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State v. Jewell

Court of Criminal Appeals of Tennessee, Nashville

January 6, 2017

STATE OF TENNESSEE
v.
JENNIFER MURRAY JEWELL

          Session October 19, 2016

         Appeal from the Circuit Court for Williamson County No. I-CR116885 Joseph Woodruff, Judge

         The Defendant, Jennifer Murray Jewell, entered a "best interest" guilty plea to one count of theft of property valued at over $60, 000 in violation of Tennessee Code Annotated section 39-14-103, a Class B felony. Pursuant to the plea agreement, the Defendant was sentenced to ten years of supervised probation, and the parties agreed that restitution would be set by the trial court at a subsequent hearing. After considering the proof presented at the hearing, the trial court ordered the Defendant to pay more than $800 per month as restitution. On appeal, the Defendant argues that the trial court failed to follow correct procedure or consider her ability to pay in calculating the amount of monthly restitution she would owe. She also argues that the restitution award should be overturned because the State failed to prove the amount of the loss. Because we conclude that the State introduced inadequate proof regarding the valuation of the loss, we reverse and remand for a new hearing on the issue of restitution.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; Case Remanded

          M. Matthew Milligan, Franklin, Tennessee, for the appellant, Jennifer Murray Jewell.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Kim R. Helper, District Attorney General; and Tammy Rettig, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE.

         FACTUAL AND PROCEDURAL HISTORY

         The Defendant's conviction was based on a series of thefts, allegedly amounting to over $372, 000, committed between 2004 and 2009[1] against her employer. Between 2001 and 2009, the Defendant served as the office manager of Wilson and Associates Engineering and Surveying, P.C. ("Wilson and Associates"), a family-run company engaged primarily in highway construction and surveying in a multi-state area. The company had approximately thirty employees, and many employees had company credit cards used to make purchases for the company.

         When the Defendant left in 2009, Wilson and Associates asked a former employee, Janet Taylor, to train the new office manager. Ms. Taylor began her employment with the company in 1998, and she retired in 2005 but maintained a relationship with the company's owners. After the Defendant's departure, there was some "turmoil, " and Ms. Taylor began to train Jennifer Russell, the Defendant's replacement. Ms. Taylor testified that she and Ms. Russell were "not hunting for things" but "[t]hey just started popping up."

         Ms. Russell testified that when she and Ms. Taylor looked through the accounts, they noticed that the accounts had not been reconciled in some months. They also noticed that the credit card accounts had some allocations in suspiciously round numbers, for instance $5, 000 for office expenses. She and Ms. Taylor then noticed numerous charges to the Defendant's company credit card for expenses that did not seem business-related. The Defendant had made purchases at Neiman Marcus, Best Buy, Kay Jewelers, and various home improvement stores. Ms. Russell testified that the company's credit card statements were only available back to 2004. After looking through all the statements, Ms. Russell and Ms. Taylor concluded there were $330, 000 in fraudulent charges, $25, 000 of which was forgiven by the credit card company.

         Ms. Russell testified that she and Ms. Taylor also found that the Defendant was stealing money through payroll. Ms. Russell stated that the payroll was done by the Defendant and that the Defendant increased her gross pay significantly but hid it by having the unearned money taken out as federal withholding, which she would eventually obtain as a large income tax refund. Ms. Russell stated that the Defendant was overpaid, receiving approximately $90, 000 in salary in 2008, when her salary should have been $59, 000.

         Another avenue of loss was through the company's checking accounts. Ms. Russell testified that she and Ms. Taylor discovered that while the company's records showed checks written for apparently legitimate business expenses, such as auto repairs, those checks were actually written to a home repair company near the Defendant's residence and that the company would not provide any receipts when Wilson and Associates attempted to track the expenses. Approximately $20, 000 was stolen in this way.

         Ms. Russell testified that the company spent approximately $50, 000 investigating the fraud, including expenses for accountants and attorneys. She estimated that the total loss to the company was $372, 000. Ms. Taylor confirmed that this was the total value of the loss. According to Ms. Russell, LeRoy Wolfe, a firm of forensic accountants, verified the calculations Ms. Russell and Ms. Taylor had made regarding the theft, and the accountants made no changes to Ms. Russell and Ms. Taylor's conclusions regarding the amount of the loss.

         When Ms. Russell first began to estimate the company's losses, the Defendant objected based on the lack of written records introduced into evidence. The State responded that it had "the records to back it up, " and the prosecutor stated, "I can enter them as an exhibit." The State also noted that the facts of the offense were recited at the plea hearing. Ms. Russell testified that she and Ms. Taylor had created a binder of documentation which was given to the State. Ms. Taylor also testified that they had compiled the evidence of the theft in binders, and she stated that all of the losses were documented in the binders. Defense counsel acknowledged, "We've seen [the] binders." However, no binders or other exhibits documenting the losses were introduced into evidence.

         Ms. Russell acknowledged that she knew the Defendant planned to file a worker's compensation claim against the company after her termination and that she heard of a lawsuit "with some sexual nature." She acknowledged that some employees might be more "favored" in a small company.

         Tyree Harris IV served as the attorney for Wilson and Associates, and he testified that he was first contacted about the Defendant when he was made aware that she intended to file a worker's compensation claim for emotional distress. This claim was withdrawn, but Mr. Harris then received a letter informing him that the Defendant intended to file a claim for harassment. Mr. Harris told the attorneys representing the Defendant that the company was in the midst of investigating her for large-scale theft, and no litigation was ultimately filed.

         During the cross-examination of Ms. Taylor and Ms. Russell, the defense implied that some of the losses were not thefts but gifts given to the Defendant by the owners. Ms. Russell acknowledged that the owners of the company gave gifts to the employees. She testified that they had given $500 to a dog rescue foundation in honor of her and that she had received some fish to fry. She also received approximately $12, 000 in bonuses over the course of six years.

         Ms. Taylor also testified that the owners of Wilson and Associates gave the employees gifts. She testified that the Wilsons had paid for a family vacation for herself and her husband shortly before 2005, which she estimated was a $1, 200 value. The owners also paid for most of the employees to take a trip to San Francisco around the time of a business convention there. The Defendant did not go on this trip because she was needed in the office, and the owners paid for the Defendant to take a trip to Philadelphia with her daughter at a later point because she had not been able to go to San Francisco. Around 2002, the owners also paid for Ms. Taylor and the Defendant to go on a trip to St. Martin because the owners had a prepaid vacation stay that they decided not to use.

         Ms. Russell stated that legitimate per diems and bonuses were not calculated into the total loss. Ms. Taylor also testified that the loss total did not include anything that was "questionable, " and that if they were not sure of the legitimacy, the expense was not included in the amount of the loss. Ms. Taylor stated that they asked each member of the family regarding the expenses and that some were not included because they were determined to be gifts. Ms. Taylor affirmed, "everything that we put in there we thought was fraud, that's all." She stated that the owners did not give gifts by increasing an employee's tax withholding and that they did not give ...


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