State of Tennessee v. Elizabeth Lynn Schmitz

10/22/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 27, 2019
STATE OF TENNESSEE v. ELIZABETH LYNN SCHMITZ
Appeal from the Circuit Court for Humphreys County
No. 13003-B Larry J. Wallace, Judge
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No. M2018-01270-CCA-R3-CD
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A Humphreys County jury convicted the Defendant-Appellant, Elizabeth Lynn Schmitz,
of failure to have a license to operate a pawnshop in violation of Tennessee Code
Annotated section 45-6-205, a Class A misdemeanor, for which she received a
probationary sentence of eleven-months and twenty-nine days. In this appeal as of right,
the Defendant argues that the trial court erred by not providing her a court reporter during
trial and that the evidence was insufficient to sustain her conviction. Upon review, we
affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which TIMOTHY L.
EASTER, and J. ROSS DYER, JJ., joined.
Olin J. Baker (on appeal), Charlotte, Tennessee, and Michael W. Patrick (at trial),
Waverly, Tennessee, for the Defendant-Appellant, Elizabeth Lynn Schmitz.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Ray Crouch, District Attorney General; and Joseph Hornick, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
This case began in June 2013, when the Humphreys County Grand Jury returned a
presentment charging the Defendant and her husband with two misdemeanors: failure to
have a license to operate a pawnbroker’s business on July 27, 2012 (count one); and
failure to allow a person to redeem pawned property on June 27, 2012 through September
12, 2012; specifically, an Apple iPad pledged by Drema Reppert (count two). Shortly
thereafter, the Defendant was arrested, posted a cash bond, and appeared in court. On the
August 12, 2013 “Waiver of Right to Have Appointed Counsel” form, there is a
handwritten note showing that the Defendant was “determined to be able to hire counsel
by this court, but Defendant does not want to hire an attorney.” The Defendant was
nevertheless appointed initial counsel, but initial counsel was permitted to withdraw on
August 26, 2014, based on a conflict. Trial counsel was appointed the next day, and an
order memorializing the appointment was filed on September 16, 2014.
In February 2015, the Humphreys County Grand Jury charged the Defendant by
superceding presentment with an additional count of theft of property valued under $1000
from the same victim and on the same day as reflected in count two. Although the
Defendant was represented by counsel, the record shows that she filed several pro se
motions prior to trial, including a March 10, 2016 motion to return bond; a motion to
dismiss with a supporting memorandum based on a speedy trial violation (same day); a
June 13, 2016 motion to dismiss court appointed lawyer; and a June 24, 2016 motion to
reconsider the motion to dismiss. On June 28, 2016, the trial court entered an order
denying the Defendant’s motion to dismiss her appointed lawyer. The record does not
show the disposition of any of the other motions. The actual trial is not memorialized by
minute entry in the record. However, the record shows preliminary jury instructions were
filed on June 28, 2016. The record also includes a verdict form showing that on the same
day, the Defendant was found guilty by a jury of failure to have a license to operate a
pawnbroker’s business.
The record contains two judgments entered on June 28, 2016. One judgment
shows that the Defendant was found guilty of failure to have a license to operate a
pawnshop; however, the sentence is not filled out. The special conditions section shows
the matter was set for a status date on July 28, 2016. The second judgment shows that the
Defendant was found not guilty of failure to allow a person to redeem property. The
Defendant filed a notice of appeal in this court on July 7, 2016, which was dismissed
without prejudice as premature. On July 28, 2016, the record shows that the Defendant,
still represented by trial counsel, filed a motion for new trial on her own behalf. In her
motion, the Defendant argued, among other things, ineffective assistance of trial counsel
in failing to represent her properly at trial. On December 9, 2016, the trial court issued an
order finding, yet again, that the Defendant was indigent and appointing new counsel
(third counsel) to represent her. The record does not reveal the disposition of the other
issues raised in the Defendant’s motion or the basis for appointing new counsel.
New counsel filed a notice of mitigating factors and an ex parte motion for a court
reporter to be present at the sentencing hearing, which was granted by the trial court. The
record however does not include a transcript from the sentencing hearing. On June 23,
2017, two additional judgments were filed in this case. The judgment for failure to have
a license to operate a pawnshop shows that the Defendant received a suspended sentence
of eleven months and twenty-nine days. The special condition section notes as follows:
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Defendant shall receive credit on her Probation from June 28, 2016-May 8,
2017[.] Court cost shall be paid from the Defendant’s case bond on deposit
in the Circuit Court Clerk’s Office and any remaining funds shall be
returned to the Defendant[.]
The second judgment, as reflected in the judgment from June 2016, shows that the
Defendant was found not guilty of failure to allow a person to redeem property.
On July 13, 2017, new counsel filed a motion for new trial arguing that the jury’s
verdict was not supported by the evidence and that the trial court erred in failing to
provide the Defendant with a court reporter at trial. At the motion for new trial on May
18, 2018, new counsel argued that the Defendant was entitled to a court reporter at trial
because the trial court had determined she was indigent and, as such, she should have had
a court reporter appointed by the State. New counsel also argued that a transcript of the
trial was significant because the Defendant was subsequently indicted for aggravated
perjury based on her testimony during the trial in the instant case. New counsel argued
further that the transcript was necessary for appellate review. In response, the State
argued that the Defendant was represented by counsel at trial, and he did not request a
court reporter. Accordingly, this issue is waived. The State also pointed out that the
Defendant had a means available to her to procure a written statement of the facts for
purposes of appellate review and that the there was sufficient proof supporting the
Defendant’s conviction in this case. Even if the Defendant were granted a new trial, the
State argued that it would not impact the pending aggravated perjury charge because
nothing would change the fact that the Defendant provided false testimony under oath at
a hearing.
In denying the motion for new trial, the trial court stated, in relevant part, as
follows:
The Court remembers this case very well, probably in the top ten of
cases I remember. . . .
And going just over all sufficiency of the evidence, the Court finds
there was sufficient evidence for the jury to find the verdict that they
returned. [The Defendant] did not make a real good witness on the stand, I
didn’t believe, and I think the jury probably felt that way too.
As far as the court reporter issue, the Court believes that the issue is
waived because it wasn’t requested at the time[;] therefore the Motion for
New Trial is respectfully denied.
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The trial court subsequently reviewed competing statements of evidence in this
case and determined by written order on February 14, 2019, that the Statement of
Evidence submitted by the State on November 13, 2018, was more accurate. See Tenn.
R. App. P. 24(c), (e) (providing that any differences regarding the accuracy of
statements of the evidence are settled by the trial court whose determination is
conclusive upon this court absent extraordinary circumstances).1 It was adopted and
incorporated into the record on appeal. The statement of evidence provided, in pertinent
part, as follows:
This matter was tried by a jury in the Circuit Court for Humphreys County,
Tennessee, at Waverly on June 28, 2016. Prior to the trial, the State
announced that it was dismissing Count Three of Docket Number 13003, a
theft. The State’s first witness was Drema Reppert. Ms. Reppert testified
that she encountered [the Defendant] on or about July 27, 2012. Ms.
Reppert testified that [the Defendant] owned and operated a business
known as Happy Hour Swap Shop in McEwen, Tennessee. Ms. Reppert
testified that on or about July 27, 2012, she encountered the Defendant,
owner of The Happy Hour Swap Shop, and pawned an iPad for $70 with
the agreement that Ms. Reppert would get it back when she got paid. Ms.
Reppert testified that she went to the Happy Hour Swap Shop a couple of
weeks later and there was no one there. Ms. Reppert testified that she then
later called the Defendant about getting her iPad and the Defendant said she
would get back with Ms. Reppert. Ms. Reppert testified that she attempted
to get her iPad 4-5 times prior to calling the police. Ms. Reppert testified
that the iPad had been purchased (and financed) for $800.00. Ms. Reppert
identified a receipt and business card that she received from the Defendant
for the iPad that were entered as Collective Exhibit #1.
Collective Exhibit #1 identified by Ms. Reppert included a receipt made out
to Drema Reppert, dated July 27, 2012, and included Ms. Reppert’s address
and phone number, and stated “Swap Pawn on pod for one month $70.00”
“Buy Back $90.00 8/27/12[.]” The hand-written receipt also included, in
handwriting at the top “Happy Hour Swap Shop 931-446-4045.”
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We presume that the Defendant submitted a written statement of the evidence to the trial court.
However, her statement of the evidence, albeit rejected by the trial court, is not included in the record on
appeal.
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Collective Exhibit #1 also included a business card titled “Happy Hour
Swap Shop” with the words “Buy Sell Trade Pawn Rent” on it, along with
a phone number and the names “Liz & Rick Schmitz.”
Ms. Reppert was cross-examined about her prior criminal record and
testified that she worked at a restaurant and was just trying to make a living
and needed some money. The State’s second witness was Chief Eric
Jernigan of the McEwen, Tennessee Police Department. Chief Jernigan
testified about taking a report from Ms. Reppert in the case and identified
the receipt and card received by Ms. Reppert and submitted as Collective
Exhibit #1. The State’s third and final witness was 23rd Judicial District,
District Attorney Criminal Investigator John Ethridge. Mr. Ethridge
testified that he also took a report from Ms. Reppert and received the
receipt and business card entered as Collective Exhibit #1. Mr. Ethridge
also testified that he checked with the Humphreys County Court Clerk’s
office and that no pawn license had been issued in McEwen or to [the
Defendant].
The Defendant, Elizabeth Schmitz, testified on her own behalf. Prior to the
Defendant testifying, the Court went over her rights with her regarding
testifying on her own behalf and not testifying on her own behalf, as set
forth in Momon vs. State, 18 S.W .3d at 163 (Tenn. 1999). The Defendant
testified that she gave Ms. Reppert a loan for $70 and that she received an
iPod, not an iPad, as collateral for the loan. [The Defendant] admitted she
did not have a license to operate a pawn shop.
During cross-examination of the Defendant, the Defendant was asked if she
had been charged or convicted of theft in Dickson County, Tennessee. She
denied both. The Defendant was also questioned about text messages she
had sent a boyfriend saying she was going to take her car from a repair
shop without paying for it. The Defendant denied this and denied that her
car had been at a repair shop. After being confronted with a police report
showing she had been charged with theft, the Defendant continued to deny
that she had been charged with theft. The defense objected to the police
report being admitted into evidence and that objection was sustained.
The State then suggested that the Defendant be advised of her constitutional
rights against self-incrimination. The Court at that time advised the
Defendant of her rights against self-incrimination under the Fifth
Amendment to the United States Constitution and Article I, section 9 of the
Tennessee Constitution. After the Court[’]s advisement to the Defendant,
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defense counsel requested a brief recess to talk with the Defendant. After a
recess, the Defendant was asked if she wished to change her testimony in
any way. The Defendant stated that she did not. The Defendant was asked
if she understood that if she was found not to be truthful that she could be
charged with perjury, which she acknowledged and stated she was telling
the truth and had not stolen anything. After the Defendant’s testimony, the
Defendant rested her case and the case was sent to the jury for
consideration.
The jury found the Defendant guilty in Count One of Docket Number
13003 of a violation of T.C.A. § 45-6-205, Failure to Have a License to
Operate a Pawn Shop. She was found not guilty of Count Two. The
Defendant was sentenced to eleven months and twenty-nine days in the
Humphreys County, Tennessee jail, with the sentence suspended to
probation. The Defendant was also ordered to pay the costs.
The Defendant filed a timely notice of appeal, and this case is now properly before
this Court for review.
ANALYSIS
Absence of Court Reporter. The Defendant was tried for misdemeanor offenses,
and the record on appeal shows that she was declared indigent and appointed counsel
before trial. See Tenn. Code Ann. §§ 40-14-307(a) (providing that a court reporter “shall
attend every stage of each criminal case before the court”); 40-14-301(3) (defining
“criminal case” in pertinent part as “the trial of any criminal offense which is punishable
by confinement in the state penitentiary”); State v. Nail, 963 S.W.2d 761, 764 (Tenn.
Crim. App. 1997). Under these circumstances, the Defendant contends that the trial court
“erred and deprived [her] of her due process rights by failing to provide a court reporter
during trial.” She specifically argues that the State’s failure to provide a court reporter
disadvantaged her right to appeal because it created an inadequate record of the
proceedings, and she disputed the statement of the evidence accepted by the trial court.
In response, the State contends that the Defendant was not entitled to a verbatim
transcript of the trial because she was convicted of a misdemeanor, that this issue is
waived because trial counsel failed to request a court reporter to transcribe the
proceedings during trial, and that the Defendant has failed to establish plain error. Upon
our review, we conclude that the Defendant is not entitled to relief.
This court has previously held that “[a]s a matter of equal protection, indigent
defendants must be afforded with ‘the basic tools of an adequate defense or appeal, when
such tools are available for a price to other defendants.’” State v. Gallagher, 738 S.W.2d
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624, 625 (Tenn. 1987) (citing Britt v. North Carolina, 404 U.S. 226, 227 (1971); State v.
Elliott, 524 S.W.2d 473, 475 (Tenn. 1975)). The distinction between felony and
misdemeanor cases “is not a valid constitutional basis for denial of such tools.” Id. (citing
Mayer v. City of Chicago, 404 U.S. 189, 195-96 (1971)). The State must provide an
indigent defendant with a “‘record of sufficient completeness’ to permit proper
consideration of [his] claims.” Draper v. Washington, 372 U.S. 487, 499 (1963) (quoting
Coppedge v. United States, 369 U.S. 438, 446 (1962)). “A ‘record of sufficient
completeness’ does not translate automatically into a complete verbatim transcript.”
Mayer, 404 U.S. at 194; see Gallagher, 738 S.W.2d at 625. Rather, “alternative methods
of reporting trial proceedings are permissible if they place before the appellate court an
equivalent report of the events at trial from which the appellant’s contentions arise.”
Draper, 372 U.S. at 495; see Gallagher, 738 S.W.2d at 625. In other words, a trial court’s
failure to provide a court reporter in order to supply a verbatim transcript does not create
automatic reversible error. Mayer, 404 U.S. at 194; see also State v. Hammond, 638
S.W.2d 433, 434 (Tenn. Crim. App. 1982) (citing State v. Bomar, 213 Tenn. 499, 376
S.W.2d 451 (1964); Beadle v. State, 203 Tenn. 97, 310 S.W.2d 157 (1958)).
Where there is no verbatim transcript, as in this case, this court has held that
compliance with Rule 24 of the Tennessee Rules of Appellate Procedure provides an
alternative method for reporting trial proceedings to facilitate appellate review.
Gallagher, 738 S.W.2d at 626; Hammond, 638 S.W.2d at 434. Rule 24(c) provides for the
filing of a statement of the evidence when a transcript of the evidence is unavailable. In
such situations, “the appellant shall prepare a statement of the evidence or proceedings
from the best available means, including the appellant’s recollection.” Tenn. R. App. P.
24(c). “The statement should convey a fair, accurate and complete account of what
transpired with respect to those issues that are the bases of appeal.” Id. An appellee may
object to the statement as filed, and any differences regarding the accuracy of the
statement shall be settled by the trial court. Tenn. R. App. P. 24(c), (e). “Absent
extraordinary circumstances, the determination of the trial court is conclusive.” Tenn. R.
App. P. 24(e).
Based on the above authority, we conclude that the Defendant is not entitled to
relief. Trial counsel did not request a court reporter to be present at the Defendant’s trial
and, as argued by the State, this issue is technically waived. See Tenn. R. App. P. 36(a)
(“Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.”).
Although the Defendant argues that she cannot waive the presence of a court
reporter because it is “outside the scope or requirements of the statute,” we disagree. If
the Defendant’s argument holds true, then indigent defendants charged with
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misdemeanors may proceed to trial without objecting to the absence of a court reporter in
hopes of obtaining an acquittal but will be assured of a new trial if found guilty. We do
not believe this to be prudent and cannot condone such an outcome. While we are
troubled by trial counsel’s failure to request a court reporter, coupled with the numerous
complaints of ineffective assistance, the record simply does not establish a denial of due
process. See, e.g., State v. Jason Peter Meeks, No. M2011-01134-CCA-R3-CD, 2012
WL 3085563, at *2-3 (Tenn. Crim. App. July 31, 2012)(collection of cases holding that a
misdemeanor defendant has no right under Tennessee law to a verbatim transcript of the
proceedings in the trial court). In addition, we recognize that there were contested
statements of evidence. However, new counsel was given the opportunity to submit a
statement of the evidence from the Defendant’s perspective. Statements from the parties
were reviewed by the trial court, and the statement of evidence submitted by the State
was deemed the most accurate and adopted by the trial court. Because the trial court
complied with the procedure mandated by Rule 24, we conclude that the statement of the
evidence approved by the trial court constitutes “an equivalent report of the events at trial
from which [the Defendant’s] contentions arise.” Mayer, 404 U.S. at 194; State v.
Gregory Eidson, No. M2017-01808-CCA-R3-CD, 2018 WL 4944544, at *2-3 (Tenn.
Crim. App. Oct. 12, 2018), perm. appeal denied (Mar. 27, 2019). The Defendant is not
entitled to relief.
Sufficiency of the Evidence. Based on the “less than adequate” record, the
Defendant contends that a reasonable trier of fact would not find the requisite elements of
operating a pawnshop without a license. She specifically argues that the victim was
desperate and needed money, that the Defendant was merely providing her a loan for
which she wanted collateral, and that there was no proof that the pawn shop, the “Happy
Hour Swap Shop,” was operational. In response, the State contends that the evidence
supports the Defendant’s conviction. Upon applying the following well-established law,
we agree with the State.
“Because a verdict of guilt removes the presumption of innocence and raises a
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992)). “Appellate courts evaluating the sufficiency of the convicting evidence must
determine ‘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.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e).
When this court evaluates the sufficiency of the evidence on appeal, the State is entitled
to the strongest legitimate view of the evidence and all reasonable inferences that may be
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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)).
Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686,
691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of
review for sufficiency of the evidence “‘is the same whether the conviction is based upon
direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of
fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245
S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978)). Moreover, the jury determines the weight to be given to circumstantial
evidence, and the inferences to be drawn from this evidence and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d
646, 662 (Tenn. 2006)). When considering the sufficiency of the evidence, this court
“neither re-weighs the evidence nor substitutes its inferences for those drawn by the
jury.” Wagner, 382 S.W.3d at 297 (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997)).
Pawnbrokers conducting business in Tennessee are subject to licensure and
regulation under the Tennessee Pawnbrokers Act of 1988 (Pawnbrokers Act). See Tenn.
Code Ann. §§ 45-6-201 to -224. A “pawnbroker,” as relevant in this case, means “any
person, partnership or corporation . . . engaged in the business of advancing money to a
customer in consideration for the customer surrendering possession of tangible personal
property on an agreement by which the property may be returned to the customer’s
possession on repayment of the money advanced[.]” Id. at § 45-6-203. To lawfully act
as a pawnbroker, a person, business, or corporation must first obtain a license from the
county clerk in the county in which he or she is conducting business. See Tenn. Code
Ann. §§ 45-6-205 to -208. A “pawnshop” is the location at which the pawnbroker
regularly conducts business, id. at § 45-6-203. A person who knowingly violates any of
the provisions of the Pawnbrokers Act, upon conviction, commits a Class A
misdemeanor, id. at §45-6-218.
Viewed in the light most favorable to the State, the evidence presented at trial
established that the Defendant acted as a pawnbroker without a license in violation of the
Pawnbrokers Act. Reppert testified that the Defendant owned and operated a business
known as Happy Hour Swap Shop in McEwen, Tennessee. On July 27, 2012, Reppert
went to the Happy Hour Swap Shop and pawned an iPad for $70, with the agreement that
Reppert could buy it back from the Defendant for $90, once she got paid. When Reppert
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returned to the Happy Hour Swap Shop a couple of weeks later, no one was there.
Reppert called the Defendant at least four times, attempting to get her property back. A
receipt for the transaction and a business card were admitted as a collective exhibit at
trial. Significantly, the receipt was made out to Reppert and stated “Swap Pawn on pod
for one month $70.00” “Buy Back $90.00 8/27/12[.]” In handwriting at the top of the
receipt appeared, “Happy Hour Swap Shop 931-446-4045.” The business card was
entitled “Happy Hour Swap Shop” with the words “Buy Sell Trade Pawn Rent” on it,
along with a phone number and the names “Liz & Rick Schmitz.” An investigator with
the district attorney’s office testified that the local clerk’s office had no record of the
Defendant having procured a license to operate a pawnbroker’s business during the
relevant time period. Although the Defendant insisted that she only “loaned” Reppert
$70, for which she accepted an iPod as collateral, the jury rejected her testimony as was
its prerogative. The Defendant is not entitled to relief.
CONCLUSION
For the above reasons, the judgment of the trial court is affirmed.
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CAMILLE R. MCMULLEN, JUDGE
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