STATE of Tennessee v. Glover P. SMITH.
No. M2011-00440-SC-R11-CD
Supreme Court of Tennessee, at Nashville.
June 19, 2014.
439 S.W.3d 751
Oct. 1, 2013 Session Heard at Murfreesboro1.
Jonathan L. Miley, Nashville, Tennessee, for the appellant, Glover P. Smith.
OPINION
JANICE M. HOLDER, J., delivered the opinion of the Court, in which GARY R. WADE, C.J., and CORNELIA A. CLARK, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.
The defendant was indicted on two counts of fabricating evidence and on six counts of making a false report arising out of the disappearance of his wife. A jury convicted the defendant on all counts, and the trial court imposed a sentence of one year in the county jail followed by six years on probation. After a hearing on the defendant‘s motion for new trial, the trial court affirmed the convictions for making a false report but dismissed the convictions for fabricating evidence after concluding that no investigation was “pending” when the defendant fabricated evidence. Both the State and the defendant appealed. The Court of Criminal Appeals reinstated the defendant‘s convictions for fabricating evidence, dismissed as multiplicitous two convictions for making a false report, and affirmed the remaining convictions and sentences. We granted the defendant permission to appeal. Although we affirm the Court of Criminal Appeals’ reinstatement of the defendant‘s convictions for fabricating evidence, we conclude that two of the defendant‘s convictions for making a false report should be dismissed because the evidence is insufficient to support these convictions. We also conclude that three of the defendant‘s convictions for making a false report are multiplicitous and therefore dismiss two of those convictions. We affirm the Court of Criminal Appeals in all other respects.
In March 2009, the Rutherford County Grand Jury indicted Glover P. Smith on one count of fabricating evidence and four counts of making a false report. In October 2009, a superseding indictment charged Mr. Smith with two counts of fabricating evidence and six counts of making a false report. These charges resulted from the police investigation into Mr. Smith‘s December 2007 report to the Murfreesboro Police Department that his wife was missing. During a three-day jury trial in April 2010, the following facts were revealed.
At approximately 6:00 p.m. on December 6, 2007, John Flynt, a dispatcher2 at the Murfreesboro Police Department, received a phone call on the non-emergency line from an individual who identified himself as Palmer Smith. The caller reported that his wife had been missing for a few hours, was diabetic, and likely needed food and insulin. After Mr. Flynt verified that Mrs. Smith had not been admitted to the local emergency room, he submitted a report to radio dispatch, which broadcasts the information to law enforcement officers. In his report, Mr. Flynt provided Mrs. Smith‘s name, age, description, vehicle description, and the last time that the caller had spoken with her. Based on Mrs. Smith‘s medical condition, Mr. Flynt considered the report to be an emergency.
Officer Bobby Edwards
At 6:03 p.m. on December 6, 2007, Officer Bobby Edwards of the Murfreesboro Police Department received the radio dispatch and arrived at the Smith residence at approximately 6:14 p.m. Mr. Smith told Officer Edwards that his diabetic wife left their home at 1:30 p.m. to do some Christmas shopping and that she normally returned home before dark. He described what Mrs. Smith was wearing and stated that she was driving a champagne-colored, 2000 Lincoln Navigator. Mr. Smith told Officer Edwards that his wife had approximately $600 in cash and that she may have gone to the Walmart on Rutherford Boulevard to avoid the holiday shopping crowd and traffic. After Officer Edwards completed his written report, Mr. Smith reviewed the information and signed the report.3
Officer Edwards subsequently provided the information to radio dispatch and put out a BOLO (“be on the lookout“) throughout the city. Officer Edwards also contacted Officer Dave Norton, who was assigned to patrol the area that included Walmart, and asked him to look for Mrs. Smith‘s vehicle in the parking lot. Officer Norton reported that he did not see the vehicle.
Captain Chris Guthrie
On the morning of December 7, 2007, Captain Chris Guthrie of the Murfreesboro Police Department learned of Mrs. Smith‘s disappearance. He traveled to the Walmart parking lot where he saw the Lincoln Navigator parked between two Budget rental trucks. Captain Guthrie approached the vehicle and found that it was unlocked and
On the afternoon of December 7, 2007, Captain Guthrie and Major James Gage went to Mr. Smith‘s home to discuss his wife‘s disappearance. Mr. Smith told the officers that he had company and did not have time to speak with them. Captain Guthrie said that as he and Major Gage were leaving, Mr. Smith “got kind of irate” and asked, “Have you found my wife yet?” Captain Guthrie told Mr. Smith that they would return at a later time.
When the officers returned to the Smith home, Mr. Smith told them that his wife went shopping around 1:30 p.m. and had $300 to $500 with her. With Mr. Smith‘s consent, Captain Guthrie looked in Mr. Smith‘s garage where he saw what he described as a “greenish looking, teal colored” beachcomber or old-time bicycle. Mr. Smith told them he understood he would “probably be a suspect in this.”
On the morning of December 8, 2007, Captain Guthrie viewed the video recording from the Walmart parking lot cameras that had been provided by Ethan Highers, an asset protection associate for the Murfreesboro Walmart. The video recording included the Walmart parking lot activity on December 6, 2007. According to Captain Guthrie, the video showed a near collision between Mrs. Smith‘s Lincoln Navigator and another vehicle at approximately 2:24 p.m. and showed the Lincoln Navigator pulling into the parking space in which it was eventually found.
Captain Guthrie said that the video recording revealed that someone rode away on a bicycle similar in style to the bicycle he had observed in Mr. Smith‘s garage. Captain Guthrie described the bicycle rider as “an older person” and said that Mr. Smith “came to mind” as he viewed the video recording.
Mr. Smith came to the police department on the morning of December 8, 2007, to be interviewed, and Captain Guthrie showed the Walmart video recording to Mr. Smith. When asked if he recognized the person riding the bicycle, Mr. Smith responded that he did not. Captain Guthrie finished the interview and obtained consent to search Mr. Smith‘s home. Later that same day, Captain Guthrie conducted a search of the Smith home. Captain Guthrie took the bicycle from the garage because it was similar to the bicycle seen in the Walmart video. He also collected several dark-colored baseball caps and a tan jacket, which he described as similar to the clothing worn by the person riding the bicycle.
Captain Guthrie acknowledged that he could not determine the exact color of the bicycle in the video recording, which he had described as teal or green in his report, or whether it was the bicycle found in Mr. Smith‘s garage. Similarly, Captain Guthrie could not confirm if one of the baseball caps or the tan jacket taken from Mr. Smith‘s home during the search was worn by the person riding the bicycle in the video. He added that the Smith home was approximately six and one-half miles from the Walmart on Rutherford Boulevard and that the person riding the bicycle did not appear to be a woman. Captain Guthrie testified that an eyewitness saw the appellant riding the bicycle.
Detective Michael Taylor
On the evening of December 6, 2007, Detective Michael Taylor of the Murfreesboro Police Department was also informed of Mrs. Smith‘s disappearance and spoke
At about 6:00 a.m. on December 7, 2007, Detective Taylor learned that Mrs. Smith‘s Lincoln Navigator had been located in the Walmart parking lot. He met with Captain Guthrie at that location. Detective Taylor said that the vehicle was parked in a somewhat obscure location between two Budget rental trucks and that he did not believe a person going shopping would have parked there.
Detective Taylor watched the video recording of the parking lot along with other officers. He was present when Mr. Smith and family members came to the police station to watch the video recording on December 8, 2007. Mr. Smith identified Mrs. Smith‘s vehicle but could not identify the driver of the vehicle or the person riding the bicycle. Detective Taylor accompanied Captain Guthrie to the Smith home that evening to conduct the search.
On December 10, 2007, Detective Taylor interviewed Leah Talbert, who was identified as the owner of the vehicle that almost collided with the Lincoln Navigator in the parking lot. Ms. Talbert was shopping with her fiancé at the Walmart on Rutherford Boulevard on December 6, 2007. Ms. Talbert told Detective Taylor that her fiancé was driving her vehicle and that as they entered the Walmart parking lot, her vehicle was traveling behind what she believed was a white sport utility vehicle (SUV). The driver of the SUV began to enter a parking space but abruptly steered the vehicle back into Ms. Talbert‘s line of travel. Ms. Talbert‘s fiancé quickly stopped the vehicle to avoid hitting the SUV. Ms. Talbert told her fiancé not to honk the car horn because the driver of the SUV was an older man. She further explained that as they passed the SUV, she made eye contact with the other driver, whom she described as “an older man, probably in his 60s or so,” with large-framed glasses and a “kinda” oval face with a chin that “came out from his face a little bit.” According to Ms. Talbert, the man looked “well put together.” Ms. Talbert‘s fiancé parked the car, and they went into the Walmart.
During the interview, Detective Taylor showed Ms. Talbert an array of photographs, and she identified Mr. Smith as the driver of the SUV. Ms. Talbert said that she had not seen Mr. Smith before the parking lot encounter and had not seen him on news broadcasts prior to viewing the photograph array. Ms. Talbert gave a written statement to police in which she acknowledged that she had described the driver of the SUV as probably in his late 50s or 60s and “skinny.” Ms. Talbert told Detective Taylor that the driver had gray hair parted to the side. She saw the driver of the SUV for only a short time but made eye contact with him as they passed.
Detective Taylor recalled that during the investigation a green mountain bike was found within a couple of miles of the Walmart. He explained, however, that the mountain bike was not in riding condition and had handlebars that were different from the bicycle seen in the video recording. Detective Taylor could not confirm that any of the clothing recovered during the search of the Smith home was worn by the person on the bicycle. He acknowledged that paint scrapings from the bicycle found in Mr. Smith‘s garage did not match paint scrapings taken from the Lincoln Navigator. Detective Taylor agreed that Mr. Smith had indicated that he suffered from a heart condition and had had
Major James Gage
Major James Gage of the Murfreesboro Police Department was informed of Mrs. Smith‘s disappearance at about 6:00 p.m. on December 6, 2007. Major Gage learned on December 7, 2007, that Mrs. Smith‘s vehicle been located at the Walmart parking lot. At approximately 4:00 p.m. on December 7, Major Gage accompanied Captain Guthrie to the Smith home. He also recalled that Mr. Smith asked them to leave because some neighbors were visiting and he wanted to enjoy their company.
Major Gage said that he and Captain Guthrie returned later on December 7, 2007, to interview Mr. Smith. Mr. Smith told them that his wife left the previous day at about 1:30 p.m. to shop and had $300 to $500 with her. Major Gage also noticed a bicycle in the garage.
The following morning, December 8, 2007, Mr. Smith, his daughter, and his son-in-law came to the police department to be interviewed. While Captain Guthrie and Detective Taylor were interviewing Mr. Smith‘s daughter, Major Gage overheard Mr. Smith and his son-in-law having a “stern talk” about money. Confronted by Major Gage, Mr. Smith admitted that his wife could have had $10,000 with her. Major Gage said that Mr. Smith told him he lied about the money because he failed to report the income from rental property to the Internal Revenue Service. Finally, Major Gage acknowledged that he did not check Mr. Smith‘s medical history, and he could not confirm that the bicycle taken from Mr. Smith‘s garage was the same bicycle seen in the Walmart video recording.
The jury convicted Mr. Smith on counts one and two of fabricating evidence and on counts three through eight, all of which alleged that Mr. Smith initiated or made a false report. The trial court imposed concurrent sentences for each of the counts as follows: four years, six months for counts one and two; three years for counts three, four, and five; four years, six months for count six; and three years for counts seven and eight, with a resulting sentence of one year in jail followed by six years on probation. The trial court merged count two into count one and counts four and five into count three. At a subsequent hearing on Mr. Smith‘s motion for judgment of acquittal or new trial, the trial court dismissed counts one and two, concluding that no investigation was “pending” when Mr. Smith parked Mrs. Smith‘s vehicle at the Walmart parking lot. The trial court, however, affirmed the remaining convictions. The State appealed the trial court‘s acquittal on counts one and two. Mr. Smith appealed the trial court‘s denial of his motion for a new trial on counts three through eight.
The Court of Criminal Appeals held that the trial court erred by partially granting the motion for judgment of acquittal or new trial, reinstated Mr. Smith‘s convictions for fabricating evidence, and affirmed the merger and sentence. The intermediate appellate court dismissed as multiplicitous counts four and five and affirmed the remaining convictions and sentences in counts six through eight. We granted Mr. Smith permission to appeal.
II. Analysis
In this appeal, we are primarily concerned with Mr. Smith‘s contentions that the Court of Criminal Appeals erred by reinstating his two convictions for fabricating evidence and by failing to merge into one conviction his six charges for filing or
A. Fabricating Evidence
We first consider Mr. Smith‘s argument that the Court of Criminal Appeals erred by reinstating his convictions for fabricating evidence under
(a) It is unlawful for any person, knowing that an investigation or official proceeding is pending or in progress, to:
(1) Alter, destroy, or conceal any record, document or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; or
(2) Make, present, or use any record, document or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.
The Court of Criminal Appeals rejected the trial court‘s interpretation of Callahan and construed the term “pending” as it appears in
Because this is an issue of statutory interpretation, we are presented with
In section 39-16-503, the terms “pending” and “in progress” are used as adjectives to describe the investigation or official proceeding. Those terms are not defined in the statute.
On November 1, 1989, our General Assembly enacted a new criminal code that in large part adopted the American Law Institute‘s Model Penal Code. A significant portion of the Tennessee Criminal Code, however, was adopted from the Texas derivation of the Model Penal Code. See State v. Ducker, No. 01C01-9704-CC-00143, 1999 WL 160981, at *16 n. 10 (Tenn.Crim.App. Mar. 25, 1999). The Model Penal Code and the Texas Penal Code vary in their definitions of the offense of tampering with or fabricating evidence. The Model Penal Code defines the offense as follows:
A person commits a misdemeanor if, believing that an official proceeding or investigation is pending or about to be instituted, he:
(1) alters, destroys, conceals or removes any record, document or thing with purpose to impair its verity or availability in such proceedings or investigation; or
(2) makes, presents or uses any record, document or thing knowing it to be false and with purpose to mislead a public servant who is or may be engaged in such proceeding or investigation.
Model Penal Code § 241.7 (1985) (emphasis added). The Model Penal Code‘s use of the alternative terms “pending” or “about to be instituted” indicates that the terms were not meant to be synonymous and evinces the drafters’ intent to punish conduct that meets either description. The Texas Penal Code, in contrast, provides that:
(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:
(1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; or
(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.
As an issue of first impression, we find it helpful to look to other jurisdictions to determine the meaning of “pending” or “in progress.” Cooper v. Glasser, 419 S.W.3d 924, 927 (Tenn.2013). In Lumpkin, the Texas Court of Appeals, in construing the Texas fabricating evidence statute, acknowledged that a recognized definition of “pending” is “remaining undecided; awaiting decision or settlement; unfinished.” 129 S.W.3d at 663 (quoting Random House Webster‘s Unabridged Dictionary 1433 (2d ed.2001)). The Texas court recognized, however, that this definition of “pending” would create a redundancy in the statute. Id. As the court noted, “one of the cardinal principles of statutory construction is that we generally presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible.” Id. The Lumpkin court therefore determined that the term “pending” within the Texas fabricating evidence statute means “impending, or about to take place.” Id.
Because Tennessee adopted the Texas version of the Model Penal Code, we find the reasoning in Lumpkin persuasive. We also employ the rule of statutory construction in which we presume that “every word in a statute has meaning and purpose and should be given full effect if so doing does not violate the legislature‘s obvious intent.” Casper, 297 S.W.3d at 683. We are likewise unable to conclude that the General Assembly intended to define the term “pending” in a manner that would be redundant with the alternative term “in progress.” We therefore hold that the term “pending” in
We now consider whether the evidence is sufficient to support Mr. Smith‘s convictions for fabricating evidence under this statutory interpretation. When an accused challenges the sufficiency of the evidence, this Court‘s standard of review is whether after considering the evidence in the light most favorable to the State, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also State v. Goodwin, 143 S.W.3d 771, 775 (Tenn.2004). This standard applies whether the finding of guilt is based on direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. State v. Majors, 318 S.W.3d 850, 857 (Tenn.2010) (citing Casper, 297 S.W.3d at 683).
The State concedes that the evidence supporting Mr. Smith‘s convictions for fabricating evidence is largely circumstantial. Circumstantial evidence is sufficient to sustain a defendant‘s conviction even if the evidence does not “remove every reasonable hypothesis except that of guilt.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn.2011) (quoting United States v. Kelley, 461 F.3d 817, 825 (6th Cir.2006)). The evidence presented, however, must be sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. State v. Cooper, 736 S.W.2d 125, 129 (Tenn.Crim.App.1987).
In determining the sufficiency of the evidence, this Court should not reweigh or reevaluate the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn.1999). Nor may this Court substitute its inferences for those drawn from the evidence by the trier of fact. Id. The trial judge and jury have the benefit of hearing the testimony of witnesses and of observing witness demeanor. Bolin v. State, 219 Tenn. 4, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523, 527 (1963)). We therefore defer to the determinations made by the trier of fact concerning witness credibility, factual findings, and the weight or value given to the evidence. State v. Bland, 958 S.W.2d 651, 659 (Tenn.1997). When a jury renders a guilty verdict that is approved by the trial court, all conflicts are resolved in favor of the State, and we accredit the testimony of the State‘s witnesses. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978) (quoting State v. Grace, 493 S.W.2d 474, 476 (Tenn.1973)).
This Court must afford the State the strongest legitimate view of the evidence contained in the record as well as all reasonable inferences that may be drawn from the evidence. Jackson, 443 U.S. at 319; Goodwin, 143 S.W.3d at 775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn.2000)). Because a verdict of guilt against a defendant removes the presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.2000).
Specifically at issue in count one is whether the evidence is sufficient to prove that Mr. Smith knew an investigation was pending and “present[ed] or use[d]” Mrs. Smith‘s vehicle at the Walmart parking lot with knowledge of its falsity and with the intent to affect the course or outcome of the investigation into Ms. Smith‘s disappearance.
The trial testimony revealed that Mr. Smith contacted the police dispatcher on the evening of December 6, 2007, to report that his wife was possibly missing. Mr. Smith told the dispatcher that Mrs. Smith may have gone Christmas shopping at the Walmart on Rutherford Boulevard. Officer Norton drove through the Walmart parking lot that evening but did not see Mrs. Smith‘s vehicle, a Lincoln Navigator. The vehicle was located the next morning in the Walmart parking lot parked between two Budget rental trucks.
A video recording from the Walmart security camera showed the Lincoln Navigator pulling into the parking space between the two trucks at approximately 2:24 p.m. on December 6, 2007. The video
Accrediting the State‘s witnesses and affording the State the strongest legitimate view of the evidence, we conclude that the jury reasonably could have inferred from this evidence that Mr. Smith set the investigation in motion by initiating the missing person report to the police dispatcher. Mr. Smith therefore knew that an investigation was “impending” when he drove the Lincoln Navigator to the Walmart parking lot at 2:24 p.m. on December 6 with plans to subsequently report his wife‘s disappearance.
We further conclude that the jury could have reasonably inferred that Mr. Smith drove Mrs. Smith‘s Lincoln Navigator to the Walmart parking lot where he “presented” and “used” the vehicle with the intent to affect the course or outcome of the investigation into his wife‘s alleged disappearance, knowing that the vehicle‘s presence at Walmart had nothing to do with her disappearance.
Whether Mr. Smith “altered” or “concealed” the vehicle with the intent to impair its verity or availability as evidence presents a closer question. “Conceal” means “to prevent disclosure of” a thing or “to place [a thing] out of sight.” State v. Hawkins, 406 S.W.3d 121, 132 (Tenn.2013) (quoting Majors, 318 S.W.3d at 859). The Walmart video recording supports the inference that the driver of Mrs. Smith‘s SUV made a conscious decision to park between the two rental trucks. Officer Norton patrolled the Walmart parking lot on the evening of December 6 and did not see Mrs. Smith‘s vehicle that was parked between the two trucks at the time of his patrol. Detective Taylor said that the vehicle was parked in a somewhat obscure location and that he did not believe a person going shopping would have parked there.
We agree that the evidence does not support an inference that Mr. Smith parked the vehicle between the two rental trucks to prevent its disclosure. Indeed, Mr. Smith suggested to Officer Bobby Edwards that Mrs. Smith may have gone shopping at the Walmart on Rutherford Boulevard. It was reasonable, however, for the jury to infer that Mr. Smith parked Mrs. Smith‘s vehicle “out of sight” in a remote area of the parking lot to impair its verity or truthfulness. In other words, the location of the vehicle raised additional questions as to how or when Mrs. Smith disappeared from the Walmart parking lot. In our view, this evidence posed a fact question that the jury resolved against Mr. Smith.
Accordingly, we hold that there is sufficient evidence for a rational trier of fact to conclude beyond a reasonable doubt that Mr. Smith fabricated evidence as charged in counts one and two of the superseding indictment. We therefore affirm the Court of Criminal Appeals’ reinstatement of the convictions and its affirmation of the merger of the alternative counts one and two.
B. Multiplicity/Unit of Prosecution
We next consider Mr. Smith‘s contention that the six counts of making or
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, provides that no person shall be put in jeopardy of life and limb twice for the same offense.
Mr. Smith‘s case falls within the third category—protection against multiple punishments for the same offense in a single prosecution. In these cases, the double jeopardy prohibition against multiple punishments functions to prevent prosecutors from exceeding the legislatively authorized punishment. State v. Watkins, 362 S.W.3d 530, 542 (Tenn.2012).
In Watkins, this Court restructured Tennessee‘s double jeopardy analysis in single prosecution cases. Id. at 556 (abrogating the previous Denton rule).6 In single prosecutions, multiple-punishment claims fall into one of two categories: (1) “unit-of-prosecution” claims or (2) “multiple description” claims. Id. at 543.
Unit-of-prosecution claims result when a defendant who has been convicted of multiple violations of the same statute asserts that the multiple convictions are for the same offense. Id. In contrast, multiple description claims arise when a defendant who has been convicted of multiple criminal offenses under different statutes alleges that the statutes punish the same offense. Id. at 544. In this instance, we are presented with both types of claims. Mr. Smith has been convicted in counts three through eight of violating subsections (a)(1), (a)(2), and (a)(3) of
We first examine the multiple description claim to determine whether subsections (a)(1), (a)(2), and (a)(3) define the same offense.7 Section 39-16-502 provides that
(a) It is unlawful for any person to:
(1) Initiate a report or statement to a law enforcement officer concerning an offense or incident within the officer‘s concern knowing that:
(A) The offense or incident reported did not occur; or
(B) The person has no information relating to the offense or incident reported; or
(C) The information relating to the offense reported is false; or
(2) Make a report or statement in response to a legitimate inquiry by a law enforcement officer concerning a material fact about an offense or incident within the officer‘s concern, knowing that the report or statement is false and with the intent to obstruct or hinder the officer from:
(A) Preventing the offense or incident from occurring or continuing to occur; or
(B) Apprehending or locating another person suspected of committing an offense; or
(3) Intentionally initiate or circulate a report of a past, present, or impending bombing, fire or other emergency, knowing that the report is false or baseless and knowing:
(A) It will cause action of any sort by an official or volunteer agency organized to deal with those emergencies;
(B) It will place a person in fear of imminent serious bodily injury; or
(C) It will prevent or interrupt the occupation of any building, place of assembly, form of conveyance, or any other place to which the public has access.
Because the legislature did not express a clear intent in
We must next consider the unit-of-prosecution claim to determine whether Mr. Smith‘s two convictions under subsection (a)(1) and his three convictions under subsection (a)(2) violate double jeopardy.8 Generally, we do not apply the Blockburger test when addressing a unit-of-prosecution claim. Watkins, 362 S.W.3d at 543. Instead, we must identify the legislature‘s intended focus as to the single unit of conduct for purposes of conviction and punishment. Watkins, 362 S.W.3d at 543 (quoting George C. Thomas, A Unified Theory of Multiple Punishment, 47 U. Pitt. L.Rev. 1, 11 (1985)); State v. Green, 38 Kan.App.2d 781, 172 P.3d 1213, 1217 (2007) (recognizing that the courts must “ask how the legislature has defined the scope of conduct composing one violation of the statute“) (quoting State v. Harris, 284 Kan. 560, 162 P.3d 28 (2007)); State v. Mata, 321 P.3d 291, 295-96 (Wash.Ct.App.2014) (recognizing that the relevant inquiry is “to determine what act or course of conduct the legislature has defined as the punishable act“).
In determining the unit of prosecution, we first examine the statute in question to determine if the statutory unit of prosecution has been expressly identified. Mata, 321 P.3d at 296. Next, we review the history of the statute. Id. Finally, we perform a factual analysis as to the unit of prosecution. Id. If there is ambiguity or uncertainty in defining the unit of prosecution, the “rule of lenity” requires the ambiguity to be resolved in favor of the defendant. Watkins, 362 S.W.3d at 543; State v. Lewis, 958 S.W.2d 736, 739 (Tenn.1997).
We have examined
In State v. Levandowski, this Court construed the previous version of
It is unlawful for any person to:
(1) Report to a law enforcement officer an offense or incident within the officer‘s concern:
(A) Knowing the offense or incident did not occur; or
(B) Knowing the person reporting has no information relating to the offense or incident; or
(C) Knowing the information relating to the offense is false; or
(2) Intentionally initiate or circulate a report of a past, present, or impending bombing, fire, or other emergency, knowing that the report is false or baseless and knowing:
(A) It will cause action of any sort by an official or volunteer agency organized to deal with those emergencies; or
(B) It will place a person in fear of imminent serious bodily injury; or
(C) It will prevent or interrupt the occupation of any building, place of assembly, form of conveyance, or any other place to which the public has access.
Our Court of Criminal Appeals had reached a similar conclusion in its resolution of the Levandowski appeal. Levandowski, No. 03C01-9503-CR-00076, 1996 WL 315807 (Tenn.Crim.App. June 5, 1996). Like this Court, the Court of Criminal Appeals focused on the manner in which the report was communicated. Id. at *9-10. The Court of Criminal Appeals, however, examined the previous legislation, drafts, and comments from which section 39-16-502 derived to determine the purpose behind the false reporting statute. Id. at *8-9. The Sentencing Commission Comments, for example, indicate that the Commission believed the offense was necessary because “false reports can jeopardize public safety and order, and compromise the efficient allocation of scarce law enforcement resources.” Id. at *8 (recognizing that section 39-16-502 is a derivation of the 1973 Draft Section 39-2209(a) and was similar to
Our decision in Levandowski prompted the General Assembly to amend section 39-16-502 in 1998 to its current form. Both the House and Senate sponsors of their respective bills explained that the legislation was introduced in response to Levandowski.9 During the discussion of Senate Bill 2188 on the Senate floor, Senator Ron Ramsey told the members that
From these comments during the legislative debate of
Because of this ambiguity within the statute, the rule of lenity mandates an interpretation that the legislature did not intend multiple punishments for multiple counts under this same statutory section. See State v. Marshall, 319 S.W.3d 558, 563 (Tenn.2010). We therefore conclude that the unit of prosecution in subsection (a)(1) is the initiation of a false report or statement concerning an incident or offense and that subdivisions (a)(1)(A) through (C) are merely alternative means of violating subsection (a)(1). We similarly conclude that the unit of prosecution in subsection (a)(2) is making a false report or statement in response to a legitimate inquiry by a law enforcement officer concerning an offense or incident and that subdivisions (a)(2)(A) and (B) provide alternative means of violating subsection (a)(2).11
When a defendant is charged with multiple counts under the same subsection
Before we consider whether the multiple counts under subsections (a)(1) and (a)(2) are multiplicitous in this case, we first examine the sufficiency of the evidence in counts three through eight under our standard discussed previously. In doing so, we find it useful to consider the counts in chronological order.
Count Six
Count six of the indictment alleged that on December 6, 2007, Mr. Smith initiated a report of a present or impending emergency, knowing that the report was false or baseless and knowing that it would cause action of any sort by an official or volunteer agency organized to deal with those emergencies. According to the State, the factual basis of count six was Mr. Smith‘s report to dispatcher John Flynt of the Murfreesboro Police Department.
It cannot reasonably be disputed that Mr. Smith initiated the report when he called Mr. Flynt at 6:00 p.m. on December 6, 2007. The jury heard Mr. Flynt‘s testimony that the call was received on a non-emergency line but that Mr. Flynt considered it to be an emergency because of Mrs. Smith‘s reported medical condition. The jury obviously chose to accredit Mr. Flynt‘s testimony and made its own determination that the report was about a present emergency. Further, Mr. Flynt‘s testimony in combination with the testimony regarding Mr. Smith‘s alleged fabrication of evidence permitted the jury to reasonably infer that Mr. Smith knew the report to the dispatcher was false or baseless. Mr. Smith drove Mrs. Smith‘s Lincoln Navigator to the Walmart parking lot at approximately 2:30 p.m. and therefore knew that Mrs. Smith was not driving her vehicle as reported.
Finally, Mr. Smith knew that his report would cause an agency response. Mr. Flynt told Mr. Smith that he would send an officer to speak with him and complete a missing persons report. Mr. Smith responded, “[Y]eah, I was going to ask you, what can you do for me. Will you look for her or what ... ?” In response, Mr. Flynt told Mr. Smith that the officers would look for Mrs. Smith while on patrol. Mr. Smith responded that if Mr. Flynt sent someone, “I would be glad to talk with them.” We conclude that the evidence was sufficient to support Mr. Smith‘s conviction in count six.
Counts Three and Four
Count three of the indictment alleged that Mr. Smith “initiate[d] a statement” to Officer Edwards on December 6, 2007, “knowing that the information relating to the offense was false.” (Emphasis added). Count four alleged that Mr. Smith “initiated a statement” to Officer Edwards on December 6, 2007, “knowing that the offense did not occur.” (Emphasis added). The State described count four as an “alternative count” based on the
The State argues that Mr. Smith initiated the statement or report to Officer Edwards about his missing wife. The 911 recording, which was played for the jury, revealed that Mr. Smith initiated the report by calling Mr. Flynt. During the 911 call, Mr. Flynt told Mr. Smith that he would send someone out to speak with him. Mr. Smith responded with appreciation and said that he would be glad to speak with an officer. Mr. Smith then said he did not want to leave the house in the event Mrs. Smith tried to call. Officer Edwards went to the Smith residence in response to the report initiated by Mr. Smith to follow up on Mr. Smith‘s report that his wife was missing.
Without question, Mr. Smith initiated the report to Mr. Flynt. We cannot conclude, however, that Mr. Smith “initiated” the statement to Officer Edwards as contemplated by subsection (a)(1). Instead, the testimony reveals that Mr. Smith repeated the statement in response to Officer Edwards’ “legitimate inquiry” into Mr. Smith‘s report that his wife was missing. Accordingly, we conclude that the evidence is insufficient to support counts three and four, and we therefore dismiss both of these counts.
Counts Five, Seven, and Eight
Mr. Smith was charged in counts five, seven, and eight of the indictment with violations of subsection (a)(2). Count five alleged that Mr. Smith “knowingly ma[d]e a false statement in response to a legitimate inquiry” from Officer Edwards on December 6, 2007.13 Count seven alleged that Mr. Smith “knowingly ma[d]e a [false] statement in response to a legitimate inquiry” from Major Gage on December 7, 2007.14 Finally, count eight alleged that Mr. Smith “knowingly ma[d]e a [false] statement in response to a legitimate inquiry” from Detective Taylor on December 8, 2007.15
As to count five, the testimony revealed that Officer Edwards arrived at the Smith home in response to Mr. Flynt‘s dispatch to inquire into Mrs. Smith‘s disappearance. Mr. Smith told Officer Edwards that Mrs. Smith left their residence
We conclude that the jury could have inferred from this evidence that Mr. Smith gave his statement in response to Officer Edwards’ legitimate inquiry about Mrs. Smith. Based on the additional testimony concerning the charges of fabricating evidence, the jury reasonably could have inferred that Mrs. Smith‘s disappearance did not occur as Mr. Smith reported and that the information he provided to Officer Edwards was false. Finally, the evidence was sufficient to show that Mr. Smith made the false statement with the intent to obstruct or hinder the officer from preventing the offense or incident from occurring or continuing to occur.
The testimony relating to count seven revealed that Mr. Smith told Major Gage that his wife left to go shopping about 1:30 p.m. and had $300 to $500 with her. The testimony establishes that Mr. Smith made these statements in response to Major Gage‘s inquiry and that Mr. Smith‘s statements also related to the investigation into Mrs. Smith‘s disappearance. The primary variance between Mr. Smith‘s statements concerned the amount of money Mrs. Smith allegedly carried with her. Again, viewing this testimony in conjunction with the testimony concerning the charges of fabricating evidence, the jury reasonably could have inferred that the statements to Major Gage were false and were made with the intent to obstruct or hinder the officer from preventing the offense or incident from continuing to occur. We therefore conclude that the evidence is sufficient to support Mr. Smith‘s conviction in count seven.
The testimony supporting count eight revealed that Detective Taylor showed Mr. Smith the video recording from Walmart. When Detective Taylor asked Mr. Smith if he knew who was driving the Lincoln Navigator or who was riding away on the bicycle, Mr. Smith responded that he did not. The jury reasonably could have inferred from the evidence presented at trial that Mr. Smith drove the Lincoln Navigator to Walmart and rode away on the bicycle. Believing this evidence, the jury had a basis from which to infer that Mr. Smith‘s statement to Detective Taylor was false and that it was made with the intent to hinder the officer from preventing the incident from continuing to occur. We therefore conclude that the evidence presented at trial was sufficient to support Mr. Smith‘s conviction in count eight.
Having reviewed the sufficiency of the evidence, we now consider whether counts three through eight are multiplicitous. Count six is a single charge under subsection (a)(3) and therefore poses no multiplicity issue. Having concluded that the evidence is insufficient to support counts three and four, we have dispensed with the potential multiplicity issue presented by those claims under subsection (a)(1). Finally, as to counts five, seven, and eight, we note that the three false reports or statements were made to three different law enforcement officers on three different days. We recognize that each report contained some fact not discussed
C. Sentencing
In light of our dismissal of counts three, four, seven, and eight, we find it appropriate to briefly address Mr. Smith‘s challenge to the length and manner of service of his sentence.
Following a sentencing hearing on June 1, 2010, the trial court determined that under
The trial court imposed a sentence of split confinement, Smith, 2012 WL 2674524, at *23 (recognizing that split confinement is an alternative sentence), and ordered Mr. Smith to serve one year in the local jail followed by six years on probation. The trial court ordered restitution to the Murfreesboro Police Department and to the Tennessee Bureau of Investigation.
The Court of Criminal Appeals conducted an exhaustive de novo review of the length, range, and manner of service of Mr. Smith‘s sentence. Smith, 2012 WL 2674524, at *19-23. In doing so, the intermediate appellate court also addressed Mr. Smith‘s argument that he is entitled to full probation. Id. at *23 (noting that whether an appellant is entitled to an alternative sentence and whether an appellant is entitled to full probation are different inquiries). Following its review, the court affirmed the sentence imposed by the trial court.
The de novo review conducted by the Court of Criminal Appeals preceded the release of our opinions in State v. Bise, 380 S.W.3d 682 (Tenn.2012), and State v. Caudle, 388 S.W.3d 273 (Tenn.2012). In Bise, we held that “sentences imposed by the trial court within the appropriate statutory range are now to be reviewed under an abuse of discretion standard with a ‘presumption of reasonableness.‘” 380 S.W.3d at 708. In Caudle, we extended the Bise standard to questions related to probation or any other alternative sentence. 388 S.W.3d at 278-79.
We have reviewed the sentencing hearing transcript and the Court of Criminal Appeals’ analysis in light of the Bise and Caudle standards and conclude that the trial court did not abuse its discretion in its imposition of Mr. Smith‘s sentence. We further conclude that our dismissal of counts three and four based on the insufficiency of the evidence and our dismissal of counts seven and eight as multiplicitous do not warrant modification of the sentence imposed by the trial court. The trial court correctly ordered the sentences to run concurrently, and the length of Mr. Smith‘s sentence is therefore unaffected by the dismissal of these counts. Accordingly, we
III. Conclusion
We conclude that the term “pending” used in
JANICE M. HOLDER
JUSTICE