Opinion
No. W1999-01933-CCA-R3-CD.
Filed March 14, 2001. Assigned on Briefs January 10, 2001.
Direct Appeal from the Criminal Court for Shelby County No. P-21984; Bernie Weinman, Judge.
Affirmed.
Gerald S. Green, Memphis, Tennessee, for the appellant, C. Curtis Brown.
Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Kenneth Roach, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the court, in which David G. Hayes and Joe G. Riley, JJ., joined.
OPINION
On September 30, 1999, the State petitioned the Criminal Court of Shelby County to order the defendant, C. Curtis Brown, to show cause why his authority to write bonds should not be cancelled. The defendant was ordered to appear before the court on October 14, 1999 for a hearing on the matter. At the conclusion of the hearing, the court took the case on advisement. On November 22, 1999, the Criminal Court of Shelby County entered an order finding the defendant in violation of Tennessee Code Annotated section 40-11-126(6) and revoked his authority to write bonds in the 30th Judicial District. The defendant filed a timely appeal and his appeal is now before this Court.
The defendant asserts that the trial court lacked sufficient evidence to support its finding him in violation of Tennessee Code Annotated section 40-11-126(6) and revoking his authority to write bonds in the 30th Judicial District of Tennessee. Furthermore, the defendant asserts that the trial court's revocation of his authority was excessive. After review, we affirm the trial court in all respects.
Facts
At the October 14, 1999 hearing, Mr. Ray Johnson, a security guard, testified that he was working outside the 24-hour clerk's office on September 22, 1999. He overheard a conversation between the defendant and a young lady standing in the corridor outside the office. He said he saw the defendant approach the young lady and ask her if she needed a bondsman and handed her a business card. He overheard Mr. Rubin, another security guard, ask the defendant who he was working for and the defendant replied, "Ms. Ruby Hale."
Next, Mr. Larry King, Vice-President of Memphis Bonding Company, testified that Memphis Bonding Company terminated the defendant's employment on August 23, 1999. He said the defendant later asked to be re-hired but the company refused to rehire him. Mr. King introduced a copy of Memphis Bonding's payroll record, which indicated the last payment to the defendant from Memphis Bonding was on August 6, 1999. He also introduced a memorandum from the Honorable James C. Beasley, Jr., an administrative judge, dated August 13, 1999. The memorandum warned bonding agents that the court would consider it improper for bonding agents to solicit business outside the 24-hour clerk's office. Mr. King said the defendant was aware of this memorandum and had signed it.
Next, Ms. Leah Collins, a bookkeeper for Memphis Bonding, testified that the defendant was fired on August 23, 1999. She said that all bond powers issued to him were returned to Memphis Bonding Company.
The defendant testified on his own behalf. He said that Marlo Pride approached him on September 21, 1999, about making a bond for two of Marlo's friends. The defendant then spoke with one of the men's girlfriends, Danielle Nelson, on September 23, 1999. The defendant claimed that Ms. Nelson was the lady to whom Mr. Johnson testified about being with the defendant. The defendant claimed that Mr. Johnson was mistaken in his testimony that the defendant asked her if she needed a bondsman and handed her a card. The defendant said that he spoke with Ms. Nelson in the lower level of the jail and that he never handed her a business card nor solicited her business. However, Mr. Johnson never identified Ms. Nelson as being the lady to whom the defendant talked or handed a card. The defendant admitted that he had been fired from Memphis Bonding Company, had turned in his bonding powers sometime in August, and did not have authority to write for any other bonding company. However, the defendant maintained that he still had the authority to write bonds.
Finally, Ms. Danielle Nelson testified that the defendant assisted her in acquiring the money necessary to put up a bond for her boyfriend. She said the defendant did not solicit her business nor did he hand her a business card.
After taking the case on advisement, the Criminal Court of Shelby County found the defendant in violation of Tennessee Code Annotated section 40-11-126(6) and revoked his authority to write bonds in the 30th Judicial District. The defendant's appeal is timely before this Court.
Analysis
The defendant first asserts that there was insufficient evidence to revoke his authority pursuant to Tennessee Code Annotated section 40-11-125 by finding him in violation of Tennessee Code Annotated section 40-11-126(6). Specifically, the defendant's entire argument section of his brief on this issue is as follows:
The evidence against the appellant below was highly impeachable and biased. The appellant could produce the allegedly solicited customer who would testify that there was no solicitation by the appellant.
A court may withdraw a bondsman's authority to write bonds pursuant to Tennessee Code Annotated section 40-11-125, which provides:
[A]pproval of a professional bondsman or other surety may be withheld, withdrawn, or suspended by any court if, after investigation, it appears that a bondsman . . .
(3) Is guilty of professional misconduct as described in § 40-11-126.
Furthermore, Tennessee Code Annotated section 40-11-126(6) provides:
[T]he following is deemed unprofessional conduct, and no bondsman or surety agent shall: . . .
(6) solicit business in any place where prisoners are confined.
At the hearing, Mr. Johnson testified that he witnessed the defendant approach a young lady outside the Shelby County Justice Complex, ask her if she needed a bondsman, and handed her a card. He also testified that he asked the defendant who he was writing bonds for and he replied, "Ms. Ruby Hale." The defendant's employer also testified at the hearing and stated that the defendant signed a memo that stated that soliciting business outside the Justice Complex was improper. The employer also testified that the defendant had been fired and had no authority to write any bonds. The defendant testified on his own behalf and asserted that the lady Mr. Johnson saw him talking to had contacted him in order to obtain a bond for someone else. The defendant also claimed that at the time he was talking to the lady, he still had authority to write bonds. After taking the case on advisement, the Shelby County Criminal Court found the defendant in violation of Tennessee Code Annotated section 40-11-126(6), and revoked his bonding authority in the 30th Judicial District.
In reviewing the defendant's assertions, the defendant does not cite to the record, does not cite to any authority, nor does the defendant articulate how the evidence against him was insufficient to support the trial court's determination. After review of the record, we find no basis for the defendant's conclusory assertions and sufficient evidence to support the trial court's findings.
Next, the defendant asserts that the trial court's order revoking his authority to write bonds was excessive. In support of his argument, the defendant simply cites to the Eighth Amendment of the Constitution of the United States, the Magna Carta, and Article I, Section 8 of the Tennessee Constitution, arguing that by revoking his authority to write bonds, the trial court deprived him of his livelihood.
The trial court clearly had jurisdiction to revoke the defendant's authority to write bonds after an investigation and a hearing. See Tenn. Code Ann. § 40-11-125. The defendant asserts that the court's action was the equivalent of unconstitutionally excessive punishment. However, the defendant cites no authority for this particular position nor does he articulate how this action was excessive. In fact, the defendant received no jail time, no fine, no probation, nor any other type of alternative sentence. The defendant simply had his authority to write bonds revoked. The defendant was given a hearing on this matter and the trial court clearly acted within its authority by revoking the defendant's authority to write bonds. After reviewing the record, we find that the trial court's actions did not violate the defendant's constitutional rights. Therefore, we affirm the trial court in all respects.
Conclusion
After review, we find that the trial court had sufficient evidence before it upon which to base its conclusions. Furthermore, we find the trial court's revocation of the defendant's authority to write bonds was not unconstitutionally excessive. We affirm the trial court in all respects.
Our law provides: "A person charged with an offense has no burden to prove his innocence." Tenn. Code Ann. § 39-11-201(c). Because I am unable to disregard this most basic principle of law, I am also unable to affirm the judgment of conviction in this case.
The facts may be summarized as follows:
A motorist is stopped while driving a vehicle on a public street. The police inform the motorist that the vehicle that he is driving is stolen. The motorist states that the car is his and produces a Tennessee title to the vehicle and other proof of ownership. Although the title exhibited to the officer does not show a completed transfer to the motorist, it does bear the name of the previous owner and matches the VIN number on the vehicle. The motorist advises the police that "he bought the car two weeks earlier from a car lot," but does not furnish the name of the car lot. At some point during the on-scene investigation, and after answering numerous questions, the motorist advises the police that he will answer no further questions. At this point he is arrested.
A conviction may not rest solely upon conjecture, guess, speculation, or a mere possibility. State v. Tharpe, 726 S.W.2d 896, 900 (Tenn. 1987). In this case, the defendant's conviction is essentially based on his possession of the stolen vehicle alone, i.e., unaided by other independent proof that the Appellant had received it knowing it to have been stolen. The defendant's explanation for possession was unrebutted. I find under these circumstances that the explanation for possession was arguably reasonable and sufficient to overcome the inference of guilty knowledge. In the absence of evidence which could have shed light on the missing facts of this case, I am unable to conclude that the proof before us excludes "every other reasonable hypothesis save the guilt of the [defendant]." State v. Crawford, 225 Tenn. 478, 482, 470 S.W.2d 610, 612 (1971). While the proof presents speculation or possibility as to the defendant's guilt, such proof is insufficient to support a conviction.Tharpe, 726 S.W.2d at 900.
Apparently, no independent police investigation was undertaken. Minimal investigative effort could have verified or negated the defendant's claim of ownership and whether the name on the title was a real or fictitious person. There is nothing in the record which suggests that the police ever seized or recorded any information from the documents of ownership examined at the scene. We are without proof as to whether the vehicle was acquired at less than its value or any other evidence establishing the circumstances by which the defendant came into possession of the stolen vehicle. The defendant made no attempt to flee and his response to police was neither contradictory nor improbable. Contrary to the trial court's findings and those implied by the majority, I find nothing in the record to support the conclusion that the defendant was a car salesman with T A Auto Sales on Lamar in Memphis. Moreover, numerous other findings entered by the trial court are simply not supported by the record.
The only evidence in the record even linking the defendant to T A Auto Sales was the testimony of Sgt. Webb that the defendant stated he worked there:
Q: (Prosecution) And did he tell you what his occupation was?
A: He said he worked at a car sales lot. And I believe it was T and A Auto Sales on Lamar.
We note, however, that T A Auto Sales is not listed as a place of employment on the defendant's pre-sentence report. Even assuming the defendant did work at this location, there is absolutely no testimony indicating his position there.
The police officers' testimony at trial was less than compelling and at times materially contradictory with other officers' testimony. In sum, the arresting officer testified at trial that the defendant was arrested because " . . . the vehicle was stolen. He claimed to be the owner; the public VIN plate had been switched." The majority opines that "the state is not required to subpoena all car lot dealers in and around Shelby County to establish that none of them sold this vehicle to the defendant, in order to dispute his statement that he bought it from an unnamed `car lot'." I read this to mean that the defendant should have provided the police greater assistance in the prosecution of their case against him.
Lt. McCartney testified that the defendant produced "some paperwork — it wasn't anything official as I recall. It was just a bill of sale or something . . . — it wasn't a title . . . ." Sgt. Webb, however, testified that the defendant produced a Tennessee title at the scene.
Additionally, Lt. McCartney related that he observed scratch marks on the VIN plate located on the dash of the Cadillac. This testimony was contradicted by Sgt. W.E. Dawkins, who is also assigned to the auto theft division and who specializes in performing vehicle identifications for the police department. Dawkins testified that he noticed nothing wrong or unusual about the VIN plate — "[it] looked like any VIN number on any car."
Finally, with regard to the defendant's second issue of valuation, I am unable to agree that the value of the vehicle was properly established. As the record reflects, the prosecutor rested its case without proving valuation. The trial court then permitted the State to reopen its case. As the majority states, the owner of the vehicle testified that the 1992 Cadillac was purchased by his mother for approximately $45,000. This ignores the fact, however, that the theft occurred in December of 1997 and that no proof was presented to establish the value of the five-year-old Cadillac on the date it was stolen. Moreover, although the blue book value was alluded to, no foundation was ever laid for the proper introduction of this proof. See Tenn. R. Evid. 803(17). With reference to the $15,500 valuation also noted by the majority, this figure was developed not by the prosecutor, but by the trial judge after the court assumed interrogation of the witness.
THE COURT: All right. Did you speak to your insurance company about this stolen vehicle?
THE WITNESS: Yes, sir, I did.
THE COURT: And is that what they arrived at, at 16,000?
THE WITNESS: What ended up happening, the value at the time it was stolen in December was 16,000. We did not settle until sometime in 1998, basically on into January. And at the time we settled, because a year had gone around, the Blue Book value had dropped to 15,500. And that was the amount we settled upon.
THE COURT: Alright. I'll allow that.
[PROSECUTION]: Thank you, judge.
The most important function which a court has to perform with respect to criminal law is to not make easier the conviction of the alleged miscreant; rather, it is the protection of the innocent against false convictions. In view of the judicial shortcuts taken, the cumulative errors previously noted, the prosecution's failure to properly establish valuation, and the overall insufficiency of the evidence, I would reverse and dismiss the conviction.