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State v. Combs

Court of Criminal Appeals of Tennessee, Knoxville

May 20, 2015

STATE OF TENNESSEE
v.
JEFFERY COMBS

Assigned on Briefs April 28, 2015

Appeal from the Criminal Court for Sullivan County No. S61248 Robert H. Montgomery, Judge.

Steven M. Wallace, District Public Defender, and Leslie S. Hale, Assistant Public Defender (on appeal), Blountville, Tennessee; and George Todd East (at trial), Kingsport, Tennessee, for the appellant, Jeffery Combs.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Barry P. Staubus, District Attorney General; and Emily M. Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.

OPINION

D. KELLY THOMAS, JR., JUDGE

FACTUAL BACKGROUND

Multiple fraudulent transactions, made during a period from February 17, 2011, to March 23, 2011, were drawn on an account of one Mary Elizabeth Kelly Combs ("Betty Combs or Ms. Combs"), who had died in August 2010. After the ensuing investigation, the Defendant, Ms. Combs's son, was charged with eighteen counts of forgery and one count of Class D felony theft. See Tenn. Code Ann. §§ 39-14-103, -105, -114. He proceeded to trial in February 2014.

Crystal Nottingham, Senior Fraud Prevention Coordinator for Eastman Credit Union, testified that the sole owner of the account in question was Mary E. Combs and that no one else was authorized to make transactions on that account. According to Ms. Nottingham, upon Ms. Combs's death, the account would have gone into her estate given that there was no beneficiary listed. A signature card for the account, reflecting the signature of Betty Combs, was entered as an exhibit to Ms. Nottingham's testimony.

Mr. James P. Kelly, the executor of Ms. Combs's estate, went into the credit union in March 2011 and reported to Ms. Nottingham that he believed someone had been making fraudulent transactions on the account. According to Ms. Nottingham, Mr. Kelly presented the death certificate and the letter of testamentary from Ms. Combs. They then reviewed multiple transactions to determine if fraud had in fact occurred. Eighteen of the checks that Ms. Nottingham reviewed with Mr. Kelly that day were admitted into evidence: (1) check no. 1351, dated February 17, 2011, written to Wal-Mart for $20.00, showing Betty Combs's signature; (2) check no. 1356, dated February 17, 2011, written to Ingles for $109.50, showing Betty Combs's signature and a Tennessee driver's license number 074433276 across the top; (3) check no. 1357, dated February 17, 2011, written to Ingles for $108.18, showing Betty Combs's signature and a Tennessee driver's license number 074433276 across the top; (4) check no. 1362, dated February 21, 2011, written to The Chop House for $100.00, showing Betty Combs's signature; (5) check no. 1363, dated February 21, 2011, written to Ingles for $83.61, showing Betty Combs's signature and a Tennessee driver's license number 074433276 across the top; (6) check no. 1364, dated February 21, 2011, written to Ingles for $102.10, showing Betty Combs's signature; (7) check no. 1365, dated February 23, 2011, written to Ingles for $159.67, showing Betty Combs's signature and a Tennessee driver's license number 074433276 across the top; (8) check no. 1366, dated February 24, 2011, written to Ingles for $112.02, showing Betty Combs's signature and a Tennessee driver's license number 074433276 across the top; (9) check no. 1376, dated February 28, 2011, written to Ingles for $131.40, showing Betty Combs's signature and a Tennessee driver's license number 074433274 across the top; (10) check no. 1380, dated February 28, 2011, written to IGA for $77.72, showing Betty Combs's signature and a Tennessee driver's license number 074433274 across the top; (11) electronic check no. 1381, dated March 23, 2011, to Burlington Store #108 for $200.00, stating, "This Draft Authorized by Your Depositor, NO SIGNATURE REQUIRED"; (12) check no. 1382, dated February 28, 2011, written to The Chop House for $200.00, showing Betty Combs's signature; (13) check no. 1384, dated February 28, 2011, written to IGA for $117.36, showing Betty Combs's signature and a Tennessee driver's license number 074433274 across the top; (14) check no. 1385, dated February 28, 2011, written to Wal-Mart for $40.00, showing Betty Combs's signature and a Tennessee driver's license number 074433274 across the top; (15) check no. 1394, dated March 2, 2011, written to IGA for $108.49, showing Betty Combs's signature and a Tennessee driver's license number 074433276 across the top; (16) check no. 1395, dated March 6, 2011, written to IGA for $99.62, showing Betty Combs's signature and a Tennessee driver's license number 074433273 across the top; (17) check no. 1397, dated March 6, 2011, written to IGA for $108.00, showing Betty Combs's signature and a Tennessee driver's license number 074433273 across the top; and (18) check no. 1400, dated either March 2 or 7, 2011, [1] written to Zoomers for $70.36, showing Betty Combs's signature and a Tennessee driver's license number 074433273 across the top.

Ms. Nottingham testified that some checks were returned due to insufficient funds in the account; however, the remaining checks that were paid by the credit union were treated as forged checks, and those amounts were credited back into Ms. Combs's account, according to Ms. Nottingham. The aggregate amount of these eighteen checks was $1, 947.99. Ms. Nottingham stated that "the merchants [were] at a loss for all of them." Normally, once an account has been compromised, that account is closed, according to Ms. Nottingham, although she did not have the exact date of closure for this account.

Corporal Ed Ragsdale of the Kingsport Police Department testified that he was assigned as a detective to investigate these fraudulent checks on Ms. Combs's account. Cpl. Ragsdale originally met with Mr. Kelly, the executor, who provided him with copies of the checks, all of which were passed at local Kingsport businesses. After reviewing these checks and speaking with Mr. Kelly, the Defendant was identified as a suspect, according to Cpl. Ragsdale. Cpl. Ragsdale stated that he attempted to get footage from video surveillance cameras from each of the locations where the checks were passed, but he was only able to obtain security footage from IGA because either the other businesses did not have video surveillance cameras or their equipment was broken during the relevant time frame. Cpl. Ragsdale stated that he had previous photographs of the Defendant and viewed the footage provided. Cpl. Ragsdale testified that he also interviewed the Defendant's sister, Angie Roberts, and showed her the security footage as well as pictures developed from that footage.

Cpl. Ragsdale confirmed that the Defendant's address as listed on his driver's license was "in proximity to the center of Kingsport pretty much." He also noted that the driver's license number given on many of the checks was the same except for the last number, which was either a 3, 4, or 6. According to Cpl. Ragsdale, none of the given driver's license numbers ending in a 3, 4, or 6 were registered to a person in Tennessee, and the Defendant's driver's license number was 074433278, which was the same to those given on the checks except for the last number. A certified copy of the Defendant's driving history was entered as an exhibit to Cpl. Ragsdale's testimony.

Charles Robinette testified that he was a district manager for "Houchens Industries, IGA, and Price Less Foods." During the relevant time period, he was the store manager of the IGA in Kingsport. He was contacted by the Kingsport Police Department regarding the fraudulent checks and provided the police with security footage corresponding to the dates and the amounts of those checks. Video recordings of three separate transactions were played for the jury-one from March 2, 2011, and two from March 6, 2011.

Mr. Robinette was also able to procure the receipts from those transactions. Those three receipts were entered into evidence. The first receipt showed a $108.49-purchase made on March 2, 2011, at 4:52 p.m. for two cartons of cigarettes-one box of "MARL BP MN KG FILT" and one box of "NEWPORT 100S BOX CARTON." The next receipt reflected a purchase of two cartons of "MARL BP KING BOX" for $99.62 at 5:22 p.m. on March 6, 2011. The third receipt showed a $108.00-purchase of two $50.00 Verizon gift cards made later on March 6, 2011, at 6:50 p.m.

On cross-examination, Mr. Robinette was asked about the March 6, 2011 receipt for two cartons of "MARL BP KING BOX." When asked what kind of Marlboro cigarettes these were, Mr. Robinette stated that these cigarettes were "[m]ore than likely . . . going to be probably the Reds in a box"; he based this likelihood on the location from which the clerk retrieved the cartons off the shelf. Mr. Robinette was unable to tell from the video recording the exact color on the box of Marlboro cigarettes, which came in an array of colors, according to Mr. Robinette.

Mr. Robinette testified that, pursuant to policy, IGA employees were supposed to get a driver's license number when issued a check and were supposed to match the name on the check with the driver's license. However, he was unable to confirm that IGA employees did this "every time" as instructed. It appeared from one of the video clips that the ...


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