State of Tennessee v. Glover P. Smith

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
March 20, 2012 Session
STATE OF TENNESSEE v. GLOVER P. SMITH
Direct Appeal from the Circuit Court for Rutherford County
No. F-63667 Don R. Ash, Judge
No. M2011-00440-CCA-R3-CD - Filed July 6, 2012
A Rutherford County Circuit Court Jury convicted the appellant, Glover P. Smith, of
fabricating evidence in counts 1 and 2 and filing a false report in counts 3 through 8. During
a sentencing hearing, the trial court merged the appellant’s convictions of filing a false report
in counts 3, 4, and 5 and ordered that he serve an effective sentence of one year in jail
followed by six years of probation. Subsequently, the trial court granted the appellant’s
motion for judgment of acquittal as to the fabricating evidence convictions based upon
insufficient evidence. On appeal, the State contends that the trial court erred by granting the
appellant’s motion for judgment of acquittal. In a counter-appeal, the appellant maintains
that the evidence is insufficient to support the convictions; that the trial court improperly
instructed the jury on “knowingly”; that newly discovered evidence warrants a new trial; that
the State committed a Brady violation; that his multiple convictions in counts 3, 4, and 5 and
in counts 6, 7, and 8 violate double jeopardy; that the trial court improperly enhanced his
sentences and improperly denied his request for full probation; and that the cumulative effect
of the errors warrants a new trial. Based upon the oral arguments, the record, and the parties’
briefs, we conclude that the trial court erred by granting the appellant’s motion for judgment
of acquittal and reinstate his convictions of fabricating evidence in counts 1 and 2, the merger
of the convictions, and the sentence. We also conclude that the trial court should have
dismissed the charges of filing a false report in counts 4 and 5 because they were
mutliplicitous with the charge in count 3. The appellant’s remaining convictions and
sentences for filing a false report in counts 6, 7, and 8 are affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed
in Part and Reversed in Part.
N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and R OGER A. P AGE, JJ., joined.
Mary J. Clement (on appeal), Portland, Tennessee, and John H. Norton, III, and Liberti A.
Snider (at trial), Shelbyville, Tennessee, for the appellant, Glover P. Smith.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; William C. Whitesell, Jr., District Attorney General; and Trevor Lynch, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In March 2009, the Rutherford County Grand Jury indicted the appellant for one count
of fabricating evidence and four counts of initiating or making a false report. In October
2009, the grand jury returned a superseding indictment, charging the appellant with two
counts of fabricating evidence and six counts of initiating or making a false report. The
charges related to the disappearance of the appellant’s then sixty-nine-year-old wife,
Marsilene Smith.
John Flynt testified that in December 2007, he was a dispatcher for the Murfreesboro
Police Department (MPD). At 6:00 p.m. on December 6, 2007, the appellant telephoned the
police department and reported his wife missing. Flynt broadcasted information about the
appellant’s wife and her vehicle to patrol officers, and Officer Bobby Edwards was
dispatched to the appellant’s home.
The State played the appellant’s recorded call with Flynt for the jury. During the call,
the appellant told Flynt that his wife went shopping about 1:30 or 2:00 p.m., that “she never
goes off this long,” and that she was a diabetic and needed to eat. The appellant also said
that his wife had a cellular telephone, that he tried to call her twice, but she did not answer.
The appellant reported that his wife was driving a 2000 Lincoln Navigator and that the
vehicle was a champagne color. He thought his wife may have gone to Walmart to buy
Christmas decorations. Flynt put the appellant on hold and called the local hospital to find
out if Marsilene Smith had been admitted to the emergency room (ER). A hospital employee
told Flynt that Mrs. Smith had not been in the ER that day. When Flynt resumed speaking
with the appellant, the appellant said he did not want to leave the house to look for his wife
in case she tried to call him at their home.
On cross-examination, Flynt acknowledged that the appellant told him that Mrs. Smith
needed insulin. Given Mrs. Smith’s medical condition, Flynt considered the appellant’s call
to be an emergency.
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Officer Bobby Edwards of the MPD testified that he was dispatched to the appellant’s
home on December 6, 2007, and arrived at 6:14 p.m. The appellant told him that Mrs. Smith
left home at 1:30 p.m. to go shopping, that she was diabetic, and that she was usually home
before dark. The appellant said his wife was driving a champagne-colored Lincoln
Navigator, and he gave the vehicle’s license tag number to the officer. Officer Edwards put
out a BOLO, a “be-on the-lookout,” for Marsilene Smith and filed a report, which the
appellant read and signed. The appellant told Officer Edwards that Mrs. Smith had about six
hundred dollars with her, but the officer did not include that information in the report. The
appellant also told the officer that Mrs. Smith may have gone to the Walmart on Rutherford
Boulevard. Officer Edwards contacted Officer Dave Norton and asked him to look in the
Walmart parking lot for Mrs. Smith’s Navigator. A short time later, Officer Norton informed
Officer Edwards that he did not find the vehicle.
On cross-examination, Officer Edwards acknowledged that he created a
“supplemental report” and that the supplement contained information not included in his
original report. Officer Edwards created the supplement in 2009, about two years after Mrs.
Smith’s disappearance, and the appellant did not review the supplement.
Ethan Highers testified that in December 2007, he was an asset protection associate
for Walmart Store 5057 in Murfreesboro. His duties included patrolling the premises and
maintaining the store’s closed circuit television cameras. On December 7, 2007, the MPD
contacted the store and requested video footage. Highers began reviewing recorded video
of the parking lot and gave the pertinent footage to the police department. Specifically, video
footage recorded at 2:24:54 p.m. on December 6, 2007, was relevant to the police
department’s investigation into Marsilene Smith’s disappearance.
On cross-examination, Highers testified that he provided the police department with
twenty-four to thirty-six hours of video. He described the video footage as “choppy.”
Leah Talbert testified that one day in December 2007, she and her fiancé went to the
Walmart on Rutherford Boulevard. Talbert’s fiancé was driving Talbert’s car, and Talbert
was sitting in the front passenger seat. While they were looking for a parking space,
Talbert’s fiancé almost hit a white sport utility vehicle (SUV). Talbert’s fiancé drove around
the SUV, and Talbert made eye contact with its driver. She said that the driver was a man
“probably in his 60’s or so,” that he had an oval face, and that he was wearing large-framed
glasses. She also said that the driver’s chin “kind of came out from his face a little bit” and
that “[h]e looked well put together.” Talbert’s fiancé parked her car, and they went into
Walmart. Later, Talbert spoke with Detective Michael Taylor and viewed a photograph
array. She selected the appellant’s photograph from the array and identified him as the driver
of the SUV. She also identified the appellant at trial as the driver. Talbert said that she had
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not seen the appellant prior to their encounter in the parking lot and that she had not seen him
on the television news prior to selecting his photograph.
On cross-examination, Talbert testified that she gave a written statement to police. She
acknowledged that in her statement, she said the driver was probably in his “‘60’s, late 50’s,
or something like that.’” She also acknowledged that she said that the driver was “skinny”
and that she was “50 percent sure” a passenger was not in the SUV with him. She
acknowledged that she told Detective Taylor that the driver had gray hair, parted to the side,
and that he was wearing “sort of big” glasses. He was not wearing a hat. She acknowledged
that she saw the driver for a very short period of time and that she had reviewed the video
footage of the Walmart parking lot before the appellant’s trial.
Captain Chris Guthrie of the MPD testified that on the morning of December 7, 2007,
he learned about Marsilene Smith’s disappearance and that her Navigator had been found at
the Walmart on Rutherford Boulevard. Captain Guthrie went to the scene and saw the
Navigator parked between two Budget rental trucks. He looked inside the SUV and saw a
purse on the front seat and a makeup bag in the center console area. Captain Guthrie had the
SUV towed to the police department for processing.
Captain Guthrie testified that on the afternoon of December 7, he and Major James
Gage went to the appellant’s home to talk with him about Mrs. Smith’s disappearance. The
appellant came outside and told them that his neighbors were visiting and that he did not
have time to speak with the officers. Captain Guthrie stated that as he and Major Gage were
leaving, the appellant “got kind of irate” and said, “‘Have you found my wife yet?’” Captain
Guthrie told the appellant that they would return later to speak with him. Later that
afternoon, the officers returned to the appellant’s home. The appellant told them that his
wife left to go shopping about 1:30 p.m. and that she had three to five hundred dollars with
her. Captain Guthrie asked to look inside the appellant’s garage, and the appellant
consented. Captain Guthrie said he noticed a “greenish-looking, teal colored” bicycle. He
said that the bicycle was a “‘beachcomber bicycle’” and that it reminded him of an “old-time
bicycle.” He said the appellant told them, “‘I understand I’ll probably be a suspect in this.”
Captain Guthrie testified that on the morning of December 8, he and other officers
watched the video footage of the Walmart parking lot. He said the video showed that Mrs.
Smith’s SUV almost collided with another car, that the SUV pulled into a parking space, and
that “somebody [got] out on a bicycle.” He said that the bicycle was the same type as the one
in the appellant’s garage, that the person riding the bicycle appeared to be “an older person,”
and that the appellant “came to mind.” The appellant arrived at the police department for an
interview. Captain Guthrie showed him the video footage and asked if he recognized the
person on the bicycle. The appellant said he did not. Major Gage interviewed the appellant
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and obtained consent to search his home. During the search, Captain Guthrie noticed the
appellant’s home was immaculate and collected the bicycle from the garage. Captain Guthrie
also collected from the master bedroom closet some dark colored baseball caps and a tan
jacket, clothing similar to that worn by the person on the bicycle. The State played the
Walmart video footage for the jury and brought a bicycle into the courtroom. Captain
Guthrie identified the bicycle as the one he collected from the appellant’s garage.
On cross-examination, Captain Guthrie testified that Mrs. Smith’s SUV was unlocked
and that the keys were in the ignition. He acknowledged that her wallet and a small leopard-
print bag in which she usually kept her cash were never located. No blood or fingerprints
were found in the SUV. Regarding the cleanliness of the appellant’s home, Captain Guthrie
said that was not unusual because he learned the appellant and Mrs. Smith were “very clean.”
Captain Gutherie acknowledged that in his report, he wrote that the bicycle in the garage was
“‘teal or green.’” He said that the bicycle in the video footage appeared to be “bluish, aqua-
green” but that “you’ve got to remember, the sun was coming off the cameras, and that’s
causing a lot of different reflections.” He acknowledged that he could not determine the
exact color of the bicycle in the video footage or if the bicycle was the one from the
appellant’s garage. He also acknowledged that he could not say the caps or jacket he
removed from the appellant’s home were worn by the person riding the bicycle. He said that
the Walmart on Rutherford Boulevard was six and one-half miles from the appellant’s home
and that the person on the bicycle did not appear to be a woman. On redirect examination,
Captain Guthrie testified that an eyewitness verified the appellant was riding the bicycle.
Detective Michael Taylor of the MPD testified that about 9:15 p.m on December 6,
2007, he was informed about Marsilene Smith’s disappearance. He telephoned the appellant
and spoke with him. Given that Mrs. Smith was a diabetic, elderly female and that it was
dark outside, Detective Taylor thought she was missing. He tried calling her cellular
telephone. The telephone rang, but no one answered, meaning the telephone was still turned
on. Detective Taylor contacted Mrs. Smith’s cellular telephone provider and asked for
information about the approximate location of the telephone. Detective Taylor received
information about the location of the cell tower in contact with Mrs. Smith’s phone.
Detective Taylor testified that about 6:00 a.m. on December 7, he learned that Mrs.
Smith’s Navigator had been found at the Walmart on Rutherford Boulevard. He went to the
location and met with Captain Guthrie. Detective Taylor said that the vehicle was parked “in
kind of an obscure location” between two Budget trucks and that a person going shopping
would not have parked it there. Police officers later watched video footage of the parking
lot. On the morning of December 8, they asked Mrs. Smith’s family to come to the police
department to watch the video. The appellant watched the video and confirmed that the
Navigator in the video belonged to his wife. However, he said he did not know who was
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driving the Navigator or riding the bicycle. That evening, Detective Taylor and other officers
went to the appellant’s home and searched it pursuant to the appellant’s consent. They
collected baseball caps, a tan jacket, and a bicycle. On December 10, Detective Taylor
interviewed Leah Talbert. She selected the appellant’s photograph from a photograph array
and identified him as the driver of the Navigator. She also identified him as the person riding
the bicycle.
On cross-examination, Detective Taylor testified that a green mountain bike was
found a couple of miles from the Walmart on Rutherford Boulevard. He did not remember
the tan jacket collected from the appellant’s closet being in a dry cleaners bag. He could not
say that any of the clothing removed from the appellant’s home was worn by the person on
the bicycle, and paint scrapings from the bicycle in the appellant’s garage did not match paint
scrapings collected from the rear of the Navigator. He acknowledged that during the
appellant’s interview, the appellant told police he had a heart condition and had had hip
replacement surgery.
On redirect examination, Detective Taylor testified that he did not learn of any
physical disabilities that would have prevented the appellant from walking or riding a
bicycle. The appellant had two safes in his home. One safe belonged to the appellant, and
the other safe belonged to his daughter. Officers received consent to look in the appellant’s
safe but not his daughter’s safe. Detective Taylor said that the green mountain bike could
not have been the bicycle in the Walmart video because the mountain bike was not rideable
and its handlebars were different from the bicycle in the video.
Major James Gage of the MPD testified that he was informed of Mrs. Smith’s
disappearance about 6:00 p.m. on December 6, 2007. The next day, he learned that her
Navigator had been found and went to the Walmart on Rutherford Boulevard. About 4:00
p.m., Major Gage and Captain Guthrie went to the appellant’s home. Major Gage said the
appellant told them that some neighbors were there and that he wanted to “enjoy their
company.” The appellant asked the officers to leave. Major Gage and Captain Guthrie
returned later and spoke with the appellant, who told them that his wife left at 1:30 p.m. the
previous day and that she had three to five hundred dollars with her. The appellant allowed
the officers to look in his garage, and Major Gage noticed a bicycle. The next morning,
December 8, Captain Guthrie and Detective Taylor interviewed the appellant, his daughter,
and his son-in-law at the police department. During the appellant’s daughter’s interview,
Major Gage was in his office and overheard the appellant talking with the appellant’s son-in-
law about money. Major Gage interviewed the appellant and confronted the appellant with
the information he overheard. The appellant admitted that his wife had more money with her
than he originally told the officers.
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On cross-examination, Major Gage testified that the appellant claimed he lied about
the amount of money because he failed to report rental income to the Internal Revenue
Service. Major Gage acknowledged that the appellant and his family came to the police
department voluntarily. He said that the appellant and the appellant’s son-in-law were not
arguing but that they were having a “stern talk.” During the appellant’s interview with Major
Gage, the appellant said his wife may have had ten thousand dollars with her. The
appellant’s lying about the money damaged his credibility. Major Gage acknowledged that
he did not check the appellant’s medical history and that he could not say the bicycle in the
appellant’s garage was the bicycle in the Walmart video.
The State rested its case, and the appellant presented no proof. During the State’s
closing, it made the following arguments: The appellant was guilty of count 1, fabricating
evidence on December 6, 2007, by using his wife’s Lincoln Navigator to lead the police on
a “wild goose chase” when he knew the vehicle was in the Walmart parking lot; count 2,
fabricating evidence on December 6, 2007, by concealing the Navigator in the Walmart
parking lot; count 3, initiating a false report on December 6, 2007, by reporting to Officer
Edwards that he last saw his wife in the Navigator at 1:30 p.m., knowing the information was
false; count 4, initiating a false report on December 6, 2007, by reporting to Officer Edwards
that he last saw his wife in the Navigator at 1:30 p.m., knowing the incident did not occur;
count 5, making a false report on December 6, 2007, by reporting to Officer Edwards that
he last saw his wife in the Navigator at 1:30 p.m. and that she only had about five hundred
dollars with her, knowing the information was false and intending to hinder the investigation;
count 6, initiating a false report of emergency on December 6, 2007, by reporting his wife
missing, knowing that the report was false and that the police would investigate her
disappearance; count 7, making a false report on December 7, 2007, by reporting to Captain
Guthrie and Major Gage that he last saw his wife in the Navigator at 1:30 p.m. and that she
only had about five hundred dollars with her, knowing the information was false and
intending to hinder the investigation; and count 8, making a false report on December 8,
2007, by reporting to Captain Guthrie and Detective Taylor that he last saw his wife in the
Navigator at 1:30 p.m. and that she only had about five hundred dollars with her, knowing
the information was false and intending to hinder the investigation.
The jury convicted the appellant as charged. During a sentencing hearing, the trial
court sentenced the appellant for counts 1 and 2, fabricating evidence, a Class C felony, to
four years, six months; for count 3, 4, and 5, initiating a false report, a Class D felony, to
three years; for count 6, initiating a false report of emergency, a Class C felony, to four years,
six months; for counts 7 and 8, making a false report, a Class D felony, to three years. The
trial court ordered that all of the sentences be served concurrently as one year in jail followed
by six years on probation. At the conclusion of the hearing, the trial court merged count 2
into count 1 and counts 4 and 5 into count 3.
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The appellant filed a timely motion for new trial and judgment of acquittal. The trial
court granted the appellant’s motion for judgment of acquittal as to the two fabricating
evidence convictions in counts 1 and 2 on the basis that no investigation was pending or in
progress when the appellant moved the Navigator into the Walmart parking lot and parked
it between the two Budget trucks. The trial court affirmed the appellant’s remaining
convictions. The State appeals the trial court’s granting the appellant’s motion for judgment
of acquittal in counts 1 and 2, and the appellant counter-appeals the trial court’s denying his
motion for new trial in counts 3 through 8.
II. Analysis
A. State’s Appeal - Post-Trial Motion for Judgment of Acquittal
The State contends that the trial court erred by granting the appellant’s motion for
judgment of acquittal as to his convictions of fabricating evidence in counts 1 and 2. The
trial court granted the motion on the basis that no police investigation was pending or in
progress when the appellant planted the Navigator in the Walmart parking lot. The appellant
contends that the trial court correctly granted his motion for judgment of acquittal. We
conclude that the trial court erred by granting the motion and that the evidence is sufficient
to support the convictions.
The appellant was convicted in count 1 of fabricating evidence in violation of
Tennessee Code Annotated section 39-16-503(a)(2) and in count 2 of fabricating evidence
in violation of Tennessee Code Annotated section 39-16-503(a)(1). The statute for
tampering with or fabricating evidence provides as follows:
(a) It is unlawful for any person, knowing that an
investigation or official proceeding is pending or in progress, to:
(1) Alter, destroy, or conceal any record,
document or thing with intent to impair its verity,
legibility, or availability as evidence in the
investigation or official proceeding; or
(2) Make, present, or use any record,
document or thing with knowledge of its falsity
and with intent to affect the course or outcome of
the investigation or official proceeding.
Tenn. Code Ann. § 39-16-503(a)(1), (2).
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In this case, the indictment specified that the appellant fabricated evidence while an
investigation was “pending.” After the hearing on the appellant’s post-trial motion for
judgment of acquittal, the trial court reversed the appellant’s convictions, concluding that an
investigation was not “pending” when the appellant drove the Navigator into the parking lot
and parked it between the two Budget trucks because the police had not been notified of Mrs.
Smith’s disappearance.
In granting the appellant’s motion, the trial court relied on State v. Katrina A.
Callahan in which the defendant, who was working at a truck stop, telephoned the store
manager and reported that she had been robbed. No. E2002-00926-CCA-R3-CD, 2003 Tenn.
Crim. App. LEXIS 372, at *3 (Knoxville, Apr. 28, 2003). After making the call, the
defendant placed a cardboard container over one of the security cameras in the store, took
money from the cash register, and telephoned the police. Id. at *4. The defendant later
admitted that she conspired with two men to stage the robbery, and a jury convicted her of
tampering with or fabricating evidence. Id. On appeal, she challenged the sufficiency of the
evidence. Id. at *1. A panel of this court agreed that the evidence was insufficient to support
the conviction because an investigation was not pending or in progress when the defendant
covered up the camera lens. Id. at **9-10. As this court explained,
From our de novo review, we cannot agree that the defendant’s
call to her manager to report a robbery created a pending
investigation as encompassed by Code section 39-16-503.
....
We agree with the trial court that obviously an
investigation was pending or in progress when the police
officers arrived in their official capacity and began investigating
the reported robbery. That investigation, however, was not
pending or underway at the time that the defendant and her
cohorts covered up the camera lens. The statute, we believe,
clearly requires the investigation to be pending or in progress at
the time the defendant takes whatever action is claimed to
constitute tampering with or fabricating evidence. Any other
interpretation could lead to absurd results.
Id. at **8-10.
The State contends that the trial court misinterpreted Callahan and that this court is
bound by published authority to conclude that an investigation into Mrs. Smith’s
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disappearance was “pending” when the appellant drove the Navigator into the parking lot and
concealed it between the two Budget trucks. Specifically, the State relies on State v. Forbes,
918 S.W.2d 431, 442 (Tenn. Crim. App. 1995), in which this court interpreted “pending,”
in terms of the statute at issue, “to mean before or during the [investigation or official]
proceeding.” The State also relies on State v. Reggie Carnell James, No.
W2007-00775-CCA-R3-CD, 2009 Tenn. Crim. App. LEXIS 179, at **23-24 (Jackson, Mar.
10, 2005), in which a panel of this court upheld the defendant’s conviction for tampering
with evidence when the evidence at trial showed that the defendant murdered the victim,
disposed of his body, and destroyed crucial evidence before the police learned about the
victim’s disappearance and began an investigation.
When reviewing issues of statutory construction, we conduct a de novo review of the
trial court’s rulings without any presumption of correctness. See Carter v. Bell, 279 S.W.3d
560, 564 (Tenn. 2009). “When statutory language is clear and unambiguous, we must apply
its plain meaning in its normal and accepted use . . . without reference to the broader statutory
intent, legislative history, or other sources.” Id. Our goal is to “ascertain and give effect to
legislative intent without broadening the statute beyond its intended scope.” Id.
Initially, we note that neither Forbes nor James specifically addressed the State’s
argument in this case, i.e., that an investigation is “pending” when the initial crime is
committed, regardless of when the police are notified. Moreover, as noted by the State, this
court did not say in Callahan that an investigation becomes “pending” only when the police
are notified. Instead, this court concluded that the investigation was not pending when the
defendant called her store manager to report the robbery or covered the camera lens, both of
which occurred prior to the actual theft from the store. Callahan, No.
E2002-00926-CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS 372, at **8, 9-10. However, we
can appreciate the trial court’s concluding from this court’s analysis in Callahan that the
police must be notified in order for an investigation to be “pending.” In any event, Callahan
is persuasive authority by which we are not bound. See Tenn. Sup. Ct. R. 4(G)(1).
In considering this issue, the Texas Court of Appeals’ explanation in Lumpkin v.
State, 129 S.W.3d 659 (Tex. Ct. App. 2004), regarding when an investigation is “pending,”
is particularly helpful. Tennessee’s tampering with and fabricating evidence statute is almost
identical to Texas Code Annotated section 37.09. In Lumpkin, the Texas court explained as
follows:
At first blush, the terms “pending” and “in progress”
appear to be synonymous. Indeed, one definition of the
adjective “pending” is “remaining undecided; awaiting decision
or settlement; unfinished.” RANDOM HOUSE WEBSTER’S
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UNABRIDGED DICTIONARY 1433 (2d ed. 2001). However,
one of the cardinal principles of statutory construction is that we
generally presume that every word in a statute has been used for
a purpose and that each word, phrase, clause, and sentence
should be given effect if reasonably possible. . . . To avoid
redundancy from use of the terms “pending” and “in progress,”
we look to a second definition of the adjective “pending,” which
is “about to take place; impending.” RANDOM HOUSE
WEBSTER’S UNABRIDGED DICTIONARY 1433 (2d ed.
2001). Construing “pending” as meaning “about to take place,
impending” places the Texas statute in harmony with other
jurisdictions using the Model Penal Code terminology
“believing that an official proceeding [or investigation] is
pending or may be [or is about to be or is likely to be]
instituted.” MODEL PENAL CODE § 241.7; COLO. REV.
STAT. ANN. § 18-8-610 (West 2003); D.C. CODE ANN. §
22-723 (2001); FLA. STAT. ANN. § 918.13 (West 2003); KY.
REV. STAT. ANN. § 524.100 (Banks- Baldwin 2003); MONT.
CODE ANN. § 45-7-207 (2002); OHIO REV. CODE ANN. §
2921.12 (West 2003); UTAH CODE ANN. § 76-8-510.5
(2003). Accordingly, we hold that the term “pending” in the
Texas tampering-with-evidence statute means “impending, or
about to take place.”
Lumpkin, 129 S.W.3d at 663. We are persuaded that the Texas Court of Appeals’s reasoning
is correct and conclude that “pending” means “impending or about to take place.” Once the
police are notified, an investigation is “in progress.”
We will now consider whether the evidence is sufficient to support the appellant’s
convictions of fabricating evidence in counts 1 and 2. When an appellant challenges the
sufficiency of the convicting evidence, the standard of review by an appellate court 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); Tenn. R. App. P. 13(e). The State
is entitled to the strongest legitimate view of the evidence and all reasonable or legitimate
inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). Questions concerning the credibility of witnesses and the weight and value to be
afforded the evidence, as well as all factual issues raised by the evidence, are resolved by the
trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh
or reevaluate the evidence, nor will this court substitute its inferences drawn from the
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circumstantial evidence for those inferences drawn by the jury. Id. Because a jury
conviction removes the presumption of innocence with which a defendant is initially cloaked
at trial and replaces it on appeal with one of guilt, a convicted defendant has the burden of
demonstrating to this court that the evidence is insufficient. State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).
A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and ‘[t]he
inferences to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence, are questions primarily for the jury.’”
State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting State v. Marable, 313 S.W.2d 451,
457 (Tenn. 1958)). “The 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)). “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.” State v. Thompson, 88 S.W.3d 611, 614-15 (Tenn. Crim.
App. 2000).
In count 1, the State alleged that the appellant fabricated evidence in violation of
Tennessee Code Annotated section 39-16-503(a)(2). Specifically, the indictment alleged that
the appellant
did unlawfully and knowing that an investigation or official
proceeding was pending present or use a thing, to-wit: AN
AUTOMOBILE, with knowledge of its falsity and with intent
to affect the course or outcome of the investigation or official
proceeding, in violation of T.C.A. 39-16-503.
Taken in the light most favorable to the State, the evidence shows that the appellant
contacted the police at 6:00 p.m. on December 6 and told them that his wife was missing.
According to the appellant, he last saw his wife at 1:30 p.m. when she left home in her
Navigator to go shopping. However, video surveillance of the Walmart parking lot showed
that the Navigator entered the parking lot about 2:30 p.m. on December 6 and almost struck
Leah Talbert’s car. Talbert, who had never met the appellant before December 6, later
identified him as the driver of the Navigator. Under these facts and the definition of
“pending,” we conclude that a reasonable jury could have found that the appellant, knowing
that an investigation into his wife’s disappearance was impending or about to take place,
used the SUV to affect the course or outcome of the police department’s investigation.
-12-
Therefore, the trial court erred by granting the appellant’s motion for judgment of acquittal
in count 1.
In count 2, the State alleged that the appellant fabricated evidence in violation of
Tennessee Code Annotated section 39-16-503(a)(1). Specifically, the indictment alleged that
the appellant
did unlawfully and knowing that an investigation or official
proceeding was pending alter or conceal any thing, to-wit: AN
AUTOMOBILE, with intent to impair its verity or availability
as evidence in the investigation or official proceeding, in
violation of T.C.A. 39-16-503.
Taken in the light most favorable to the State, the evidence shows that in addition to
the facts described above, the appellant parked the Navigator between two large Budget
trucks in the rear of the parking lot. Detective Taylor described the location of the Navigator
as “obscure” and said that a person going shopping would not have parked it there. On the
night of December 6, Officer Edwards asked Officer Norton to look in the parking lot, but
Officer Norton did not find the Navigator even though SUV was there. In fact, officers did
not find the SUV until early the next morning. Again, we conclude that a reasonable jury
could have found that the appellant, knowing that an investigation into his wife’s
disappearance was impending or about to take place, concealed the SUV to impair its verity
or availability as evidence in the police department’s investigation. Therefore, the trial court
also erred by granting the appellant’s motion for judgment of acquittal in count 2.
Accordingly, we reverse the trial court’s granting the appellant’s motion for judgment of
acquittal in counts 1 and 2 and reinstate the appellant’s convictions in both counts, the
merger of the convictions, and the sentence of four years, six months suspended to six years
of probation after serving one year in confinement.
B. Appellant’s Counter-Appeal - Sufficiency of the Evidence
Regarding all of the appellant’s convictions, he argues that his identity as the driver
of the Navigator is insufficient to support the verdicts beyond a reasonable doubt.
Specifically, he argues that no forensic evidence linked him to the Navigator or the Walmart
parking lot, that Talbert’s identification of him as the driver was unreliable, and that the
State’s case relied almost entirely on circumstantial evidence. In addition, he argues that
Captain Guthrie and Detective Taylor gave “patently wrong” testimony when they said that
Talbert identified him as the person riding the bicycle. The State claims that the evidence
is sufficient. We agree with the State.
-13-
Talbert testified that as her fiancé drove around the Navigator, she looked at the
driver. The State asked her if she got a clear look at him, and she said yes. She described
him as “probably in his 60’s or so,” wearing large-framed glasses, and having an oval face
and a chin that “kind of came out from his face a little bit.” Four days after the incident in
the parking lot, Talbert met with Detective Taylor, described the driver, and viewed a
photograph array. We have reviewed the array, and the men in the six photographs look very
similar to Talbert’s description. They also look very similar to each other. Nevertheless,
Talbert, who had never seen the appellant before December 6, selected his photograph and
identified him as the driver. The jury obviously accredited her testimony. In addition, the
State played the Walmart video at trial, and the jury, not this court, had the opportunity to
observe the appellant and the bicycle. The evidence was sufficient for the jury to conclude
from the direct and/or circumstantial evidence that the appellant drove the Navigator into the
Walmart parking lot and that he rode the bicycle away from the vehicle.
Regarding Captain Guthrie’s and Detective Taylor’s redirect testimony, we agree that
Talbert never claimed she saw the bicycle in the parking lot or that she identified the
appellant in the video footage as the man on the bicycle. However, for whatever reason,
defense counsel did not object to the police officers’ testimony and did not cross-examine
them about the issue. See Tenn. R. App. P. 36(a).
C. Appellant’s Counter-Appeal - Jury Instruction on “Knowingly”
Next, the appellant contends that the trial court improperly instructed the jury on
“knowingly.” The State argues that the trial court properly instructed the jury. We conclude
that the appellant is not entitled to relief.
A defendant has a “constitutional right to a correct and complete charge of the law.”
State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). “We must review the entire [jury] charge
and only invalidate it if, when read as a whole, it fails to fairly submit the legal issues or
misleads the jury as to the applicable law.” State v. Forbes, 918 S.W.2d 431, 447 (Tenn.
Crim. App. 1995). A charge resulting in prejudicial error is one that fails to fairly submit the
legal issues to the jury or misleads the jury about the applicable law. State v. Hodges, 944
S.W.2d 346, 352 (Tenn. 1997).
During the trial court’s instructions to the jury, the trial court gave the pattern jury
instruction for “knowingly,” stating as follows:
“Knowingly” means that a person acts knowingly with
respect to the conduct or to the circumstances surrounding the
conduct when the person is aware of the nature of the conduct
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or that the circumstances exist. A person acts knowingly with
respect to a result of the person’s conduct when the person is
aware that the conduct is reasonably certain to cause the result.
The requirement of knowingly is also established if it is shown
the defendant acted intentionally.
Relying on State v. Page, 81 S.W.3d 781 (Tenn. Crim. App. 2002), the appellant argues that
the trial court erred by failing to limit the definition of “knowingly” to the nature-of-conduct
language for the fabricating evidence convictions.
In Page, this court stated that “a knowing second degree murder is strictly a
‘result-of-conduct’ offense. The result of the conduct is the only conduct element of the
offense; the ‘nature of the conduct’ that causes death is inconsequential.” 81 S.W.3d at 787
(citing State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000)). Thus, this court held that the trial
court committed reversible error when it included nature-of-the-conduct language in the
“knowingly” definition for second degree murder, a result-of-conduct offense. However, in
State v. Faulkner, 154 S.W.3d 48, 59 (Tenn. 2005), a first degree murder case, our supreme
court concluded that the “superfluous language in the ‘knowingly’ definition did not lessen
the burden of proof because it did not relieve the State of proving beyond a reasonable doubt
that the defendant acted knowingly” and, therefore, constituted harmless error.
Tennessee Code Annotated section 39-16-503(a)(1) prohibits a person from altering,
destroying, or concealing any “thing” with the intent to prohibit its use as evidence in an
investigation while Tennessee Code Annotated section 39-16-503(a)(2) prohibits a person
from making, presenting, or using any “thing” with knowledge of its falsity and with the
intent to affect the course of the investigation.1 Under both theories of the tampering with
or fabricating evidence statute, the nature of the conduct is punished, regardless of whether
the conduct actually results in the unavailability of the evidence or actually affects the
outcome of the investigation. Therefore, we agree with the appellant that tampering with and
fabricating evidence is a nature-of-the-conduct offense.
However, even if the trial court erred by instructing the jury on both the result-of-
conduct and nature-of-the-conduct portions of the “knowingly” instruction, we conclude that
the error was harmless. As our supreme court held in Faulkner, the superfluous language
1
We note that the appellant contends in his sufficiency of the evidence argument that the
State failed to “establish the identity of the precise ‘thing’ that [he] altered, concealed, or
destroyed, or even that he altered, concealed, or destroyed any ‘thing’ at all.” We find no merit
to this claim. The “thing” at issue in this case clearly was alleged in the indictment to be Mrs.
Smith’s Lincoln Navigator.
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given by the trial court did not lessen the State’s burden of proof because it did not relieve
the State of proving beyond a reasonable doubt that the defendant acted knowingly.
Therefore, the appellant is not entitled to relief.
D. Appellant’s Counter-Appeal - New Evidence
The appellant contends that the trial court erred by failing to grant his motion for new
trial based on newly discovered evidence. The State argues that the trial court properly
denied the appellant’s claim of newly discovered evidence. We agree with the State.
The procedural history surrounding this claim is somewhat complex. In the
appellant’s motion for new trial, he argued that since the trial, he had obtained an affidavit
from his neighbor, “showing that she spent the afternoon [of December 6, 2007,] speaking
with him and therefore [he] could not have been driving the Lincoln Navigator.” On January
24, 2011, the trial court held a motion for new trial hearing. During the hearing, defense
counsel argued additional newly discovered evidence in that after the appellant’s trial, Dr.
Thomas Edwards, a forensic video image analyst, enhanced the Walmart video footage.
Counsel claimed that the enhanced footage was “clearer and brighter so that you can actually
see who this perpetrator is on the bike.” The trial court orally concluded that the appellant
failed to prove he was reasonably diligent in obtaining the neighbor’s information or the
enhanced video. Four days later, the appellant filed a “supplement” to his motion for new
trial, claiming that employees of the district attorney’s office, the Tennessee Bureau of
Investigation (TBI), and Walmart had assured defense counsel before trial that the Walmart
video footage could not be enhanced. However, after the appellant’s trial, Dr. Edwards
enhanced the video and provided it to Detective Taylor. On February 11, 2011, the trial court
filed a written order denying the appellant’s motion for new trial. In the order, the trial court
concluded that the neighbor’s affidavit did not constitute newly discovered evidence because
the appellant failed to prove that he was reasonably diligent in obtaining the evidence, that
his neighbor’s statement was material to his case, or that the evidence was likely to change
the result of the trial. The written order did not address the appellant’s claim regarding the
enhanced video.
On February 14, 2011, the trial court held a second hearing on the appellant’s motion
for new trial in order to allow the appellant to present evidence about the enhanced video.
At the hearing, the appellant argued that the TBI was responsible for “improper forensic
science and forensic science misconduct” because the enhanced video was the best evidence.
Therefore, the TBI should have enhanced the Walmart video before trial. Ethan Highers
testified for the appellant that he downloaded the pertinent video footage onto a compact disc
(CD). He could not enhance the video and gave the CD to the MPD. He said he spoke with
some police officers and “was under the impression that possibly the TBI could enhance it.”
-16-
Detective Taylor testified that he sent the CD to the TBI and that the TBI “sent us back a still
photo in color of a frame of that video and said that that had been enhanced to the best of
their ability.” Detective Taylor could not see a difference between the enhanced still
photograph and the original image. After the appellant’s trial, Detective Taylor viewed the
video enhanced by Dr. Edwards. The detective said he could not see a difference between
the enhanced video and the original video.
The trial court also allowed the appellant to make an offer of proof regarding his
neighbor’s testimony. Joanne Boyd testified that she saw the appellant in his back yard about
2:00 p.m. on the day his wife disappeared, which Boyd thought was a Sunday. The appellant
was working in his flower garden, and Boyd spoke with him briefly. She said he was in the
back yard for most of the afternoon. That evening, Boyd heard on the television news that
Mrs. Smith was missing. About an hour later, she saw the appellant looking for his dog. The
State recalled Detective Taylor as a witness, and he testified that Boyd may have seen the
appellant on the afternoon of Thursday, December 6, but that Mrs. Smith’s disappearance
was not reported on the television news that day. Detective Taylor and other officers spoke
with Boyd after Mrs. Smith disappeared. Boyd never reported that she saw the appellant on
December 6.
The trial court concluded that the appellant failed to show misconduct by the TBI
regarding the video. The trial court also ruled that the appellant failed to show he was
reasonably diligent in obtaining the enhanced video because the appellant could have had the
video enhanced before trial and could have had Dr. Edwards testify at trial. On appeal, the
appellant contends that the enhanced video constitutes newly discovered evidence because
defense counsel relied on assurances from the State that the video could not be enhanced.
He also argues that he is entitled to a new trial based upon the newly discovered evidence
provided by his neighbor.
This court has previously observed that the decision to “[grant or deny] a new trial on
the basis of newly discovered evidence rests within the sound discretion of the trial judge.”
State v. Caldwell, 977 S.W.2d 110, 117 (Tenn. Crim. App. 1997). Accordingly, we will not
overturn the trial court’s decision absent an abuse of discretion. See State v. Meade, 942
S.W.2d 561, 565 (Tenn. Crim. App. 1996). It is the law of this state that
a trial court should grant a defendant a new trial on the basis of
newly discovered evidence when [(1)] the defendant has been
reasonably diligent in obtaining evidence, [(2)] the materiality
of the new evidence is apparent, and [(3)] the evidence is likely
to change the result [of the trial].
-17-
State v. Singleton, 853 S.W.2d 490, 496 (Tenn. 1993) (citations omitted). All three prongs
of the aforementioned test must be met before an appellant is entitled to a new trial based on
newly discovered evidence. See State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994).
Initially, we note that the State claims the appellant has waived his claim of newly
discovered evidence as to the enhanced video because he filed his supplement after the
hearing on his motion for new trial. See Tenn. R. Crim. P. 33(b) (stating that the trial court
“shall liberally grant motions to amend the motion for new trial until the day of the hearing
on the motion for new trial”). However, the appellant orally raised the issue during the first
hearing, and the trial court orally ruled on the issue. Therefore, we refuse to hold that the
issues has been waived.
We agree with the trial court that the appellant has failed to establish reasonable
diligence in attempting to discover Boyd’s information or the enhanced video. Nothing
prevented the appellant from presenting his neighbor’s testimony at trial, from having the
video enhanced before trial, or having Dr. Edwards testify at trial. Moreover, the appellant
has failed to show that the evidence was likely to change the result. Some of Boyd’s
testimony during the offer of proof was inconsistent with facts clearly established at trial,
seriously calling into question whether she saw the appellant on the day of his wife’s
disappearance. Regarding the enhanced video, Detective Taylor testified that he could not
see any difference between the enhanced video and the original video. The appellant
introduced the enhanced video into evidence at the February 14, 2011 hearing. We have
viewed the video and also fail to see any significant difference between it and the original
video. As Detective Taylor testified, the “enhanced” video is a magnification of the original,
but it does not clarify who was riding the bicycle. Therefore, the trial court did not abuse its
discretion by denying the appellant’s motion for new trial based on newly discovered
evidence.
We note that the appellant also alleges that the probative value of the “blurry and
unclear” original video, which the State played for the jury, was substantially outweighed by
the danger of unfair prejudice and that he is entitled to plain error relief because the enhanced
video was the best evidence in this case. We find no merit to either claim. The video footage
was highly relevant to the State’s case, and we cannot say that probative value of the video
was substantially outweighed by the danger of unfair prejudice. See Tenn. R. Evid. 403. As
to the appellant’s claim regarding the best evidence, Tennessee Rule of Evidence 1002, also
known as the best evidence rule, generally provides that in order to prove “the content of a
writing, recording, or photograph, the original writing, recording or photograph is required.”
The rule’s purpose is so “only the best or most accurate proof of written or similar evidence
should be admitted, to the exclusion of inferior sources of the same proof, absent some
extraordinary justification for the introduction of secondary evidence.” Neil P. Cohen et al.,
-18-
Tennessee Law of Evidence § 10.01[2][a] (6th ed. 2011). In this case, the original video is
defined by the rule to be the best evidence. In any event, as we stated previously, we have
viewed the enhanced video and can discern no significant difference between it and the
original video. Therefore, the appellant is not entitled to plain error relief. See Tenn. R.
App. P. 36(b).
E. Appellant’s Counter-Appeal - Brady Violation
The appellant contends that the State violated Brady v. Maryland, 373 U.S. 83, 87
(1963), by failing to provide the defense with the entire twenty-four to thirty-six hours of
video that Ethan Highers gave to the MPD. The State argues that the appellant has failed to
establish a Brady violation because the State made the video available to the appellant and
because the appellant has failed to show that the video was exculpatory. We agree with the
State.
At trial, Highers testified that he gave twenty-four to thirty-six hours of video to the
MPD. The State played the brief portion of the video that showed the Navigator almost
colliding with Talbert’s car, the Navigator parking between the Budget trucks, and the person
on the bicycle riding away from the Navigator. During Captain Guthrie’s testimony, he
stated that the video “shows the vehicle coming in. It shows it going to the gas pumps.”
Defense counsel objected, stating, “I’m going to object to his description of what’s on the
tape.” The trial court sent the jury out, and the State told the court that it was not familiar
with the portion of the video the officer was talking about. The State said that it was not
going to play that portion of the video or ask the officer about it and agreed that the trial
court should sustain defense counsel’s objection. Defense counsel told the trial court that the
State had not provided counsel with the entire video footage and said, “I don’t think he
should be allowed to testify about that.” The trial court reiterated that it was sustaining
defense counsel’s objection, and defense counsel stated, “Yes, sir. Thank you.”
In the appellant’s motion for new trial, he alleged that the State’s failure to provide
all of the footage violated Brady. The State responded that the appellant knew about the
footage and was provided with an opportunity to view and copy the footage. The State also
argued that none of the footage was exculpatory. At the motion for new trial hearing,
defense counsel told the trial court that the footage still had not been provided to the defense.
The prosecutor told the court, “I had told [defense counsel] on several occasions, you can go
down there and look at any of these you want to.” The State also maintained that “there was
absolutely no exculpatory evidence that was withheld.” The trial court ruled that the State
made the footage available to the defense before trial and that the appellant failed to prove
the footage was exculpatory.
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In Brady, 373 U.S. at 87, the United States Supreme Court held that the State has a
constitutional duty to furnish the defendant with exculpatory evidence pertaining to the
defendant’s guilt or innocence or to the potential punishment faced by the defendant.
Specifically, “the suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Id. The State’s duty to
disclose exculpatory evidence extends to evidence which may be used by the accused for
impeachment purposes. Giglio v. United States, 405 U.S. 150, 154-55 (1972).
In order to prove that a violation exists, a defendant must show that (1) he requested
the information (unless the evidence is obviously exculpatory, in which case the State is
obligated to release such evidence regardless of whether or not it was requested); (2) the
State suppressed the information; (3) the information was favorable to the defendant; and (4)
the information was material. State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995). The
appellant bears the burden of proving a Brady violation by a preponderance of the evidence.
Id.
We agree with the trial court that the appellant has failed to prove a Brady violation.
Nothing indicates the State suppressed the evidence. To the contrary, the prosecutor told
defense counsel about the footage at the MPD. Counsel could have viewed and copied the
footage. During the motion for new trial hearing, the prosecutor noted that counsel still had
not viewed the footage despite its availability.
Moreover, the appellant has failed to show that the footage was favorable or material.
Evidence is favorable if it “‘provides some significant aid to the defendant’s case, whether
it furnishes corroboration of the defendant’s story, calls into question a material, although
not indispensable, element of the prosecution’s version of the events, or challenges the
credibility of a key prosecution witness.’” Johnson v. State, 38 S.W.3d 52, 56-57 (Tenn.
2001) (quoting Commonwealth v. Ellison, 379 N.E.2d 560, 571 (Mass. 1978)). Regarding
materiality, “Evidence is deemed to be material when ‘there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would have been
different.’” Johnson, 38 S.W.3d at 58 (quoting Edgin, 902 S.W.2d at 390).
In this case, the appellant has made no attempt to show that the footage was even
remotely favorable or material. Therefore, he is not entitled to relief.
We note that within this argument, the appellant claims that Captain Guthrie’s
testimony about the Navigator being at the gas pumps prior to it being parked at Walmart was
relevant impeachment evidence “to which the State decided not to allow.” However, it was
-20-
defense counsel who objected to the officer’s testimony. Therefore, he cannot now complain
that the testimony was improperly excluded. See Tenn. R. App. P. 36(a).
F. Appellant’s Counter Appeal - Multiplicity
The appellant argues that the multiplicity of charges in count 3, 4, and 5 stemming
from his false statement to Officer Edwards and in counts 6, 7, and 8 stemming from his false
reports on December 6, 7, and 8 violated principles against double jeopardy. The State
contends that the charges were not multiplicitous. We conclude that the charges in counts
3, 4, and 5 were multiplicitous but that the charges in counts 6, 7, and 8 were not.
After the State’s case-in-chief, the appellant argued that the State had improperly
charged him with multiple offenses in counts 3, 4, and 5 from his one report to Officer
Edwards. The appellant also argued that making several false reports during the course of
the investigation constituted only one offense. The appellant asked that the trial court
dismiss counts 3 through 8, but the trial court denied the request.
“Multiplicity concerns the division of conduct into discrete offenses, creating several
offenses out of a single offense” State v. Phillips, 924 S.W.2d 662, 665 (Tenn. 1996).
Multiple convictions for the same offense violate federal and state constitutional prohibitions
against double jeopardy. See U.S. Const. amend. V; Tenn. Const. art. I, § 10. In determining
whether offenses are multiplicitous, a court should consider the following principles:
1. A single offense may not be divided into separate parts;
generally, a single wrongful act may not furnish the basis for
more than one criminal prosecution;
2. If each offense charged requires proof of a fact not required
in proving the other, the offenses are not multiplicitous; and
3. Where time and location separate and distinguish the
commission of the offenses, the offenses cannot be said to have
arisen out of a single wrongful act.
Phillips, 924 S.W.2d at 665 (footnotes omitted). “Additional factors such as the nature of
the act; the time elapsed between the alleged conduct; the intent of the accused, i.e., was a
new intent formed; and cumulative punishment may be considered for guidance in
determining whether the multiple convictions violate double jeopardy.” State v. Epps, 989
S.W.2d 742, 745 (Tenn. Crim. App. 1998).
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In this case, the indictment alleged in counts 3, 4, and 5 that the appellant filed a false
report. Specifically, count 3 alleged that the appellant “did unlawfully and knowingly initiate
a statement to a law enforcement officer, to-wit: BOBBY EDWARDS, MPD, concerning an
offense or incident within the officer’s concern, knowing that the information relating to the
offense reported was false, in violation of T.C.A. 39-16-502.” Count 4 alleged that the
appellant “did unlawfully and knowingly initiate a statement to a law enforcement officer,
to-wit: BOBBY EDWARDS, MPD, concerning an offense or incident within the officer’s
concern, knowing that the offense or incident did not occur, in violation of T.C.A. 39-16-
502.” Count 5 alleged that the appellant
did unlawfully and knowingly make a statement in response to
a legitimate inquiry by a law enforcement officer, to-wit:
BOBBY EDWARDS, MPD, concerning a material fact about an
offense or incident within the officer’s concern, knowing that
such statement was false, with the intent to obstruct or hinder
the officer from preventing the offense or incident from
continuing to occur, in violation of T.C.A. 39-16-502.
All three counts stemmed from the false information the appellant gave to Officer
Edwards at the appellant’s home on the evening of December 6. The State used the exact
same proof to prove all of the offenses, and the offenses were not separated by time or
location. Therefore, we agree with the appellant that the three counts were multiplicitous and
that the trial court should have dismissed two of them at the conclusion of the State’s case-in-
chief.
As to counts 6, 7, and 8, count 6 was based upon the appellant’s telephone call to the
police department on December 6 and the information he gave to John Flynt. Count 7 was
based on false information the appellant gave to Captain Guthrie and Major Gage at the
appellant’s home on December 7. Count 8 was based on false information the appellant gave
to Captain Guthrie and Detective Taylor at the police department on December 8. The three
false statements involved different officers, and the appellant made the false statements at
different times and locations. Therefore, counts 6, 7, and 8 were not multiplicitous, and the
trial court did not err by refusing to dismiss the charges at the conclusion of the State’s case-
in-chief.
The appellant also contends, without any citation to authority, that with regard to
counts 6, 7, and 8, he committed only one offense because “there should only be one (1)
charge covering all activities from beginning to end, rather than multiple charges based upon
multiple interviews by different members of the same police agency.” We disagree with the
appellant.
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The statute defining filing a false report provides that
(a) It is unlawful for any person to:
(1) Initiate a report or statement to a law
enforcement officer concerning an offense or
incident within the officer’s concern knowing
that:
(A) The offense or incident
reported did not occur;
(B) The person has no
information relating to the offense
or incident reported; or
(C) The information relating
to the offense reported is false; or
(2) Make a report or statement in response
to a legitimate inquiry by a law enforcement
officer concerning a material fact about an
offense or incident within the officer’s concern,
knowing that the report or statement is false and
with the intent to obstruct or hinder the officer
from:
(A) Preventing the offense
or incident from occurring or
continuing to occur; or
(B) Apprehending or
locating another person suspected
of committing an offense; or
(3) Intentionally initiate or circulate a
report of a past, present, or impending bombing,
fire or other emergency, knowing that the report
is false or baseless and knowing:
-23-
(A) It will cause action of
any sort by an official or volunteer
agency organized to deal with those
emergencies;
(B) It will place a person in
fear of imminent serious bodily
injury; or
(C) It will prevent or
interrupt the occupation of any
building, place of assembly, form
of conveyance, or any other place
to which the public has access.
Tenn. Code Ann. § 39-16-502.
In our view, nothing in the statute prevents the State from charging a person with
making various false statements throughout an investigation. The statute prohibits initiating
a false report, as the appellant did in this case to Flynt, and prohibits making false statements
to officers conducting the investigation, as the appellant did to officers on December 7 and
8. Therefore, we conclude that the State could prosecute the appellant separately for the false
statements he made on December 6, 7, and 8.
G. Sentencing
The appellant contends that his effective sentence is excessive because the trial court
misapplied an enhancement factor and that the trial court erred by not granting his request
for full probation. The State argues that the trial court properly sentenced the appellant. We
agree with the State.
At the sentencing hearing, Kevin Edward Smith, the appellant’s and Marsilene
Smith’s fifty-two-year-old son, testified that the appellant was physically violent toward him
when he was a child and a teenager. He said that the appellant whipped and beat him and
that the appellant used his hands and fists. The appellant also used belts, boards, and wire
to whip his son and left bruises and marks on his son’s legs. The appellant was verbally
abusive every day. Kevin2 said that the appellant “slapped . . . around” Marsilene Smith and
2
Because the witness shares a surname with his mother and the appellant, we will use his
(continued...)
-24-
that she “was scared to death of him.” He said that he witnessed the appellant physically
abuse his mother seven to ten times but that the appellant “usually timed it to where we
weren’t around.” The appellant also was physically abusive toward Kevin’s sister, and
Marsilene Smith sheltered her daughter as much as she could. One time, the appellant made
Kevin and his sister watch while the appellant used a hammer to kill a litter of puppies. When
Kevin turned eighteen years old, he left home and spent five years in the military. In 2004,
he learned that his mother was in the hospital. The appellant claimed that his wife fell down
the steps. Kevin went to the hospital immediately and saw that his mother’s head and eyes
were swollen. He said he took photographs of her in the hospital and the staircase at his
parents home because “I knew that wasn’t what happened. He almost killed her that day.”
The photographs were introduced into evidence. They show bruises and swelling on Mrs.
Smith’s eyes and forehead; cuts and scratches on her cheeks, lower face, and chin; and dried
blood around her right nostril and the right corner of her mouth.
On cross-examination, Kevin denied being dishonorably discharged from the Navy
for using drugs. He acknowledged that doctors did not contact the police about his mother’s
injuries and that the appellant was not charged with a crime. He also acknowledged that
photographs of the staircase showed framed pictures on the floor, where the appellant
claimed his wife fell. Kevin acknowledged that he never reported any physical abuse to his
teachers and never reported the abuse of his mother to the police. He also acknowledged that
he had not spoken with the appellant in years and that he hated the appellant.
On redirect examination, Kevin testified that he was not lying. He said he did not
report the abuse to authorities because “I thought it was normal.”
Teresa Goodwin testified that she worked in a hair salon in Murfreesboro. One night
in March 2008, Goodwin went to a bar and sat down next to a man, who turned out to be the
appellant. They had a general conversation, and Goodwin told the appellant where she
worked. The next day, the appellant came to the hair salon for a haircut. He told Goodwin
that his wife was missing, and he asked Goodwin to go out with him. Goodwin told the
appellant she was not interested, but the appellant began telephoning Goodwin at work. The
appellant telephoned Goodwin three to five times per day for one or two weeks. She said
that the appellant was “creeping [her] out” and that she told him to stop calling her. Finally,
Goodwin contacted the police and filed a complaint against the appellant. The appellant
stopped calling Goodwin.
2
(...continued)
first name for clarity.
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Major Gage testified that about ten officers spent two hours each investigating
Marsilene Smith’s disappearance from the time the Navigator was located at Walmart until
it was processed at the MPD. The investigation cost $619.47 in officer pay.
Special Agent Charles Hardy of the TBI testified that officers from the TBI processed
the Navigator. The expense for processing the vehicle was $2,808.
Kyle Evans, the Public Information Officer for the MPD, testified that he was
responsible for the daily dissemination of police reports and interacted with the media on a
daily basis. The disappearance of Marsilene Smith received a tremendous amount of
publicity. The story received local and national attention. Evans said people in the
community still asked him about the case.
The State introduced the appellant’s presentence report into evidence. According to
the report, the then seventy-four-year-old appellant graduated from high school in 1954,
attended some college classes, and entered the Marines in 1956. He married Marsilene Smith
in 1957, and they had two children. In the report, the appellant described his physical and
mental health as “fair,” stating that he suffered from memory loss due to an automobile
accident, asthma, COPD, and high blood pressure; had had two heart attacks, heart surgery,
and a hip replacement; and took many medications for his ailments. The appellant stated in
the report that he had never used illegal drugs but that he began drinking alcohol when he
was twenty years old and still drank alcohol occasionally. The appellant said that he had
worked for Texas Gas Transmission Corporation as a machinist for thirty-three years and that
he had been retired for nineteen years. The report shows no criminal history for the
appellant. However, in the report, he said that he was arrested previously for domestic
violence, that he attended “abuse school,” and that the charge was dismissed. The
presentence investigating officer asked the appellant about an allegation of harassment.
According to the report, the appellant told the officer that he telephoned a woman twice, that
she asked him to stop, and that he stopped calling her. He claimed the incident occurred
about one year after his wife’s disappearance.
The trial court applied enhancement factor (1), that the appellant “has a previous
history of criminal convictions or criminal behavior, in addition to those necessary to
establish the appropriate range,” based upon the appellant’s telephone calls to Teresa
Goodwin. See Tenn. Code Ann. § 40-35-114(1). In mitigation, the trial court considered
the appellant’s lack of a prior criminal record. See Tenn. Code Ann. § 40-35-113(13). For
the appellant’s two convictions of fabricating evidence and one conviction of filing a false
report of an emergency, Class C felonies, the trial court sentenced the appellant as a Range
I, standard offender to four and one-half years, the midpoint in the range. See Tenn. Code
Ann. § 40-35-112(a)(3). For the appellant’s five counts of filing as false report, Class D
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felonies, the trial court sentenced the appellant to three years, the midpoint in the range. See
Tenn. Code Ann. § 40-35-112(a)(4).
Regarding the appellant’s request for full probation, the trial court determined that
based upon the presentence report, the appellant’s physical and mental condition, the facts
and circumstances of the case, the nature of the offenses, the appellant’s lack of a prior
criminal history, and the need for deterrence, the appellant’s sentence should be suspended
to six years of probation after serving one year in confinement.3 The trial court also ordered
that the appellant pay restitution in the amounts of $619.47 and $2,808. Finally, the trial
court merged count 1 into count 2 and counts 4 and 5 into count 3.
Appellate review of the length, range, or manner of service of a sentence is de novo.
See Tenn. Code Ann. § 40-35-401(d). In conducting its de novo review, this court considers
the following factors: (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 enhancement and mitigating factors;
(6) any statistical information provided by the administrative office of the courts as to
sentencing practices for similar offenses in Tennessee; (7) any statement by the appellant in
his own behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann.
§§ 40-35-102, -103, -210; see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The
burden is on the appellant to demonstrate the impropriety of his sentence. See Tenn. Code
Ann. § 40-35-401, Sentencing Comm’n Cmts. Moreover, if the record reveals that the trial
court adequately considered sentencing principles and all relevant facts and circumstances,
this court will accord the trial court’s determinations a presumption of correctness. Id. at (d);
Ashby, 823 S.W.2d at 169.
In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:
(1) The minimum sentence within the range of
punishment is the sentence that should be imposed, because the
general assembly set the minimum length of sentence for each
felony class to reflect the relative seriousness of each criminal
offense in the felony classifications; and
3
Pursuant to Tennessee Code Annotated section 40-35-303(c)(1), the trial court extended
the appellant’s probation to six years, the maximum punishment for a range I, standard offender
convicted of a Class C felony. See Tenn. Code Ann. § 40-35-112(a)(3).
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(2) The sentence length within the range should be
adjusted, as appropriate, by the presence or absence of
mitigating and enhancement factors set out in §§ 40-35-113 and
40-35-114.
Tenn. Code Ann. § 40-35-210(c).
Although the trial court should also consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; State
v. Carter, 254 S.W.3d 335, 343-44 (Tenn. 2008). We note that “a trial court’s weighing of
various mitigating and enhancement factors [is] left to the trial court’s sound discretion.”
Carter, 254 S.W.3d at 345. In other words, “the trial court is free to select any sentence
within the applicable range so long as the length of the sentence is ‘consistent with the
purposes and principles of [the Sentencing Act].’” Id. at 343. “[A]ppellate courts are
therefore left with a narrower set of circumstances in which they might find that a trial court
has abused its discretion in setting the length of a defendant’s sentence.” Id. at 345-46.
“[They are] bound by a trial court’s decision as to the length of the sentence imposed so long
as it is imposed in a manner consistent with the purposes and principles set out in sections
-102 and -103 of the Sentencing Act.” Id. at 346.
The appellant contends that the trial court erred by applying enhancement factor (1)
because the State failed to show that the prior criminal behavior occurred. The trial court
apparently applied factor (1) based only upon the appellant’s contacting Teresa Goodwin.
The trial court obviously accredited Goodwin’s testimony that the appellant harassed her.
Therefore, we cannot say that the trial court erred by applying enhancement factor (1).
Regarding the trial court’s denial of the appellant’s request for full probation, an
appellant is eligible for alternative sentencing if the sentence actually imposed is ten years
or less. See Tenn. Code Ann. § 40-35-303(a). The appellant’s sentences meet this
requirement. Additionally, an appellant who is an especially mitigated or standard offender
convicted of a Class C, D, or E felony should be considered a favorable candidate for
alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6).
Moreover, as set forth in Tennessee Code Annotated section 40-35-103(1), sentences
involving confinement should be based on the following considerations:
(A) Confinement is necessary to protect society by
restraining a defendant who has a long history of criminal
conduct;
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(B) Confinement is necessary to avoid depreciating the
seriousness of the offense or confinement is particularly suited
to provide an effective deterrence to others likely to commit
similar offenses; or
(C) Measures less restrictive than confinement have
frequently or recently been applied unsuccessfully to the
defendant.
See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Furthermore, a
court should consider the defendant’s potential or lack of potential for rehabilitation when
determining if an alternative sentence would be appropriate. See Tenn. Code Ann. §
40-35-103(5).
In the instant case, the trial court imposed a sentence of split confinement, which is
an alternative sentence. See Tenn. Code Ann. § 40-35-306(a); State v. Williams, 52 S.W.3d
109, 120 (Tenn. Crim. App. 2001). However, “[t]he determination of whether the appellant
is entitled to an alternative sentence and whether the appellant is entitled to full probation are
different inquiries.” State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996).
Therefore, an appellant seeking full probation bears the burden of establishing his suitability
for full probation. Id.; see also Tenn. Code Ann. § 40-35-303(b). To prove his suitability,
the appellant must establish that granting full probation will “subserve the ends of justice and
the best interest of both the public and the [appellant].” State v. Dykes, 803 S.W.2d 250, 259
(Tenn. Crim. App. 1990) (internal quotation marks and citation omitted), overruled on other
grounds by State v. Hooper, 29 S.W.3d 1, 8 (Tenn. 2000). Moreover,
[i]n determining one’s suitability for full probation, the court
may consider the circumstances of the offense, the defendant’s
potential or lack of potential for rehabilitation, whether full
probation will unduly depreciate the seriousness of the offense,
and whether a sentence other than full probation would provide
an effective deterrent to others likely to commit similar crimes.
Boggs, 932 S.W.2d at 477.
The trial court considered the factors stated above and determined that the appellant
was not entitled to full probation. One of those factors was that deterrence was necessary
because the case received substantial publicity beyond that normally expected in the typical
case. See State v. Hooper, 29 S.W.3d 1, 10-12 (Tenn. 2001). Upon our de novo review, we
also conclude that the appellant’s deceit regarding his wife’s disappearance is an indicator
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of his poor potential for rehabilitation. We conclude that the trial court properly denied the
appellant’s request for full probation.
H. Appellant’s Counter-Appeal - Cumulative Effect of Errors
Finally, the appellant contends that the cumulative effect of the errors warrants a new
trial. However, we conclude this claim has no merit.
III. Conclusion
Based upon the oral arguments, the record, and the parties’ briefs, we conclude that
the trial court erred by granting the appellant’s motion for judgment of acquittal and reinstate
his convictions of fabricating evidence in counts 1 and 2, the merger of the convictions, and
the sentence of four years, six months suspended to six years of probation after serving one
year in confinement. We also conclude that the trial court should have dismissed the charges
of filing a false report in counts 4 and 5 due to their multiplicity with count 3. Therefore, the
appellant’s convictions in counts 4 and 5 are reversed, and the charges are dismissed. The
appellant’s remaining convictions and sentences for filing a false report in counts 6, 7, and
8 are affirmed.
___________________________________
NORMA MCGEE OGLE, JUDGE
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