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Fisher v. State

Court of Criminal Appeals of Tennessee, Nashville

June 6, 2017

RAINA FISHER
v.
STATE OF TENNESSEE

          April 18, 2017 Session

         Appeal from the Circuit Court for Maury County No. 19513 Russell Parkes, Judge

         The Petitioner, Raina Fisher, was convicted of three counts of theft of property valued over $1, 000, one count of theft of property valued over $500, and one count of attempted theft of property valued over $1, 000. The Petitioner filed a timely post-conviction petition, alleging that her trial counsel had provided ineffective assistance by failing to suppress evidence obtained through a judicial subpoena, failing to exclude evidence of her prior convictions, and failing to call certain witnesses who could have discredited the victim. She also alleged that appellate counsel was ineffective and that she was entitled to relief under a theory of cumulative error. The post-conviction court held a hearing and denied relief. After a thorough review of the evidence, we conclude that the Petitioner has not demonstrated prejudice resulting from any of her claims, and we affirm the judgment of the post-conviction court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Joseph D. Baugh, Franklin, Tennessee, for the appellant, Raina Fisher.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Brent A. Cooper, District Attorney General; and Kyle E. Dodd, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Camille R. McMullen, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE

         FACTUAL AND PROCEDURAL HISTORY

         Trial

         The Petitioner and the victim, Chad Collier, had separated and were involved in a custody battle at the time that the thefts took place. The Petitioner used a bank account belonging to the victim, who was the father of her child, to make payments on a Discover card in the Petitioner's name. The State's theory of the evidence was that the Petitioner obtained the bank routing number without authorization and then used the funds to pay her credit card debt. The Petitioner, on the other hand, presented evidence that the victim had made prior payments on her Discover card and that the credit card's automated phone payment process merely asked her whether she would like to use the account on file. According to the Petitioner, the use of the victim's account was inadvertent, and she had intended to use her own account to make the payments.

         The victim and the Petitioner entered into a relationship around late 2004 or early 2005. They began to live together shortly thereafter, and they had a daughter together. The Petitioner testified that she was employed in various capacities while the two were in a relationship, including providing counseling at a juvenile detention facility, working for Dell computers, and working with the Department of Children's Services. The victim initially denied that the Petitioner worked during their relationship but ultimately agreed that she had worked for a short time. The Petitioner also received a judgment of approximately $50, 000 to compensate her for injuries suffered in a 2007 automobile accident. Both parties agreed that for the bulk of their relationship, the victim provided for the Petitioner financially and paid her bills.

         The victim testified that he opened a personal account at Regions Bank in July 2008 and put several thousand dollars into the account, which was intended to be used solely for his daughter's expenses. The victim did not regularly monitor this account and knew that there should be several thousand dollars in it. The victim closed the account after he discovered the theft in 2009.

         The Petitioner and the victim ended their romantic relationship around October 2008, but they continued to see each other afterwards. The victim testified that they continued contact through the holidays for the sake of their daughter, and the Petitioner testified that they continued to have a sexual relationship up until August 2009, which the victim denied. The Petitioner testified that she had been diagnosed with colon cancer in 2001 and that she subsequently became addicted to pain medication. In 2006, the Petitioner was convicted of one count of obtaining prescription medication through fraud and one count of attempt to obtain prescription medication by fraud, and she was sentenced to probation. The State filed a notice of its intent to impeach the Petitioner with these convictions, and during the Petitioner's testimony, trial counsel asked the court to make a ruling on the admissibility of the prior convictions. The trial court stated that it could not recall exactly which rule would apply and noted that it would get the exact language of the rule later but that, as the case at bar was not drug-related, it found that the prejudicial effect would not outweigh the probative value. The trial court returned to the issue after the conclusion of proof, finding that under Tennessee Rule of Evidence 404(b), the convictions bore on the Petitioner's credibility and that the probative value was not outweighed by potential prejudice.

         Both parties acknowledged that they had used drugs, including cocaine, during their relationship and that the victim funded their drug use. They disagreed on the allocation of blame, with the victim testifying that the Petitioner brought drugs into his life and the Petitioner testifying that the victim urged her to use drugs, even after her hospital stay, despite his awareness of her prior addiction.

         In 2009, the Petitioner entered a drug rehabilitation program. The victim testified that the Petitioner entered the program "fairly immediately" after the holidays and that she was gone until August. While the Petitioner was gone, her friend worked as a nanny for the family because the victim's work schedule did not allow him to care for their daughter during the day. The Petitioner testified that, while she was in the rehabilitation program, her mother and the victim both paid her bills for her. The victim, on the other hand, testified that he did not pay any bills for the Petitioner after January or February 2009.

         In August 2009, the Petitioner finished her rehabilitation program and began to set up an apartment because she was no longer living with the victim. Accordingly, the Petitioner was making many large purchases associated with establishing a household, including buying furniture for herself and for her daughter, who sometimes stayed with her.

         While the victim and the Petitioner agreed that he had paid for her expenses prior to the end of their relationship, they disagreed on the method of payment. The victim testified that he had a Citi Visa credit card which he had permitted the Petitioner to use and which he paid every month. He further testified that he would occasionally sign checks which the Petitioner filled out or asked him to sign for their expenses. He testified, however, that he paid the bulk of his bills through his online bank account. The victim testified that he did not make phone payments and that he had had no reason to pay the Petitioner's Discover card bill because he had provided her with another credit card that he paid regularly. He testified that he did not believe he had ever made a payment toward her Discover credit card, but he ultimately conceded that he might have made a previous payment to Discover by check.

         The victim testified that the Petitioner had never had access to or authority to use his Regions bank account, and he stated that the checks he had written her for their daughter's expenses could have provided the Petitioner with the routing number of his account. However, he acknowledged on cross-examination that the first phone payment to Discover was made prior to the first check he had written to reimburse the Petitioner for expenses. He then speculated that she could have gained access to his checkbook when she was removing her belongings from their shared home in early August. The victim then also testified that the night before trial, he had discovered an additional payment to the Petitioner's account made from his Regions bank account in April 2009. He stated that he did not authorize that payment and would have sought to prosecute the Petitioner regarding the payment if he had been aware of it previously.

         The Petitioner, on the other hand, testified that the victim had made payments on her Discover card while they were together. She testified that he had been paying her bills and that she used the phone payment system during their relationship. She also stated that their nanny had asked the victim about the Petitioner's bills in 2009 and that the victim had made payments on her bills in 2009.

         At trial, the State introduced the victim's bank records, which showed that four withdrawals were made to "Discover Phone Pay Fisher Raina" in August and September 2009. The payments reflected on the statement were: a payment of $3, 127.68 made on August 20, 2009; a payment of $4, 263.54 made on August 27, 2009; a payment of $820.49 made on September 1, 2009; and a payment of $2, 000 made on September 15, 2009. The victim testified that on November 6, 2009, he was alerted by the bank that his account was overdrawn. When he investigated, he discovered the previous credit card payments. The account had been overdrawn when someone attempted to make a payment of over $4, 000 on the Discover card in November. The victim did not ask the Petitioner about the transactions but immediately contacted the police. The Petitioner was arrested on November 13, 2009, and on November 23, 2009, the victim filed a petition for custody of their child based in part on the theft charges. He testified that he was not motivated to bring charges against the Petitioner in order to prevail in the custody hearing because he currently had custody, but he admitted on cross-examination that he had obtained custody in part based on the charges brought against the Petitioner. He acknowledged that he and the Petitioner were not on amicable terms, and he did not deny that he had threatened to imprison the Petitioner the night before trial when she called to say she would be late to drop off their daughter.

         The victim's bank records reflected that between August 15, 2009, and September 15, 2009, the victim wrote checks from the Regions account to a nanny and to the Petitioner, which the victim testified were for his daughter's expenses. The account also reflected a mortgage payment and numerous ATM withdrawals.

         The State presented the testimony of Mr. Jerry Brown, a field investigator for Discover Financial Services, and through Mr. Brown introduced the Petitioner's credit card statements. The statements reflected the four payments in the amounts charged to the victim's bank account, and these were designated as "phone payments." The Discover statement also showed a phone payment for $1, 310.54 which was made on August 10th, prior to the payments made from the victim's account, and "returned" on August 13th. Mr. Brown testified that a payment might be returned if the account making the payment had insufficient funds or were closed. The statements reflected that a payment of $732 was made on September 16, 2009, and a payment of $3, 351 was made on October 10, 2009, and these payments were not made by phone.

         The Petitioner testified that her mother and the victim had been paying her bills while she was in rehabilitation. She testified that she had made the $1, 310.54 phone payment on her credit card on August 10th, that the representative had asked her if she wanted to use an account on file and gave her the last four digits of that account, and that she had simply agreed. At the time, she believed that her mother's account would be on file because it was the most recent account that had paid her bills. The Petitioner's bank statements were introduced into evidence and reflected that she made a $10, 000 deposit to her own bank account on the next day, August 11, 2009. She accordingly wrote her mother a check on August 11th for $1, 300 to reimburse her. The check was part of the statement introduced into evidence. When the $1, 300 phone payment was returned a few days later, the Petitioner testified that she assumed that the account on file had been another one of the victim's accounts that had since been closed.

         She then called on August 19th to make the first phone payment that came out of the victim's Regions account. The Petitioner testified that again, she did not have to enter any bank account information but simply agreed to use an account on file. She did not check the numbers given to her, but she believed that the account on file should have been her own account. She testified that she made the other August and September payments under the same belief. The Petitioner testified that, after she received her bank statement in September, she became aware that the money was not being taken from her own account. She accordingly visited her bank and spoke to a representative to find out why the payments were not reflected. The Petitioner acknowledged on cross-examination that her account would have been overdrawn had the Discover payments actually been debited from her account, but she explained that her own checkbook reflected that she should have had significantly more money in her own account. The Petitioner explained that she then made two check payments to her credit card in September and October, for $732.60 and for $3, 351.61. Because she believed that the credit card company would save the information from her check and use that account in the future, she attempted another phone payment in November.

         Mr. Harry Dryer, a representative from the Petitioner's bank, testified that the Petitioner came to see him multiple times beginning on September 9, 2009, because her check book did not reflect the amount in her account. The Petitioner "thought that there were some deposits that she had not posted" and was looking for "some deposits that she had missed" or "something she forgot to write down."

         The Petitioner's testimony regarding her phone payments was that she would speak to a representative, that the representative would ask her if she would like to pay in the account ending in a particular four digits, and then she would simply agree. The Discover card representative, however, testified that a phone payment could only be made if the customer had the entire bank routing number, and he testified that the customer would have to provide the entire number ...


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