be a Multiple Offender
and that, as such, his status should be reduced to that of a Standard Offender.
The State responds that, because hearsay is admissible during sentencing, and the
presentence officer’s correspondence with Michigan officials made his reports reliable, the
evidence supports the trial court’s finding that the Defendant had two prior Michigan
convictions for larceny by conversion in an amount greater than $1000 but less than $20,000.
First, we note that, contrary to the Defendant’s assertion on appeal, the trial court did
not rely on the Defendant’s larceny by conversion convictions when it declared him a Range
II, Multiple Offender. The trial court relied only on the Defendant’s false pretenses
convictions, noting that the Tennessee equivalency of the remainder of the Defendant’s
Michigan convictions was “less clear.” As we explained above, the Defendant’s false
pretenses convictions formed an adequate basis for the Defendant’s status as a Range II,
Multiple Offender. As a consequence, the trial court need not have relied on the Defendant’s
larceny by conversion convictions in setting the Defendant’s status as a Range II, Multiple
Offender. These convictions, however, did support the trial court’s application of
enhancement factor (1), that the Defendant had a previous record of criminal convictions in
excess of those necessary to set his Multiple Offender status.
The Defendant’s larceny by conversion convictions appear on two separate certified
judgment forms, which were entered into evidence at sentencing. Each judgment lists the
conviction offense as “larceny by conversion-$10,” and indicates that the Defendant entered
a nolo contendere plea to each offense on April 10, 2006, in Muskegon County, Michigan.
For both offenses, the Defendant was sentenced to between forty months and twenty years
of imprisonment. The first judgment form orders the Defendant to pay $16,500 in restitution.
No restitution order appears on the second judgment form. Probation officer Patrick Moore
determined from a search of the Michigan Department of Corrections website that the
Defendant had three convictions for “larceny by conversion-$1000 or more but less than
$20,000.” Officer Moore spoke by phone with Ms. Price of the Muskegon County
Prosecutor’s Office, who confirmed that, according to office records, the Defendant had three
convictions for “larceny by conversion-$1000 or more but less than $20,000.”
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In Michigan, larceny by conversion occurs “where a person obtains possession of
another’s property with lawful intent, but subsequently converts the other’s property to his
own use.” People v. Christenson, 312 N.W.2d 618 (1981); M.C.L.A. § 750.356 (2006).
Like false pretenses, larceny by conversion is punishable according to the value of the
property unlawfully obtained. If the value is “$1000 or more but less than $20,000,” the
offense is punishable by five years imprisonment and a fine of either $10,000 or three times
the actual value of the property stolen. M.C.L.A. § 750.356(3)(A). The provisions
governing the sentencing grading scheme for theft in Tennessee are set out above. See
T.C.A. § 39-14-105(1)-(5).
As the Defendant correctly argues, the Tennessee Supreme Court held in State v. Buck
that “computer print-outs” from national criminal information databases “are not admissible
as a substitute for certified copies of court convictions nor for any other purpose.” 670
S.W.2d 600, 607 (Tenn. 1984). In this case, however, the record contains certified copies
of the judgments of conviction and sentence in Michigan that reflect that the Defendant has
two convictions for “larceny by conversion-$10.” Although the exact value of the property
stolen during the course of these offenses is not immediately obvious from the face of these
convictions, the record contains sufficient proof to establish beyond a reasonable doubt that
these convictions involved an amount of “$1000 or more but less than $20,000.”
First, the sentence imposed for each conviction, between forty months and twenty
years, is commensurate with the applicable sentence in Michigan for the commission of
larceny by conversion involving $1000 or more but less than $20,000. See M.C.L.A. §
750.356(3)(A). Second, both Ms. Price of the Muskegon County Prosecutor’s Office and a
search of the Michigan Department of Corrections website database both confirmed that the
amount involved in the Defendant’s larceny by conversion convictions was more than $1000
but less than $20,000. Although each of these pieces of evidence constitutes unreliable
hearsay under Buck and, therefore, is not admissible “as a substitute” for certified copies of
conviction, each is admissible to inform our interpretation of the certified copies of judgment
entered in this case. Finally, the $12,200 amount of restitution awarded on the first judgment
indicates that the value of the property stolen was at least $1000. See M.C.L.A. §
750.356(3)(A). Taking all of these things into account, we conclude that the record
establishes beyond a reasonable doubt that the Defendant had two larceny by conversion
convictions involving $1000 or more but less than $20,000. In light of Tennessee’s theft
grading statute, these offenses were the equivalent of Class D felony theft convictions in
Tennessee. See T.C.A. § 39-14-105(1)-(5). Therefore, even had the trial court relied on
these convictions in declaring the Defendant a Multiple Offender, its reliance would have
been sound. Although the Defendant did not directly raise the issue, we state for clarity that
the trial court did not err insofar as it relied on any two of these convictions in applying to
his sentence enhancement factor (1), that the Defendant had a previous history of criminal
62
behavior in addition to that necessary to establish his range. The Defendant is not entitled
to relief on this issue.
2. Due Process and Excessive Punishment Clauses
The Defendant contends his sentence violates the due process and excessive
punishment clauses of the United States and Tennessee Constitutions. He argues that the
circumstances of the Defendant’s case, the nonviolent nature of his crimes, and the assistance
the Defendant provided law enforcement in resolving a homicide investigation raise an
“inference of gross disproportionality” in the sixteen-year sentences he received for each of
his four convictions.
The State responds that, because the trial court based its sentence upon the proper
sentencing criteria and principles, the Defendant’s sentence is consistent with the purposes
and principles of the Sentencing Act.
State v. Harris sets forth the analysis for determining whether a defendant’s sentence
is proportionate. 844 S.W.2d 601, 603 (Tenn.1992). In Harris, our Supreme Court adopted
the methodology espoused in Harmelin v. Michigan, 501 U.S. 957, 994-1009 (1991). Under
Harmelin, the sentence imposed is initially compared with the crime committed. Harris, 844
S.W.2d at 603. Unless this threshold comparison leads to an inference of gross
disproportionality, the inquiry ends, and the sentence is constitutional. Id.
In this case, the Defendant received a sentence of sixteen years for each of his
convictions, which included two convictions for forgery and two convictions for criminal
simulation. He contends that his sentence is grossly disproportionate to his crimes and that
it violates his due process rights and his right against excessive punishments. We disagree.
The Defendant’s behavior pattern of deception, manipulation, and theft is extensive.
As the evidence introduced at sentencing bears out, he had multiple past theft-related
convictions, and he was on escapee status from the Michigan Department of Corrections
when he committed the crimes in this case. The trial court found that the five following
enhancement factors applied to his case: enhancement factor (1), that the Defendant had a
previous history of criminal convictions or criminal behavior in addition to those necessary
to establish the appropriate range; enhancement factor (3), that the offense involved more
than one victim; enhancement factor (8), that, before sentencing, the Defendant failed to
comply with the conditions of a sentence involving release into the community; enhancement
factor (13), that, at the time the felony was committed, the Defendant was on escape status;
and (14), that the Defendant abused a position of private trust. T.C.A. § 40-35-114(1), (3),
(8), (13), and (14).
63
Although the Defendant’s crimes involved no violence, they resulted in financial ruin
to Ms. Turpin and her family. Also, Ms. Turpin’s letter to the trial court clearly sets forth the
impact the Defendant’s forging her name, which resulted in her name being associated with
the Defendant’s crimes, has had upon her ability to maintain employment. Additionally, the
Defendant Mr. Smith, the recipient of the checks in this case, allowed the Defendant and his
wife, in reliance on the Defendant’s representations, to reside for several weeks in a house
on his farm, which unjustly enriched the Defendant with the rental value of the house for that
period.
Also, the Defendant made false representations to the trial court of his financial assets
and past employment in pre-trial proceedings and in his interview with the officer preparing
his presentence report. Additionally, the trial court noted at sentencing that the Defendant
maintained an arrogant, disrespectful attitude throughout the entirety of trial and sentencing.
Taking all of the circumstances surrounding the Defendant’s crimes into
consideration, and considering that the trial court followed proper sentencing procedure and
considered all relevant sentencing principles when it sentenced the Defendant, we conclude
that no inference of gross proportionality arises from the sentences received by the Defendant
in this case. See Harris, 844 S.W.2d at 603. He is not entitled to relief on this issue.
III. Conclusion
Having thoroughly reviewed the record and relevant authorities, we conclude that the
Defendant was lawfully brought to trial within the prescribed Compact period, that his trial
was lawfully conducted, that his convictions are supported by sufficient evidence, and that
his sentence was lawfully imposed. As such, we affirm the trial court’s judgments.
__________________________________
ROBERT W. WEDEMEYER, JUDGE
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