State of Tennessee v. Terry Lynn Nuchols ( 2022 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSHE
AT KNOXVILLE FILED
Assigned on Briefs November 16, 2022 DEC 15 2022
STATE OF TENNESSEE v. TERRY LYNN NUCHOLS | Serkot thesppetate cpurt
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Appeal from the Circuit Court for Blount County
Nos. C-26596, C-26597, C-26598, C-26599 Tammy M. Harrington, Judge
No. E2021-01415-CCA-R3-CD
A Blount County jury convicted Defendant, Terry Lynn Nuchols, of four counts of identity
theft and one count of forgery, as alleged in four separate indictments. By agreement, all
indictments were consolidated for trial. The trial court sentenced Defendant as a Range
III, persistent, offender to 12 years for each of the identity theft convictions and 15 years
for the forgery conviction. All sentences were aligned consecutively for an effective 63-
year sentence. Defendant appeals, arguing that: 1) the trial court erred by not suppressing
hearsay testimony of probation officer Holly King; 2) Defendant’s right to cross-examine
witnesses pursuant to the Confrontation Clause was violated by the State’s failure to call
the victim as a witness at trial; 3) the evidence was insufficient to sustain Defendant’s
convictions; and 4) Defendant’s sentence was excessive. Having reviewed the entire
record and the briefs of the parties, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., P.J., and JOHN W. CAMPBELL, SR., J., joined.
Rick A. Owens, Maryville, Tennessee, for the appellant, Terry Lynn Nuchols.
Jonathan Skrmetti, Attorney General and Reporter; T, Austin Watkins, Assistant Attorney
General; Ryan K. Desmond, District Attorney General; and Tracy Jenkins, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Evidence at Trial
Michael Stephens, the victim of all of the offenses in this case, could not be located
at the time of trial. His sister, Skylee Herin, testified that he disappeared sometime around
September 21, 2018. He was 19 years old at that time. Mrs. Herin became his legal
guardian when he was 14 years old. Mrs. Herin explained that their mother was killed in
a car accident when they were young, and Mr. Stephens received “a large lump sum of
money” when he turned 18. Mr. Stephens quit high school and moved into his own
apartment, but Mrs. Herin maintained a “[rJeally good” relationship with him. She
explained that Mr. Stephens “blew through” his money quickly and could not pay his bills.
Mrs. Herin had been helping Mr. Stephens manage his finances, but she closed a joint
account when the balance dropped to $23. Mr. Stephens was eventually evicted from his
apartment and “lived with . . . friends here and there.”
Mrs. Herin became aware that Mr. Stephens had operied another account into which
he had monthly payments directly deposited. Bank employees testified that Mr. Stephens,
accompanied by Defendant, opened a student checking account at the Midland branch of
Regions Bank in Maryville on September 11, 2018. He opened the account with a deposit
of $100 that was debited from Defendant’s checking account, and he used Defendant’s
address as the address on the new account. Photos taken from surveillance video showed
Defendant driving a “little white four-door sedan.” Later that day, Defendant went to the
Walland branch of Regions Bank to deposit a $70 check written to him using one of the
“starter” checks that Mr. Stephens received when he opened the new account. Mr.
Stephens’ name was misspelled as “Stevens” on the signature line. Mrs. Herin testified
that she was familiar with Mr. Stephens’ signature and that the signature on the check was
not his. Mrs. Herin testified that she did not know Defendant and that she had never given
Defendant permission to access Mr. Stephens’ account.
When Mrs. Herin lost contact with her brother in September of 2018, she reported
him missing to the Blount County Sheriff’s Office (“BCSO”). BCSO Detective Douglas
Folmar investigated Mr. Stephens’ disappearance. In late September or early October,
2018, Detective Folmar met with Defendant at Defendant’s house. According to
Defendant, Mr. Stephens “unexpectedly left the residence” and Defendant had not seen
him. Defendant provided an address in Georgia, which Defendant stated was Mr.
Stephens’ boyfriend’s address. Law enforcement in Georgia conducted a welfare check at
the address and did not locate Mr. Stephens.
In the following weeks, Detective Folmar searched the area around Defendant’s
residence and interviewed neighbors. He also periodically “stop[ped] in and ha[d] a casual
conversation with [Defendant] to see if there had been any updates, see if he had heard
anything, seen anything.” Detective Folmar subpoenaed Mr. Stephens’ bank records to
determine if Mr. Stephens had made any transactions since he was reported missing, and
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he discovered that Mr. Stephens had not accessed his account but that Defendant had
accessed Mr. Stephens’ account.
Bank statements entered as exhibits at trial showed that monthly deposits in the
amount of $600 were made to Mr. Stephens’ account by New York Life on or around the
18th of each month. On December 18, 2018, two separate deposits were made into Mr,
Stephens’ account by New York Life. In addition to the recurring $600 deposit, a $19,000
deposit was made.
At 11:00 p.m. on October 16, 2018, a $640 withdrawal was made from Mr.
Stephens’ account at an ATM in Conyers, Georgia. Surveillance video showed that the
withdrawal was made by someone “attempting to conceal their identity” by wearing a long
overcoat with the collar up, a hat, and sunglasses at night. On November 16, 2018,
Defendant asked James Owens, who had done some handyman work for Defendant, to
drive him to Georgia to “make a few dollars.” Mr. Owens testified that they drove to
Atlanta in “a little white car’ that looked like the vehicle Defendant was driving when he
took Mr. Stephens to open his checking account. Shortly after midnight on November 17,
2018, Mr. Owens withdrew $600 from an ATM, using a debit card provided by Defendant.
Defendant paid Mr. Owens $50 for driving him. Mr. Owens admitted that he had prior
felony convictions for aggravated burglary and possession of drugs.
On December 19, 2018, Defendant deposited three checks written from Mr.
Stephens’ account into his own accounts. At 12:31 p.m., Defendant deposited a $7,500
check into his account at the First Tennessee Bank in Maryville. At 1:23 p.m., Defendant
passed a check for $4,800 from Mr. Stephens’ account. He deposited $800 into his account
and cashed the balance at the Walland branch of Regions Bank. About half an hour later,
Defendant passed a $5,000 check from Mr. Stephens’ account. He deposited $500 into his
account and cashed the balance at the Midland branch of Regions Bank.
At 2:11 p.m. on December 19, 2018, Defendant could be seen on surveillance video
withdrawing $800 from Mr. Stephens’ account at an ATM at the West Maryville branch
of Regions Bank. On December 20, 2018, Defendant withdrew $800 from Mr. Stephens’
account at an ATM at the Midland branch of Regions Bank. On December 22, 2018,
Defendant withdrew $700 from Mr. Stephens’ account at the Midland branch ATM. The
last withdrawal from Mr. Stephens’ account was made on January 17, 2019, and it was for
$600.
Police officers executed a search of Defendant’s residence. They observed a white
Saturn sedan that looked like the same vehicle Defendant was driving in some of the bank
surveillance videos. Inside the home, police found three receipts dated February 1, 2019
from a CVS store, each showing a “$500 reload of a gift card.” Police also found multiple
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other gift cards and a large amount of cash inside a safe, as well as a pouch containing titles
to cars showing that the vehicles had been “paid off on or about December 19th of 2018,”
which was the same date that Defendant cashed three checks from Mr. Stephens’ checking
account. Detective Folmar compared the signature on the three checks with Mr. Stephens’
signature on his driver’s license and determined that the signatures did not appear to be
consistent.
Defendant was arrested on February 8, 2019. Bank statements showed that there
was no activity on Mr. Stephens’ account after January 17, 2019, other than monthly life
insurance deposits in the amount of $600.
Holly King, an officer for the Tennessee Department of Correction, met with
Defendant at the Blount County Detention Center to discuss the charges against him.
Defendant told Ms. King that Mr. Stephens’ family had allowed Defendant to use the
account.
Defendant did not testify or present any other proof. The jury convicted Defendant
as charged. Following a sentencing hearing, the trial court sentenced Defendant as a Range
III persistent offender to serve 12 years for each of his identity theft convictions and 15
years for his forgery conviction. The trial court ordered that the sentences be served
consecutively to each other and consecutively to a life sentence Defendant was serving for
a prior murder conviction.!
Defendant filed a timely motion for new trial, in which he challenged the sufficiency
of the evidence and argued that his rights under the Confrontation Clause were violated.
The trial court denied Defendant’s motion after a hearing, and this appeal followed.
Analysis
Hearsay Testimony
Defendant first argues that the trial court erred by failing to exclude as hearsay the
testimony of Holly King that Defendant told her that Mr. Stephens’ family gave him
permission to use his account. The State responds that Defendant has waived the issue by
failing to include it in his motion for new trial.
Prior to trial, defense counsel filed a motion to exclude “any testimony from Holly
King as irrelevant and unreliable hearsay.” After a hearing, the trial court denied the
! The evidence at Defendant’s sentencing hearing established that Defendant was on parole for this
prior murder conviction at the time the subject offenses were committed.
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motion, concluding that Defendant’s statement to Ms. King was an admission against
interest, an exception to the rule against hearsay.
Defendant failed to include the issue in his motion for new trial. As such, the issue
has not been preserved for appellate review. See Tenn. R. App. P. 3(e) (stating that “in all
cases tried by a jury, no issue presented for review shall be predicated upon error in the
admission or exclusion of evidence, . . . unless the same was specifically stated in a motion
for a new trial; otherwise such issues will be treated as waived”’).
Despite Defendant’s waiver of the issue, we note that “an error which has affected
the substantial rights of an accused may be noticed at any time, even though not raised in
the motion for new trial or assigned as error on appeal,” if the appellate court considers
such notice “necessary to do substantial justice.” Tenn. R. Crim. P. 52(b). In conducting
a plain error review, a court will reverse for plain error only if:
(a) The record . . . clearly establish[es] what occurred in the trial court;
(b) a clear and unequivocal rule of law [has] been breached;
(c) a substantial right of the accused [has] been adversely affected;
(d) the accused did not waive the issue for tactical reasons; and
(e) consideration of the error is “necessary to do substantial justice.”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). The appellate court need not consider all five
factors if it determines that any single factor indicates that relief is not warranted. Jd. at
283. Furthermore, for this Court to reverse the judgment of the trial court, the “‘plain error’
must [have been] of such a great magnitude that it probably changed the outcome of the
trial,” and “recognition should be limited to errors that had an unfair prejudicial impact
which undermined the fundamental fairness of the trial court.” Adkisson, 899 S.W.2d at
642. Moreover, it is the defendant, not the State, who bears the burden of demonstrating
plain error. State v. Gomez, 239 S.W.3d 722, 727 (Tenn. 2007) (Gomez ID).
We cannot conclude that the alleged evidentiary error complained of by Defendant
rises to the level of plain error. This Court has held that “rarely will plain error review
extend to an evidentiary issue.” State v. Ricky E. Scoville, No. M2006-01684-CCA-R3-
CD, 2007 WL 2600540 (Tenn. Crim. App. Sept. 11, 2007), no perm. app. filed. Defendant
has failed to carry his burden of showing that consideration of the alleged error is
“necessary to do substantial justice” in this case. Accordingly, we do not extend review.
Confrontation Clause
Defendant contends that his right to cross-examine under the Confrontation Clause
was violated by the State’s failure to present testimony by the victim. The State responds
that the Confrontation Clause was not implicated because the State did not introduce any
out-of-court statements by the victim. We agree.
The Sixth Amendment to the United States Constitution provides that the accused
in a criminal prosecution “shall enjoy the right . . . to be confronted with the witnesses
against him[.]” U.S. Const. amend. VI. Similarly, article I, section 9 of the Tennessee
Constitution provides that, “in all criminal prosecutions, the accused hath the right .. . to
meet the witnesses face to face[.]” Tenn. Const. art. I, § 9.
The constitutional right afforded by the Confrontation Clause applies to testimonial
hearsay statements by an unavailable witness where the defendant did not have a prior
opportunity for cross-examination. See Crawford v. Washington, 541 U.S. 36, 68 (2004).
Under Crawford, “when an accused challenges the admissibility of a statement under the
Confrontation Clause, the threshold question is whether the statement is testimonial or
nontestimonial.” State v. Cannon, 254 S.W.3d 287, 301 (Tenn. 2008) (citing United States
v. Hinton, 423 F.3d 355, 358 (3d Cir. 2005)). Here, Defendant does not identify on appeal,
and the State did not introduce at trial an out-of-court statement, testimonial or
nontestimonial, by the victim.
Without the introduction of an out-of-court statement by the State, there was nothing
for Defendant to confront, and thus, there has been no violation of his right to confrontation
by the victim’s absence at trial. As part of his argument, Defendant also asserts that the
trial court erred by denying his motion for a judgment of acquittal and that the State failed
to establish that Defendant lacked the victim’s consent. We interpret this argument as a
challenge to the sufficiency of the evidence, which we address below.
Sufficiency of the Evidence
Defendant argues that the evidence is insufficient to sustain his convictions for
identity theft and forgery. Specifically, he contends that the State failed to establish beyond
a reasonable doubt that he lacked the effective consent of the victim because the victim did
not testify at trial. The State responds that the circumstantial evidence is more than
sufficient to support Defendant’s convictions. We agree with the State.
When a defendant challenges the sufficiency of the evidence supporting a
conviction, the standard of review applied by this Court is “whether, after reviewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis in original). Similarly, Rule 13(e) of the Tennessee
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Rules of Appellate Procedure states, “Findings of guilt in criminal actions whether by the
trial court or jury shall be set aside if the evidence is insufficient to support the finding by
the trier of fact of guilt beyond a reasonable doubt.” On appeal, the State is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be
drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State
v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). Because a guilty verdict “removes the
presumption of innocence and raises a presumption of guilt, the criminal defendant bears
the burden on appeal of showing that the evidence was legally insufficient to sustain a
guilty verdict.” State v. Hanson, 279 8.W.3d 265, 275 (Tenn. 2009).
Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S8.W.2d 776,
779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977);
Farmer vy. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 370 (Tenn. 2011) (quoting
Hanson, 279 §.W.3d at 275). The jury as the trier of fact must evaluate the credibility of
the witnesses, determine the weight given to witnesses’ testimony, and reconcile all
conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing
Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the jury
determines the weight to be given to circumstantial evidence and the inferences to be drawn
from this evidence, and the extent to which the circumstances are consistent with guilt and
inconsistent with innocence are questions primarily for the jury. Dorantes, 331 S.W.3d at379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When considering the
sufficiency of the evidence, this Court shall not reweigh the evidence or substitute its
inferences for those drawn by the trier of fact. Jd.
“A person commits the offense of identity theft who knowingly obtains, possesses,
buys, or uses, the personal identifying information of another . . . [w]ith the intent to
commit any unlawful act including, but not limited to, obtaining or attempting to obtain
credit, goods, services or medical information in the name of such other person” without
the consent of the other person. T.C.A. § 39-14-150(b)(1). Personal identifying
information means “any name or number that may be used, alone or in conjunction with
any other information, to identify a specific individual,” including, in relevant part,
“Injame, social security number, date of birth, [or] official state or government issued
driver license or identification number[.]” Jd. § 39-14-150(e)(1). The offense of forgery
is committed when a person “forges a writing with intent to defraud or harm another.” Jd.
§ 39-14-114(a). To “forge” is 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.” Id.
§ 39-14-114(b)(1)(A)@).
In the instant case, the proof at trial established that Defendant accompanied Mr.
Stephens to the bank to open a checking account into which recurring monthly life
insurance payments payable to Mr. Stephens were deposited. On the same day the account
was opened, Defendant passed one of Mr. Stephens’ starter checks on which Mr. Stephens’
name was misspelled and the signature did not match Mr. Stephens’ signature. Less than
two weeks after the account was opened, Mr. Stephens mysteriously vanished and was not
seen or heard from again. Defendant thereafter withdrew large sums of money from Mr.
Stephens’ checking account on several occasions and under suspicious circumstances, the
first being the timing of the transactions within a day or two of the monthly deposits being
posted to the account. The day after a lump sum of $19,000 was deposited, Defendant
passed three checks totaling $17,300 that were drawn on the victim’s account, and the
transactions were all close in time to each other but at different bank locations. On two
occasions, withdrawals from Mr. Stephens’ account were made late at night at ATMs in
Georgia, the first by someone wearing a disguise and the second by Defendant being driven
by Mr. Owens. Defendant continued to withdraw money from Mr. Stephens’ checking
account despite having not seen or heard from Mr. Stephens after September, 2018.
The evidence was sufficient to sustain Defendant’s identity theft and forgery
convictions. Defendant is not entitled to relief.
Sentencing
Defendant argues that his total effective sentence of 63 years is excessive. The State
responds that the trial court properly exercised its discretion in imposing the maximum
within-range sentences and aligning each sentence consecutively. We agree with the State.
Before a trial court imposes a sentence upon a convicted criminal defendant, it must
consider: (a) the evidence adduced at the trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing and arguments as to sentencing
alternatives; (d) the nature and characteristics of the criminal conduct involved; (e)
evidence and information offered by the parties on the enhancement and mitigating factors
set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114; (f) any
statistical information provided by the Administrative Office of the Courts as to Tennessee
sentencing practices for similar offenses; (g) any statement the defendant wishes to make
in the defendant’s own behalf about sentencing; and (h) the result of the validated risk and
needs assessment. T.C.A. § 40-35-210(b). When an accused challenges the length and
manner of service of a sentence, this Court reviews the trial court’s sentencing
determination under an abuse of discretion standard accompanied by a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012).
This Court will uphold the trial court’s sentencing decision “so long as it is within
the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-
10. Moreover, under such circumstances, appellate courts may not disturb the sentence
even if we had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn.
2008). The burden of showing that a sentence is improper is upon the appealing party. See
T.C.A. § 40-35-401, Sentencing Comm’n Cmts.; see also State v. Arnett, 49 §.W.3d 250,
257 (Tenn. 2001).
At the sentencing hearing, the State introduced certified copies of judgments of
conviction from Defendant’s prior convictions, which included convictions in 1981 for
felony taking the automobile of another for temporary use without the consent of the
owner; forgery of a check in an amount exceeding $200; offering to pass a forged check in
an amount exceeding $200; receiving stolen property not exceeding $100 in value; and
felony larceny of property valued at over $200. In 1985, Defendant was convicted of grand
larceny; first degree murder; forgery over $200; passing a forged instrument over $200;
and two counts of aggravated assault. A federal background check revealed that Defendant
also had prior convictions for carrying a concealed weapon in 1976, second degree burglary
in 1979, and possession of stolen property in 1984.
The State also introduced a presentence investigation report, which included a
Strong-R Assessment stating that Defendant was at moderate risk for reoffending.
Defendant’s criminal history included a parole revocation in 1985, and he was on parole
for his murder conviction when he committed the offenses in this case.
Based on Defendant’s criminal history, the trial court determined that Defendant
was a Range III persistent offender. The court applied as enhancement factors that
Defendant had a previous history of criminal convictions or criminal behavior in addition
to those necessary to establish the appropriate range; that Defendant had a previous failure
to comply with the conditions of a sentence involving release; and that Defendant
committed the offense while on parole. See T.C.A. § 40-35-114(1), (8), and (13). The
court found no applicable mitigating factors. Additionally, the trial court found that
Defendant’s criminal history was extensive and that he was a professional criminal who
had “knowingly devoted his life to criminal acts as a major source of his livelihood.” Based
on these findings, the trial court imposed the maximum within-range sentences of 12 years
for each of the identity theft convictions and 15 years for the forgery conviction and ordered
the sentences to be served consecutively. See T.C.A. § 40-35-112(c)(3), (4); T.C.A. § 40-
35-115(b)(1), (2).
Defendant’s argument is severely lacking in citations to the record and authority. A
defendant is required on appeal to make appropriate references to the record in the
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argument portion of his brief and to cite relevant authority. See Tenn. R. App. P. 27(a)(7);
Tenn. Ct. Crim. App. R. 10(b). Defendant does not specifically challenge the trial court’s
application of any single enhancement factor, the court’s failure to apply any mitigating
factors, or the court’s imposition of consecutive sentencing. Rather, Defendant simply
avers that “his sentence was excessive under the circumstances of these cases,” and that
the trial court’s imposition of “the maximum allowable punishment . . . was not justly
deserved in relation to the seriousness of the offenses.” We disagree.
The record reflects that the trial court imposed within-range sentences based upon
a proper application of the purposes and principles of sentencing. The trial court’s decision
is presumed reasonable, and Defendant has failed to establish that the trial court abused its
discretion in imposing an effective 63-year sentence. See Bise, 380 S.W.3d at 707.
Conclusion
Upon reviewing the record, the parties’ briefs, and the applicable law, we affirm the
judgments of the trial court.
TIMOTHY L. EASTER, JUDGE
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