Court of Criminal Appeals of Tennessee, Nashville
February 11, 2015 Session
Appeal from the Circuit Court for Marion County No. 9397-B Thomas W. Graham, Judge.
Martin J. Levitt, Chattanooga, Tennessee, for the appellant, Gary Sulo Alto.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; J. Michael Taylor, District Attorney General; and Sherry Shelton, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Timothy L. Easter, J., joined.
ROBERT L. HOLLOWAY, JR., JUDGE
I. Factual and Procedural Background
The Defendant was indicted, along with three other co-defendants, for one count of theft of property valued at $250, 000 or more and one count of conspiracy to commit theft of property valued at $250, 000 or more. Pursuant to a plea agreement, the Defendant pleaded guilty to theft of property valued at $10, 000 or more but less than $60, 000, a Class C felony. He also agreed to a six-year sentence with the manner of service and restitution between $10, 000 and $60, 000 to be determined by the trial court.
At the sentencing hearing, Sergeant Matthew Minter of the Tennessee Highway Patrol explained the conspiracy. In 2012, Sergeant Minter began an investigation to determine whether bushling scrap metal was being stolen from Progressive Rail Services ("PRS") in New Hope, Tennessee. PRS had conducted their own investigation prior to contacting police and discovered a theft scheme in which two truckloads of bushling were to be delivered to the PRS facility from A.O. Smith in Ashland City, but only one truck of bushling would be taken to the PRS facility and weighed twice to make it appear as if two trucks had delivered loads to PRS. The other truck would go to Dodson's scrapyard ("Dodson's") in Whitwell, Tennessee. From there, the scrap metal was sold to Thornton Iron and Metal ("Thornton") in Rainsville, Alabama.
The investigation concluded that one of the co-defendants, Jay Sanders, was the driver who would take the load to Dodson's. During his interview with Sergeant Minter, Mr. Sanders identified the Defendant as the person who drove the second truck to PRS and weighed it twice. The Defendant would weigh his truck once and then move one axle off the scale so that the second weighing would differ slightly from the first. In order to avoid detection, Mr. Sanders bribed some of the workers at the PRS yard to give them a "coast-is-clear" to double-weigh the truck. These weigh-ins often happened after hours because Mr. Sanders had a key to the PRS facility. The Defendant had to have Mr. Sanders' original weigh ticket from A.O. Smith in order to double-weigh his truck and mark the weight on Mr. Sanders' ticket. The weigh tickets were important because those tickets would be returned to the Defendant's employer, SCS Trucking ("SCS"). SCS would then bill PRS. Sergeant Minter stated that the handwriting on "a large number of tickets" indicated that the same person was filling out the tickets.
Sergeant Minter stated that PRS noticed several "red flags" about the weigh tickets, including that the time between the weighings was too short for two trucks to pull in and out of the scales. Additionally, after PRS became suspicious of the scheme, they installed a video camera at the scales and recorded the Defendant double-weighing a truck.
The State summarized a portion of Sergeant Minter's interview with Mr. Sanders where he explained how he paid the Defendant. Mr. Sanders either paid the Defendant five cents per pound, split five cents per pound with him, or would give the Defendant a "little less than half" of what Mr. Sanders received from Dodson's. The price of each load varied between $5, 000 and $8, 000. From his half, Mr. Sanders paid the Defendant and other individuals. Mr. Sanders said when the Defendant stopped hauling for A.O. Smith, he carried on the scheme without him. Mr. Sanders admitted that he had come up with the scheme and that it had lasted more than two years.
Sergeant Minter attempted to interview the Defendant during his investigation, but the Defendant told Sergeant Minter, "[Y]ou've already talked to Jay Sanders, you know the deal so there's no need to talk to me." Similarly, the Defendant chose not to make a statement in the presentence report.
On cross-examination, Sergeant Minter confirmed that the co-defendants from Dodson's had never met the Defendant and that Mr. Sanders was the only person who made deliveries to their scrapyard. However, the Defendant knew that Mr. Sanders was not delivering some of his loads to PRS. Also, according to Mr. Sanders' statement, "double dipping tickets" was the primary way the scheme operated. He also confirmed that the Defendant delivered some "legitimate loads" where he did not double weigh his truck and that he drove a route for Volkswagen during the time frame of the scheme.
Ten people wrote letters to the court on the Defendant's behalf and several others testified in his support at the sentencing hearing. Victor Harris testified that he served in the Coast Guard with the Defendant in the 1970s and they have been friends ever since. After the Defendant was discharged, he lived with Mr. Harris. Mr. Harris taught the Defendant how to drive a truck and helped him find a job. Mr. Harris stated that he never had a problem with the Defendant. He considered the Defendant one of his best friends and said, "He's the type of person that if he knows you need something or you're in a bind or anyway, you don't have to ask, he'll always be there to help you."
Lisa Davis, one of the Defendant's step-daughters, testified that the Defendant raised her and her two sisters. When Ms. Davis lived in Alabama, her husband had health problems and Ms. Davis could not care for him on her own, so the Defendant came to Alabama to help her. After Ms. Davis's husband died, the Defendant gave her a plot for her husband's burial and helped pay for the funeral services. The Defendant also helped Ms. Davis's son move because no one else could drive the moving truck. The Defendant brought Ms. Davis wood for her fireplace in the middle of the winter without being asked. Additionally, Ms. Davis's mother, the Defendant's wife, had always suffered from health issues. She had undergone open-heart surgery and battled cancer, and the Defendant had always cared for her. He would take her to the hospital, stay with her in the hospital, and take her to follow-up treatments. Ms. Davis confirmed that, at the time of the hearing, her mother was in the hospital.
Steven Skiles testified that he owned SCS Trucking. He had known the Defendant since 1975 and considered him to be a good friend. The Defendant's wife had been sick, and the Defendant had taken off from work to take care of her, but that he could return to his job at SCS when he was able. Mr. Skiles explained:
Well, if I'm the owner of a business and a man gets in trouble, I try to weigh what's what and who is what and what he can drive and what he can't do. I talked to [Sergeant] Minter and he explained all I needed to know, and then I, I've dismissed Jay Sanders wholeheartedly and I've tried to take care of [the Defendant.]
Mr. Skiles also stated that, during the investigation, Caterpillar, Inc.'s security had called him to inform him that his drivers were involved in the scheme but that he had been "cleared" of any wrongdoing. Even though Mr. Skiles knew the Defendant received money from this scheme, Mr. Skiles said that he "absolutely" still considered the Defendant to be an honest man. Mr. Skiles stated, "Anything that happened was a mistake on his part as far as I'm concerned, and I'm one hundred percent on his side."
Mr. Skiles stated that the Defendant has worked for SCS for 10 years. During that time, his "regular haul" was for Volkswagen, but he did some hauling from A.O. Smith to PRS. When asked if the Defendant hauled "hundreds of loads" from A.O. Smith, Mr. Skiles said, "I wouldn't think he done that many." However, Mr. Skiles also admitted that he had not reviewed the weigh tickets to try to figure out how his employees managed to carry out the theft scheme.
Mr. Skiles confirmed that it was common practice for one driver to sign another driver's weigh ticket. The fact that two weigh tickets were signed by the same person did not necessarily mean that anything was illegitimate or wrong.
The Defendant testified that he was 62 years old and, except for some speeding tickets from several years prior, he had never been convicted of any crime. He grew up in Minnesota and still had family there. After he graduated from high school, the Defendant served in the U.S. Coast Guard on active duty for fours years and on reserve duty for two. After his service, he was honorably discharged and moved to Marion County. He learned to drive a truck and has maintained steady employment for most of his adult life. He stated that he did not have any drug or alcohol problems, and his only ...