### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE Jul y 19, 200 6 S es sio n

STA TE OF TEN NES SEE v. JAM ES TIM OTHY TA YLO R

Direc t Appeal from the Circ uit Court for Robertson County No. 04-0315 John H. Gasaway, III , Judge

No. M2005- 01878-CCA -R3-C D - F iled Augu st 25, 2006

The de fenda nt, J ames Timot hy Tay lor, was convicted i n a R obertson C ounty bench trial of one c ount of passing a for g ed che ck, a Class E f elony , and sente nced a s a Rang e I
, s t an d ar d o ff ender to two y ea r s in th e D e p ar tm e n t o f

Co rr e c ti o n

. O n ap p e a l, h e c o n te n d s th a t th e e v id e n c e w a s in s u f f ic ient to sustain his con v i ct i o n an d that the trial court erre d by admitting into evidenc e a c opy of the orig inal chec k. Following our re view, we aff irm the judg ment of the trial c ourt.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

A L AN E. G L EN N , J.
, d e li v e r e d th e o p in io n o f th e c o u r t, in which J O SEP H M. T I PTON , J., a ndJ.S. D ANI EL , S R

. J ., joined.

Charles S. B loodworth, Assistant Publ ic Def ender , Springf

ield, Tenne ssee, f

or the a ppellant, J ames TimothyTay lor.

Pa ul G

. S u m m e r s , At torne y Ge ne ra l a ndRe po rt e r; El iza be th B . M arn e y , A ssi sta nt A tto rn e y Ge ne ra l; J ohn Wesley

Carney , J r., Dist ri ct Attorney Gene ral; and Jason Whi te, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

F AC TS

On J uly 27, 2004, the Robertson County Gra nd J ury

indicted the def

endant on one count of forg ery based on his having passed a stolen unemploy ment chec k at the Westside Phill ips 66 station in Springfie ld. The State’s first witness at t he def endant’ s Fe bruary

9, 2005, trial was the pay ee on the c he c k, Willi a m B us h, who tes ti fi e d th a t he c on ta c te d th e state un e mpl oy me nt o ff ic e wh e n h is unemploy ment check did not appea r in his Springfie ld post office box as schedule d in May 2004. He sa id that the unemploy ment office informed him that the chec k had alr eady been c ashed a nd, at his request, sent him a copy

. Bush testified that the check had been endorsed by a “D avid,” with a la st n a me he c ou ld n ot m ake ou t, a ndpa id b y the “ Wes tsi de 66 , 1 22 0 F if th A ve nu e Wes t” in-2-

Springf ield. He said he had never patronized the s tore, which was located on the opposite side of tow n f ro m w he re he liv e d a t th a t tim e

. He ide nti fi e d a c op y of the c he c k, wh ic h w a s su bs e qu e ntl y admitted for identification. Bush stated that he g ave the copy of the chec k to the Springf ield Police Depa rtment when he filed a r eport on the inc ident. He sa id that, in addition to contacting the police, he also we nt to the Westside 66 store and spoke wit h a man with a foreig n name, who confirme d that the store ha d cashe d the che ck. B ush further testified that he did not know the defe ndant and ha d

never authorized him to cash the che ck.

Mus t afa Al b adra n, the owner and oper ator of the Westside 66 Market, testified that the defe ndant, a reg ular customer of the store, told him the chec k was his a nd g ave it to him as payment for wor k he had pe rfor med on the def endant’ s vehicle. He could not reme mber the e x act c ost of the

re p a ir w o rk b u t r e c a ll e d th a t h e g a v e th e d e f e n d a n t ap p r o xim a te ly $ 9 0 o r $ 1 0 0
, th e diffe renc e betwee n the $189 che ck and the cost of t he automoti ve repair. He said he wa s busy at the time and did not notice that the che ck wa s not made out to the defe ndant. He further stated that the c heck w as alre ady endorse d when the de fendan t gav e i t to him and, other than che cking to see that it was signe d, he did not pay attention to the signature. When que stioned in c ourt, he said that the sig nature appea red to be “Da vid Mc Call” or something simil ar. He identified the defe ndant in the courtroom as t he man who passed him the check and testified t hat he saw him in his store two or thre e times

eac h wee k but k n ew h i m o n l yby the nickname “Gr eedy

Man.” H e said he did not ask to see the de fe nd a nt’ s dr ive r’ s lic e ns e be c a us e the de fe nd a nt wa s a re g ula r c us tom e r a ndhe fe lt c omf orta ble

acc epting his chec k.

Albadra n testified that the first pe rson who later contac ted him a

bout the chec k was B ush, who showed him a c opy

and aske d wher e he had g otten it. He said he did not re cog nize the chec k at that time and told Bush that he would need to c heck w ith his bank. He stated that a police detec tive came to talk to him about the check later that same afte rnoon and the n returne d a sec ond time with a photogr aphic lineup, f rom which he identified the de fenda nt. Albadra n testified he had

no he sit a tio n in ide nti fying the de fe nd a nt, e ith e r fr om the ph oto g ra ph ic lin e up or

in the c ou rt

ro om,
a s the ma n who pa sse d him the c he c k. He state d tha t he ha d lost mon e y tw ic e in c on ne c tio n w ith the incident bec au s e t he bank ha d deducte d the amount of the c heck f rom his acc ount and he wa s also out the cost of the r epair work he perf

ormed on the de fenda nt’s vehicle.

Detec tive David Joy ce of t h e Springf ield Police Depa

rtment testified that whe n he aske d Albadra n if he remembere d the check, he told him that he did and that a man he knew a s “Gre edy Man” ha d g iven it to him as pay ment for some brake work on his car

. Detec tive J oy ce stated that he kn e w the de fe nd a nt’ s nic kn a me wa s “ Gr e e dy Ma n, ” a nd the ne xt d a y he re turne d to the sto re wi th a photog raphic lineup, from which A lbadra n picked out t h e d e f e n d an t’ s p h otogr aph. De tective Joy ce identified the c opy

of the c heck, pr eviously

marke d as Ex hibit A, and said that it wa s a cor rec t copy of the copy that Bush had g iven him. He testified that, be g inning in June, he had a ttempted sever al tim e s to g e t th e or ig ina l c he c k, c a lli ng tw o or thr e e dif fe re nt t e le ph on e nu mbe rs a ndsp e a kin g to s ix to eig ht people at the D epartment of L abor a nd Workforce
, but had been given the “ run ar ound” and

wa s u lti ma te ly

un su c c e ssf

ul. Hea c kn owl edg e d th a t, a s a c on se qu e nc e , h e ha d b e e n u na ble to conduct f inge rprint or ha ndwriting analy sis on the orig inal chec k.-3-

Fr eida B eg arly

testified that she wa s a bene fit auditor with th e Depa rtment of L abor a nd Wor kf or c e De ve lop me nt a ndinv e sti g a te d f ra ud ule nt u ne mpl oy me nt a ndins ur a nc e be ne fi t c la ims

. Acc ording t o h er records, B ush completed a n aff idavit on J une 16, 2004, stating that he had not

rec eived the unemploy ment chec k that had been issued to him on May 31, 2004. Be g arly described the proc edureemploy ed by her of fice in investiga ting fraudulent check claims and said that, a s part of her investigation, she rec eives not the orig inal, but instead a c opy of the c heck from the Tre asury Depa rtment. She testified that the orig inal chec ks are kept for sixtyday s, microfilmed, and the n destroy ed.

Be g arly testified that she re ceive d a copy of the c heck f

rom her supe rvisor, obtained by her from Sheila Johnson, an employ ee of the Cashi er’s Unit whose job responsibilities included obtaining c opies of re quested c hecks. She identified Ex hibit A as a copy of the c heck, w hich had been f axed to her the pre vious day , and s ai d t h at i t wa s identical to the copy of the c heck she had

re c e ive d f

ro m he r s up e rv iso r. At

that po int , r

uli ng that B e g arl y ’s te sti mony wa s su ff ic ie nt t o authenticate the docume nt, the trial court a dmitted Ex hibit A into evidenc e. On cr oss-examination, Be g arly acknow ledg ed that it was not possible to “do a ha ndwriting sample base d on [t he] copy ,” or to tell what color ink ha d been use d to endorse the chec k.

The de fenda nt, testify ing in his own be half, de nied that he had forg ed the chec k, stating tha t he did not know B ush, had no ac cess to his post office box
, d i d n o t know any one by the name of David “N icole,” “ Micole” or “McCall,” a nd had neve r see n the orig inal chec k. He sa id he had not owned a vehicle sinc e 1991 and ha d never had bra ke wor k perf ormed on any one else’s vehicle. H e
s t a t e d
, h o w e v e r , t h a th e w a s w e l l

- a c q u a i n t e d w i t h A l b a d r a n , w h o , a c c o r d i n g t o h i s t e s t i m o n y, reg ularly dealt in stolen property at his store. The de fenda nt testified t h at he had introduced Albadra n to “Robert,” a crack coca ine us er, and that Albadra n usually boug ht any thing that Robert broug ht to him re g ardle ss of whether the prope rty

was stolen. On c ross-examination, the defe ndant acknow ledg ed that he w as known by the nickname “Gr eedy

Man.”

I n rebuttal, the State r eca lled Detec tive J oy ce, w h o testified that he ha d investigated the Westside Phillips 66 more than a y ear prior to trial in conne ction with a re port that the store mig ht contain stolen prope rty

. He stated that he did not , howeve r, find the stolen item in the store or see any o ther items that he be lieved to have been stolen. H e further testified tha t, to his knowledge
, Albadra n was not suspec ted by any one in his department “of be ing a fenc e.”

AN AL YSI S

I. Adm ission of Cop y of Ch eck

The de fenda nt first contends that the trial court err ed in a dmitti ng “a f acsimile of a

photocopy of a micr ofilm” of t he check into evidenc e, arg uing that the S tate’s failure to obtain and produc e the orig inal chec k, which pre cluded him from c onducting fing erprint and handwriting ana ly sis on the document, rende red his trial funda mentally unfair. T he State ar g ues, int e r a lia
, that the trial court proper ly admitted the copy as an authenticated duplicate of the orig inal. We ag ree with the State.-4-

On appe al, the def

endant c ites State v. Fe rg uson, 2 S.W .3d 912 (Tenn. 1999) , among other

case s, to arg ue that the St ate’ s failure to produce the orig inal chec k resulted in a trial that was fundame ntally unfair. Howeve r, we find Fe rg uson inapplicable to the c ase at bar. I n Fe rg uson, our supreme court adopted a balanc ing a pproac h for c ourts to use to determine w hen the State’ s loss or destruction of e vidence has deprived a de fenda nt of his fundamenta l rig ht to a fair trial. I d. at 917. Under t h i s ap proac h, a court must first determine whe ther the State ha d a duty to preser ve the evidenc e. I d. I f so, t h e co u rt next considers sever al fa ctors, including the deg ree of neg lige nce involved in the destruction of the evidenc e and the importance of the e vidence , to determine w hether the missing evide nce r esulted in a trial that wa s fundamenta lly unfair to the de fenda nt. I d.

This case differ s marke dly from the situation in Fe rg uson, in which the evidenc e in questi on
was an ar resting office r’s videota

pe of a defe ndant’s sobriety

test. As a g ener al rule, “ the State has a duty to prese rve all evidenc e subj ect to discovery and ins pection under Tenn. R. Crim. P. 16, or oth e r a pp lic able la w. ” I d. (f

oo tno te omi tte d) . T his inc lud e s “ bo ok s, pa pe rs , d oc ume nts , ph oto g ra ph s, ta ng ibl e ob

je c ts,

. . . w hic h a

re wi thi n th e po sse ssi on , c us tod y or c on tr ol o f the Sta te . . . .” Tenn. R. Crim. P. 16( a)( 1)(C). He re, it wa s undisputed that neither the police department nor the attorne y

g ener al’s office was ever in posse ssion of the orig inal chec k. Moreove r, althoug h the de fe nd a nt su g g e sts oth e rw ise
, the re wa s no ind ic a tio n that D e te c tiv e Joy c e didno t ma ke a g oo d f a ith eff ort to obtain the orig inal, which, as B eg arly explained, was destroy ed by the Tre asury

Depa rtment pu rs ua nt t o r e g ula

r b us ine ss p ra c tic es. Det ect iv e Joy c e te sti fi e d th a t he ma de his fi rs t a tte mpt to ob ta in the or ig ina l c he c k in June 20 04 . T hu s, the re wa s no evi de nc e that he de lib e rate ly de la y e d h is investigation until afte r the c heck ha d been de stroy ed.

Under the Tenne ssee Rules of Evidence
, a “duplicate ,” define d in pa rt as “a copy

produce d by

. . . te c hn iqu e s wh ic h a c c ur a te ly re pr od uc e the or ig ina l,” Te nn . R. Ev id. 10 01 (4 ), “ is a dmi ssi ble to th e s a me e xte n t a s a n o r ig in a l u n le s s a g e n u in e q u e s ti o n is r a is e d a s to th e a u th e n ticity of the

or ig ina l.” Te nn . R. Ev id. 10 03 . We no te that the de fe nd a nt make s no arg ume nt on app e a l a g a ins t the c he c k’ s auth e nti c ity

a ndra ise d n o g e nu ine iss ue a s to its a uth e nti c ity a t tria l, i ns te a d p ri mari ly complaining about the quality of the c opy . I n ruling that the copy was a dmissibl e, the tria l found that Be g arly had the e x pertise, ba ckg round, training , and knowledg e “to testify that the document, . . . marke d as Exhibi t A, is what it is claimed to be and that is a chec k from the De partment of L abor.” We find no err or in this ruling and, there fore
, conclude that the defe ndant is not entitl ed to re lief on this iss ue.

II. Su ff iciency of the Evid ence

The de fenda nt also contends that the e vidence is insufficient to sustain his conviction. Howeve r, he makes no specific arg ument on this issue, instead mere ly ref erring this c ourt to the

rec ord as a whole. The State re sponds by arg uing that the defe ndant has wa ived the issue for failing to provide a r g u me n t o r

c it a ti o n s to th e r e c o r d

. T h e St a te f u r th e r ar g u e s th a t th e tria l c o u r t a cted within its province in acc rediting the testimony of the witnesse s for the State ove r that of the de fe nd a nt.-5-

W e a g r e e t h a t t h e d e f

e n d a n t h a s w a i v e d ap p e l l a t e r e v i e w o f t h i s i s s u e b y h i s fa ilu re to provide a rg ument or appropriate citations to the rec ord. See Te nn. Ct. Crim . App. R. 10(b) (“ I ssues which ar e not supported by arg ument, citation to authorities, or appr opriate r efe renc es to the re cord wi ll b e tr e a te d a s w a ive d in thi s c ou rt .” ); Te nn . R. App . P. 27 (a )( 7) (“ Th e br ie f o f the app e lla nt s ha ll contain . . . [a]n arg ument . . . with citations t o t h e au t h o ri t ies and a ppropriate ref

ere nces to the

rec ord[.] ”).

Reg ardle ss of the waiver, we conclude that the re cord c ontains ample evide nce in support of the def endant’ s conviction. The ve rdict of a trial judg e in a be nch trial is entitled to the same w eig ht on appeal as a j u ry v er dict. See State v. Holder , 15 S.W .3d 905, 911 (Tenn. Crim. App. 1999)

. W h e n t h e s u f

f i c i e n c y o f t h e c o n v i c t i n g e v i d e n c e i s c h a l l e n g e d
, t h e r e l e v a n t q u e s t i on we mus t consider is “ whether , afte r viewing the evidence in the l ight most favor able to the prosecution, any
ratio na l tr ie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble doubt.” J ackson v. Virg inia, 443 U.S. 307, 319, 99 S. Ct . 2781, 2789, 61 L . Ed. 2d 560, 573 (1979);

see a lso Tenn. R. App. P. 13(e); S t at e v

. E v ans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. An de rs on , 8 35 S.W. 2d60 0, 60 4 ( Te nn . Crim . App . 199 2)

. Al l que sti on s invo lvi ng the c re dib ili ty of witnesses, the w eig ht and value to be g iven t he evidence, and all fac tual issues are resolved by the trier of fac t. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).

Tenne ssee Code A nnotated sec tion 39-14-114, the “F org ery ” statute, provides in pertinent pa rt :
(a) A per son commits an offe nse who forg es a writing with intent to defraud or harm another.

(b ) A s u se d in thi s p art , u nle ss the c on te xt oth e rw ise re qu ir e s:
(1 ) “ F or g e ” me a ns to:

(A) A lt e r , ma

k e , c o mp le te , execute or authenticate a ny writing

so that it pu rp orts t o:
(i ) B e the a c t of

a no the r w ho didno t auth or ize the a c t;

. . . . (C) I ssue, transf

er, r eg ister the tra ns fe r o f, pass, publish, or otherwi s e u tt e r

a w r it in g th a t i s f

o r g e d w ith in th e me a n in g of subdivision (b)(1)(A )[.]

Tenn. Code Ann. § 39- 14-114(a ), (b) (1)( A)(i) , (C) (2003)

.-6-

I n re a c h in g it s g u il ty v e r d ic t, th e tria l c o u r t, n o ti n g th a t w h e th e r th e St a te h a d p r oved the

e le me nts of

the c ri me turne d o n Alba dr a n’ s te sti mon y , o bs e rv e d th a t th e re wa s n oth ing in h is demea nor and no othe r evide nce be sides the d efe ndant’s testimony to sugg est that Albadra n was ly ing. T hus, the t ri al court specifica lly acc redited the testimonyof Albadr an over that of the defe ndant. As the State points out, this cre dibilit y determination wa s within the province of the trial court a s the trier of

fac t.

CO NC LU SION

We conclude that the trial court properly admitted the copy

of the c heck into evide nce a nd that the evidenc e is sufficie nt to sustain the conviction. Accor dingly
, we aff irm the judgme nt of the trial court.

___________________________________ ALAN E. GL

ENN, JUDGE