STATE of Tennessee v. Wanda F. RUSSELL.
Supreme Court of Tennessee, at Nashville.
Oct. 1, 2012.
June 13, 2012 Session.
Regarding
For the reasons stated, we affirm the holding of the Court of Appeals reversing the judgment of the trial court, and the cause is dismissed. Costs of this appeal are assessed to the appellant, Curtis Myers, and his surety, for which execution may issue if necessary.
Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor General; Lacy Elaine Wilber, Assistant Attorney General, for the appellee, State of Tennessee.
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.
A defendant was indicted on four counts of theft. At trial, the trial court ruled that the defendant‘s prior misdemeanor convictions for passing worthless checks were admissible to impeach her credibility pursuant to Tennessee Rule of Evidence 609, which states that a conviction punishable by less than one year of imprisonment is admissible if the crime involves dishonesty or false statement. See
I. Facts and Procedural History
Wanda F. Russell was an assistant manager at a McDonald‘s restaurant in Smyrna, Tennessee. One of the assistant manager‘s responsibilities was to tally the amount of cash received during her shift and deposit the cash in the bank. Prior to depositing the cash, the assistant manager prepared a deposit slip reflecting the tally, recorded the amount of the bank deposit in a deposit log maintained at the restaurant, and placed both the deposit and the deposit slip into a deposit bag.
On August 2, 2007, the deposit log showed that Ms. Russell made a deposit of $2,212.00. Ms. Russell told Mark Pelletier, the restaurant owner, that she placed the deposit in the night deposit box at the bank. Bank records, however, did not reflect receipt of the deposit.
On August 30, 2007, Ms. Russell prepared a deposit in the amount of $1,651.34. The deposit bag was not sealed, and another employee took the bag to the bank for deposit. The bank issued a receipt for the amount of $352.34, which was $1,299.00
On October 4, 2007, the restaurant‘s deposit log listed a deposit of $2,309.05 made by Ms. Russell. Ms. Russell told Mr. Pelletier that she placed the deposit in the bank‘s night deposit box. The bank, however, had no record of receipt of the deposit.
On October 10, 2007, the restaurant‘s deposit log reflected that Ms. Russell made a deposit of $1,893.85 in the night deposit box. Bank records did not show receipt of the deposit. Mr. Pelletier subsequently terminated Ms. Russell‘s employment on October 11, 2007.
A grand jury indicted Ms. Russell on four counts of theft over $1,000 but less than $10,000 pursuant to
After the close of the State‘s proof, the trial court considered the State‘s motion to introduce Ms. Russell‘s convictions for passing worthless checks for impeachment. Ms. Russell argued that a conviction for passing worthless checks does not necessarily show fraud or dishonesty. See Tenn. R. Evid. 609(a)(2). Ms. Russell also argued that the prejudicial effect of the evidence of her prior convictions for passing worthless checks outweighed its probative value. See Tenn. R. Evid. 609(a)(3).
The trial court ruled that passing worthless checks was a crime of dishonesty and therefore was admissible to impeach Ms. Russell pursuant to Tennessee Rule of Evidence 609(a)(2). In addition, the trial court held that the probative value of the evidence as to Ms. Russell‘s credibility outweighed the prejudicial effect of the evidence on the substantive issues. See Tenn. R. Evid. 609(a)(3). Ms. Russell elected not to testify and called no witnesses on her behalf.
The jury convicted Ms. Russell of three of the four counts of theft. On each count, the trial court sentenced Ms. Russell to three years as a Range I offender. The trial court ordered each of the sentences to be served concurrently, suspending service of the sentence after ninety days, and sentenced Ms. Russell to three years of probation following release from custody. In addition, Ms. Russell was ordered to pay restitution to Mr. Pelletier in the amount of $2,212.00 for count one, $2,309.05 for count three, and $1,893.85 for count four of the indictment.
Ms. Russell appealed, and the Court of Criminal Appeals affirmed the trial court. State v. Russell, No. M2010-00852-CCA-R3-CD, 2011 WL 2671229, at *3-4 (Tenn. Crim.App. July 7, 2011). We granted Ms. Russell permission to appeal.
II. Analysis
A witness may be impeached by evidence of a prior conviction of a crime if the crime involves dishonesty or false statement or if the crime is punishable by death or by one year or more in prison. Tenn. R. Evid. 609(a)(2). Ms. Russell‘s convictions for passing worthless checks were class A misdemeanors, punishable by less than one year in prison. See
We examine the elements of the crime rather than the circumstances sur
The offense of passing worthless checks is committed when a person either
with fraudulent intent or knowingly ... passes a check ... knowing at the time there are not sufficient funds ... on deposit ... for the payment in full of the check ... or [s]tops payment on a check ... provided, that the ... goods or services were as represented at the time of the issuance of the check....
There are a number of ways to commit the offense of passing worthless checks. A person who commits the offense of passing worthless checks with “fraudulent intent” satisfies the “dishonesty” requirement of Tennessee Rule of Evidence 609(a)(2). Similarly, a person who passes a check knowing that there are insufficient funds to pay the check has made a misrepresentation to the payee and therefore meets the requirement of “dishonesty or false statement.” Tenn. R. Evid. 609(a)(2). Finally, a person who cancels a check with knowledge that the goods or services received were as represented at the time the check was issued has knowingly failed to pay for those goods or services. Knowingly canceling payment for goods or services received when those goods or services were as represented is dishonest.
Ms. Russell argues that a conviction for passing worthless checks could arise from an honest mistake. We recognize that an individual may issue a check in good faith under the mistaken belief that the funds on deposit are sufficient to cover the amount of the check. Mistakenly issuing a check when the funds on deposit are insufficient, however, does not violate
Our opinion in State v. Goad, 707 S.W.2d 846, 851 (Tenn.1986), does not compel a contrary result. The trial court in Goad prohibited the impeachment of a witness‘s testimony with the witness‘s alleged prior offenses of passing worthless checks. In Goad, the trial court found that the proof of the alleged convictions was insufficient. Goad, 707 S.W.2d at 851. We held that the trial court did not abuse its discretion in excluding the evidence. Id. Unlike the offenses at issue in Goad, the existence of Ms. Russell‘s convictions is not in dispute.1
The balancing test in Tennessee Rule of Evidence 609(a)(3) requires a trial court to first assess whether the offense is relevant to the credibility of the accused. State v. Mixon, 983 S.W.2d 661, 674 (Tenn.1999). If the trial court concludes that the offense is relevant to the credibility of the accused, it must also assess whether the crime underlying the impeaching conviction is substantially similar to the charged offense. Waller, 118 S.W.3d at 373; Mixon, 983 S.W.2d at 674 (quoting Neil P. Cohen et al., Tennessee Law of Evidence § 6.09.9, at 376 (3rd ed.1995)). A trial court‘s decision to admit evidence of prior convictions pursuant to Tennessee Rule of Evidence 609 is reviewed under an abuse of discretion standard. Waller, 118 S.W.3d at 371. A trial court abuses its discretion when it applies an incorrect legal standard or reaches a decision that is against logic or reasoning that causes an injustice to the party complaining. Gomez, 367 S.W.3d at 243.
The trial court determined that Ms. Russell‘s prior convictions for passing worthless checks were relevant to her credibility. We agree that Ms. Russell‘s prior convictions involved a crime of dishonesty and are therefore probative of her truthfulness.
As a general rule, evidence of convictions for the same type of crime should be admitted sparingly because of the impression on jurors that if a person committed a crime in the past, he committed the offense for which he is on trial. Long v. State, 607 S.W.2d 482, 486 (Tenn.Crim. App.1980). The risk of a jury improperly considering the impeaching conviction as evidence of the propensity of the defendant to commit the charged offense is greatly increased if the impeaching conviction is substantially similar to the charged offense. Waller, 118 S.W.3d at 373; Mixon, 983 S.W.2d at 674.
Although the record does not include the factual circumstances surrounding her previous convictions for passing worthless checks, the offenses to which Ms. Russell pleaded guilty involved passing a check knowing that the check would not be paid. See
The probative value of Ms. Russell‘s prior convictions is high, and her prior convictions are not substantially similar to the offense for which she is on trial. We therefore cannot conclude that the trial court abused its discretion by finding that the probative value of Ms. Russell‘s convic
III. Conclusion
We hold that the offense of passing worthless checks involves an element of dishonesty and that the trial court did not abuse its discretion in concluding that Ms. Russell‘s convictions for passing worthless checks could be used to impeach her credibility. We affirm the judgment of the trial court. It appearing that Wanda F. Russell is indigent, costs of this appeal are taxed to the State.
Daniel RENTERIA-VILLEGAS et al. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY et al.
Supreme Court of Tennessee, at Nashville.
Oct. 4, 2012.
June 14, 2012 Session.