State of Tennessee v. Jeannette Jives-Nealy ( 2020 )

02/28/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 5, 2019
STATE OF TENNESSEE v. JEANNETTE JIVES-NEALY
Appeal from the Criminal Court for Shelby County
No. 17-04173 James M. Lammey, Judge
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No. W2018-01921-CCA-R3-CD
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Defendant, Jeannette Jives-Nealy, was convicted by a jury of theft over $60,000 and
money laundering. The trial court sentenced Defendant to a total effective sentence of
twenty-four years’ incarceration. On appeal, Defendant asserts that: (1) the evidence was
insufficient to support her convictions; (2) the trial court erred when it failed to sever the
two counts of the indictment; (3) the trial court erred in allowing the jury to hear evidence
of prior bad acts under Tennessee Rule of Evidence 404(b); (4) the trial court imposed an
excessive sentence; and (5) the trial court erred by ordering Defendant to pay restitution
to a victim, who had been paid in a previous civil court settlement. Following a thorough
review of the record and applicable case law, we affirm the judgments of the trial court
and remand for entry of an amended judgment for money laundering.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed;
Case Remanded
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and CAMILLE R. MCMULLEN, J., joined.
Eric Mogy (on appeal), and Claiborne H. Ferguson (at trial), Memphis, Tennessee, for the
appellant, Jeannette Jives-Nealy.
Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Byron Winsett,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual and Procedural Background
Rule 404(b) Hearing
At a Rule 404(b) hearing prior to trial, the State asserted it intended to introduce
evidence that Defendant was on probation out of Florida at the time of the instant
offenses1 and that the rules of Defendant’s probation specifically provided that Defendant
“was not allowed to engage in business that received funds from a federal, state, or local
agency.” The State asserted that the evidence established Defendant’s intent and
knowledge and argued that, without the proof, there would be “a gaping hole in the proof
in this case.” The State explained:
The point of that evidence is that the documentary proof in this case
will show [Defendant’s] son’s signature and name all over the documentary
proof. That includes applications to the Tennessee Department of Human
Services that was funding this program that includes signatures on the
business account, the bank account, and on the checks and withdrawals
from that account.
The State contended that Defendant’s son’s involvement was “mainly on [] paper”
and that Defendant had a “reason for putting his name on those documents.” The State
acknowledged that the reason for the restriction in Defendant’s probation was that “her
crime in Florida was of a similar nature where there was funding coming from the
government and abuse was found in Florida” but stated that it was “not trying to get into
all the details of the crime.” Defendant responded that the probative value of the
evidence did not outweigh the unfair prejudicial effect.
Reviewing the issue under Rule 404(b), the trial court found that the proof of the
“crime, wrong, or act” was clear and convincing. The court then stated:
Now, material issue, of course, I think it’s really relevant to show
intent and knowledge and also to show why she had her son . . . [put] his
name on all the paperwork. So, I think it’s highly, highly material to those
issues.
1
Defendant was on probation in Florida for grand larceny and “fraud-swindle” at the time the
instant offenses were committed.
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Finally, the trial court determined that the probative value of the evidence was not
outweighed by the danger of unfair prejudice, noting that the State was limiting its proof
“to that particular provision of the probation order.”
Severance
At the conclusion of the Rule 404(b) hearing, Defendant requested that the trial
court sever the offenses for trial. The trial court found, however, that the two charges
were “totally intertwined” and stated, “I don’t think it’s a good situation to sever because
I think proof of one is admissible in the other.” The trial court denied the request for
severance.
Trial
State’s Proof
Carmen Gentry testified that, from July 2014 to August 2015, she was employed
by the Tennessee Department of Human Services (“DHS”) as the director2 of two
federally-funded food programs—the Summer Food Services Program (“SFSP”) and the
Child and Adult Care Food Program. In her role at DHS, Ms. Gentry worked to ensure
the non-profit organizations that contracted with the state to participate in the food
programs were using the federal funds as they were intended under the Code for Federal
Regulations (“CFR”).
Regarding the SFSP, Ms. Gentry stated that non-profit organizations, including
churches, school systems, county governments, and libraries often participated in the
program and that its purpose was to provide food—breakfast, lunch, supper, and
snacks—to children in areas of high poverty. Ms. Gentry explained that Shelby County
was one of the counties targeted by the SFSP because of the high number of children
living at or below the poverty line.
Ms. Gentry testified that Kingdom Dominion World-Wide Ministries,
Incorporated (“Kingdom Dominion”)—a church associated with Defendant—applied to
be a first-time sponsor in the SFSP in 2014. Ms. Gentry identified an application and
provider agreement completed by Kingdom Dominion dated June 17, 2014. The
application indicated that Defendant’s son, Demario Jives, was the intended administrator
of the food program; the application also contained a proposed budget from Kingdom
Dominion, which DHS approved. Ms. Gentry explained that, if a program sponsor
2
Ms. Gentry testified that she had been the acting director or “coordinator” of the food programs
from December 2013 until July 2014.
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wanted to change its budget, it needed to notify DHS and file an up-to-date budget. She
stated that there were never any budget changes made by Kingdom Dominion. Ms.
Gentry stated that, after DHS approved Kingdom Dominion’s application, it provided
Kingdom Dominion with policy information, including a link to the CFR.
Ms. Gentry testified that, under the provider agreement, Kingdom Dominion was
supposed to operate its food program from June 1, 2014, to August 31, 2014. Kingdom
Dominion agreed to provide DHS with documents regarding its costs, including receipts,
invoices, and any other documentation requested. Ms. Gentry explained that the
representative for Kingdom Dominion named on the provider agreement was Demario
Jives, who was listed as the church’s president. She stated that Kingdom Dominion was
supposed to operate the program at three different sites—Kingdom Dominion, The Faith
Center, and God’s Ministries Christian Church.
Ms. Gentry explained that DHS would not have approved the application for a
new program sponsor if it had learned that the representative signing the agreement had
been previously terminated from a food program or deemed to have been “seriously
deficient.” However, in 2014, there was no database to check whether applicants had
been previously deemed seriously deficient in any other program.
Ms. Gentry testified that all SFSP program sponsors were monitored, and new
program sponsors, like Kingdom Dominion, went through “pre-operational training.”
Ms. Gentry explained that, during pre-operational training, DHS staff met with program
sponsors to go over program requirements. Thereafter, a new program sponsor would be
reviewed during its first week of operation and then monitored randomly on site to ensure
compliance. Ms. Gentry explained that monitors would review program sponsors’ menus
and “make sure the children were offered milk.” Ms. Gentry testified that she met
Demario Jives and Defendant when they attended pre-operational program training in
Memphis on May 16, 2014.
Ms. Gentry explained that, once a program sponsor had gone through the
application process and been accepted, the program sponsor could request an advance
payment for June based on its submitted budget. She stated that, in order to receive an
advance payment for July, the sponsor had to submit a claim for reimbursement for the
month of June—based on how many meals the program sponsor had served—that
showed that the bulk of the advance for the month of June “had been paid back.”
Ms. Gentry explained that DHS made advance payments to program sponsors
through direct deposit and that the payment system was automated. She stated:
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[T]he system . . . would calculate the number of meals that you said
you served, the . . . number of sites—all of that information; and it would
determine, then, what your reimbursement amount would be. And . . . if it
was above the advance amount, the advance would be paid back and any
overage would be issued to you via direct deposit. And then that would
also trigger the release of July’s advance.
Ms. Gentry identified a request from Kingdom Dominion for an advance payment
in June, July, and August. The advance request specifically read, “In the event meals are
not served in sufficient number to earn the amount of reimbursement, being advanced for
both operational and administrative expenses, that portion of the unearned advanced
funding will be refunded to the Tennessee Department of Human Services.” Ms. Gentry
testified that Kingdom Dominion received an advance payment for June in the amount of
$61,096 to pay staff, buy food, and buy equipment. She stated that Kingdom Dominion
was required to notify DHS in writing if the number of sites and/or the level of projected
administration costs listed in the advance request changed. She stated that DHS never
received such a notification from Defendant or Kingdom Dominion.
Ms. Gentry explained that the “Outreach Division” of Kingdom Dominion agreed
to lease the church’s premises on East Brooks Road for the purpose of the food program.
Ms. Gentry identified a rental agreement, which listed Demario Jives as “President” of
the “Outreach Division” of Kingdom Dominion and Defendant as “Senior Pastor” of
Kingdom Dominion. The rental agreement provided, “This agreement is between
Kingdom Dominion World-Wide Ministries Church and Kingdom Dominion World-
Wide Ministries, Incorporated Outreach Division, Demario Jives.” Ms. Gentry also
identified a rental agreement between Kingdom Dominion and Down South Barbeque
and Wings (“Down South Barbeque”) for Kingdom Dominion’s use of the restaurant’s
kitchen.
Ms. Gentry identified proposed menus submitted to DHS by Kingdom Dominion
for June, July, and August for breakfast, lunch, supper and a snack. She testified,
however, that Kingdom Dominion did not serve any meals to children for the SFSP.
On cross-examination, Ms. Gentry explained that Kingdom Dominion submitted a
request for reimbursement for June in the amount of $91,000. In the claim for
reimbursement, Kingdom Dominion stated that they had served 10,113 breakfasts;
10,301 lunches; 10,490 suppers; and 10,090 snacks in June. Ms. Gentry explained that
the reimbursement for June was paid, and then DHS issued Kingdom Dominion the July
advance through its automated system. She testified that Demario Jives was listed as the
owner of the bank account into which DHS payments were deposited.
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Ms. Gentry said that new program sponsors were supposed to have at least two on
site visits by DHS staff during the first month of operation. Ms. Gentry explained that,
although monitoring was required of all new program sponsors, monitoring was “a
struggle” because DHS was understaffed, and there were many program sponsors
participating across the state. Ms. Gentry stated, “And what happened a lot of times is
that . . . because summer is so short, the program was over before they were able to get to
monitoring.”
Special Agent Charles Baker of the Tennessee Bureau of Investigation (“TBI”)
testified that he received a request for an investigation into Kingdom Dominion from the
Shelby County District Attorney General. He explained that the investigation involved
an alleged theft of over $60,000.00 from a program funded by DHS. Agent Baker needed
to account for $162,165.89 given to Kingdom Dominion by DHS and to understand how
the money was spent. Agent Baker testified that, based on his investigation, the money
was not used for the purpose of the SFSP.
Agent Baker recalled that Kingdom Dominion subleased a barbeque restaurant,
Down South Barbeque, which was near the church’s physical location. Agent Baker
testified that, after speaking with the owner of Down South Barbeque, he was unable to
establish that Kingdom Dominion had prepared at that location.
Agent Baker identified purchase receipts from Kingdom Dominion. He testified:
If you see the customer name, it’s Kingdom Dominion World-Wide
Ministries, that would actually be the purchaser of these food products such
as the eighty quart or gallons of milk, seventy -- it looks like loaves of
bread. And I don’t know the number of fruit juice, but . . . what’s
interesting, which didn’t make any sense to me is that this was purchased
from Kingdom Dominion World-Wide Ministries Church. So, they
basically -- from what it look[ed] like to me, they purchased it from
themselves. So, I attempted to determine whether . . . Kingdom Dominion
World-Wide Ministries actually was a food distributor or a wholesaler like
Sysco or -- you know, any type of food distributor.
Agent Baker explained that he found no proof that Kingdom Dominion was a food
distributor or wholesaler. Agent Baker also checked with the health department and
found that Kingdom Dominion did not have a food vendor license. Agent Baker stated,
“No one had ever heard of this entity as a food distributor.” Agent Baker explained that
he spoke to individuals at Turner Dairies, which was “the big milk distributor” in
Memphis, because Kingdom Dominion provided receipts showing purchases of large
quantities of milk. However, Turner Dairies denied selling milk to Kingdom Dominion.
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Agent Baker testified that he attempted to locate the employees listed by Kingdom
Dominion on its sponsor application. He spoke to Defendant because she was listed on
the sponsor application and because she attended the training provided by DHS. Agent
Baker said that, in speaking with Defendant, he found “nothing to show that they were
feeding anyone.”
Agent Baker explained that, as part of his investigation, he went to Kingdom
Dominion’s physical location—an old office building in a strip mall on East Brooks
Road—on December 12, 2014. The building was vacant, however. Agent Baker then
subpoenaed Defendant’s phone records from May 14, 2014, to June 28, 2014, to check
for phone calls made by Defendant to DHS. Agent Baker explained that he was “able to
isolate seventy-nine incoming/outgoing calls from May 14, 2014 [to] June 28th --
specifically, forty out-going calls were made to DHS.”
Agent Baker testified that he also attempted to identify a source of income for
Defendant. He checked with the United States Department of Revenue Tax System, but
he could not locate any type of employment. He stated, “I tried other means . . . through
other data bases to try to find income and employment for [Defendant]. I could not
locate any.”
Agent Baker testified that he arranged to meet with Defendant on February 4,
2015, through her probation officer. Agent Baker stated that he provided Defendant with
a Miranda warning, and she initially refused to answer questions about the SFSP. As
Agent Baker was getting ready to leave, however, Defendant said that she wished to
speak to him. After signing a waiver of rights, Defendant stated that her son, Demario
Jives, operated the food program for Kingdom Dominion. She stated that she was the
pastor of the church. Defendant told Agent Baker that her “probation conditions” would
not allow her to be involved with any government subsidized program. Defendant
provided her personal cell phone number and email address. Later in the conversation,
however, Defendant said that the cell phone was “the church’s cell phone” and that
“anyone connected to the church would have access to her telephone and email.”
When Agent Baker asked Defendant to provide details about the food program,
she again stated that her son operated the food program, although she acknowledged that
she attended the pre-operational training. Regarding the training, Defendant stated that
she was only there to “see what was going on.” Defendant acknowledged that she was
with her son when he negotiated the kitchen rental agreement with the owner of Down
South Barbeque and when the restaurant was inspected by the DHS program inspector.
Defendant said that Kingdom Dominion prepared food at Down South Barbeque
on East Brooks Road between the hours of 5:00 a.m. and 7:30 a.m., when no one else was
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at the restaurant. She identified Tianna Mitchell, Christopher Covington, Hazel Keith,
Henry Simmons, and another of her sons, Tamarco Jives, as individuals who had
prepared food for the SFSP. Agent Baker testified that he spoke to Tamarco Jives and
that the information provided by Tamarco Jives did not “support the idea that Kingdom
Dominion had fed hundreds of children a day[.]”
Defendant told Agent Baker that she purchased the food for the program at Sam’s
Club, Walmart, Family Dollar, and Restaurant Depot in Memphis. She told Agent Baker
that the food for the program was purchased using an account at Regions Bank that DHS
deposited money into for use in the SFSP. When Agent Baker asked Defendant about
receipts that she had given to DHS showing that Kingdom Dominion purchased food
from itself, Defendant stated that program sponsor could buy food “from anyone.”
Defendant claimed that all the meals were served at Kingdom Dominion on East
Brooks Road. She said that “[t]he church served three meals and one snack five days a
week for the months of June and July of 2014.” She claimed that, on average, Kingdom
Dominion had fed five to six hundred people a day. She further stated that the church
had paid staff to prepare and serve the meals but that volunteers also participated.
Defendant told Agent Baker that the church used money from the Regions Bank account
to purchase a van, which she claimed was used to pick up children participating in the
SFSP. Agent Baker asked Defendant how Kingdom Dominion paid for all the meals and
expenses, and Defendant explained that DHS reimbursed Kingdom Dominion for its
expenses.
Defendant told Agent Baker that Kingdom Dominion consisted of “about fifty
people.” She said that some of the children fed by Kingdom Dominion also attended the
church with their parents; however, Defendant could not remember any of their names.
Defendant claimed that Kingdom Dominion had a board of directors and that she was
only the church’s pastor. However, Defendant did not know the names of any of the
individuals on the board.
Defendant told Agent Baker that she had received a salary and “other money”
from the same Regions Bank account where the DHS funds had been deposited.
Defendant stated, however, that she received no funds intended for the SFSP. She
explained that the funds she received were from “donations and offerings to the church.”
Defendant explained that Kingdom Dominion’s food program began around June 1,
2014, and the program was closed down at the end of July 2014. She stated that the
program was supposed to run to August 2014, but it shut down early for “some unknown
reason.” Defendant recalled visits by state auditors or monitors. She explained,
however, that her records for the SFSP had been destroyed by a “pipe leak” and that the
damaged records had been placed in a dumpster behind the church. Defendant told
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Agent Baker that a handyman from Kingdom Dominion repaired the leak, but she could
not remember the man’s name.
When Agent Baker asked Defendant why her cell phone number had made or
received around seventy calls to the SFSP director, Ms. Gentry, Defendant stated that the
number “was also the church’s number” and that her son, Demario Jives, also used the
cell phone. Defendant acknowledged that the number had been used as a contact number
for DHS and that she had called DHS to ask questions about the SFSP. Defendant stated
that she could “ask and answer questions,” “without violating her probation terms.”
On cross-examination, Agent Baker admitted that, in his review of the documents
relating to Kingdom Dominion’s participation in the SFSP, he did not find any
documents signed by Defendant. He testified that he attempted to interview Demario
Jives but that Demario Jives refused to speak to him.
Belinda Lawson testified that she was employed by DHS in 2014 as an
administrative services assistant. In her position, Ms. Lawson provided training and
technical assistance to program sponsors in the SFSP. Ms. Lawson explained that, after a
program sponsor completed the application process, she would be notified that the
sponsor was ready for training, and she would meet with the sponsor to ensure that it
understood the requirements of the United States Department of Agriculture (“USDA”),
including the record keeping requirement. Ms. Lawson stated that she did site visits all
over West Tennessee and that she visited Kingdom Dominion on June 4, 2014. She
recalled that the date of the visit was requested by Defendant. Ms. Lawson said the SFSP
training guide was adapted from the USDA regulations manual and that the guide told
program sponsors “everything they . . . need[ed] to know to operate the program.”
During her site visit at Kingdom Dominion, Ms. Lawson confirmed that Kingdom
Dominion had the current SFSP provider agreement on file. They had the sign for the
comptroller’s hot-line number posted as required. Ms. Lawson recalled that Kingdom
Dominion’s application stated that it would run three feeding sites. Kingdom Dominion
indicated that it had procedures in place to maintain all program records and indicated
that it would file all claims online in the Tennessee Food Program (“TFP”). Regarding
the TFP, Ms. Lawson explained:
It’s where they can file their claims online. We had a hand out that
explained how to use the system; and there was also a contact person in
Nashville that helped with the TFP because that’s where it was centrally
located. If they had questions, they could contact Nashville or they could
also file by a paper claim, but it took longer to get the reimbursements.
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During the site visit, Ms. Lawson learned that Kingdom Dominion had contracted
with Down South Barbeque—an existing restaurant on East Brooks Road—for use of its
kitchen during early morning hours. Ms. Lawson was presented with a food permit and a
health inspection report for the restaurant. Ms. Lawson viewed the kitchen to ensure it
was an adequate facility with a refrigerated space and storage area for dry ingredients.
She was also told that “Turner Dairy will make daily milk deliveries to the restaurant
location.”
Ms. Lawson testified that, the day after the site visit at Kingdom Dominion, she
received an email from Defendant that stated, “Good morning, what do we do now?”
Ms. Lawson replied to the email, “I also sent the form to [Ms.] Gentry in Nashville. If
they have all the information from you that they need, they should send you a formal
approval notice by email with an assigned application number. You need formal written
notice before you can begin the program.” Defendant then responded, “Okay, thanks.”
Thomas Byspriansky testified that he worked as an auditor for the Tennessee
Comptroller of the Treasury (“Comptroller’s Office”). He explained that, as an auditor,
he “check[ed] for compliance within . . . state agencies” and that he was assigned to audit
DHS and the SFSP. Mr. Byspriansky stated that Kingdom Dominion was one of several
program sponsors he randomly selected for review. He intended to conduct a site visit
first and then an administrative review of Kingdom Dominion’s food program.
Mr. Byspriansky stated that he made a phone call on July 18, 2014, to the phone
number listed on the sponsor application, and Defendant answered. Mr. Byspriansky
asked to speak to Demario Jives about the food program. Defendant said that he was not
present but that she could answer any questions Mr. Byspriansky might have on his
behalf. Mr. Byspriansky asked Defendant general questions about Kingdom Dominion’s
operations, like how many sites it operated, meals served, and the first day and last day of
the program. Defendant was able to answer his questions. Mr. Byspriansky testified that
he told Defendant that he would follow up at a later date to schedule a day when he could
conduct an in-person meal observation.
Mr. Byspriansky called Kingdom Dominion on July 25, 2014, to schedule a meal
observation. Mr. Byspriansky again asked to speak to Demario Jives, but Defendant said
that he was not available and that she could answer his questions. Mr. Byspriansky
explained that he wanted to schedule a meal observation for the following week. He said
that he wanted to “come and be present when the meals are served to children.”
However, Defendant told him that July 25 was the last day that Kingdom Dominion was
participating in the SFSP. She stated that there was “an emergency” and that she needed
to leave town for two weeks. Mr. Byspriansky told Defendant that he would contact her
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at a later date to schedule an administrative review so that he could look at Kingdom
Dominion’s documentation.
On September 5, 2014, Mr. Byspriansky called Defendant, seeking to come and
review documentation supporting the payments that DHS made to Kingdom Dominion.
He suggested that September 11 would be a good day, and Defendant agreed to meet with
him on that date at 10:30 a.m. at Kingdom Dominion. During this phone call, Mr.
Byspriansky again asked to speak to Demario Jives, but Defendant stated that he was sick
and “not in the church [at] that time.” On September 8, Mr. Byspriansky emailed
Defendant, listing the items he wanted to review during his September 11 visit.
Mr. Byspriansky testified that he received a voice mail message from Defendant at
9:30 a.m. on September 11, one hour before their scheduled meeting. She said that there
was water damage in the church, that all the documentation for the SFSP had been
destroyed, and that “there was no reason for [Mr. Byspriansky] to come at [the] 10:30
meeting.” Mr. Byspriansky testified, however, that he was at Kingdom Dominion at the
scheduled time where he was joined by Jimmy Stewart, another auditor from his office,
and Brenda Powers, a monitor for DHS. When he arrived at the church, Mr. Byspriansky
saw a note on the front door that stated, “Mr. Byspriansky, I left you a voice mail early
on, busted pipe damaged the documentation . . . , and I’m driving out of town from the
church.”
Mr. Byspriansky recalled that, around 11:00 a.m., Defendant called him. She
reiterated that the documentation had been destroyed by a busted pipe. She said that all
the documentation for the SFSP was placed in a dumpster behind the building. Mr.
Byspriansky told her that he was at the church and asked Defendant to return. Defendant
suggested that they meet another day or at another location “because she did not have the
keys from the church.” Mr. Byspriansky refused to meet at another location and persisted
in his request that Defendant return to the church. Eventually, Defendant agreed to meet
him at Kingdom Dominion.
Mr. Byspriansky explained that he waited for Defendant across the street from
Kingdom Dominion. He was sitting in his car when, around 11:45 a.m., Defendant
arrived at the church in a van. When he saw Defendant unlocking the front door, Mr.
Byspriansky, Mr. Stewart, and Ms. Powers introduced themselves and asked Defendant if
she could show them any water damage inside the building. Defendant claimed that the
water damage had occurred the night of September 10 or morning of September 11 and
that the busted pipe had been in the bathroom. However, Mr. Byspriansky went inside
the bathroom and did not see a busted pipe or any evidence of water damage. Mr.
Byspriansky stated that he touched the walls, the carpet, and went around the building
“just patting the walls because [he] couldn’t see any water damage[.]” Defendant pointed
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in the general direction of the toilet and ceiling, but Mr. Byspriansky did not see any
water stains on the ceiling. When he mentioned to Defendant that he did not see any
water, Defendant stated that a crew of church members came to clean up before she left
the church that day. Defendant claimed that the SFSP records had been kept in the filing
cabinet in a back room, separate from the bathroom. Mr. Byspriansky testified that he
looked inside the filing cabinet and found it empty.
Because Defendant had stated that the documentation had been placed in the
dumpster behind the church, Mr. Stewart and Mr. Byspriansky inspected the dumpster.
Mr. Byspriansky said that the only thing he saw inside the dumpster was “tree branches
[and] leaves[.]” When Mr. Byspriansky told Defendant that he and Mr. Stewart looked in
the dumpster for the records but did not find any, Defendant responded that “it was a far-
away dumpster.”
Mr. Byspriansky explained that he interviewed Defendant using an “internal
control questionnaire,” which he used for interviewing each of the sample sponsors.
Defendant stated that, “[d]uring summer, 2014, Kingdom Dominion . . . planned to serve
meals at three different locations[.]” Defendant acknowledged, however, that meals were
served only at the Kingdom Dominion site on East Brooks Road. Defendant told Mr.
Byspriansky that Kingdom Dominion made a media release concerning the SFSP and
stated that she sent the release to three different media outlets. Defendant told Mr.
Byspriansky that Kingdom Dominion prepared meals at Down South Barbeque on East
Brooks Road. She stated that church staff prepared the meals and that a driver delivered
the ready to serve meals to the church for breakfast, lunch, afternoon snack, and supper.
Defendant stated that she prepared a menu in accordance with USDA guidelines; she sent
the menu to DHS at the beginning of the summer of 2014, and DHS approved it. She
added that she provided “a close oversight during the meal preparation process.”
Defendant stated that Kingdom Dominion used “meal count sheets to record the number
of meals served daily to children[.]” During the interview, Defendant did not mention
anything about Demario Jives’ role in the program.
Defendant told Mr. Byspriansky that her title was “pastor and program
administrator[.]” She stated that she oversaw the “summer food program at [Kingdom
Dominion].” Defendant stated that Kingdom Dominion did not contract with any food
vendors but that she purchased food for the SFSP at various grocery stores—mostly
Sam’s Club and Walmart. Defendant said that she tallied up the daily meal count
numbers and filed the claims in the TFP. She explained that she did not presently have
any supporting documentation for the SFSP due to the water damage. She added that she
maintained some of the SFSP information on her computer but that it had “crashed” a
few days before the meeting with auditors. She stated that only she and Demario Jives
had access to the documentation. Defendant acknowledged that only Demario Jives had
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authorization to submit claims for reimbursement to DHS, but she admitted that she
submitted the claims in the TFP.
Defendant told Mr. Byspriansky that she had been a pastor for “upwards of ten
years” but that she established Kingdom Dominion in May 2014. Defendant listed the
following individuals as employees of Kingdom Dominion’s food program: Demario
Jives, Program Supervisor; Tianna Mitchell, Helper; Tamarco Jives, Helper; Page
Lakeith, Helper; Christopher Covington, Monitor; Henry Simmons, Administrative Help.
Defendant said that DHS program personnel could “do a better job by training individual
sponsors in the program requirements” and that additional technical assistance “could be
beneficial[.]”
Samuel Wilkes testified that, when he met Defendant in 2014, he owned Down
South Barbeque. Mr. Wilkes recalled that Defendant had a church in close proximity to
his restaurant and that she occasionally ate at the restaurant. He identified the kitchen
rental agreement between Kingdom Dominion and Down South Barbeque containing his
signature. He explained that Defendant said she was applying for a grant to provide
meals to children and that she needed a facility where she could prep food for serving.
Mr. Wilkes recalled that he was at the restaurant when Defendant met with a DHS
representative from Nashville. He stated, “And they came and they communicated there,
and they wanted to see the copy of the health department inspection . . . certificate[.]”
Defendant later told Mr. Wilkes that Kingdom Dominion’s application had been
approved.
Mr. Wilkes testified that he rented the facility to Defendant for six hundred dollars
a month and provided her with a key to the restaurant. He explained that Defendant was
supposed to use the restaurant’s kitchen from 5:00 to 7:00 a.m. and that he normally
opened his restaurant at 11:30 a.m. Mr. Wilkes explained that he cleaned the kitchen
every night and that he ran the restaurant six days a week, Monday through Saturday,
during the summer of 2014. When asked if he ever saw signs that the restaurant had been
used in the mornings prior to his arrival, Mr. Wilkes replied, “I can’t say that [Defendant]
wasn’t there, but the place was immaculate” and that “everything was the way I left it”
the previous night. Mr. Wilkes stated that he never saw dry or refrigerated goods stored
in the restaurant that did not belong to Down South Barbeque. Mr. Wilkes explained that
Down South Barbeque had a dumpster, but he never saw any garbage in it that did not
belong to his restaurant.
Jimmy Stewart testified that, in 2014, he was employed by the Comptroller’s
Office as a legislative auditor with the division of state audit. Mr. Stewart recalled that
he was involved in the audit conducted on Kingdom Dominion. He explained that he
went with Mr. Byspriansky to Kingdom Dominion in September 2014, in order to review
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the documentation that Kingdom Dominion was required to keep in support of the claims
Defendant submitted to DHS. On September 11, 2014, Mr. Stewart arrived with Mr.
Byspriansky and Ms. Powers at Kingdom Dominion. He noted that Defendant was not
there and that a note was on the door stating that “there was water damage[.]” After Mr.
Byspriansky called Defendant, she agreed to return to the church but told him that the
SFSP documentation had been damaged and that there had been “a busted pipe.”
Defendant said that she placed the documentation in a dumpster next to the building. Mr.
Stewart explained that there was only one dumpster next to the building where Kingdom
Dominion was located, so he climbed into the dumpster to look for Kingdom Dominion’s
water-damaged documentation. Mr. Stewart testified, however, that he found no such
documentation.
Mr. Stewart explained that Defendant walked them through the church to a back
room where she claimed she had kept the SFSP documentation. Defendant said that she
kept the documents in a filing cabinet but that the water had damaged the documents
inside. When they asked Defendant about the location of the busted pipe, she pointed to
the bathroom. Mr. Stewart went inside the bathroom and took photographs of areas in
the room; however, he saw no evidence of water damage.
Mr. Stewart testified that he and Mr. Byspriansky went through the internal
control questionnaire with Defendant. Defendant acknowledged that Kingdom
Dominion’s sponsor application stated it would operate three feeding sites but that it only
operated one site. Defendant said that she submitted a menu to DHS, which had been
approved, and that they prepared meals at a barbeque restaurant down the street from the
church. She stated that she did not have a contract with any food vendors. Instead, she
went to Sam’s Club and Walmart to purchase the food needed for the SFSP and tried to
find the cheapest prices. Defendant said that “[c]hurch staff” prepared the food.
Defendant acknowledged that she submitted the claims to DHS in the TFP on behalf of
Kingdom Dominion. After completing this questionnaire, Mr. Stewart interviewed
Defendant. He asked Defendant if she was aware of fraud that had occurred, is
occurring, or will occur either within the program or a department in general. Defendant
said that she was not aware of any fraud that had occurred. Defendant said that she
maintained some additional documentation on her computer but that it “crashed” a few
days before the meeting.
Mitchell Garrett testified that, in 2014, he and his wife owned a house in Cordova,
which they had purchased as an investment. Mr. Garrett remodeled the house and
eventually listed the house for sale. Defendant and Demario Jives answered an
advertisement on the property. Mr. Garrett recalled that, on July 8, 2014, Defendant,
Demario Jives, and Defendant’s mother came to see the house with an interest in
purchasing it. Defendant explained that she was living with Demario Jives in a small
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place and that they needed a larger home. Mr. Garrett told Defendant that she needed a
mortgage company, but she explained that her credit was “not that good.” Mr. Garrett
said that he would consider owner-financing if she provided ten percent down toward the
purchase of the house. He explained that the house was listed for $149,900, so Defendant
needed $15,000 as a down payment. Mr. Garrett explained that, before he agreed to
finance the mortgage for Defendant, he had her fill out a credit application. On the
application, Defendant listed Kingdom Dominion as her place of employment, stated that
she had been employed there for five years, and claimed that she made $4,800 a month.
Mr. Garrett stated that he made the decision to finance the mortgage “based on the
[$]4,800 . . . based on five years of being stable, and then based on the credit information
[he] got back from looking at her credit bureau.” Mr. Garrett stated that he primarily
negotiated with Defendant. Mr. Garrett noted that Defendant had been trusted by many
state officials and had been given multiple student loans; she had a small auto loan that
she was current on and no credit cards. Mr. Garrett testified that he asked Defendant for
a pay stub, which she provided. Mr. Garrett explained that he later discovered Defendant
had created the pay stub on a computer.
Mr. Garrett stated that, based on Defendant’s supposed income, her credit
application, and her demeanor, he agreed to owner-financing on a twenty-year mortgage.
Mr. Garrett prepared a contract for purchase of the house, which listed the parties to the
contract as Mr. Garrett, his wife, and Defendant. He testified that Defendant signed the
contract. Mr. Garrett then called a closing attorney to create a mortgage note stating that
Defendant would be financing it for twenty years on a six percent interest rate. He
explained that the closing on the house occurred on July 11, 2014. He explained that
Defendant paid the $15,000 down payment and that he financed for her the remaining
$136,697.46. Defendant was supposed to begin making monthly payments of $979.34,
starting August 11, 2014.
Mr. Garrett recalled that Defendant would personally deliver the monthly
payments to him. He testified that Defendant paid the mortgage for eight months and
then stopped paying. Defendant arranged for a mortgage company to contact Mr. Garrett,
which informed Mr. Garrett that Defendant was attempting to refinance the loan. Mr.
Garrett stated that he did not deal with Demario Jives regarding the house until Defendant
attempted to refinance and stopped making mortgage payments. He said that, about a
year after the purchase of the house, Demario Jives presented him with a cashier’s check
for $3,000 and another cashier’s check for $1,500. He explained that the checks were an
attempt by Demario Jives to “save his mother’s house[.]”
Phillip Job, an investigator for the Comptroller’s Office, testified that he became
involved in an investigation involving Kingdom Dominion after Mr. Byspriansky
requested assistance. Mr. Job stated that he attempted to obtain supporting
- 15 -
documentation on Kingdom Dominion from DHS but that there were no “receipts for
purchases . . . [or] child count sheets[.]” He stated, “I did get some invoices from [DHS],
but they were not particularly helpful. They were . . . kind of template invoices -- the
kind that you could make on your computer, and they didn’t have like a vendor that I
could go check with like a [Walmart].” He testified that he found no documentation that
Kingdom Dominion bought food for the SFSP.
Mr. Job requested that Agent Baker be assigned to work with him on the
investigation. Mr. Job testified that Agent Baker subpoenaed Kingdom Dominion’s bank
records from Regions Bank. He stated that, in looking at the bank records, he did not
find any “commercial volume of purchases” of food. He explained, “There were some
debit-card purchases at places where you buy food like at Kroger or [Walmart] . . . but
they were not . . . hundreds of dollars.” He further stated that the bank records did not
reflect purchases similar to what Kingdom Dominion listed on the invoices it provided to
DHS. Mr. Job found that there were a lot of large cash withdrawals from the Regions
Bank account. He saw “a sizeable amount of money going to [Defendant].” Mr. Job
explained that Agent Baker also subpoenaed Defendant’s personal bank records from Sun
Trust Bank. In his review of Defendant’s Sun Trust Bank account, Mr. Job did not find
any indication of larger-volume purchases of food.
Regarding Kingdom Dominion’s Regions Bank account, Mr. Job stated that the
account was opened with $100 on April 11, 2014. There were only a few deposits from
then through June 16, 2014, and then there was a deposit of $52,711, which was part of
an advance payment from DHS. Kingdom Dominion then received another deposit of
$8,385 from DHS for the administrative portion of the advance. On July 15, 2014, there
was a deposit from DHS in the amount of $39,973, which was the “reconciled amount”
after Kingdom Dominion claimed, “‘We served more food than we thought or there were
more kids than we thought,’ and so they got an extra check to . . . add to their advance[.]”
On July 16, 2014, Kingdom Dominion received another advance payment and
administrative advance payment identical to the payments in June. Mr. Job noted
additional deposits made into the Regions Bank account through December 2014. He
explained that there was $171,286.34 that went into the bank account and that $162,165
was from DHS for the SFSP. In other words, there were deposits totaling $9,120.25 that
were not from the state.
Mr. Job testified that, after the first advance payment to the Regions Bank account
from DHS in June, there were two checks written to Defendant, one for $8,610 and the
second for $2,080. He stated that, in July, there were multiple cash withdrawals from the
account in the amounts of $9,500; $9,000; $5,000; $2,500; and $2,500. On July 15,
2014, Defendant received a check for $8,678.42; Defendant received a second check for
$3,978.42 on the same day with the memo line stating “Tithe/seed.”
- 16 -
Mr. Job testified that the checks and cash withdrawals from the Regions Bank
account totaled $148,874.84. He explained that there had been a total of $89,000 in cash
withdrawals, with $25,000 of that being transferred “to some sort of savings account.”
Additionally, $21,950 was taken out of the account through debit card transactions. He
said that Defendant received checks totaling $38,446.42 from the account, and Demario
Jives received two checks totaling $10,500.
Mr. Job stated that he looked to see if any of the cash withdrawals from the
Regions Bank account “corresponded or matched up with any deposits of cash into
[Defendant’s] personal bank account.” He explained that on June 24, 2014, Defendant
received a check in the amount of $8,610 from the Regions Bank account, which she
cashed at Regions Bank. Then, about an hour later, Defendant deposited the money into
her Sun Trust Bank account. On July 9, 2014, there was a cash withdrawal from the
Regions Bank account of $9,500. The following day, Defendant deposited $9,000 into
her Sun Trust Bank account.
Mr. Job stated that he prepared a schedule relating to all of the debit card
transactions for the Regions Bank account so that he could “look for food type purchases
from food vendors[.]” Mr. Job explained that “out of the life of the [debit] card,” which
ran from April 2014 through November 2014, there were purchases at places that sold
food totaling $5,539.94. However, during the time that Kingdom Dominion was
supposedly running the SFSP in June and July of 2014, there were only $2,343.13 in
purchases made at locations that sold food.
Mr. Job testified that, although Kingdom Dominion ended its food program
around the end of July 2014, there continued to be cash withdrawals from the Regions
Bank account. He stated that, on August 1, 2014, there was a transfer withdrawal from
the Regions Bank account of $25,000 that went into a savings account. Additionally,
there was a cash withdrawal of $5,500 on August 1, 2014. Then, on August 21, 2014,
Defendant received a check for $5,185.26. A week later, there was another cash
withdrawal of $5,500 made from the Regions Bank account. Mr. Job stated that, after
Kingdom Dominion closed the SFSP, a total of $45,000 was taken out of the Regions
Bank account. He testified that, in total, Kingdom Dominion received $162,165 from
DHS for the SFSP.
Mr. Job recalled that he met with Defendant, along with Agent Baker and
Defendant’s probation officer. Initially, Defendant said that she did not want to discuss
the SFSP. However, as he and Agent Baker began to leave, Defendant “changed her
mind and told Agent Baker that she wanted to talk . . . .” Defendant told Mr. Job and
Agent Baker that she was “just the pastor of the church,” that she did not do anything for
the SFSP, and that she “didn’t know anything about it.” Defendant provided her cell
- 17 -
phone number and email address. She told them that the records for the program had
been destroyed and placed in a dumpster by the church building. She also stated that the
church was run by a board of directors but said that she did not know the names of any of
the board members. Defendant stated that she “got paid through donations or church
money; not through any of the [SFSP] grant money[.]” Mr. Job explained that he had
already looked at the Regions Bank account and knew that Defendant’s statement was
not accurate because there were checks made payable to Defendant from that account.
Mr. Job explained that there had been only $9,000 in “non-state money” come in to the
church but that Defendant was paid $38,000 in checks directly to her. Mr. Job stated,
“So, right there, . . . you’re almost at [$30,000] that has to be state money[.]” During the
interview, Defendant told Mr. Job that “they paid cash for a van to bring kids to the
feeding sites.” Mr. Job testified, however, that his investigation showed the van was not
registered until sometime in August 2014, after the program had ended.
Defendant’s Proof
Demario Jives testified that he was thirty-four years old and that Defendant was
his mother. He said that he was “a part of and running” Kingdom Dominion in 2014. He
stated that he took care “of the money, the books, and the rent” for the church. He
explained that Kingdom Dominion had been in existence for about fifteen years but that it
had been previously located in Florida and that the church was eventually relocated to
Memphis. He stated that he was on the board of directors for Kingdom Dominion, along
with his grandmother and brother. He could not recall the names of any other board
members. Mr. Jives stated that he enrolled the church in the SFSP and that it had been
his idea for Kingdom Dominion to participate in the food program.
Mr. Jives agreed that he signed the SFSP application and provider agreement as
the president of Kingdom Dominion. Regarding the individuals that he listed on the
application as personnel responsible for administering the SFSP, Mr. Jives identified one
of the individuals, “T. Jives,” as his brother and another individual, “T. Mitchell,” as a
family member. He agreed that, on the application, he calculated the personnel’s total
salary at $42,644; he claimed that he paid Kingdom Dominion’s personnel that total
salary in cash. He stated that he could not recall if he withheld taxes.
Mr. Jives said that Kingdom Dominion spent $150,000 on food during its
operation of the SFSP. He stated that Kingdom Dominion purchased their food from
Walmart and Sam’s Club. When asked for an example of one of the lunch menus served
to the children, Mr. Jives stated that Kingdom Dominion served “meatloaf, broccoli,
bread, apple juice.” He stated that the meatloaf had been prepared in the kitchen at Down
South Barbeque. He stated that they served about 400 meals at breakfasts, snacks, and
dinners, for approximately 1,600 meals a day. He explained that the food was
- 18 -
transported from Down South Barbeque to Kingdom Dominion by use of the church’s
van. He said that he could not recall the names of any of the children in the program.
Mr. Jives stated that he prepared all of the claims for reimbursement that were
submitted to DHS. He said that he submitted invoices for milk and other items to DHS.
Mr. Jives explained that he would send DHS invoices for food that he had already
purchased and then get reimbursed by DHS. Mr. Jives agreed that, when he met with Ms.
Lawson on June 4, 2014, he told her that he understood what was required to participate
in the program and that Kingdom Dominion was required to maintain its records relating
to the SFSP. Mr. Jives agreed that he conducted training for Kingdom Dominion’s
personnel stating, “I instructed our people on what they should do as the best as I [knew]
how to . . . while we waited for the feeding program to come out to give us further
instructions.” He testified that DHS conducted no real training for the SFSP. He stated
that he alone was responsible for the management and running of Kingdom Dominion’s
food program. Mr. Jives stated that he participated in preparing the food at Down South
Barbeque and that he was on site while meals were distributed at Kingdom Dominion.
He stated that he notified DHS of the change in the number of sites that Kingdom
Dominion was going to run.
Mr. Jives acknowledged that Kingdom Dominion was supposed to serve milk to
the children at breakfast, lunch, and supper. He stated that he purchased milk at Walmart
by the gallon. He testified that the milk was stored in the refrigerator at Down South
Barbeque and at the church. He claimed that any left-over food was stored in the
refrigerator at Down South Barbeque and that the food took up “[a] lot” of room. Mr.
Jives stated that Kingdom Dominion used the dumpster at Down South Barbeque and
agreed that the items thrown out would “take up a lot of space[.]”
Mr. Jives said that he was the only person with the authority to take money out of
the Regions Bank account. He claimed that he made all of the phone calls to DHS listed
in Kingdom Dominion’s cell phone records. When shown a document that stated
“Received from Kingdom Dominion . . . this amount for purchases[,]” the following
exchange occurred:
[DEFENSE COUNSEL:] But this is saying, “Received from Kingdom
Dominion,” this amount for purchases.
[MR. JIVES:] Um-hum.
[DEFENSE COUNSEL:] It’s signed by who?
[MR. JIVES:] It looks like my mother’s name.
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[DEFENSE COUNSEL:] Whose handwriting is this?
[MR. JIVES:] I’m not sure because I had someone there helping me doing
this?
[DEFENSE COUNSEL:] Who?
[MR. JIVES:] I don’t remember right now.
Mr. Jives later said that the handwriting in the document was Defendant’s but stated that
it was his document. Mr. Jives then claimed that he signed Defendant’s name on the
“received from” receipts “[b]ecause she would normally be there sometime, and so [he]
just put her name on there.”
Mr. Jives admitted that he wrote Defendant checks out of the Regions Bank
account. He stated that the check for $8,610 was for a loan; he said that Defendant had
loaned money to Kingdom Dominion for “some of the repairs and things[.]” Mr. Jives
said that he gave Defendant the church’s “offering” money of $4,000 from the Regions
Bank account. He stated that Defendant did not ask for the money but earned it during
her work as a traveling minister. Mr. Jives agreed that there was never $38,000 put into
the Regions Bank account by tithing donations or people at the church.
Mr. Jives stated that he had the debit card and checks for the Regions Bank
account and that all the money that went into that account was under his exclusive
control. He claimed that he had maintained all the proper documentation but that there
had been a water leak in the church at the front of the building where the office was
located. He explained that he had stored the documents relating to the SFSP “in boxes in
the drawers” of a desk inside the office. He stated that, due to the water leak, the
documents were “smeared . . . everything was wet and there was like nothing [he] could
do at this point[,]” so he threw the documents into the dumpster behind the church.
Mr. Jives testified that all of the money given to Kingdom Dominion by DHS was
spent on the SFSP and went towards feeding children. Mr. Jives denied that Defendant
talked him into running the SFSP through Kingdom Dominion, and he denied that she
told him how to run the program. He agreed that Defendant went to “an informative
meeting” about the program but stated that Defendant could not be involved in any
programs like SFSP because she was on probation. This colloquy followed:
[DEFENSE COUNSEL:] She couldn’t be involved in any kind of boards,
right?
- 20 -
[MR. JIVES:] Um-hum.
[DEFENSE COUNSEL:] Is that a yes?
[MR. JIVES:] Yes.
[DEFENSE COUNSEL:] She couldn’t be involved in non-profits?
[MR. JIVES:] Um-hum.
[DEFENSE COUNSEL:] Right?-- yes?
[MR. JIVES:] Yes.
Mr. Jives acknowledged that he had been ordered to pay back $164,000 to DHS
after a hearing because he had no records regarding how the funds were spent. He stated
that he had not paid back any of the money owed but that he planned on paying it back in
the future. He stated that all of the checks written out of the Regions Bank account had
his handwriting and signature on them.
When asked who carried the church’s cell phone, Mr. Jives said, “It just depended.
Because, again, this is the church number, so it just depends.” He could not recall if he
had arranged the September 11th meeting with Mr. Byspriansky but then stated that he
asked Defendant to go to the meeting. Mr. Jives said that he instructed Defendant to call
him to get answers to any questions Mr. Byspriansky might have, which Defendant did.
He claimed that he gave Defendant answers to their questions over the phone.
Following deliberations, the jury found Defendant guilty of theft over $60,000 and
money laundering.
Sentencing
At a subsequent sentencing hearing, the State introduced Defendant’s presentence
report, showing that Defendant was previously convicted in Florida of grand larceny in
2007 and “fraud-swindle” in 2011. The State submitted an order from the 10th Judicial
Circuit Court for Polk County, Florida, granting Defendant post-trial release and proof
that Defendant had previously violated probation.
Mitchell Garrett explained that his trial testimony had concerned Defendant’s
purchasing a house and the documents that she had presented to him to convince him to
loan her money. When asked about Defendant’s honesty, Mr. Garrett stated that
- 21 -
Defendant had “unbelievably manipulated and perjured herself in every setting that [he
had] been in and every courtroom.” Mr. Garrett explained that he loaned Defendant
money based on fraudulent documents that she provided to him. He stated that she had
been incarcerated in Florida “for doing the same exact thing there” and that she “got
Florida to give her over $200,000 to feed hungry, disabled children.”
Mr. Garrett testified that after Defendant stopped making the mortgage payment,
he attempted to foreclose on the house. On the day of the foreclosure hearing, Mr.
Garrett received a text message from Defendant stating, “I filed Chapter 13.” Mr. Garrett
stated that he had to go to court every two to three weeks due to bankruptcy and
foreclosure hearings because Defendant filed for Chapter 13 three times. Demario Jives
eventually came to Mr. Garrett and offered to pay him $6,000 to “catch up all the back
payments.” Mr. Garrett agreed, but Mr. Jives never paid him. Mr. Garrett testified that,
after four attempts, he was able to foreclose upon the house on July 1, 2017, due to
Defendant’s failure to pay her mortgage. He gave Defendant ten days to move out of the
house, but she refused.
Mr. Garrett testified that he attempted to insure the house through his insurance
company, but he learned that he had to cancel the original insurance policy first. When
he tried to do that, he learned that Defendant had taken his name off the policy on June
27, 2017. While attempting to get his name reinstated on the policy, Mr. Garrett learned
that there had been a claim filed on the policy for $5,000 due to a fire at the house and
that Defendant had received $5,000 from the insurance company. Mr. Garrett drove to
the house and found that “[t]he whole back of the house was burnt out. The master
bedroom, master bath, hall bedroom, smoke damage. Everything in the house was
completely blackened.” Mr. Garrett explained that Defendant later claimed Mr. Garrett
set the fire to the house, and he had to hire an attorney to defend himself against a suit
filed by Defendant for wrongful foreclosure. Mr. Garrett stated that he spent $100,000
on repairs following the fire damage to the house. He explained that Defendant also
owed him $138,000 on the mortgage and stated that he had spent about $30,000 in
litigation with Defendant.
Defendant made an allocution statement in which she maintained her innocence
and stated that she forgave Mr. Garrett for “the things he did to [Defendant’s family].”
In sentencing Defendant, the trial court considered as enhancement factors: that
Defendant had a previous history of criminal convictions or criminal behavior; that she
was a leader in the commission of an offense involving two or more actors; and that the
offense involved more than one victim, reasoning that the citizens of Shelby County and
“every child that should have received the benefit of what [Defendant] was supposed to
do with the money” were victims. Additionally, the trial court found that what Defendant
- 22 -
did to Mr. Garrett was “exceptionally cruel,” stating “[I]t was his house and . . . he had to
evict her from it and then she burns it. There’s no doubt in my mind . . . it was a big
scheme to collect money.” The trial court also found that, before trial, Defendant had
failed to comply with conditions of a sentence involving a release in the community; that,
at the time the felony was committed, Defendant was released on probation; and that
Defendant abused a position of trust based on her position as a pastor. The court stated
that it placed “great weight” on enhancement factor 1. Regarding mitigating factors, the
trial court determined that no mitigating factors applied. The trial court further stated that
Defendant’s allocution statement was “the worst allocution I’ve ever heard.” The trial
court also found that Demario Jives was “undoubtedly the biggest liar I’ve ever seen,
perhaps next to [Defendant].”
The trial court sentenced Defendant, as a Range I standard offender, to twelve
years on each count. The trial court found that Defendant was a professional criminal
who had “knowingly devoted her life to criminal acts as a major source of her livelihood”
stating, “I’ve never seen a more professional criminal in my [twenty-eight] years of doing
this job.” The trial court also determined that Defendant was a dangerous offender,
stating that the circumstances surrounding the offenses were “particularly aggravated.”
The trial court ordered the sentences to run consecutively for a total effective sentence of
twenty-four years to serve in the Tennessee Department of Correction.
Restitution
Defendant filed a timely motion for new trial, followed by an amended motion for
new trial.3 Prior to the hearing on Defendant’s motion for new trial, the trial court held a
restitution hearing. Mr. Garrett presented itemized receipts totaling expenditures of
$172,370.82 to repair and maintain the house, as well as to get up-to-date with all city
and county taxes. However, he did admit that the insurance company settled its policy by
giving $112,500 to both Defendant and Mr. Garrett in exchange for release from civil
liability. The State argued that Defendant “does have the skill and ability to make money
apparently by preaching and actually operating a church,” and the trial court noted that
“she has a bank account with $112,500 in it.” It further stated that, even in prison, “she
has access to a computer . . . she’ll be able to figure out some way to make some money
no doubt in my mind.” The trial court ordered Defendant to pay $162,165.89 in
restitution to DHS in count one (theft over $60,000) and $172,370 to Mr. Garrett in count
two (money laundering). The trial court denied the motion for new trial in a written order
after a hearing. This timely appeal follows.
3
The transcript of the motion for new trial hearing references an amended motion for new trial
filed the day of the hearing. That motion, however, does not appear in the appellate record.
- 23 -
II. Analysis
Sufficiency of the Evidence
Defendant contends that the evidence presented at trial is insufficient to support
her convictions for theft over $60,000 and money laundering. She asserts that the State
failed to establish that she exercised or obtained control over the money given to
Kingdom Dominion by DHS and that the uncontroverted proof showed that Mr. Jives
applied to the SFSP and that he exclusively owned and controlled the Regions Bank
account into which DHS deposited the program funds. Defendant further asserts that the
State failed to present any evidence that Defendant’s purchase of Mr. Garrett’s house was
done with the requisite intent for a conviction for money laundering. The State responds
that the proof at trial overwhelmingly supports Defendant’s convictions.
Our standard of review for a sufficiency of the evidence challenge is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).
A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).
Defendant was indicted for theft of property over $60,000. “A person commits
theft of property if, with intent to deprive the owner of property, the person knowingly
obtains or exercises control over the property without the owner’s effective consent.”
Tenn. Code Ann. § 39-14-103(a) (2014). In its charge to the jury, the trial court provided
the instruction for criminal responsibility, which provides that “[a] person is criminally
responsible as a party to an offense, if the offense is committed by the person’s own
conduct, by the conduct of another for which the person is criminally responsible, or by
both.” Tenn. Code Ann. § 39-11-401(a) (2014). As pertinent here, “[a] person is
- 24 -
criminally responsible for an offense committed by the conduct of another, if[,] . . .
[a]cting with intent to promote or assist the commission of the offense, or to benefit in the
proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid
another person to commit the offense[.]” Tenn. Code Ann. § 39-11-402(2) (2014).
Criminal responsibility is not a separate crime but instead a theory by which the
State may prove the defendant’s guilt based upon another person’s conduct. State v.
Osborne, 251 S.W.3d 1, 16 (Tenn. Crim. App. 2007) (citing State v. Mickens, 123
S.W.3d 355, 389-90 (Tenn. Crim. App. 2003)). “[U]nder the theory of criminal
responsibility, presence and companionship with the perpetrator of a felony before and
after the commission of the crime are circumstances from which an individual’s
participation may be inferred.” State v. Phillips, 76 S.W.3d 1, 9 (Tenn. Crim. App.
2001). In order to be convicted of the crime, the evidence must establish that the
defendant in some way knowingly and voluntarily shared in the criminal intent of the
crime and promoted its commission. State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim.
App. 1994); State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988).
Accordingly, to establish the elements of this offense, the State had to show that
Defendant—or someone for whom she was criminally responsible—knowingly obtained
or exercised control over funds designated for the SFSP program by DHS, without the
DHS’s consent and with the intent to deprive DHS of those funds. When the evidence is
viewed in the light most favorable to the State, we conclude that a rational juror could
have found Defendant guilty of theft of property of the value of $60,000 or more beyond
a reasonable doubt.
The State’s proof established that Kingdom Dominion obtained funds from DHS
in the amount of $162,165 and that the funds were intended to be used solely for
Kingdom Dominion’s operation of the SFSP. Further, the State established that Kingdom
Dominion misappropriated those funds and failed to serve any meals to children through
the SFSP. Defendant, as the senior pastor of the church, actively participated in the
scheme to obtain money from DHS through Kingdom Dominion’s becoming a program
sponsor in the SFSP. Defendant attended pre-operational training sessions, called and
emailed DHS officials about the program, and was with Mr. Jives when he negotiated the
rental agreement for the supposed use of Down South Barbeque’s kitchen. Defendant
arranged for the Ms. Lawson’s site visit at Kingdom Dominion and accompanied her
when she inspected the premises of Down South Barbeque. Defendant filed the
reimbursement claims in the TFP and the fraudulent purchase receipts with DHS. DHS
deposited funds into the Regions Bank account based on these claims. Mr. Job testified
that large amounts of money were taken out of the Regions Bank account through cash
withdrawals, debit card purchases, a transfer to a separate savings account, and checks to
Defendant. Defendant received $38,000 in checks written directly to her from the
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Regions Bank account, and several of the cash withdrawals from the Regions Bank
account were closely followed by Defendant’s depositing large sums of money into her
Sun Trust Bank account. During this time, Defendant gave Mr. Garrett $15,000 for a
down payment on the house she purchased from him. Although Defendant claimed that
she “got paid through donations or church money; not through any of the [SFSP] grant
money,” the State presented proof that there had been only $9,000 in “non-state money”
come in to the church during this time and that Defendant had no other employment or
known source of income.
When Agent Baker began asking questions about Kingdom Dominion’s operation
of the food program, Defendant claimed to be the program administrator and said that
Kingdom Dominion prepped food at Down South Barbeque and that she purchased the
food for the program. However, auditors found no evidence that Defendant or Kingdom
Dominion had made purchases of large volumes of food. Moreover, the owner of Down
South Barbeque testified that Kingdom Dominion stored no food at the restaurant, did not
use its dumpster, and left no sign that it had prepared meals in the restaurant’s kitchen.
Defendant answered the phone each time that auditors called. Although Mr. Byspriansky
asked to speak to Mr. Jives numerous times, Defendant made excuses as to why Mr. Jives
could not speak to the auditor and insisted that she could answer his questions. It was
Defendant who scheduled the September 11 meeting with Mr. Byspriansky and then
claimed that all of Kingdom Dominion’s documentation had been destroyed by a busted
pipe the night before. When Defendant allowed the auditors into the church, they found
no signs of water damage and found no damaged documentation in the church’s
dumpster. Ultimately, Kingdom Dominion presented no proof to auditors and
investigators that any children were fed by the program.
Mr. Jives testified that he ran the SFSP for Kingdom Dominion and had exclusive
control over the Regions Bank account, and he asserted that Defendant was not involved
in the SFSP due to restrictions placed on Defendant by her probation. However, the jury
was free to reject the testimony from Mr. Jives, whom the trial court described as
“undoubtedly the biggest liar I’ve ever seen[.]” In any event, the jury was instructed on
criminal responsibility and could have concluded that Defendant was directing and/or
assisting Mr. Jives in taking money from the Regions Bank account. The evidence was
more than sufficient to sustain Defendant’s conviction for theft of property over $60,000.
Similarly, the evidence is sufficient to sustain the verdict of money laundering. To
establish the elements of this offense, the State had to show that Defendant knowingly
used proceeds derived from the theft of the DHS funds to conduct a financial transaction
“with the intent to conceal or disguise the nature, location, source, ownership or control
of the criminally derived proceeds.” Tenn. Code Ann. § 39-14-903(a)(1) (2014). The
State established that, in July 2014, Defendant purchased a house from Mr. Garrett,
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giving him a $15,000 down payment on the house. Defendant told Mr. Garrett that she
had been employed by the church for the past five years and that she made $4,800 a
month, and she provided him with a fake pay stub. Although Defendant claimed that she
“got paid through donations or church money; not through any of the [SFSP] grant
money,” the State presented proof that there had been only $9,000 in “non-state money”
come in to the church during this time and that Defendant had no other employment or
known source of income. Thus, the jury could reasonably conclude that Defendant used
the stolen money from DHS as the down payment on the house and that Defendant was
aware that it was stolen money.
Defendant contends that the State failed to establish “the requisite intent for a
conviction for money laundering[,]” i.e., that she purchased the house “with the intent to
conceal or disguise the nature, location, source, ownership or control of the criminally
derived proceeds.” Id. However, the proof at trial demonstrated that Defendant lied to
Mr. Garrett about the length of her employment with Kingdom Dominion and about her
monthly income and that she provided falsified documents to Mr. Garrett in support of
her claims. Given Defendant’s false claims as to the source of the money, any rational
trier of fact could reasonably conclude that she conducted the financial transaction with
the intent to conceal or disguise the source of the criminally derived funds. The evidence
is sufficient to support Defendant’s convictions.
Severance
Defendant also asserts that the trial court erred when it failed to sever the counts of
the indictment. Defendant argues that the offenses were not part of a common scheme or
plan as required under Rule 14 of the Tennessee Rules of Criminal Procedure. The State
responds that Defendant waived consideration of the issue by failing to include it in her
motion for new trial and that Defendant is not entitled to plain error review.4
We will first address the State’s waiver argument. Prior to trial, Defendant
requested that the trial court sever the offenses. However, the trial court found that the
two charges were “totally intertwined” and that “proof of one [wa]s admissible in the
other” and denied the request. Defendant filed a timely motion for new trial, but the
motion did not include the trial court’s failure to sever the offenses as a ground for relief.
As previously noted, the transcript of the motion for new trial hearing references an
amended motion for new trial filed the day of the hearing. That motion, however, does
not appear in the appellate record, and Defendant did not argue the issue of severance
during the motion for new trial hearing. Accordingly, we agree with the State that
Defendant has waived our review of the issue. See Tenn. R. App. P. 3(e), 36(a); State v.
4
Defendant has not responded to the State’s assertion that she waived this issue.
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Harbison, 539 S.W.3d 149, 164 (Tenn. 2018) (“Grounds not raised in a motion for new
trial are waived for purposes of appeal.”); Spicer v. State, 12 S.W.3d 436, 444 n. 7 (Tenn.
2000); State v. Barbara Mae Potter, No. E2015-02262-CCA-R3-CD, 2019 WL 453735,
at *39 (Tenn. Crim. App. Feb. 5, 2019) (“Defendant did not raise this [severance] issue in
the motion or in an amended motion for new trial. By failing to include this issue in her
motion for new trial, Defendant has waived plenary review of the issue.”), no perm. app.
filed.
“[W]hen necessary to do substantial justice,” this court may “consider an error that
has affected the substantial rights of a party” even if the issue was waived. Tenn. R. App.
P. 36(b). Such issues are reviewed under plain error analysis. State v. Hatcher, 310
S.W.3d 788, 808 (Tenn. 2010). The defendant bears the burden of persuading this court
that the trial court committed plain error and that the error was of sufficient magnitude
that it probably changed the outcome of the trial. State v. Bledsoe, 226 S.W.3d 349, 354-
55 (Tenn. 2007). Under plain error review, relief will only be granted when five
prerequisites are met: (1) the record clearly establishes what occurred in the trial court;
(2) a clear and unequivocal rule of law was breached; (3) a substantial right of the
accused was adversely affected; (4) the accused did not waive the issue for tactical
reasons; and (5) consideration of the error is necessary to do substantial justice. State v.
Gomez, 239 S.W.3d 733, 737 (Tenn. 2007).
Defendant has not shown that the trial court breached a clear and unequivocal rule
of law. Rule 14 of the Tennessee Rules of Criminal Procedure provides that “[i]f two or
more offenses are joined or consolidated for trial pursuant to Rule 8(b), the defendant has
the right to a severance of the offenses unless the offenses are part of a common scheme
or plan and the evidence of one would be admissible in the trial of the others.” Tenn. R.
Crim. P. 14(b)(1). Here, the trial court determined that Defendant’s two offenses were
“totally intertwined” and that the proof of one would have been admissible in the trial of
the other. The trial court reasonably determined that Defendant was not entitled to a
severance because the offenses were part of a common scheme or plan and the evidence
of one would be admissible in the trial of the other. Thus, plain error relief is not
warranted.
Rule 404(b)
Defendant asserts that the trial court erred in allowing the jury to hear about prior
bad acts pursuant to Rule 404(b) of the Tennessee Rules of Evidence, arguing that the
trial court failed to determine that the probative value of the evidence was outweighed by
the danger of unfair prejudice. She contends that, although the State limited its proof to
the fact that Defendant was on probation and the terms of that probation, the evidence
“implie[d] that the Defendant ha[d] been convicted of a crime[.]” She asserts that this
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created “an improper impeachment situation” because it allowed the State to attack
Defendant’s credibility under Tennessee Rule of Evidence 609 despite Defendant’s not
testifying. Defendant contends that the trial court’s ruling was “an end run around the
requirement that in order to attack her with her prior conviction [Defendant] must make
herself a witness.” The State responds that the trial court properly exercised its discretion
in admitting evidence of Defendant’s probation under Rule 404(b).
Generally, this court reviews a trial court’s decision to admit evidence based upon
its relevancy under an abuse of discretion standard. State v. DuBose, 953 S.W.2d 649,
652 (Tenn. 1997). Likewise, when such evidence is offered under Tennessee Rule of
Evidence 404(b) and the trial court has “substantially complied” with the procedural
requirements in that rule, we review the trial court’s decision under an abuse of discretion
standard. Id. We will reverse the trial court’s decision “only when the court applied an
incorrect legal standard, or reached a decision which is against logic or reasoning that
caused an injustice to the party complaining.” State v. Gilliland, 22 S.W.3d 266, 270
(Tenn. 2000) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)) (internal
quotation marks omitted).
Rule 404(b) of the Tennessee Rules of Evidence provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity with the
character trait. It may, however, be admissible for other purposes. The
conditions which must be satisfied before allowing such evidence are:
(1) The court upon request must hold a hearing outside the
jury’s presence;
(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon
request state on the record the material issue, the ruling, and
the reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong, or
act to be clear and convincing; and
(4) The court must exclude the evidence if its probative value
is outweighed by the danger of unfair prejudice.
Tenn. R. Evid. 404(b); see also State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005);
State v. Parton, 694 S.W.2d 299, 302 (Tenn. 1985). Rule 404(b) is generally one of
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exclusion, but exceptions to the rule may occur when the evidence of the otherwise
inadmissible conduct is offered to prove the motive of the defendant, identity, intent, the
absence of mistake or accident, opportunity, or a common scheme or plan. State v.
Toliver, 117 S.W.3d 216, 230 (Tenn. 2003); State v. McCary, 119 S.W.3d 226, 243
(Tenn. Crim. App. 2003). “In addition to these exceptions, evidence of other acts may be
admitted to provide the jury with necessary contextual background.” State v.
Montgomery, 350 S.W.3d 573, 583 (Tenn. Crim. App. 2011) (citing Gilliland, 22 S.W.3d
at 272); see also Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[13] (6th ed.
2011) (evidence admissible to tell the “complete story”).
Here, the trial court complied with the prerequisites of Rule 404(b) and
specifically determined that the probative value of the evidence was not outweighed by
the danger of unfair prejudice. Because the trial court substantially complied with the
procedural requirements of Rule 404(b), we will review the trial court’s determination for
an abuse of discretion. Thacker, 164 S.W.3d at 240 (citing DuBose, 953 S.W.2d at 652;
State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1990)). “A trial court abuses its
discretion when it applies an incorrect legal standard, reaches an illogical conclusion,
bases its decision on a clearly erroneous assessment of the evidence, or employs
reasoning that causes an injustice to the complaining party.” State v. Davis, 466 S.W.3d
49, 61 (Tenn. 2015).
We agree with the State that the evidence of Defendant’s probation and probation
conditions were undoubtedly probative to help explain the added involvement of
Defendant’s son. Moreover, because the nature of Defendant’s underlying conviction
was never revealed, the danger of unfair prejudice was drastically reduced. Thus, the
trial court’s ruling does not amount to an abuse of discretion.
Defendant contends that the trial court’s ruling created “an improper impeachment
situation” under Rule 609 of the Tennessee Rules of Evidence because it allowed the
State to attack Defendant’s credibility despite Defendant’s not testifying. We disagree.
Because Defendant did not testify, the State could not impeach her testimony with
evidence that she was on probation. Instead, the evidence of Defendant’s probation and
the probation conditions was properly admitted under Rule 404(b), as substantive
evidence, to explain Demario Jives’ involvement in the offenses, not as impeachment
evidence under Rule 609. Defendant is not entitled to relief.
Sentencing
Defendant next contends that the trial court abused its discretion when it sentenced
Defendant to the “maximum on each count” and ordered Defendant’s sentences to run
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consecutively. The State replies that the trial court properly exercised its discretion in
sentencing Defendant to an effective sentence of twenty-four years.
When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). A finding of abuse of discretion “‘reflects that the trial court’s logic
and reasoning was improper when viewed in light of the factual circumstances and
relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553,
555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).
The Tennessee Supreme Court has held that the Bise standard applies to
consecutive sentencing determinations “if [the trial court] has provided reasons on the
record establishing at least one of the seven grounds” for discretionary consecutive
sentencing. State v. Pollard, 432 S.W.3d 851, 861 (Tenn. 2013). A trial court “may
order sentences to run consecutively” if it finds that the defendant is “a professional
criminal who has knowingly devoted the defendant’s life to criminal acts as a major
source of livelihood[.]” Tenn. Code Ann. § 40-35-115(b)(1) (2018).
In determining the proper sentence, the trial court 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 Tenn. Code Ann. § 40-35-210 (2018); State v. Taylor, 63 S.W.3d
400, 411 (Tenn. Crim. App. 2001). The trial court must also consider the potential or
lack of potential for rehabilitation or treatment of the defendant in determining the
sentence alternative or length of a term to be imposed. Tenn. Code Ann. § 40-35-103
(2018).
To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code
Ann. § 40-35-210(e) (2018; Bise, 380 S.W.3d at 706. The party challenging the sentence
on appeal bears the burden of establishing that the sentence was improper. Tenn. Code
Ann. § 40-35-401 (2018), Sentencing Comm’n Cmts.
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Theft of property is “[a] Class B felony if the value of the property or services
obtained is sixty thousand dollars ($60,000) or more[.]” Tenn. Code Ann. § 39-14-
105(a)(5) (2018). The sentence range for a Range I, standard offender, convicted of a
Class B felony, is not less than eight nor more than twelve years. See Tenn. Code Ann. §
40-35-112(a)(2) (2018). Within-range sentences that are supported by the record and
reflect that the trial court properly applied the purposes and principles of sentencing are
reviewed for an abuse of discretion, with a presumption of reasonableness. Bise, 380
S.W.3d at 707-08. In this case, the trial court considered the factors set out in section 40-
35-210 and stated on the record the reasons for the sentence it imposed. Thus, the trial
court’s sentencing decisions are entitled to a presumption of reasonableness, and we will
review Defendant’s within range sentence under an abuse of discretion standard with a
presumption of reasonableness.
In setting the length of Defendant’s twelve-year sentences, the trial court
considered seven enhancement factors. First, the trial court found that Defendant had a
previous history of criminal convictions or criminal behavior in addition to those
necessary to establish the appropriate range and gave this factor “great weight.” See
Tenn. Code Ann. § 40-35-114(1) (2018). The trial court considered that Defendant,
before trial, failed to comply with conditions of a sentence involving a release in the
community and that, at the time the felony was committed, Defendant was released on
probation. See Tenn. Code Ann. § 40-35-114(8), (13)(C) (2018). The trial court also
considered that Defendant was a leader in the commission of an offense involving two or
more actors. See Tenn. Code Ann. § 40-35-114(2) (2018). Further, the trial court
determined that the offense involved more than one victim; that Defendant treated Mr.
Garrett with exceptional cruelty; and that she abused a position of trust. See Tenn. Code
Ann. § 40-35-114(3), (5), and (14) (2018).
In her brief, Defendant only challenges the last three enhancement factors applied
by the trial court. She does not contest that the trial court properly relied on the first four
factors, and we conclude the trial court’s application of these enhancement factors is
supported by the record. Because enhancement and mitigating factors are advisory, “the
trial court may set a sentence anywhere within the applicable range so long as the
sentence is consistent with the principles and purposes of the Act, regardless of the
presence or absence of mitigating and enhancement factors.” State v. Mark Elihu
Cooper, No. W2013-02530-CCA-R3-CD, 2014 WL 4384965, at *6 (Tenn. Crim. App.
Sept. 5, 2014), perm. app. denied (Tenn. Dec. 18, 2014). Thus, the trial court properly
exercised its discretion in ordering Defendant to serve the maximum within-range
sentences after finding at least four enhancement factors applied.
Further, the trial court properly exercised its discretion in ordering those sentences
to be served consecutively. The trial court found that Defendant was a professional
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criminal who had “knowingly devoted her life to criminal acts as a major source of her
livelihood[.]” Tenn. Code Ann. § 40-35-115(b)(1) (2018). This finding is fully
supported by the record. Defendant used her position as the pastor at Kingdom
Dominion to steal large sums of money from the funds provided by DHS. The State’s
proof established that Defendant had no other source of income and no other known
employment. Moreover, Defendant was on probation out of Florida for committing the
same type of offense in that state.
On appeal, Defendant’s main challenge relates to the trial court’s additional
finding that Defendant was a dangerous offender as a basis for consecutive sentencing.
Tenn. Code Ann. § 40-35-115(b)(4) (2018). In State v. Wilkerson, the supreme court
imposed two additional requirements for consecutive sentencing when the “dangerous
offender” category is used: (1) the court must find consecutive sentences are reasonably
related to the severity of the offenses committed and (2) that consecutive sentences are
necessary to protect the public from further criminal conduct. State v. Wilkerson, 905
S.W.2d 933, 937-39 (Tenn. 1995); see also State v. Imfeld, 70 S.W.3d 698, 707-08 (Tenn.
2002). Defendant correctly notes that the trial court failed to make the requisite
Wilkerson findings necessary to support the imposition of consecutive sentences.
However, while “the trial court failed to make the requisite findings in consideration of
the dangerous offender factor,” we note that “only one consecutive sentencing factor
needs to exist to support the imposition of consecutive sentences.” State v. Dondrinkus
T. Dickerson, No. M2015-00012-CCA-R3-CD, 2016 WL 304403, at *8 (Tenn. Crim.
App. Jan. 26, 2016), no perm. app. filed.
The trial court’s finding that Defendant was a professional criminal is supported
by the record. Under these circumstances, the trial court properly exercised its discretion
in imposing consecutive sentences, and Defendant is not entitled to relief.
Restitution
Finally, Defendant contends that the trial court erred when it ordered her to pay
restitution to Mr. Garrett. She argues that Mr. Garrett “already settled out of court with
[Defendant]” for $112,500. Defendant further contends that the offense of money
laundering does not contemplate a victim under a plain reading of the language of the
statute, and therefore, Mr. Garrett was not a victim to whom the court could award
restitution. The State concedes that, under the facts of this case, Mr. Garrett was not a
victim of Defendant’s money laundering “because her conduct resulting in his receiving
$15,000.” The State agrees, therefore, that the judgment for money laundering in count
two should be amended to remove the ordered restitution.
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Trial courts possess the authority to order confinement in conjunction with
restitution. Tenn. Code Ann. § 40-35-104(c)(2), (8) (2018); State v. William Chandler
Daniels, No. E2009-02172-CCA-R3-CD, 2010 WL 5343776, at *2 (Tenn. Crim. App.
Dec. 23, 2010). Orders of restitution, including orders issued pursuant to section 40-35-
104(c)(2), must follow the procedure outlined in Tennessee Code Annotated section 40-
35-304. See Tenn. Code Ann. § 40-35-304(g) (2018); State v. Brigitte Pauli, No. M2002-
01607-CCA-R3-CD, 2003 WL 21302991, at *18 (Tenn. Crim. App. June 5, 2003).
In general, only “the individual or individuals against whom the offense was
actually committed” are victims for purposes of restitution. State v. Alford, 970 S.W.2d
944, 945 (Tenn. 1998). Moreover, to be considered a victim for the purposes of
restitution through a specific conviction, the individual must have suffered a loss as the
“direct result” of that conviction. See State v. J. Steven Brasfield, No. W2009-00026-
CCA-R3-CD, 2010 WL 669222, at *3 (Tenn. Crim. App. Feb. 25, 2010), no perm. app.
filed.
Tennessee Code Annotated section 40-35-304 defines “pecuniary loss” to be:
(1) All special damages, but not general damages, as substantiated
by evidence in the record or as agreed to by the defendant; and
(2) Reasonable out-of-pocket expenses incurred by the victim
resulting from the filing of charges or cooperating in the investigation and
prosecution of the offense; provided, that payment of special prosecutors
shall not be considered an out-of-pocket expense.
Tenn. Code Ann. § 40-35-304(e) (2018). Special damages are those which are “the
actual, but not the necessary, result of the injury complained of, and which in fact follow
it as a natural and proximate consequence.” State v. Lewis, 917 S.W.2d 251, 255 (Tenn.
Crim. App. 1995) (quoting BLACK’S LAW DICTIONARY 392 (6th ed. 1990)). General
damages are those which are “the necessary and immediate consequence of the wrong.”
Id. (quoting WEBSTER’S NEW INTERNATIONAL DICTIONARY 664 (2d ed. 1957)).
We agree with the parties that the trial court erred by awarding Mr. Garrett
restitution in the amount of $172,370 as a victim of the offense of money laundering in
count two. Under the State’s theory, Defendant’s conviction for money laundering arose
out of her giving Mr. Garrett $15,000 of the money she had stolen from DHS as a down
payment on a house. Because the offense dealt with Defendant giving Mr. Garrett
money, he did not suffer any pecuniary loss as a “direct result” of the money laundering.
Mr. Garrett’s losses occurred after the money laundering offense had been completed.
While we can understand the trial court’s frustration with Defendant’s conduct towards
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Mr. Garrett, we conclude that the court erred by awarding Mr. Garrett restitution.
Accordingly, the judgment form for money laundering must be amended to remove the
ordered restitution.
III. Conclusion
Based on the foregoing, the judgments of the trial court are affirmed, but the case
is remanded for entry of an amended judgment for money laundering, removing the
ordered restitution to Mr. Garrett.
____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
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