### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Marc h 9, 200 5 STATE OF TENNESS EE v . CLAYTON WI LBURN ESL ICK
Direc t Appeal from the Circ uit Court for Marshall County

No. 15800 Charles Lee , Judge

No. M2004- 01459-CCA -R3-C D - F iled Augu st 5, 2005

The a ppellant, Clayton Wil burn Esl ick, was convicted by a jury in the M arsha ll CountyCircuit Court of six c ou nts of pa ssi ng wo rthle ss ch e c ks

. Th e tr ia l cou rt imp os e d a tota l ef fe c tiv e se nte nc e of

six y ear s incarc eration in the Tennessee Depa rtment of Correc tion. On a ppeal, the a

ppellant ar g ues that the evidenc e wa s insufficient to sustain his convicti o n s . Upon our review of the re cord and the parties’ briefs, w e af

firm the judg ments of the trial c ourt.
Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt s o f theCi r c uit Co ur t a r e Affir m e d.
N OR MA M C G EE O G LE , J ., delivere d the opinion of the court, in which J OS EP H M. T I PTON and J OHN E VE R E TT W I L L I AMS , J J ., joined.
Fa nnie J

. Har

ris, Nashville, Tenne ssee (on appea l), and For est Dura rd, Shelby ville, T ennes s ee (at trial), for the appe llant, Clay ton Wi lburn Eslick.
Paul G. Summe rs , Attorney Gene ral a nd Reporter ; Richard H. Duna vant, Assistant Attorney Gene ral; W. Michae l McCown, Dis trict Attorney Gene ral; B rooke G rubb and Weakley E. Ba rnar d, Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee . OP IN ION
On S eptember

17, 2003, the appe llant was indicted by the Marsha ll Count y

Gra nd J ury

on e ig ht c ou nts of

pa ssi ng wo rt hl ess che c ks . T he pr oo f at tria l r e ve a le d th a t th e app e llant w a s a fre quent customer of

the L ewisburg L ivestock Auction (her einaf ter “the auction”)

. The auction was owned by Gene Vandiver , L isa Bla ckwe ll, a nd Lisa’s husband, Pete B lackwe ll. Sales of livestock oc c ur re d e ve ry Sa tur day of the mo nt h, wi th an a dd iti on a l sa le on on e F ri day e a c h mo nth . Lisa Bla ckwe ll testified that the appellant had attended every sale he ld at the auc tion since the ince ption of the business in Novembe r 2001. She further testified that the appe llant had purc hased livestock at eve ry sale he attended. B lackwe ll sta t ed , “Genera lly , we may have ha d a couple of re turned chec ks [from the appellant]. But if we did, he took car e of a ll of those.”-2-

At theAu g us t 3, 20 02 , auc tio n, the app e llant p ur c ha se d 1 38 g oats fo r $ 6, 07 0. On Au g us t 6, 2002, the appellant submitt ed chec k number 1065 as payment for the g oats. The chec k was made pay able to the auction on the ac count of Cl ay ton Eslick or Chad Eslick, D/B /A C&C Fa rms. The appellant’ s acc ou n t wa s wi th First National B ank of Pulaski (he reina fter “ First National Ba nk”). Bla ckwe ll stated that approximately three wee ks after the che ck wa s written, the che ck wa s returne d by the bank f

or insufficie nt funds. She notified the appellant of t he returned check, and he promised to pay t h e au ct i o n the amount owed. B lackwe ll ex plained, “In a way , he wa s g iven cr edit. [The auction] let him t ake the animals with the promise to pay .” At the Aug ust 17, 2002, auction, the appellant purcha sed 160 cows a nd g oats for $6,732. O n Au g us t 20 , 2 00 2, the app e lla nt p a id f or theliv e sto c k w ithc he c k nu mbe r 1 07 3, wh ic h c he c k w a s a lso dr a wn on the F ir st Natio na l Ba nk a c c ou nt. Th is ch e c k wa s like wi se re turne d f or ins uf fi c ie nt f un ds

. At the Aug ust 24, 2002, auction, the appe llant purcha sed 139 g oats. The a ppellant paid the purcha se price of $8,000 via c heck n u m b er 1072 on the Fir st National Bank acc ount. This check wa s a lso re turne d f

or ins uffici ent fun ds. A c a lc ulator re c e ipt a tta c he d to the auc tio n’ s b us ine ss re c or ds re fe re nc e d ch e c k 1 07 2 andre fl e c te d th a t th e app e llant h a d a ba la nc e of

$5 5. 05 . B la c kw e ll could not definitively

explain the ba lance

. She opined that there had been a mistake in calculating the appe llant’s bills, or the appellant had ma de an a dditional purcha se after the chec k was written. Reg ardle ss, Blac kwell stated that whe n she re ceive d the Aug ust c hecks, she believed that they wer e g ood. On September

21, 2002, the appe llant g ave the auction chec k number 238 in the a mount of $5 ,7 28 .5 0 a s p a y me nt f

or 11 2 g oats w hic h h e ha d p ur c ha se d th at day and the pr e vio us day . T his chec k was written on the appellant’ s acc ount at the B ank of B elfa st. Check nu m b er 2 3 8 was returne d for insuff

icient funds. The appellant promised Blackwe ll that he would “make g ood” on this check.
Vandiver stated that on Oc tober 3, 2002, the a ppellant g ave him che ck number 1079 draw n on the appe llant’s First National B ank acc ount a s payment for an outstanding balanc e of $25,000. This chec k was re turned for insufficient funds. Rebec ca Grave s, a vice -pre sident at First National Bank, related that the appe llant’s bank ac count re cords r efle cted that two other chec ks in October and two in Novembe r we re r eturne d for insuff icient funds. Howe ver, B lackwe ll testified that during October and Nove mber, the auction did not have any of the a ppellant’s che cks re turned.
At the Dec ember

20, 2002, auction, the a

ppellant made two se parate purc hases of livestock. The appellant paid for one of the purcha ses on Dec ember 21, 2002, with chec k number 1116 on the First National Ba nk acc ount in the amount of $10,345. This chec k was late r re turned for insufficient funds. The appellant told Blac kwood that the other purcha se wa s for “ Mr. J ohnson” who would late r submit pay ment to the auction. On Dec ember 28, 2002, the auc tion rece ived che ck number 1123. The c heck, w hich was w ritten on the appellant’ s First National Bank acc ount, w as for the amount of $23,610 as payment for “ Mr. J ohnson’s” purc hase. Theappellant late r explained to Blac kwood-3-

that there was no “Mr. J ohnson”; the appellant had purchased the livestock for hims elf. This check wa s li ke wi se re turne d f

or ins uf fi c ie nt f un ds

. Fi n a ll y , a t th e D e c e mb e r

2 1 , 2 0 0 2 , au c ti o n , th e ap p e ll a n t g a v e th e au c ti o n c h e c k n umber 1115 on the appe llant’s First National Ba nk acc ount in th e am o u n t o f $9,842 for the purcha se of liv e sto c k. Th is c he c k w a s r e turne d f or ins uf fi c ie nt f un ds

. Bla ckwe ll testified that at the first of J anuary , she asked the appellant to stop attending the auction bec ause his che cks had be en re turned re peate dly

. She explained that there afte r, bec ause the appellant ha d been the major buy er at the auctions, sellers stopped bring ing livestock to the auction. As a re sult, the auction was f orce d to close.
On J anuary

13, 2003, Bla ckwe ll sent the appe llant a ce rtified letter conce rning the re turned chec ks, specific ally ref

ere ncing chec k numbers 1065, 1073, 1072, 238, 1115, 1116, and 1079. The letter wa s sent to the addre ss listed on the appe llant’s chec ks. I n the letter, B lackwe ll inst ructe d the appellant to pay

the amounts owed within ten day s of rec eipt of the letter. Howeve r, the letter wa s returne d as undeliver able. On January 29, 2003, Bl ackw ell sent another certified letter to the appellant c oncerning returne d chec k number 1123, a g ain g iving the a ppell an t ten day s to pay

the amount owed. This letter was also re turned a s undelivera ble. Neve rtheless, the a

ppellant contac ted Bla ckwe ll reg arding his worthless checks. Bla ckwe ll stated t hat the appe llant called he r home a nd told her that he would bring some money to her. When questioned r eg arding whether the appe llant boug ht livestock on cre dit, Blac kwell re sponded, “It is not t he intentions, but that is what it seemed to be.”
Ba sed upon the fore g oing, the appellant was convicted of four c ounts of the Class D felony of pa ssi ng wo rthle ss ch e c ks be tw e e n th e a mou nt o f $ 1, 00 0 a nd$1 0, 00 0 a ndtw o c ou nts of the Cla ss C felony of passing worthless checks between the amount of $10,000 and $60,000. The appellant was sente nced to f

our y ear s for the Class D f elony convictions and to six y ear s for the Class C felony convictions. The tria l court orde red the sent ence s to be serve d concur rently for a total effe ctive sentenc e of si x y ears. Further, the tria l court g rante d the appe llant communitycorr ections af ter serviceof one hundr ed and e ighty day s of hi s sentenc e in confine ment. I n sum, the appellant wa s co n v i ct ed o f t h e f

o l l o wi n g:

C oun t C heck A mo unt D ate of C heck C l ass Sente nce 1 1 0 7 2 $ 8 , 0 0 0 8

- 2 4

- 0 2 C l ass D f el o ny 4 y ears 2 2 3 8 $ 5 , 7 2 8

. 5 0 9

- 2 1

- 0 2 C l ass D f el o ny 4 y ears 3 1 1 1 5 $ 9 , 8 4 2 1 2

- 2 1

- 0 2 C l ass D f el o ny 4 y ears 4 1 1 2 3 $ 2 3 , 6 1 0 1 2

- 2 8

- 0 2 C l ass C f el o ny 6 y ears 5 1 0 6 5 $ 6 , 0 7 0 8

- 6

- 0 2 C l ass D f el o ny 4 y ears 6 1 0 7 3 $ 6 ,7 3 2 8 -2 0 -0 2 N o t G u ilt y N /A-4-

7 1 0 7 9 $ 2 5 ,0 0 0 1 0 -3 -0 2 N o t G u ilt y N /A
8 1 1 1 6 $ 1 0 , 3 4 5 1 2

- 2 0

- 0 2 C l ass C f el o ny 6 y ears On app e a l, th e app ell a nt c on te sts that th e rewa s n ot s uf fi c ie nt e vid e nc e a dd uc e d at tria l to sustain his convictions.
II. Ana lys is On appe al, a jury

conviction re moves the pre sumption o f t h e appellant’s innocence and repla ces it with one of g uilt, so that the appellant car ries the burden of demonstrating to this court why the evidenc e will not support the jury ’s finding s. See State v. Tug g le, 639 S.W .2d 9 1 3 , 914 (Tenn. 1982) . The a

ppellant must establish that no reasona ble trier of

fac t could h av e fo u nd the essential ele ments of the offe nse bey ond a rea sonable doubt. See J ackson v. Virg inia, 443 U.S. 307, 319, 99 S. Ct . 2781, 2789 (1979); Te nn. R. App. P. 13(e).
Acc ording ly , on appea l, the State is entitled to the stronge st leg itimate view of the e vidence and all re asonable infere nces w hich may be drawn t here from. See S tate v. Wil liams, 657 S.W .2d 405, 410 (Tenn. 1 9 8 3 ). I n other wor ds, questions conce rning the cr edibilityof witnesses a nd the weig ht and value to be g iven the evidenc e, as w ell as all fa ctual issues raised by the evidenc e, ar e resolved by

the trier of

fac t, and not the appe llate courts. See State v. Pruett, 788 S.W .2d 559, 561 (Tenn. 1990)

. Te nn e sse e Cod e An no ta te d s e c tio n 3 9– 14 -1 21 (2 00 3) pr ov ide s: (a) A per son commit s an offense w ho, with fraudule nt intent or k n o w i n g l y: (1) I ssues or passe s a che ck or similar sig ht order f or t he pay ment of money for the pur

pose of pay ing any

fee, fine, tax, license or obligation to any

g overnme ntal entity or for the purpose of obtaining money , service s, labor, cr edit or any article of value , knowing at the tim e t h er e are not sufficient f unds in or on deposit with the bank or other dra wee for the pay ment in full of the che ck or order , as well as all other c hecks or

order s outstanding at the time of issuance ; . . .

. . . . (3) This subsec tion (a) sha ll not apply to a p o s t -d at ed che ck or to a chec k or si milar sight order where the pay ee or holder knows or

has g ood and suff

icien t rea son to believe the dr awe r did not have su ff ic ie nt f un ds on de po sit to the dr a we r’ s c re dit wi th the dr a we e to e ns ur e pay me nt.-5-

The State e lected to pr ocee d on the theory that the appe llant passed che ck numbers 1065, 1123, and 11 16 fo r the pu rp os e of

ob ta ini ng c re dit . O n c he c k n umb e rs 10 72 , 238, a nd11 15 , th e State proce eded on the theory

that the che cks we re issued f or the purpose of obtaining property

. On appe al, the appellant arg ues that the evidenc e was insufficient to convict him of passing worthless che cks bec ause “ the evidenc e showe d that he pre sented th e ch ec k s for pay ment on a pree x isting debt” and “e ven if he obtained cr edit or prope rty t h e Au cti on had g ood and suff icient rea sons to believe that he did not have sufficie nt f unds in the bank to pay

the che cks at the time of issuance.”
The worthless chec k statute “a ddresse s a narrow factual sit uation, i.e. where the maker of a chec k or similar sight or der obta ins something of va lue by the fra udulent use of the instrument.” State v. Stooksberry , 872 S.W .2d 906, 907 (Tenn. 1994) . I n State v. Newsom, 684 S.W.2d 647, 649 (Tenn. Crim. App. 1984) (citation omitted), this court explained:

The g ener al rule is, w here the statute spec ifies the obtaining of something of value as an e lem en t of the off ense, the g iving of

a worthless chec k in pay ment of a pree x isting debt is not a violation of thestatut e . Sin c e the de bt re ma ins un pa id the make r o f the c he c k d id not obtain anything of

value f rom the pay ee an d did not give the chec k with intent to defraud.
Th e app e llant’ s c on vic tio ns fo r c he c k nu mbers 10 72 , 2 38 , a nd11 15 in e xch a ng e fo r p ro pe rty are clea rl y n o t related to a pre exis ting de bt. On eac h of those occ asions, the appe llant attended a livestock sale, indicated his desire to purc hase livestock, and the a u ct i o n al l owed him to tender a chec k to pay for the livestock. Acc ording ly , we c onclude that the a ppellant’s appe llant’s convictions for c heck numbe rs 1072, 238, and 1115 a re supported by

the re cord. Next, we turn to the appe llant’s convictions for chec k numbers 1065, 1123, and 1116, w hich c on vic tio ns are ba se d upo n the the ory that th e app e llant r e c e ive d c re dit wh e n h e pa sse d th e c he c ks

. For eac h of the for eg oing c hecks, th e appellant obtaine d livestock, then tende red a chec k to the auction at a later date. On appeal, the State ar g ues that “the jury found that the [appellant] passed [t hese] chec k[s] for the pur pose of obtaining cre dit in the f orm of further pa

rticipation in sales.” A t trial, Bla ckwe ll stated that the auc tion would n o t h ave a llowed the appe llant to continue to make purcha ses without first pay ing f or his previous purc hases. A dditionally , Bla ckwe ll stated that the appellant boug ht livestock at eve ry sale until “the fir st part of January ” whe n Bla ckwe ll informed the appe llant that he would not be allowe d to participate in future auctions. Acc ording ly , we conclude that, in the light most favor able to the State, ther e wa s sufficien t ev i d en ce to find the appellant g uiltyof passing worthless che cks to rec eive c redit. See N ewsom, 684 S

. W .2d at 649; State v. Fr anklin Under wood, No. 15, 1988 WL 52660, at *1 (Tenn. Crim. App. at Knox ville, May 24, 1988).-6-

The appellant also arg ues t hat the auc tion knew or ha d g ood and suff icient re ason to believe he did not ha ve sufficie nt funds to ensure pay ment beca use of his history

of worthless c hecks. See Tenn. Code Ann. § 39-14-121( c). Bla ckwe ll testified that until t he first worthless chec k was written on Au g us t 6, 20 02 , th e app e lla nt had alw ay s pai d the auc tio n th e a mou nt o f the re turne d c he c ks

. Additionally , Bla ckwel l s t ated that although the a ppellant tender ed che cks that we re r eturne d for ins uf fi c ie nt f un ds in Au g us t and Se pte mbe r 200 2, the app e llant t e nd e re d g oo d c he c ks a t e ve ry sa le he attende d until De cembe r 20 and 21, 2002. Further, the appellant was the single larg est purcha ser of l ivestock at the auction. I n other words, the appellant had purchased livestoc k at eve ry sale fr om the time the business opene d in November 2001. There had bee n no problems wit h the appe llant’s chec ks until select purcha ses i n Aug ust, September, and Dec ember 2002. Acc ording ly , there was sufficie nt evidence for the jury to find that the auction had no knowledg e of the appellant’ s lack of su ff ic ie nt fu nd s. F urthe r, thi s c ou rt ha s p re vio us ly he ld that “ c on vic tio n is pr op e r e ve n if the vic tim could with rea sonable dilig enceand prude nce ha ve asc erta ined that re prese ntati o n s made by the acc used w er e fa l s e. ” Newsom, 684 S .W.2d at 650. I n other wor ds, “[k] nowledg e of a lack of sufficie nt funds cannot be inferr ed based on the prior r elationship betwee n these pa rties.” State v. Har ris, 977 S.W .2d 127, 130 (Tenn. Crim. App. 1998) . The a ppellant is not entitled to relief.
III. Conclusi on Finding no reve rsible er

ror, we aff

irm the judg ments of the trial c ourt.

___________________________________ NORMA McGEEOGLE, J UDGE