Court of Criminal Appeals of Tennessee, Nashville
Session October 16, 2019
from the Criminal Court for Davidson County No. 2015-C-2112
Cheryl A. Blackburn, Judge.
trial, a Davidson County jury found Defendant, Brijesh Mukesh
Desai, guilty of theft of services valued at $1, 000 or more
but less than $10, 000. The trial court sentenced Defendant
as a Range I standard offender to four years in the Tennessee
Department of Correction with a release eligibility of thirty
percent. On appeal, Defendant argues that his conviction
violates his constitutional right not to be imprisoned for a
civil debt, that the trial court lacked subject matter
jurisdiction, that the indictment was fatally flawed, and
that the trial court improperly admitted evidence at trial.
After a thorough review of the record and applicable case
law, we affirm the judgment of the trial court.
R. of App. P. 3 Appeal as of Right; Judgment of the Criminal
H. Morris, Nashville, Tennessee, for the appellant, Brijesh
Herbert H. Slatery III, Attorney General and Reporter;
Jeffrey D. Zentner, Assistant Attorney General; Glenn Funk,
District Attorney General; and Megan King, Assistant District
Attorney General, for the appellee, State of Tennessee.
L. Holloway, Jr., J., delivered the opinion of the court, in
which Robert H. Montgomery, Jr., and Timothy L. Easter, JJ.,
L. HOLLOWAY, JR., JUDGE.
and Procedural History
Davidson County Grand Jury indicted Defendant for theft of
services valued at $1, 000 or more but less than $10, 000 in
count one and of passing a worthless check in counts two,
three, and four. Defendant filed a motion to dismiss, and the
trial court granted his motion as to counts three and four
and denied his motion as to counts one and two.
trial, Kenneth Randolph testified that he was the general
manager for Anthem Nightclub ("the club") from
2013-2015. Mr. Randolph also participated in artist and guest
relations and provided music entertainment for the club. Mr.
Randolph said that Defendant contacted him on November 3,
2014, regarding a party he wanted to plan for November 15,
2014. On November 10 and 11, Defendant texted Mr. Randolph
regarding the number and types of bottles of alcoholic
beverages he would need for his party. On November 12,
Defendant requested a custom-designed canvas backdrop,
measuring eight by ten feet, which Mr. Randolph indicated
would cost $600. On November 12, Mr. Randolph informed
Defendant that the total cost of the party would be $9, 600
and told Defendant that he would receive two bottles of
liquor for free.
November 13, Defendant contacted Mr. Randolph for an update
on the status of the canvas backdrop, and on November 14, Mr.
Randolph texted Defendant a picture of the completed
backdrop. Defendant did not seem pleased and wanted Mr.
Randolph to make several changes, including fixing a
misprinted date. Mr. Randolph testified that, because the
backdrop was already complete and the printer was
unavailable, Mr. Randolph offered not to charge Defendant for
the backdrop and stated that they would not use it for the
party. However, Defendant insisted that Mr. Randolph fix the
backdrop and use it. Defendant texted Mr. Randolph, saying,
"[Y]ou should get a discount from the [printer] before I
pay for the mistake." Defendant also asked Mr. Randolph,
"Is there a markup on it to me[, ] or am I paying what
they're charging you? It should be discounted for sure
for the mistake." When Mr. Randolph responded that he
would receive a "big discount," Defendant texted,
saying, "Cool we can do the 9k for now." Mr.
Randolph testified that Defendant confirmed the number of
party guests at sixty-one. Defendant verified that he would
send a list of music to Mr. Randolph by 3:00 p.m. on the day
of the party.
afternoon of November 15, 2014, Defendant texted Mr. Randolph
to request a credit card authorization form. Mr. Randolph
testified that he sent Defendant the form and that Defendant
filled it out and returned it prior to the party. At 11:55
p.m. on the night of the party, Mr. Randolph texted Defendant
to verify the "CCV" number for his credit card.
Defendant did not respond. Mr. Randolph stated that, during
the party, Defendant and his guests consumed approximately
thirty bottles of alcohol. On the morning of November 16,
2014, Mr. Randolph informed Defendant that his credit card
information had been declined and requested that Defendant
verify the correct numbers. Defendant texted, "[T]he
idiot at the limo company kept trying to run my card for
$112, 500. Waiting on Amex to sort it out and then will let
you know and you'll be able to run and close out the
9k[.]" That afternoon, Defendant asked Mr. Randolph to
save any unopened bottles from the party "for next
weekend." On the evening of November 16, 2014, Mr.
Randolph texted Defendant again, asking, "When do you
think that stuff will get sorted with Amex?" Defendant
responded that the error should be corrected by the following
morning and that he wanted "to repeat last night for
November 17, 2014, Defendant texted Mr. Randolph to inform
him that a new American Express card would arrive by the
following day. Defendant asked, "Want me to drop off a
check . . . or text you the front and back of the new card in
the morning?" Mr. Randolph responded that a text on the
following morning would suffice. On the morning of November
18, 2014, Defendant texted Mr. Randolph to tell him that the
new American Express card arrived at his home and that he
would send the card information when he got home between 5:00
and 6:00 p.m. that evening. At 7:44 p.m. on November 18, Mr.
Randolph texted Defendant, stating that he "need[ed]
that payment tonight, sir. I'll be in serious sh*t if I
don't. Please send me the CC info when you have it."
Mr. Randolph testified that his employers were upset because
he was unable to recoup the cost of Defendant's party.
Two hours later, Mr. Randolph texted again, "Brother, I
need that information."
following morning, November 19, 2014, Defendant responded to
Mr. Randolph that he would send his new credit card
information by noon that day. Defendant told Mr. Randolph
that he could also "run [the credit card] for an
additional 5 [thousand dollars] for this Saturday." Late
that afternoon, Defendant texted Mr. Randolph that his
assistant would "drop 9K cash tomorrow morning at 11
a[.]m[.]" Defendant told Mr. Randolph that he was
sending a cash payment because his credit card still had the
incorrect charge on it from the limo company. Mr. Randolph
testified that Defendant's assistant never brought money
to the prearranged meeting place.
following morning, November 20, 2014, Defendant texted Mr.
Randolph and said he would send payment by cashier's
check because Defendant learned that an attorney was now
involved. Defendant made arrangements to meet Mr. Randolph
with a cashier's check but never arrived at the
prearranged location. Just after noon on November 20,
Defendant texted Mr. Randolph and offered to wire the payment
to Mr. Randolph. The funds never arrived.
one month later, on December 17, 2014, Mr. Randolph texted
Defendant again, "What's the deal here man? Everyday
[sic] you say the money is going to be deposited and
everything, and everyday [sic] it isn't. Meanwhile
I'm stuck paying a part of your bill. What's really
going on?" Mr. Randolph testified that he had paid the
servers for Defendant's party from his personal funds and
had taken a pay cut to try to "make whole with the
company[.]" On December 18, Mr. Randolph texted
Defendant that the club's accountant would be
"filing charges" the next day. On December 22,
2014, Defendant again offered to bring a cashier's check
to Mr. Randolph to cover the cost of his party. Defendant
never met with Mr. Randolph.
cross-examination, Mr. Randolph testified that he believed
that Defendant had made some payments towards his debt. Mr.
Randolph said that he did not verify Defendant's credit
card prior to the evening of the party and that he did not
require Defendant to submit a deposit. Mr. Randolph said he
"passed the matter" of Defendant's overdue bill
to Kevin Woods, who helped the club with legal and financial
Woods testified that, beginning in September 2014, he was an
independent contractor with Status, LLC, (doing business as
Anthem Nightclub) for approximately nine months, handling the
financial aspects of the club. Mr. Woods testified that Mr.
Randolph alerted him to a problem with Defendant's
payment for his November 15, 2014 party. Mr. Woods said that
because Defendant did not pay his bill, the servers for his
party did not get paid. Mr. Woods testified that the first
contact he made with Defendant to procure payment was on
November 20, 2014. On that day, Mr. Woods received a personal
check from Defendant from a Fidelity account. Mr. Woods
stated that he contacted Fidelity to inquire as to whether
there were funds in Defendant's personal account, and
Fidelity informed him that the account was empty. Mr. Woods
then contacted Defendant, who told Mr. Woods that the
Fidelity account was "under audit." Mr. Woods said
that he provided Defendant with wiring instructions, but the
funds never arrived. On December 3, 2014, Mr. Woods provided
Defendant a letter via certified mail requesting prompt
payment and explaining the crime of passing a worthless
check.After receiving no payment from Defendant,
Mr. Woods filed a police report on December 29, 2014.
Woods testified that, on January 26, 2015, Defendant
delivered another personal check, this time from a Scottrade
account. Again, the check was returned for insufficient
funds. Mr. Woods stated that Defendant delivered a third
personal check on February 2, 2015, and that it also was
returned for insufficient funds. By the time the club closed
permanently in February 2015, Defendant had not paid any
funds towards his debt.
cross examination, Mr. Woods testified that Status, LLC, was
administratively dissolved in 2015. After reviewing a
document from the Tennessee Secretary of State, Mr. Woods
noted that the administrative dissolution date for Status,
LLC, was August 9, 2014. Mr. Woods explained that, while
Status, LLC, did not have legal protection from the State
after August 9, 2014, it was still licensed to do business in
Nashville until February 2015. Mr. Woods said that the club
was "paying liquor and sales taxes, [and it was] filing
tax returns. [It was] actively operating a business in
Davidson County and Nashville, Tennessee." Mr. Woods
testified that, in August 2015, Defendant paid Status LLC,
$1, 450 in cash and that he subsequently made one or two
additional $500 payments. Mr. Woods stated that these
payments were "irrelevant" because the club was
already out of business. Mr. Woods also stated that, despite
his warning in his December 3 letter that Status, LLC, would
pursue civil action against Defendant, no lawsuit was ever
Prather testified that she worked for Metro Nashville Police
Department as a detective in the fraud unit. Detective
Prather stated that, after Mr. Woods filed a police report,
she was assigned to investigate the case. She contacted Mr.
Woods on December 30, 2014, and subsequently contacted
Defendant. Detective Prather said that Defendant informed her
that "this was a civil matter[, ]" at which point
she "advised him [that] it was not." Defendant told
Detective Prather that the reason his November 20, 2014 check
was returned for insufficient funds was due to "some
kind of fraud on his account[.]" Defendant assured
Detective Prather that he would "work it out with"
Prather then contacted Mr. Woods, who told her that Defendant
made plans to meet with Mr. Woods to make payment, but
Defendant "didn't show." Detective Prather
testified that, on two later occasions, Defendant attempted
to pay Mr. Woods but that both of those checks were written
on accounts with insufficient funds. Detective Prather
requested a subpoena for Defendant's accounts, and
through her investigation, she discovered that the Fidelity
account from which the November 20 check was written was
never funded. Detective Prather testified that, upon
examination of the bank records, she discovered that neither
of the two Scottrade accounts from which Defendant wrote the
January 26 and February 2 checks ever had more than about $1,
400, far less than the $9, 000 Defendant owed the club.
cross-examination, Detective Prather agreed that the
circumstances are narrow under which writing a check with
insufficient funds is considered a crime rather than a civil
matter. She confirmed that she told Defendant to "go and
pay [the club] the money that [he] owe[d] them."
conclusion of the State's proof, Defendant moved to
dismiss counts one and two, and the trial court granted his
motion as to count two, stating that "the services were
already obtained and then [Defendant] wrote the worthless
check. So the worthless check [statute] doesn't
apply." The trial court denied Defendant's motion as
to count one, stating that Defendant's intent should be
determined by the jury. The trial court then conducted a
Momon colloquy, and Defendant chose not to testify.
deliberations, the jury found Defendant guilty of theft of
services with a value of $1, 000 or more and less than $10,
000. After a hearing, the trial court sentenced Defendant as
a Range I standard offender to four years in the Tennessee
Department of Correction, with a release eligibility of
thirty percent. Defendant filed a motion for a new trial, and
the trial court denied the motion after a hearing. This
timely appeal follows.
argues that his prosecution for theft of services violates
Article I, Section 18 of the Tennessee Constitution, which
prohibits incarceration for a civil debt. Defendant contends
that, because his civil debt remains, Defendant did not
"take or obtain" services; thus, "the
intent to defraud is nonexistent as a nullity" and
"theft of services is a legal impossibility."
Defendant asserts that the State's prosecution was an
improper use of the criminal court as a "collection
State responds that Defendant waived this issue by failing to
make a contemporaneous objection at trial and by failing to
preserve this argument in his motion for a new trial. The
State also contends that Defendant fails to argue plain error
and thus has not carried his burden. Finally, the State
asserts that, when Defendant argues that this is a civil
matter prosecuted in a criminal court, Defendant improperly
conflates the crimes of passing a worthless check and theft
Standard of Review
we note that Defendant and the State posit different
standards of review for Defendant's constitutional
argument. The State asks for plain error review because
Defendant did not preserve his argument below. Defendant
concedes that he failed to preserve his argument below;
however, Defendant argues that this court should evaluate his
case under plenary review because "the [c]onstitutional
question and validity of the indictment in the instant case
invoke, among other things, subject matter
jurisdiction." Therefore, he argues that the waiver rule
in Tennessee Rule of Appellate Procedure 3(e) does not apply.
See State v. Keel, 882 S.W.2d 410, 416 (Tenn. Crim.
App. 1994) ("The waiver provision of Rule 3(e), however,
does not apply when the issue, if found to be meritorious,
would result in the dismissal of the prosecution against the
determine whether Rule 3(e) applies, we must first determine
whether the prosecution would be dismissed if Defendant's
constitutional challenge was meritorious. If Defendant's
criminal conviction under the theft of services statute was
for a civil debt, his conviction would be unconstitutional as
applied. Tenn. Const. art. I, § 18. His conviction would
be void, and the charges would be dismissed. Thus, we will
analyze Defendant's claim under plenary review.
Conviction for a Civil Debt
I, Section 18 of the Tennessee Constitution states that
"[t]he [l]egislature shall pass no law authorizing
imprisonment for debt in civil cases." Tenn. Const. art.
I, § 18. Criminalizing the fraudulent acquisition of
services does not violate Article I, Section 18 of the
Tennessee Constitution. State v. Yardley, 32 S.W.
481 (1895). Fraudulent acquisition of services
"consists, not in the creation of a debt, nor in its
nonpayment, but rather in the fraud through which credit may
be procured or payment evaded." Id. at 484.
relies on State v. Newsom, 684 S.W.2d 647 (Tenn.
Crim. App. 1984), in a circuitous argument against his theft
of services conviction. First, Defendant argues that because
he "utilized" the club's services prior to his
failure to pay and because the debt at issue was preexisting
at the time he attempted payment, then he did not
"obtain" anything except a civil debt. Thus, he
argues, the worthless check statute does not apply. See
id. at 649. Then, Defendant asserts that, because
"there was no passing of [a] worthless check[, ] . . .
there was no theft [of services] and, therefore, there was no
crime." Defendant appears to argue that, if the State
cannot establish that Defendant was guilty of passing a
worthless check, then it has no recourse in pursuing charges
of theft of services. As the State argues, this conflation is
defendant in Newsom was convicted under our prior
"bad checks" statute, Tennessee Code Annotated
section 39-3-301 (1984). 684 S.W.2d at 648. This statute was
subsequently replaced by the current "worthless
checks" statute, Tennessee Code Annotated section
39-14-121. 1989 Tenn. Pub. Acts, ch. 592 § 1. Section
39-14-121 requires fraudulently issuing or passing "a
check or similar sight order for the payment of
money for the purpose of . . . obtaining money, services,
labor, credit, or any article of value[.]" Tenn. Code
Ann. § 39-14-121(a)(1)(A) (2014) (emphasis added);
see also Newsom, 684 S.W.2d at 649. The court in
Newsom held that a defendant could not be convicted
of passing a worthless check for a preexisting debt.
Newsom, 684 S.W.2d at 649 (stating that "[t]he
general rule is, where the statute specifies the obtaining of
something of value as an element of the offense, the giving
of a worthless check in payment of a preexisting debt is not
a violation of the statute. Since the debt remains unpaid[, ]
the maker of the check did not obtain anything of value from
the payee and did not give the check with intent to
while Defendant was initially charged with three counts of
passing a worthless check under section 39-14-121, the trial
court eventually dismissed all three counts, relying in part
on Newsom. Defendant asserts that the trial
court's dismissal of the worthless check indictments
nullifies the fraudulent intent required for the theft of
services conviction. Defendant argues that the trial court
erred in denying his motion to dismiss count one because
count one was dependent on counts two through four. Defendant
contends that the definition of "fraudulent intent"
in both the worthless checks statute and the theft of
services statute must be defined in the same way. However, a
plain reading of the statutes shows that the theft of
services statute is broader than the worthless checks statute
because the theft of services statute does not require
issuing a form of payment but only requires making fraudulent
promises to perform. The Newsom court did
not address whether a defendant may fraudulently induce
services in other ways under other statutes. The theft ...