State of Tennessee v. Bart Leo Tucker

08/07/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
March 14, 2017 Session Heard at Belmont University College of Law1
STATE OF TENNESSEE v. BART LEO TUCKER
Appeal from the Circuit Court for Williamson County
No. I-CR099094 Joseph Woodruff, Judge
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No. M2016-01960-CCA-R3-CD
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The Defendant, Bart Leo Tucker, was convicted by a Williamson County jury of one
count of issuing a worthless check. See T.C.A. § 39-14-121. On appeal, the Defendant
challenges the sufficiency of the evidence and contends that the trial court erred by
denying his motion for judgment of acquittal. Following our review, we reverse the
judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
Dismissed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER, J., joined. TIMOTHY L. EASTER, J., filed a separate opinion.
Dustin Faeder, Nashville Tennessee, for the Defendant-Appellant, Bart Leo Tucker.
Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Tammy J. Rettig,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
On May 12, 2014, the Defendant purchased a truck from Walker Chevrolet in
Franklin, Tennessee. The Defendant made a down payment for the truck in the amount
of $15,000 with a check dated May 12, 2014. On May 16, 2014, the Defendant’s check
was returned for insufficient funds. On September 14, 2015, the Defendant was indicted
by a Williamson County Grand Jury for one count of issuing a worthless check, a Class C
felony. See T.C.A. §§ 39-14-121(f) (Supp. 2013); 39-14-105(a)(4).
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Oral argument was heard in this case on March 14, 2017, at Belmont University College of Law
in Nashville, Tennessee.
The only witness testimony included in the record provided on appeal is from
David Hamilton, the Walker Chevrolet finance manager at the time of the incident.
Hamilton first met the Defendant on the day that he bought the truck, May 12, 2014.
Hamilton said that he was later told by Walker Chevrolet’s controller that the
Defendant’s check had been returned. Hamilton subsequently contacted the Defendant
multiple times and testified that the Defendant “said he would take care of it” and bring
another check, but he never did. When asked by the State whether he had “any reason to
believe that this check was not good” at the time of the transaction, Hamilton replied,
“None, whatsoever.”
On cross-examination, Hamilton testified that he had “never once accepted a
postdated check.” The following exchange then took place during Hamilton’s cross-
examination:
Defense counsel: Do you recall any discussion with [the Defendant]
about whether the check was ready to clear as soon as
it was written or whether he would need a little time
for money to come into the account?
Hamilton: He did ask for two days.
Defense counsel: Okay.
Hamilton: He did the deal on a Monday, asked me [to] deposit on
Wednesday.
Defense counsel: Okay. So -- so when he wrote you the check, he
communicated to you that the funds were not in the
account at that time?
Hamilton: At that time, no.
Trial court: I’m sorry, sir. You said not at that time, no. Did he
tell you on the 12th that he did not have sufficient
funds to cover the check that day?
Hamilton: He asked me to deposit the check on Wednesday.
Trial court: All right.
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On redirect, Hamilton confirmed that it was company policy to not accept
postdated checks, but that it was common to hold a check before depositing it. Hamilton
explained that, regarding holding a check, “[i]t’s usually just common courtesy stuff.
People may be transferring from another account[ ]. They may have cashed out an IRA
or things of that nature.” Hamilton agreed that requests to hold a check occurred fairly
often both at Walker Chevrolet and in the automotive industry in general. When asked
by the State whether he had “any reason to believe [the Defendant] would not be able to
have the funds in his account to cover that check,” Hamilton responded in the negative.
Hamilton also denied that he had “any reason to believe it was anything other than a good
transaction.”
The Defendant moved for judgment of acquittal, arguing that Hamilton’s
testimony had established an exception to the worthless check statute. The Defendant
pointed out that the statute provides that “it is a[n] exception to this offense . . . where the
payee or holder knew or had good [and] [ ]sufficient reason to believe the drawer did not
have sufficient funds on deposit to his or her credit with the drawee to ensure payment.”
The Defendant argued that Hamilton’s testimony that he was told by the Defendant to
wait two days until depositing the check proved that Hamilton knew or had reason to
believe that the Defendant did not have sufficient funds at the time he issued the check.
The trial court denied the Defendant’s motion, summarily concluding that “there are fact
issues that are for the jury to decide based upon what would be in the mind of Mr.
Hamilton.”
The jury found the Defendant guilty as charged and the trial court imposed a five-
year sentence, suspended after 180 days, and ordered the Defendant to pay restitution as
determined by his probation officer. This timely appeal follows.
ANALYSIS
On appeal, the Defendant argues that the trial court erred by denying his motion
for judgment of acquittal and that the evidence was insufficient to support his conviction
for issuing a worthless check. The State responds that the Defendant has waived his
challenge to the sufficiency of the evidence by failing to provide a complete record and,
waiver notwithstanding, that the jury had sufficient evidence to convict the Defendant.
As an initial matter, we must address the State’s contention that the Defendant’s
claims are waived for failure to provide a complete record on appeal. The State points
out that the Defendant only provided a portion of the trial transcript, leaving out “at least
one entire witness and the introduction of every exhibit;” however, the State does not
specify why these missing portions or any other portions of the transcript were necessary
for our review. Instead, the State summarily contends that “[a] defendant cannot show
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that the evidence was insufficient when a reviewing court does not have all the
evidence.” The Defendant responds that he has adequately preserved the issue being
appealed by providing only the portion of the transcript that was relevant to this particular
issue.
The appellant has a duty to prepare a record that conveys “a fair, accurate and
complete account of what transpired with respect to those issues that are the bases of
appeal.” Tenn. R. App. P. 24(b). “Where . . . the record is incomplete, and does not
contain a transcript of the proceedings relevant to an issue presented for review, or
portions of the record upon which a party relies, this Court is precluded from considering
the issue.” State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988) (citing State
v. Groseclose, 615 S.W.2d 142, 147 (Tenn. 1981); State v. Jones, 623 S.W.2d 129, 131
(Tenn. Crim. App. 1981)). “In the absence of an adequate record on appeal, we must
presume that the trial court’s ruling was supported by the evidence.” State v. Bibbs, 806
S.W.2d 786, 790 (Tenn. Crim. App. 1991) (citing Smith v. State, 584 S.W.2d 811, 812
(Tenn. Crim. App. 1979); Vermilye v. State, 584 S.W.2d 226, 230 (Tenn. Crim. App.
1979)).
Here, the Defendant only included portions of the trial transcript rather than the
transcript in its entirety. The included portions consist of Hamilton’s testimony, the
Defendant’s motion for judgment of acquittal and corresponding argument, and both
parties’ closing arguments. It is well-established that an appellate court requires a
transcription of only the relevant proceedings in the trial court. State v. Draper, 800
S.W.2d 489, 493 (Tenn. Crim. App. 1990). In fact, “[a]n appellate court can address an
issue on the merits in the absence of a transcript if the ‘technical record’ is all that is
necessary for review of the issue.” Id. at n.13 (citing Nelms v. State, 413 S.W.2d 378,
348) (Tenn. 1968)). Because the Defendant’s issues rely primarily on Hamilton’s
testimony, we conclude that the record is adequate for our review and we will address the
merits of the Defendant’s arguments.
First, the Defendant contends that the trial court erred by denying his motion for
judgment of acquittal. Tennessee Rule of Criminal Procedure 29 provides, in pertinent
part:
On defendant’s motion or its own initiative, the court shall order the entry
of judgment of acquittal of one or more offenses charged in the indictment,
presentment, or information after the evidence on either side is closed if the
evidence is insufficient to sustain a conviction of such offense or offenses.
Tenn. R. Crim. P. 29(b). When considering a motion for judgment of acquittal, whether
at the close of the State’s proof or after the conclusion of all proof at trial, the trial court
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is only concerned with the legal sufficiency of the evidence and not with the weight of
the evidence. State v. Collier, 411 S.W.3d 886, 892 (Tenn. 2013) (citing State v.
Blanton, 926 S.W.2d 953, 957 (Tenn. Crim. App. 1996); State v. Adams, 916 S.W.2d
471, 473 (Tenn. Crim. App. 1995); State v. Hall, 656 S.W.2d 60, 61 (Tenn. Crim. App.
1983)). “This rule empowers the trial judge to direct a judgment of acquittal when the
evidence is insufficient to warrant a conviction either at the time the state rests or at the
conclusion of all the evidence.” State v. James, 315 S.W.3d 440, 455 (Tenn. 2010)
(citing Overturf v. State, 571 S.W.2d 837, 839 & n.2 (Tenn. 1978)). If a defendant
chooses to present proof after the trial court denies the motion for judgment of acquittal
made at the close of the State’s case-in-chief, then he “waive[s] any claim of error for
failure to grant the motion for judgment of acquittal at the conclusion of the proof offered
by the State.” Collier, 411 S.W.3d at 893. However, if the defendant renews his motion
for judgment of acquittal at the conclusion of all the evidence, he does not “waive his
right to appeal the denial of the motion made at the close of all of the proof or to
challenge the sufficiency of the convicting evidence.” Id.
Although not raised by either party, we must first acknowledge another issue of
waiver. Based on the limited transcript provided, we cannot determine whether the
Defendant presented evidence after the trial court denied his motion, or, if he did,
whether he renewed his motion for judgment of acquittal. As stated previously, when a
defendant chooses to present proof after the trial court denies the motion for judgment of
acquittal made at the close of the State’s case-in-chief, he “waive[s] any claim of error for
failure to grant the motion for judgment of acquittal at the conclusion of the proof offered
by the State.” Id. After the Defendant’s oral motion for judgment of acquittal at trial, the
transcript includes a statement that “[m]ore proceedings were held in open court,”
followed by the parties’ closing arguments. The record does not indicate whether the
Defendant presented proof after his motion or, if he did, whether he renewed his motion
as required. Because we cannot determine whether the Defendant adequately renewed
his motion or judgment of acquittal, or whether he was even required to, we conclude that
the issue is waived.
However, because the “the standard by which the trial court determines a motion
for judgment of acquittal at the end of all the proof is, in essence, the same standard
which applies on appeal in determining the sufficiency of the evidence after a
conviction,” we will review the defendant’s claim as a sufficiency of the evidence
challenge. State v. Thompson, 88 S.W.3d 611, 614-15 (Tenn. Crim. App. 2000).
Accordingly, we must consider “whether ‘any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’” State v. Parker,
350 S.W.3d 883, 903 (Tenn. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)); see Tenn. R. App. P. 13(e). The standard of review for sufficiency of the
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evidence “‘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)). In applying this standard of review, the
State is entitled to the strongest legitimate view of the evidence and all reasonable
inferences that may be drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729
(Tenn. 2011) (citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). The trier of
fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245
S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978)). This court shall not substitute its inferences for those drawn by the trier of
fact. Dorantes, 331 S.W.3d at 379 (citing State v. Lewter, 313 S.W.3d 745, 748 (Tenn.
2010); Liakas v. State, 286 S.W.2d 856, 859 (1956)).
Tennessee Code Annotated section 39-14-121(a)(1)(A) provides that a person
commits an offense of passing a worthless check who, with fraudulent intent or
knowingly,
[i]ssues or passes a check or similar sight order for the payment of money
for the purpose of paying any fee, fine, tax, license or obligation to any
governmental entity or for the purpose of obtaining money, services, labor,
credit or any article of value, knowing at the time there are not sufficient
funds in or on deposit with the bank or other drawee for the payment in full
of the check or order, as well as all other checks or orders outstanding at the
time of issuance.
T.C.A. § 39-14-121(a)(1)(A). However, the above section does not apply “to a post-
dated check or to a check or similar sight order where the payee or holder knows or has
good and sufficient reason to believe the drawer did not have sufficient funds on deposit
to the drawer’s credit with the drawee to ensure payment.” Id. § 39-14-121(a)(2).
Here, the Defendant does not claim that his check was post-dated but, rather, that
the second part of the exception applies, because Hamilton knew or had good and
sufficient reason to believe that the Defendant had insufficient funds when he requested
that Hamilton hold the check for two days.
Tennessee courts have rarely addressed this particular exception to the worthless
check statute. However, as the Defendant points out, a November 21, 1995 Attorney
General Opinion addresses the application of this exception to an almost identical
situation in which “a payee accepts a check, which is not post-dated, agreeing to hold the
check for 10 days before presenting it to the bank for payment.” Tenn. Op. Att’y Gen.
No. 95-116 (Nov. 21, 1995). The opinion concludes that the statutory exception is
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applicable “because the drawer’s request of the payee to delay presentment provides the
payee with sufficient reason to believe that there are insufficient funds in the account to
ensure payment at the time of issuance.” Significantly, the opinion also notes that “[t]he
reason the check is bad is insignificant,” and that the payee is relying “not on the check,
but on the drawer’s promise that the check will be made good if held 10 days before
presentment.”
We note that “[a]lthough opinions of the Attorney General are useful in advising
parties as to a recommended course of action and to avoid litigation, they are not binding
authority for legal conclusions, and courts are not required or obliged to follow them.”
Washington Cnty. Bd. of Educ. v. Market America, Inc., 693 S.W.2d 344, 348 (Tenn.
1985); State v. Blanchard, 100 S.W.3d 226, 230 (Tenn. Crim. App. 2002) (“[O]pinions of
the state attorney general are merely advisory and do not constitute legal authority
binding on this Court.”); H & R Block Eastern Tax Services, Inc. v. State of Tennessee,
Dep’t of Commerce and Ins., Div. of Ins., 267 S.W.3d 848, 861 (Tenn. Ct. App. 2008)
(“Attorney General opinions are particularly persuasive when they have been consistently
repeated.”). Because Tennessee law does not provide sufficient guidance on this issue,
we find the November 21, 1995 Attorney General Opinion helpful in determining
whether the Defendant is entitled to relief in this case.
The November 21, 1995 Attorney General Opinion relied on this court’s opinion
in State v. Fred D. Dean, in which we held that fraudulent intent was negated when the
defendant used a check to pay for a diamond ring with the understanding that funds
would be transferred from his savings to his checking account to make the check good.
Slip op. No. 157 (Tenn. Crim. App. Oct. 25, 1984). This court reasoned that “[w]hile the
present case does not involve a postdated check, it is similar to the same thing because
the victim here knew there were insufficient funds in the defendant’s account, and thus he
was not relying upon the check but was relying upon the defendant’s promise to
subsequently deposit funds to cover the check.” Id., slip op. at 3; see also Cook v. State,
94 S.W.2d 386, 388 (Tenn. 1936) (holding that a post-dated check implies there is no
money available and that “[a]t most it amounted to a promise that on the day it became
due the drawer would have in the bank a sufficient deposit to meet it.”). Notably, the
State did not address the November 21, 1995 Attorney General Opinion or Dean in its
appellate brief.
We conclude that here, as in Dean, fraudulent intent was not established as a
matter of law because Hamilton was relying on the Defendant’s promise at the time of
issuance by agreeing to hold the check for two days. This reasoning is further supported
by the exception codified in Tennessee Code Annotated section 39-14-121(a)(2). While
the defendant may be guilty of theft or subject to other civil penalties, his conviction
cannot stand as charged because the fraudulent intent needed to establish the issuance of
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a worthless check was negated as a matter of law. See State v. Stooksberry, 872 S.W.2d
906, 908 (Tenn. 1994) (“A post-dated check, as in the Cook case, may be used to commit
offenses involving theft, deception, and fraud.”); see also Tenn. Op. Att’y Gen. 95-116
(Nov. 21, 1995) (“The scenario presented in this inquiry could, however, be prosecuted
as theft of property or a theft of services.”); see also Dean, slip. op. at 2 (“The defendant .
. . might or might not be guilty of obtaining goods by false pretenses, but his guilt for
passing a worthless check cannot stand.”). Accordingly, the proof fails to establish the
element of fraudulent intent, and therefore, the Defendant’s conviction must be reversed.
CONCLUSION
Based on the foregoing authority and analysis, we reverse the judgment of the trial
court and dismiss the case.
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CAMILLE R. McMULLEN, JUDGE
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