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State v. Desai

Court of Criminal Appeals of Tennessee, Nashville

December 9, 2019


          Session October 16, 2019

          Appeal from the Criminal Court for Davidson County No. 2015-C-2112 Cheryl A. Blackburn, Judge.

         After a 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.

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

          John H. Morris, Nashville, Tennessee, for the appellant, Brijesh Mukesh Desai.

          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.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Robert H. Montgomery, Jr., and Timothy L. Easter, JJ., joined.



         Factual and Procedural History

         A 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.

         At 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.

         On 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.

         On the 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 next Saturday[.]"

         On 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."

         The 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.

         The 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.

         Approximately 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.

         On 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 matters.

         Kevin 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.[1]After receiving no payment from Defendant, Mr. Woods filed a police report on December 29, 2014.

         Mr. 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.

         On 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 filed.

         Anita 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" the club.

         Detective 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.

         On 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."

         At the 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.

         Following 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.


         I. Constitutional Argument

         Defendant 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 service."

         The 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 of services.

         A. Standard of Review

         Initially, 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 accused.")

         To 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.

         B. Conviction for a Civil Debt

         Article 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.

         Defendant 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 incorrect.

         The 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 defraud.").

         Here, 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 ...

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