Assigned on Briefs November 4, 2014
Appeal from the Criminal Court for Shelby County No. 1200990 James M. Lammey, Judge
Stephen Bush, District Public Defender; Jennifer Mitchell, and Phyllis Aluko, Assistant Public Defenders, Memphis, Tennessee, for the appellant, Ashley Wheeler.
Herbert H. Slatery, III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Bryce Phillips, Assistant District Attorney General, for the appellee, State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Alan E. Glenn and Robert L. Holloway, Jr., JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
On July 13, 2011, Memphis Police Officer Lenayan Holmes responded to a "forgery theft call" at Speedy's Check Cashing in Memphis. When Officer Holmes arrived, the owner of the business, James Briggs, informed him that a person, whom Mr. Briggs later identified as Defendant, had attempted to cash a stolen check. Defendant had already left when Officer Holmes arrived.
James Briggs, the owner of Speedy's Check Cashing, testified that on July 13, 2011, Defendant presented a check in the amount of $2, 800 to be cashed. Mr. Briggs looked at the back of the check, and it was not endorsed. Defendant endorsed the check and presented her driver's license for identification. Mr. Briggs had never seen Defendant in the store before, and he believed the amount of the check was a "red flag." He called the purported maker of the check, Endocrinology and Diabetes Association in Nashville, in order to verify the check. Mr. Briggs spoke to the office manager and discovered that the check was forged. The office manager contacted the police, and Mr. Briggs remained on the phone to "keep the rouse" hoping that the police would arrive while Defendant was still there. Mr. Briggs testified that he stood across from Defendant for 15 to 20 minutes. A bullet-proof glass window separated Mr. Briggs from Defendant. He got a "good look" at Defendant and he was sure that the photo on the driver's license matched the person trying to cash the check. Mr. Briggs subsequently identified Defendant in a photographic lineup and at trial. Defendant left before police arrived, and she left the check and her driver's license at Speedy's Check Cashing.
Myriam Bagwell testified that she was the Practice Administrator at Endocrinology Diabetes Association in Nashville. Her duties included payroll, and she testified that she was the only person with authority to prepare checks. She testified that Mr. Briggs called her to ask about the subject check, and she recognized the check number as one in a sequence of 70 checks that had been stolen from the business over the July 4, 2011 weekend. Mr. Briggs told her the name of the person to whom the check was made out, and she had "never heard of that person." Ms. Bagwell testified that she did not sign the check. She testified that the font used on the check was "not our font that we use." She also testified that when she issues a check, the check number is printed in a different location on the check than the location where it is printed by the bank printer, and this check did not have such printing.
Sergeant Fred Farah, of the Memphis Police Department, compiled a six-person photographic lineup for Mr. Briggs to view. Sergeant Farah testified that he included in the photo lineup a different photograph of Defendant than the photograph on the driver's license that Defendant left at the scene. Sergeant Farah testified that Mr. Briggs positively identified Defendant in the photo lineup. Sergeant Farah testified that he had been investigating economic crimes for four years, and it was not uncommon for a suspect to use his or her own identification when attempting to cash a forged or stolen check, nor was it uncommon for a suspect to claim that his or her license had been stolen prior to the offense for which the suspect was charged.
Defendant testified that she was 20 years old in July, 2011. In April, 2011, she and her friend Shanice Shepard left the James Lounge Club and discovered that Ms. Shepard's car window had been "busted, " and Defendant's purse, which contained her driver's license, social security card, and $20 cash, had been stolen from the trunk. Defendant testified that she had been allowed entry into the club without her identification. She testified, "[t]hey pretty much let anybody in there." Defendant testified that she and Ms. Shepard did not report the burglary to the police because they were intoxicated, but they reported it to someone inside the club. Defendant testified that she "thought if [she] reported it to the DMV and the Social Security Office that [she] was going to be okay." She applied for a replacement driver's license and social security card. Defendant acknowledged that she had applied for and received several replacement driver's licenses since receiving her first driver's license in 2009 at the age of 18. She testified that she was "always misplacing [her] I.D. and [her] Social Security card." She testified that she received a replacement license in January, 2010, after losing her original license. She misplaced this replacement license and received another replacement license in June, 2010. Defendant could not remember the circumstances under which she lost either of those two licenses. She testified that she was "irresponsible" and that she "laid around information that [she] wasn't supposed to lay around." Defendant received another replacement license in May, 2011, after her purse and license were stolen from Ms. Shepard's vehicle. She received another license in February, 2013, after her driving privileges were reinstated after having been suspended due to unpaid citations.
Defendant testified that she was "shocked [and] distraught" when she was arrested at her residence in August, 2011. Defendant testified that she had never before heard of Speedy's Check Cashing or Endocrinology Diabetes Association. She denied that she forged a check from Endocrinology Diabetes Association and that she attempted to cash a check at Speedy Cash. On cross-examination, Defendant also testified that she was at home with her mother all day on July 13, 2011.
Shanice Shepard testified that her keys and Defendant's purse were stolen from her vehicle while they were inside the James Lounge Club. Ms. Shepard left her identification at home that night. She testified that it was a "no I.D. club" and that she purchased alcohol without identification. She testified that she "wasn't drunk at all" and that she did not see Defendant consume any alcohol that night. She did not report the burglary because she "wasn't thinking about calling the police at the time." She testified that she and Defendant did not go back inside the club to tell anyone about the burglary.
Joann Tabor, Defendant's mother, testified that she told Defendant to report to the police the incident in which Defendant's purse was stolen, but Defendant instead reported it to the "driver license people." Ms. Tabor had taken Defendant "several times to get a replacement" driver's license and said that Defendant was "very clumsy with a purse."
Defendant testified that she was 22 years old at the time of the hearing and was employed at Volunteers of America, where she provided care for disabled people. Defendant graduated from high school in May, 2010. Defendant testified that she had a three-year-old daughter, and she and her daughter lived with Defendant's mother and sister. Defendant denied that she had any involvement in the checks having been stolen from Endocrinology Diabetes Association in Nashville and denied that she attempted to cash a forged or stolen check. Defendant acknowledged that she had a juvenile record and testified that she had stolen "[l]ittle stuff, " including pajamas and underwear. Defendant testified,
I feel like I deserve [judicial] diversion because, you know, I am a good person; and I did change my life. When I was young, I really made a complete turn and changed my life; and I just think I really deserve that because, you know, I didn't do this; and I just feel like diversion would be good for me; and then I can, you know, pursue all of my life and go to college and be successful in life.
Considering the relevant statutory factors in Tennessee Code Annotated section 40-35-313, the trial court denied Defendant's request for judicial diversion. The trial court found that Defendant was amenable to correction. Considering the circumstances of the offense, the trial court found that the offense neither caused nor threatened serious bodily injury, but that it was "a crime of dishonesty." The trial court noted that it was Mr. Briggs' job "to cash checks . . . and he knew that if he cashed a check that was bad that he would be the one that was holding the bag; and he could be responsible for it, and basically he would be the one that would suffer a loss." The court found that "it only stands to reason that he [would] be paying very close attention" to a person attempting to cash a check written for such a large amount. The court stated, "[s]o, I find it highly unlikely that he was mistaken in his identity of her." The court also commented on Defendant's credibility, stating, "I just don't believe her testimony. I don't believe she was not involved in [the crime]."
The trial court noted that there was nothing in the record to show "how pervasive or unpervasive [sic] the crime of forgery is in our community." The trial court also considered Defendant's criminal record and social history, finding that she had committed other crimes of dishonesty as a juvenile, and the court noted that Defendant "like[d] to partake in [marijuana], which is still illegal in this state, " and had tested positive for the drug on multiple occasions. In the presentence report, Defendant reported that she started using marijuana almost every day from age 19 until she was 21 years old in 2012. The court observed that Defendant "wast[ed] resources that could be used in alternative ways, i.e., taking care of your child that you have rather than spending money on [marijuana] . . . ." The trial court concluded that judicial diversion would not serve the interests of the public or Defendant.
In sentencing Defendant, the trial court found no applicable enhancement factors. The trial court found that "there was no need to give her any more than the minimum" sentence of two years for her Class D felony forgery conviction and one year for her attempted theft conviction. The court also found that Defendant was eligible for probation and sentenced Defendant to a total effective sentence of two years, suspended on probation.
Defendant contends that the State engaged in prosecutorial misconduct during its closing arguments. Specifically, Defendant asserts that the prosecutor "vouched for the credibility of its only eyewitness, argued facts outside of the record, argued misleading facts, and asserted that the defense was engaged in an intentional strategy to confuse the jurors." The State contends that Defendant has waived this issue because she failed to make a contemporaneous objection to the prosecutor's closing arguments at trial, and Defendant failed to raise this issue in her motion for new trial. See Tenn. R. App. P. 36(a) ("[n]othing 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."). Defendant asserts, however, that the issue is reviewable under a plain error analysis. The State responds that Defendant has failed to establish that the prosecutor's comments amounted to plain error.
Tennessee Rule of Appellate Procedure 36(b) provides that "[w]hen necessary to do substantial justice, [this] court may consider an error that has affected the substantial rights of a party at any time, even though the error was not raised in the motion for a new trial or assigned as error on appeal." See also Tenn. R. Evid. 103(d). We may only consider an issue as plain error when all five of the following factors are met:
a) the record must clearly establish what occurred in the trial court;
b) a clear and unequivocal rule of law must have been breached;
c) a substantial right of the accused must have been adversely affected; d)the accused did not waive the ...