Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs May 21, 2014
Appeal from the Circuit Court for Robertson County No. 74CC22012CR621 Michael R. Jones, Judge
Thomas T. Woodall, P.J., delivered the opinion of the court, in which D. Kelly Thomas, Jr. J., joined. Jeffrey S. Bivins, J., not participating.
Roger E. Nell, District Public Defender; Rosemary Thomas, Assistant Public Defender; and Collier W. Goodlett, Springfield, Tennessee, for the appellant, James William Tawater.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel; John Wesley Carney, Jr., District Attorney General; and Jason White, Assistant District Attorney General, for the appellee, the State of Tennessee.
THOMAS T. WOODALL, JUDGE
In April 2012, Defendant had been employed for several years by the victim, Gary Roberts, d/b/a/ Roberts Brothers Coach Leasing Company (hereinafter "Roberts Brothers Coach" or "the company") in Springfield, Tennessee. The business leased customized coach buses for touring by people in the entertainment business. Defendant was a mechanic and a well qualified maintenance worker and "fix-it" employee. He routinely worked on coach buses wherever they might be located in the United States. When necessary, he took parts with him to replace broken parts on the buses. He sometimes brought back cash to Roberts Brothers Coach which was given to him by the company's bus drivers. The drivers had been given the cash by an entertainer's promoter for reimbursement of fuel expenses paid with the company's fuel card.
The company had leased three coach buses to a rock band in April 2012. On about April 30, 2012, these coach buses were in Chattanooga and the company was notified that some repairs and maintenance work needed to be done on at least one of the buses. Defendant drove to Chattanooga on the morning of May 1, 2012, and took with him the following items of property belonging to the company: (1) a Samsung Galaxy cellular phone issued to Defendant and worth between $200.00 and $250.00; (2) a reconditioned part called an "inverter, " worth approximately $650.00, to replace a bad inverter on one of the buses; (3) nine drawer "bullet latches" worth approximately $10.00 each; (4) a new HVAC controller box worth between $475.00 and $500.00; and (5) a reconditioned CB radio unit to replace a malfunctioning CB radio on one of the buses. Defendant was also to receive and return to the company office cash paid for fuel expense reimbursement in an amount the evidence showed to be $1, 803.00. It was standard company policy, known and followed by Defendant for several years, that he was to return to the company any replaced and broken inverter or CB radio, so that such items could be reconditioned for use again. A defective and replaced HVAC controller box had to be scrapped because that item could not be reconditioned.
One of the bus drivers who observed Defendant perform his work in Chattanooga on May 1, 2012, testified at trial. The bus driver testified that the cash for fuel expense reimbursement (belonging to Roberts Brothers Coach) was given to Defendant. The bus driver testified that Defendant: (1) put a new HVAC controller box in one of the coach buses, (2) attached two bullet latches to drawers and gave two others to another bus driver, and (3) "swapped out" a CB radio on one bus. Although Defendant had a reconditioned inverter with him, he did not install it. Before Defendant left Chattanooga, he told the bus driver that he was "going back to the shop."
A Springfield Police Department detective testified that he received a report and began an investigation on May 3, 2012. He obtained a warrant for the arrest of Defendant on May 10, 2012.
Defendant did not return to Roberts Brothers Coach on May 1, 2012, and in fact, never returned to work. His employer, Gary Roberts, began trying to call Defendant on Defendant's cellular phone owned by the company, but Defendant did not answer or return the phone calls. Mr. Roberts called Defendant five to ten times per day for several days. On May 3, 2012, Mr. Roberts made what he testified was a "missing person" report about Defendant to the police. At the time of trial in July 2013, Defendant had not given the $1, 803.00 cash to Roberts Brothers Coach, and he had not returned the Samsung Galaxy cellular phone, the reconditioned inverter, or any of the replaced parts. Defendant did not have permission to keep the cash, the phone, and the parts placed in his possession.
Defendant testified that he decided to quit his job at Roberts Brothers Coach while he was on his way back to Springfield from Chattanooga on May 1, 2012. Defendant said that he did not put the reconditioned inverter in any bus, and kept it in his possession. He placed the CB radio that he brought from Springfield into one of the coach buses and left the malfunctioning CB radio in Chattanooga with a company bus driver named Alan Hickey, who did not testify at trial. Defendant testified that he had stored his boat, motor, trailer, and a vehicle on Roberts Brothers Coach's business property. He also testified that he still had some tools and a tool container at the company's shop. Defendant stated that he had intended, prior to his arrest, to swap the company's property (cash and parts) for his property still located at the company shop. He admitted keeping $1, 803.00 cash that belonged to Roberts Brothers Coach and the company's cellular telephone provided for his use. Defendant was paid weekly, but was not paid for the week ending May 1, 2012. Gary Roberts testified that because Defendant never came back to work after May 1, 2012, Defendant never turned in the number of hours he had worked his last week, which was a condition of his obtaining a paycheck. As noted above, Defendant admitted that he kept the $1, 803.00 cash owed to Roberts Brothers Coach and the cellular phone as well as the parts entrusted to him, but he felt he was entitled to a set-off or a swap of these items for access to and possession of his last paycheck (Defendant claimed he was owed $1, 900.00), his tools, and his vehicle and boat, motor, and trailer stored at the company.
At the sentencing hearing, Gary Roberts of Roberts Brothers Coach testified on direct examination by the State as follows concerning the issue of restitution:
Q. And first let's talk about restitution. I believe at trial you said the amount of cash taken and not returned was what?
A. I believe it was 18 hundred and three dollars, some odd cents.
Q. And have you gotten any of that back?
A. No, sir.
Q. And there was also at trial some talk about some tools, and some hadn't been used and some was used. Do you know a value, about, total on those tools? That's not - - well, let me ask you: Has any of those been returned as well?
A. They have not. I don't know the value without looking at my notes somewhere.
Q. As for restitution, are you primarily asking the Court, if the Court orders restitution, for ...