1 The indictment in the i nstant case ori ginally identif ied the appellan t as “J ami e H. Wal dr um, a. k. a. Ja mi e H. Jon es.” However, pri or to trial , th e appellan t and the S tate agreed to orall y amend the indictment t o reflect t hat the appe llant’s name is Jamie H . Jones. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs N ovembe

r 26, 2002
STATE OF TENNE SSEE v. JAMIE H. JONES 1
Direct Appeal from the Criminal Court for Davidson County

No. 2000-A-178 Steve R. Dozier, Judge

No. M2002-00055-CCA-R3-CD - F iled June 4, 2003

The appe llant, Jamie

H. Jones, was convicted by a jur y in the Davidson County Criminal Court of five counts of

forge ry and rec eived a t

o tal effective sentence of eight y ears incarceration in the Tennessee Department of Correction. On appeal, the appellant raises several issues for our revie w, including the suff

iciency of the evidence, the corr

ectnessof the trial court’s rulings, the propriety of the sentences imposed, and the denial of the appellant’s motion for new trial. Upon review of the record and the parties’ briefs, we affirm the judgments of the trial court. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nts of the Cr

iminal Co

urt are A ffirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which D AVID G. H AYES and J ERRY L. S MITH , JJ., joined.

Michael A . Colave cchio (on appeal) and Paul T. Housch (at trial), Na shville, Tennessee, for the appella nt, Jamie H. Jones.

Paul G. Summers , Attorney General and R eporter; Mark A. Fu lks, Assistant Attorney Genera l; Victor S. (Torry) Johnson, I

II , District Attorney Gene ral; and Brian K. Holmgren and K risten K. Shea, Assistant District Attorneys Gene ral, for the appellee, State of Tennessee

. OPINION

I. Fact ual Backgro

und A. Trial The a ppellant was indicted by the D avidson County Grand Jury on the follow in g counts due

to the writing of f

alsified checks:2 In th is opin ion , we wi ll ut il ize th e f ir st name s of

Lar ry and Ri tch ie Parr is beca use th ey b oth poss ess th e sa me last nam e. W e me an no disresp ect by a ddr essing the witnesse s in this fashio n. -2- Count Date of Offens e Name o f Offense Amount o f Offense
One 12-31-99 to 1-10-00 Theft $60,000 or more
Two 11-8-99 Forgery (check #2611) more than $1,000,

less than $10,000
Three 11-22-99 Forgery (check #2612) more than $1,000,

less than $10,000
Four 11-30-99 Forgery (check #2613) more than $1,000,

less than $10,000
Five 12-6-99 Forgery (check #2716) more than $1,000,

less than $10,000
Six 12-14-99 Forgery (check #2715) more than $1,000,

less than $10,000

Prior to trial, the appellant moved the trial court to dismiss count one, alleging that
none of the fa

lsified checks un derly

ing that count we re writte n in the time

frame alleged by

the State. In response, the State asserted that the indictment contained a ty pographical error and

explained that count on e o f t he in di ct me nt ac tu al ly encompassed th e appellant’s activities from December 31, 1998, to January 10, 2000. The State further asserted that the appellant had actual notice of the dates of the checks underly

ing count one. The State then moved the trial to court am

end the indictment t

o correct the typogr

aphical error, maintaining that “[h]ad I anticipated that we could be bac k here today arguing this . . . we could have gone back arg uably to the Grand Jury

and moved to amen d that particular count.” The appellant agreed that she ha d actual notice r

egard ing the c hecks se t forth in count one and admitted that amending the indictment would cure any potential double j eopardy problem. The trial cour t granted the State’s motion to amend count one to include the period of December

31, 1998, through January 10, 2000, an d thus deni ed the ap pellant’ s motion to di smiss count one of the ind

ictment.

At trial, the State’s first witness was James L. Parris (Larry)

. 2 Larry testified that he began Parris Printing with h is son , James Ritchie Parris (Ritchie) in 1992. Soon, Donnie Lackey became a partner in the business. Parris Printing was successful and, thre e yea rs prior to trial, had forty or forty-f ive employees. At the time of trial, Larry

owned 121⁄2 percent of

the busine ss, Ritchie owned721⁄2 percent, and La ckey owned 15 per cen t. Larry asserted that Ritchie “was in charge , running every

thing.” Larry explained

that Ardt h Moseley

was the se

cretar y f or Parri s Prin ting and Ken Kraft was the company ’s accountant. Whenthe b usine ss re ache d a ce rtai n lev el of

size and succ ess,-3-

Kraft recommended that Parris Printing employ the appellant as a full-time bookkeeper. Larry stated that the business began to lose money after the appellant was hired, but became financ ia lly successful after the appellant left the company

.

Larry maintained that

only Ritchie and

Lackey had authority to sign c

hecks relating to the business; no employee had the authority to sig n checks. Larr y admitted that he had never seen the appellant sign Ritchie’s name to a check; additionally, L arry a cknowledged that the checks underlying

the indictment were signed “James R. Parris,” which was Ritchie’s customary

signature
on the compa

ny’ s checks . Howeve

r, La rry maintained th at Ritchie did not sign the che cks in question.

After

the conc lusi on o f La rry’s testimony , the appellant asked for “the Rule,” specific ally

requesting that Lar

ry be excluded fr

o m the cour troom during the testimony of othe r witnesse s. The appe

llant expla

ined that she migh

t want to r

ecall L arry to testify after th e State presented the testimony

of Ritchie and Lackey

. The trial court ruled that the possibility of r ecalling Larry was insuf ficient r eason to exclude him from the courtroom and permitted the State to continue with its proof.

Donnie

Lee Lackey

testified that he was the “Vice-President, Production Supervisor” for Parris Pr inting. L ackey stated tha

t even though Ritc hie owne d the lar gest p ercentage o f the business, the partnership agreement provided tha t the three partners were required to ag ree on decisions concerning the company. Additionally , Lackey stated that he typically

earned $94,000 per year at Parris Printing and further asserted that the larg est year ly salary he had receive d wa s $110,000. Lackey

estimated that at

one point the business employed fifty people. However, due to financial difficulties, Parris Printing laid off approximately seventeen e mployees. The e

mployees
were laid off in an attempt to

cut oper ating e xpenses. T

he reduction in

staff helped the company financi ally

for a mon th or two, but then Par

ris Printing began having financial diff iculties once more. In fact, the business was forced to takemoney out of its sa

vings ac count in or

der to co ver the p ay

roll expenses, something the company had never had to do. Lackey identified the appellant as the former bo okke eper for Parris Printing. He explained that Ritch

ie was in c

harge of hiring employ ees for the offic e and, Ritc

hie had hi r ed th e appella nt. Lackey

observed that

at the time of trial the business was “back on track” and noted that the financial difficulties coincided with the ap pellant’ s t erm of emplo yment at P arris Prin ting. Sp ec if ic al ly, Lackey

maintained that

no such difficulties had occurred before or since the appellant’s employ ment. Lackey

stated that while he would know if Ritchie had hired anyone a s an independent contractor, the termsof that c ontract would be within Ritchi e’s cont rol. Lackey

acknowledged

that he had no direct knowledge of the appe llant wo rking w it h Parris Printing as an independent contractor. Further, he did not recall the appellant’s employ ment be ing terminated prior to the discovery of the questioned checks. However, he did rec all that the appellant had difficulty working full-time. The appellant was fired after the discove ry of the purpor

tedly fraudule

nt checks.-4- At the time of the offenses, only Lackey and Ritchie had the aut

ho rity to sign the ch ecks for Par ris Printing. Neither Lacke y nor Ritchie had authorized any one else to sign the business checks. Lacke

y stated that he signed the payr oll checks which were gene rated by the Paychex system, and Ritchie signe d the checks to pay the vendors. The vendor checks were generated by a computer program in the office of Parris Printing. L ackey inspected several of the appellant’s legitima

te pay roll che cks and n oted that the larg est

amount the appellant had been paid for one week’s work was $656.00.

Lackey examined the checks underl yin g the ind ictment a nd noted th at the checks w er e made pay able to “Jamie Jones,” the appe llant. Fu rthermo re, Lac key asser

ted that he was very familiar with Ritchi e’s signature . Upon further examination of the checks, L ackey stated that the signatures on those checks were not Ritchie’s. He explained that copi es of the checks underly ing the indictment had been discovered at the office of Parri s Printing . Althoug h these copies bore the
samecheck numbers as the questioned checks, the copies were marked payable to seve ral vendors who did busine ss with Parri s Pri ntin g. Lackey stated tha t Parris Pr inting ha d a pending civil la

wsuit against the appellant.

James R itchie Pa

rris (Ritchie) testified that he was the president of Parris Printing and that he owned the business in partnership with his father and Lackey . Ritchie

was responsible for paying the weekly bills, borrowing money, and over seeing the front office. Ritchie testified that he typica lly e arned $104,000 per year from Parris Printing and the most he had ever e arned from the business i n o ne y ear wa s $160,000 . At the time of trial Pa

rris Print ing had thirty -five e

mploy ees; at the beginning of 1998, Parris Printing employ ed forty-f ive or fifty people

. At the time of trial, Ritchie’s cousin, Vickie Gamble, was thepart-time bookkeeper for Parris Pr inting. Sh

e was pa id $17 or $1 8 hourly . Gamble’ s friend was the certifi ed public accountant

(CPA) for the business. However, prior to Gamble’s employment, Parr is Printing had al wa ys utilized Ke

n Kraft a s its CPA. Additionally, Ritchie noted th at Ar dt h M os el ey, th e s ec re ta ry, performed some of the bookkeeping functions for the business. Moseley

earned $45,000 per y

ear and had b een with t

he compa ny f or sever al y ears.
In August 1998, prior to Gamble’s employ ment with the company , Ritchie acted on Kraft’s recommendation and hired the ap pella nt as t he ful l-ti me boo kkeep er for P arris Prin ting. One of the reasons Ritchie hired the appellant was because she wa s a lr ea dy familiar with Real Wo

rld Accounting (Real World) software, a program that had recently bee n installed at

Parris Printing. The appellant was hired as a full-time employee, and was ex pecte d to work forty hours pe r week. Furthermore, the appellant was to be paid an annual salary of around $40,000 per year. At that time, Paychex manag ed the payr oll system for

Parris Pr inting a nd the app ellant received w eekly checks from Paychex. The agree

ment betw een the a

ppellant and Parr is Printing

was in pla

ce from August 11, 1998, unti l Decem ber 15 , 1998 . Alt hough Moseley and the appellant had the authority to prepare the checks , Rit chie m ainta ined t hat on ly he and Lack ey had the a utho rity to s ign the business c hecks.-5- Ritchie testified that the appellant “had prob lems work ing a forty -hour week.” Ac co rd in gl y, Ritchie allowed the appellant to be paid for the hours reflected on h er time c ard. However, in December 1998, the appe ll ant went o n vacati on and did not retur n to work. Ritchie talked with the a

ppellant about her

inability to work fu

ll-time and explained that he could not pay her salary if she did not work th

e requir ed hours. The appe

llant sug gested

that she w ork for Pa

rris Printing part-time as an independent contractor through her company, Da

ta Solutions. The appellant
was to be paid $20 an hour for the time she worked in the office of Parris Printing and $15 an hour for the time she worked at home. Parris Printing was to be billed for the money owed. The appellant would then be paid through Parris Printing’s in-house acc ounting system the same w ay other vendors
were paid. Ritchie asserted t hat the appellant’s employ ment was never officially terminated; she simply cea sed to be a full-time employee a nd began to work as an independent contra ctor. Specifically, Ritchie testified that the a ppellant was never issued a “dismissal sheet.”

Ritchie stated that the appellant never worked f orty hours a week as an independent contractor

and insisted that he would never agreed to pa y the “outrag eous amount” of $120 an hour for the appellant’s services. Furthermore, he noted that the ap pellant did no t start bill ing Parr is Printing as Data

Solutions until March 1999; prior to that time, the appellant invoiced the company
as “Jamie Jones .” Additio nally , Rit chie n oted that while the appellant worked as an independent contractor, Moseley

perfor med some o f the book

keeping function s in order

to learn how to use the Real World software.

In 1999, Parris Printing began e xperienci ng fina ncial dif ficultie s for the

first time since the inception of

the busine ss. In

order to cut oper ating e xpenses, th

e busines s was forc ed to lay off fourteen or fifteen employ ees in July 1999. Howeve r, the bus iness later imp

roved and some of the vacated positions were filled. The appellant wa s not laid off because the busine ss needed a bookkeeper. The reduced expenses helped the business shor t te rm, but Parris Printing began experiencing ad di ti on al pr ob le ms in No ve mb er 19 99 . S pe ci fi ca ll y, some of the pay roll checks were nothonored by the ba

nk due to insufficient funds. Because of t his proble m, Ritchie and the appella nt bega n examining

the busine ss’s fina

nces.
Ini ti al ly, the app ellant contended that the financial pr oblems we

re caus ed by

problems wi th the c ompany’s “sweep account” at the Bank of Amer ica. Kraft assured Ritchie that the company was solvent

and beg an examining Parri s Printing ’s accounts. Rea ssured by Kraft, R itchie left for vacatio n in Florida on November 18, 1999. Ritchie was in the Bahamas on November 22, 1999.

Ritchie

explained the company’s billing sy stem. He stated that wheninvoices were received at the company, Mose

ley entered the bill into the computer system. Bas ed upon these entries, either the appellant or Moseley gen erated an “Items Age d Open Report” which reflected outstanding invoices and the date of the invoice. Each week, Ritchie examined the report and determinedwhich bill s were to be paid that week. Ritchie asserted that he ne ver made only a partial payment on a bill and always paid an invoice in full. He also explained that he typically did not pay
a bill for a paper company

unless it was sixty day s old but paid all other bills after forty- five day s.3 These five checks underlie t he appellant’s convict

ions for counts two through six.
-6- On January 11, 2000, while the appellant was out of the office, he examined the report and noticed that there was a bill from Athens Paper Company th at wa s o ve r 2 00 da ys old. Ritchie recalled that the bill had not been on the report he reviewed the previous week. Accordingly , Ritchie requested that Moseley provide the ha

rd copy of the

Athens Paper Company invoice . Moseley wasunable to do so because the invoice did not exist.

Next, Moseley examined the check register and discovered f our other ch ecks that als o did not hav e accom

pany ing invoi ces. The

record s at Parr

is Printing

reflec ted the f ollowing : Check Number Payable To Amount of Check
2611 Advanced Mail Conc epts $6,841.81
2612 Athens Paper Company $8,387.70
2613 MKD, International $9,676.42
2715 Bowers Ink Company $7,376.49
2716 MKD, International $9,280.74 Moseley called the Bank of America and r equested that the bank send Parris Printing copies of the cancelled checks relating

to the five questionable entries. 3

When the appellant returned to work on January 13, 2000, Ritchie asked her to “find outwhat is going on.” He “mentioned to her that there was–there w as some checks mentioned and it totaled a bout fort y- two thousa

nd dollar s, that we couldn’t find.” However, Ritchie did not inform the appellant regarding the que stioned check numbe rs or“the accounts that [the checks] were supposedly paid to.”

Ten or fifteen minutes later, the appellant came into

Ritchie’ s office , handed

him a letter and a personal check for $42,000, and lef t. The letter, which was signed by the appellant and was addressed to Ritchie, stated:

I am writing

this beca use I am afraid to talk to y

ou. You se e, I

wrote those checks y

ou can no t explain to m yse lf. I had thoro

ughly intended for those funds to be back in thebank before the end of the year but the arrangements have bee n delayed a

nd I am und er th e impr ession at this point that they will be available no later tha n 1/28/00. I have enclosed a check for $42,000.00 to cover the amount of the checks of $41,563.16 and a little e xtra incase [sic] I have caused problems at your bank

. I don ’t know ho w to explain this to you other than I

have had some horr

endous legal expe

nses with [my husband] Lloyd’s X-wife [sic] suing him for more support and many other things, as well as I am

curren tly i n a law suit with my previous4 No further m ention was m ade at trial con cernin g the yello w co py of the chec ks.

5 Th ese ch ecks u nde rlie cou nt one of the ind ictmen t.
-7- empl oyer fo r sexual harassment. I am extremely sorry I was not honest wit

h yo u but I did this as a last resort. I hope y ou will fin d it in your heart to for gi ve me for the wrong I have done. I have

spent lots of time praying

to figure out what to do. When I ente red them in the co mp uter it wa s a mistake and I am no go od at hidin g my mistakes. I almost knewit woul d not work but I had to show something

for those checks f or Ken Kr

aft.

Due to the dish onesty

in my p osition, I am resigning toda y. I hope you will understand I never meant a ny harm and I do admit wh at I d

id
was wro ng! !!! If

you or Ardth need to call me for any reason, I will be glad to help with any

answers or consulting that you need.

On the appellant’s personal check, she noted that the $42,000 p ayment to P arris Printing was for “ck #2611, 2612, 2613, 2715 , 2716.” Ri tchie told the appellant that he would need
a cashier’s check for the

$42,000, but the appellant never provided one. He denied that he fired the appellant after discovering the fraudule nt checks; instead, Ritchie maintained th at the appellant voluntarily resigned.

Ritchie testified that Moseley conta cted the bank

to see if P arris Printing co uld cash the appella

nt’s che ck. Howe

ver, the bank rep orted tha

t the appe

ll ant’s a ccount did not have sufficient funds to cover the check. Accordingly, P arris Pri n ting never received the $42,000 payment.
Ritchie

explained that the checks written in-house had thre e lay ers: the t op, white layer; the middle, pink layer; and the bottom, y ellow layer

. The pink and yellow lay ers were supposed to be carbon copies of the information contained on the white layer. T

he pink copies of the five checks, as mentioned supra , indicated that the five questioned checks w ere pai d to legitimate vendors. 4 However, when the bank provided the copies of the cancelled checks, Ritchie observed that the questioned checks were in fact written to the appellant. Ritchie denied signing any of the five checks. Regardless, Ritchie testified that he neve r witnessed anyone

sign h is name t o those checks.

After

the appellant’s deception was reve al ed, Ritchie and Moseley began a more extensive search of Parris Printing’s bank records and they

discovered that the appellant had written approxima

tely fifty other checks payable to hers elf. 5 O nce again, the pink copies of the checks reflected that they had bee n issued to

legitimate vendors when

in fact the appellant was the recipient of th e p aym en ts . R it ch ie de ni ed th at an y of th e f if ty checks had bee

n presen ted to him f

or his authorization and further denied signing those checks.-8- Ritchie testified that he had

to rely on the copies of

the cancelled checks which were provided by t

he bank b ecause

the original copi es, whic h would have be en sent to

Parris Pr inting in the bank statements, could not be found. Ritchie further testified that the appellant received the bank statements for Parris Printing.

Ritchie examined the checks underly ing counts one through six and asserted that altho ugh the checks bore the signature “ James R. Parris,” he was not the person who signed the checks. Particularly, Ritchie observed that the “descenders on these ‘J’s’ cut back

to the right, and I believe , if y ou’ll notic e my signatu res, I don ’t think y

ou–there ’s ever

a case w here my J’s have cut back to th e r ig ht on th e d es ce nd er s. ” A dd it io na ll y, Ritchie no ted that check number 2613, which
was the basis of count three, was purportedly written on November

22, 1998, w

hile Ritch ie was in the Bahamas on vacation. Ritchie de nied pre -signin g any checks p rior to hisvacatio n. Ritchie conceded that the b ank neve

r refus ed to honor one of

th e d is pu te d c he ck s d ue to su sp ec te d f or ge ry.
Ritchie also examined a document purporting to be an invoice date d on December 7, 1998, from the appellant’s co mp an y, Data Solutions, to Parris Printing. The invoice stated that the appe llant wasto be paid

$20,000. T

he invoic e stated

that the p ayment was Incentive To Return After Being Fire d By RP-AM ca n not do alot on accounting sys tem. . . . A greem ent to re turn 12/7 /98 provi ded Incentive Bonus was obtainable. New hourly r ate of 120.00 per hour witha minimum of 40 hours per week plus expenses. Invoices for this to be given onl y toRP due to employees not needing to know arrang ements. Ritchie insisted that he had never seen this invoice and vehemently deni ed ent ering i nto such an agreement

with the appellant. In fact, Ritchie asse rted that he would not

have laid off fourteen or fifteen employees in orde r to have sufficient funds to pay the appell ant and contended that the appellant had no unique skills that would justifyher bein g paid a salary that was approximately three times the salary ea

rned by the owne

rs of the company

. Fi na ll y, Ritchie acknowledged that Parris Printing had filed a civil lawsuit against the appella nt. The company pla

ced a l ie n on the appellant’s assets, namely her home, to prevent her from transferring her

assets. Ritchie wa s hopeful that the p roceed s from the

civil litig ation would help the c ompany

recoup t heir losse s.
Rick Cate, a collections officer

with Wilson Bank and Trust in Lebanon, testified that he had printed a list of the appellant’s accoun ts. The ap

pellant a nd her hu sband ha

d two acc ounts. The appellant had also opened an account in her son’s name, and the appellant ha d an account for Data Solutions. Both of the accounts in thenames of the appellant and her husband were closed by June 28, 2000. Additionally, the Data Solut ions acc ount was closed July 17, 2000. The chec ks issued from those accounts totaled over $300,000.

Amy Holman, a sales support associate with the Bank of A merica in Nashville, testified that she was the assistant of Doswell Brown and that Pa

rris Printing

was one o f their c lients.-9-

In 1999, Ritchie and the appellant came into the bank because the c ompan y’ s accounts would not balance. The appellant never indicated that “she knew where money was going in the accounts for Parris P rinting.” At the meeting, after re viewing the list of checks which was ge nerated by t

h e bank’s computer , Holman c ould find n o discre pancie s, bu t she noted that the accounts would not balance. Later, Ritchie requested tha t Holman obtain co pies of c ertain checks iss ued by Parris Prin ting. Holman noted that no checks were ever “ dishonored” by the Ba nk of America because of
su sp ec te d f or ge ry.

Ardth Moseley testified

that she was the office manage r for Parris Printing and had workedfor the company

since January 4, 1994. She stated that the a ppellant began working at Parris Printing in August 1998 and she worked in the front office with Moseley . After the appellant began working at Parris Printing, she repeatedly instructed Mosel ey

not to open

the bank s tatement s. Moseley testified, “I was told, right up front, that there was no need for me to do that any longer, that there was absolutely

no need for me to ever open a bank stateme nt.” Moseley observed that the appellant was unable to work the ho urs tha t she was supposed to work a

nd Ritchie

maintained that h e could not justify

pay ing the a ppellant ’s salar

y if she was unab le to work

forty hours p er we ek. Accordingly , Ritchie “put her on a time clock, had her punch in and out on a time card.” Yet, the appellant continued to work le ss than forty hours per week. Thus, Ritchie resorted to hiring the appellant as an independe ntcontractor. Moseley stated that the appel lan t had not been fired prior to the time she began wor king as an independent contractor. Mosley

testifie d that the

appella nt submitte d invoice s to ParrisPrintin g via Dat a Solutions. The appellant was paid $20 an hour for the time she worked at Parris Printing and $15
an hour for the time she worked at home. The appellant submitted h

er invoic es directly t

o Ritchie. After Ritchie a pproved the invoic e, he g ave it to Mo seley to enter into the computer like any othe r bill from a vendor. Moseley recorded the invoices on the Real World progra m and subsequently the appellant issued her own check after Ritchie approve d payment of the invoice. Moseley

testified that Ritchie approved pay

ment of certain bills after

reviewing the

weekly report a nd that he alway s paid the full amount of any g

iven invoice. Once the check was printed, it was submitted to Ritchie for his signatu

re beca use neither

Moseley nor the a ppellant had the a uthority to sign th e busines s checks

. Moseley asserted that the appellant never rece ived a payc

heck for over $5,000. Moseley further noted that the appellant never worked forty hours a week

during her employ

ment as an independent contractor.
On July 27, 1999, Parris Printing was required to lay off approximately fiftee n employees due to fin ancial d ifficult ies. Nev erthele ss, in November 1999, the company again had financial troubles in the form of pay checks “bounc[ing].”

In January

2000, Ritc hie asked Moseley to loca te hardcopies of the invoices relating to certain checks because he ha d discovered an invoi c e that wa s over 200 day s old on the

weekly “aging report. ” Mosele

y w as unable

to find co

rresponding invo ices. Shor tl y th ereafter, on the-10-

appellant’s last day of work, the appellant attempted to hide something that she was writing on her
co mputer from Mo seley . A few mi nutes late r, Mosele y sa w the app ellant in a

brief me eting w ith Ritchie. Rit chie showed Moseley the letter that the appellant had given him which detailed the appel lant’s role in the company’ s financial problems. Moseley maintained that she h ad neve r provided the appe

llant the n

umbers id

entify ing th e suspicious checks nor did she inform the appellant of the amount of the checks.

Moseley stated tha

t she had w orked with Ritchie for several years and had s een his signature “hundre ds” of time s. U pon examining the checks u nder lying c ounts one t

hrou gh si x, Moseley said that the signature on the checks was not Ritchie’s signature

.

Moseley observed that the appellant alway s dressedvery nice ly for work, noting

that she wore de si gn er clothes and “lots” of jewelry . The appellant informed Moseley that she had purchased

a hot tub, had an in-ground pool installed, had landscaping and concrete wor k done, and h ad special gat es installed at her home. The appellant also went on severa l trips to New York, Florida, and New Orleans. Additionally , Moseley noticed that the a ppellant bought

a white L incoln Town Car that appeared new. Soon thereafte r, the appellant arrived at work in a Linc oln Navigator and explained that her fifteen-year-old son had wrecked the Town Car. O n another occasion, the appellantdro ve a d ark s portscar t o wor k, exp laining th at she

had b ough

t it fo r her son. W h e n Moseley asked the appellant how shecould af ford all o f her pur

chases, the appellant stated, “You just have to know how to manage your money, Ardth.”

Kenneth Randall K

raft, a CPA with K

raft an d Company , testifie d that Par ris Printing
was his forme

r client. He beca

me acqua inted with

the appe ll an t while she was working with the Vermeer Corporation. After the appellant left Vermeer, Kraft sug gested that Ritchie hire her as the in-house bookkeeper for Parris Printing. Kraft based his rec omme ndation in part upon the appellant’s familiar

ity with Real World. Kraft further opined that the appropriate sala ry for the type of bookkeeper Parris Printing required was be tween $30,000 and $40,000. Kraft noted that paying a bookkeeper over $300,000 would not be financially sound.

Prior to the app ella

nt ’s employ

ment, Par ris Printin g had no

difficul ty p aying thei

r debts. Previously, Kraft h ad received and reviewed the company’s ba

nk statements for
rec oncilement

each mon

th. After the appe llant wasemploy

ed, Kra ft no long er rec eived th e ban k statemen ts on a monthly basis. I

n fact, the appellant did not provide any of the bank statements for 1999 until September or October of that year.

In November or December 1999, Kraft me t with Ritchie and the appellant to attempt to reconc ile the compa

ny’ s bank sta

tements. The appellant never sugge sted that she knew the source of the company’sfinanci al proble m. Kraft testifie d that he h ad prepa red the 1 999 income

tax return for Parris Printing. The return reflected that the compa ny had a prof

it in excess of $187,000. However, if more than $300,000 had not been taken from the company that y

ear, the profit ma

rgin would have been approximately half a million dollars.-11- Detective Brian Edward Celatka, a detective in the f raud unit of the Metropolitan Police Department, served an arrest warrant on the appellant at he r home. Detective Celatka testified that although the outside of the home depicted “a white brick house, . . . just average,” the inside of the home was “very

well-decorated.” The furniture w as “very nice” and the appellant had two largescreentelevisions. Detective Celatka observed that the backya

rd of the house was landscaped and
was “pretty much a

ll concreted, and it was fenced in, and it had an in-ground swimming pool.” The backya rd was surrounded by

a “very nic e metal type”fence with a coded gate. He and the appellant left t he hom e thro ugh th e garage where Detective Celatka noticed a Lincoln Naviga

tor. He stated that the appellant was cooperative during the a rrest. Ray Edward Smith test

ified on b ehalf of

the appe llant. Smith

sold Real Wo

rld software and bec ame

acquainted with the appellant when she worked for Vermeer. He sold the Real Wor ld software to Parris Printing and installed it on the company ’s computers after the app ellan t began working there. Smith noted that “RealWorld needs a little bit of training up front,” but explained that someo ne could b e traine d to use the softwar e within a c ouple of w eeks. Smit h did not know of anyone w

ho was being paid a salary of $300,000 to operate the Real World software.

Thomas Walte

r Vas tric k test

ifie d for the a ppel lant a s an exp ert forensic document examiner. V astrick explained that he had received the chec ks underlying

the indictment and h a d been pro vide d copies of Ritchie’s authentic signature. Additionally , in order to do a handwriting comparison, Vastrick was provided copies of checks that the a ppellant had written. Vastrick testified that, wh il e t he si gn at ur es “p ic to ri al ly” resembled Ritchie’s signature, it became “very , very obvious to me that there had been an attempt to copy the signatures.” Vastrick noted that one of the characteristics wh i ch indicated that the signature was not ge nuine was “the manner in which the descenders on the ‘J’s’–the way in which they went.” Vastrick observed that an at te mp t t o c op y a signatu re “ra ises some problems in comparisons with other people because, when y ou have a case of an attempt to copy, a lot of times there are very few, if any , characteristics of the actual writer.” Ac co rd in gl y, Vas trick opined that the signatures on the questioned checks wer e not written by Ritchie, but Vastr

ick could not deter mine if the appellant

had written the checks. I n sum, Vastrick testified that “I can’t say

she did write it; I cannot say she didn’t.”

The appellant testified on her own behalf. She stated that she was for ty-four y ea rs oldand that she had been married to L loyd Jones for slightly more than two year s. She stated that she had a seve nteen-ye ar-old son, Barry , Jr. (BJ), who was born during a previous marriag e. The appellant asserted that she started Data Solutions in 1992. She noted that she was familiar with Real World software in 1998 because she had worked with the prog ram while employed a

t Vermeer. Through her work at Vermee r, the appellant became acquainted with Kraft. When the appellant “had

finished up with pre

tty much all I could do for [Vermeer ],” she approached Kraft and inquired about employment at other c ompanies

. Su bs eq ue nt ly, Kraft re commended the appellant for the position of “[i]n-house accountant” at Parris Printing. She stated that she was hiredas a fulltime employ

ee in 1998 to replace Mosley , and was to be paid a salary of $42,000 pe

r y ear. Sho

rtly-12-

after she began working at ParrisPrinting , the appe llant con tacted Sm

ith and ha

d Real Worl d software installed at the company

.

The appellant

asserted that, in December 1998, she beg an missing work fre quently because her son be

came ill and she had to take him to the doctor. Ritchie informed the appellant that he could not pay he

r salary if she did not work th

e requir ed forty hours per week. D uring th

e first
or second week of December 1998, Ritchie terminated the appellant’s employ ment. The appellant left Parris Printing but

later called Moseley

“because there were some things that . . . needed to be finished up.” Moseley wa s concerned because she did not know how to run the Real World software and stated tha

t she would

speak with Ritchie on the appellant’s behalf. The appellant recalled that
on the following Thursday or Friday, Ritchie c alled her at home and asked her to return to wor k. The appellant told Ritchie

that she w ould

consider his reque st. Ritchie

told the a ppellant to “make me an offer.”

The appella nt testified that she

called Ritchie

the next day and

informed him that she would require “a twenty-thousand-dollar

incentive to come back.” The appella nt opined t

hat Ritchi e agreed to pay the amount because “he felt sorta stranded a nd needed to.” Because of he r concerns regarding Ritchie’s “hire and fire abilities,” the appellant advised him that she would return to work only as an independent contractor through he r compan y Data Solut ions. The appellant also requested payment of $120 pe

r hour, w ith a minimum of forty hours per w eek, plus expenses. She defended the amount, a sserting

that “[t]he

re are accoun tants out there that make that and more.” The appellant maintained that this agreement was reflecte d in the Decem ber 7, 1998, invoice. The appellant testifie d that Ritc hie instru cted her to submit all of her in

voices di rectly to him bec ause

he did not want anyone

to know the amount she was being paid.

The appellant stated that during some weeks she worke d twenty ho ur s and some weeks she worked sixty or seventy hours. The appellant explained, “I was to prepare two, different invoices , one for twenty

dollars an hour, one for a hundred-and-twe nty dollars an hour. The invoice for twenty dollars an hour w as the one that [Ritchi e ] gave to [Moseley

] to run thro

ugh ac counts pay able to cut me a check.” Based upon the two invoice s, the appellan t receiv ed two pa ychecks. The first check, which was generated by Moseley, was f

or $400 reflecting pay

ment of $20 per hour. The second check, reflecting payment of

$120 per hour, was for the amount of $4,800. The appellant testi fied r egardin g the pa yments, s pecifi cally ex plain ing:

I w ould – first of all the – the four-hundred-dollar ones were pretty ea sy. I just gave those to Ritchie, and he gave them to Ardth; and she put them in the payables, a nd then I would cut

the chec k for tha t, when the y w ere in the pay ables.

The other ones were a little different. I gave those to Ritchie, and he would bring it – you k

now – te ll me yes or no or – y ou know – we would discuss something over.-13- And nobody knew about those c hecks but him and I; so, those checks had to be cut when I ran the pa yables, but they

would be run after the payables. I

n other words, it was a – it was an end-of-the-run

check.

And, when you run the c

hecks up – after y ou get

through processing
a run of checks and you feed it up, you’ve burned two or three checks at the en d of it.

And those checks were saved for putting in – the way

that – the way that he wanted it done was, he wanted the invoices t hat the CPA
wo uldsee and his partners would see and Ardth would see to sho w a vendor, ins tead of me, because he didn’t want any flags going up that he was pay

ing me forty -eight-hundred dollars a week.

. . . . I wou ld tak e off th e wh it e co py, a nd I w ould run it through the computer to myself. An d .

. . on th is pa rt ic ul ar pr og ra m, it sa y, “Are al l the c he ck s th at

pr int ed oka y ?”
Well, on this sof

tware y ou can te ll i t no and it will void that check; butyou can g o back in and pri nt a nother check, the same number. And that’s how the pink and ye llow copies were run.

The appellant testified that she watched Ritchie sign severa l of the checks that she printed for herself. Shethen took the checks and deposited them in her account at Wilson Bank and Trust. The appellant removed the original copies of the checks from the bank statements at Ritchie’s direction. She gav e the ori ginals t o Ritc hie, but she d id not know what he d

id with the

m. Ad di ti on al ly, the appellant claimed that before Ritchie left for vacation, he pre-signed the c heck that
was purportedly written on Nove mber 22, 1 998. Sh e asserted that she did not steal money from Parris Pr inting a nd did not f

orge Ritchie’s n ame to the checks. She stated that the arrang ement to disguise her pay “ wasn’t right,” but “I worked for [Ritchie], he

signed m y check; I did it like h

e told me to.”

When Parris Printing began having financial difficulties, the appellant theorized that the “sweep account” at the bank was the problem. Nevertheless, despite the finan cial pro ble ms, Ritchie did not have a problem with pay ing the appellant her large salary.

The appellant

admitted that she made large purchases with her sala ry. Namely , she had a pool and a h ot tu b ins tall ed at h er hom e, con struc ted a gar age and a sunroom, and had a large amount of concrete poured. She also bought a c ar. She maintained that Ritchie agreed to pay her
more than the owners of the business earned and further stated that she did not feel guilty about her large salary

.-14- On January 13, 20 00, t he app ellan t retu rned t o Parr is Pr inti ng after receiv ing a telephone ca ll fr om Mo se le y. When the appellant entered the office, Ritchie was with Moseley . He askedthe appellant if she was there to find out about “those chec ks.” The appellant

testified that she confronted

Ritchie because she was “running out of excuses” an d was “no t feeling good ab out it anyway .” Ritchie informed the appellant that she needed to give him something to show his partners and Kraft. Accord ingl y, R itchie tol d the appellant to write a letter confessing that she took the checks and every

thing would be resolved. He also told her to gi ve him a check for $42,000 with the understanding that he would not deposit the check. The appellant admitted that she wrote the letter in which she claimed to have appropriated the funds, but at trial she claimed that the contents of the letter were untrue. She contended that she wrote the le tter to help Ritchie because “[h]e had been good to me.”

On cross-examination, the appellant testified that she was fired on

Friday, D ecember 4, 1998. She came back to work on Monday , December 7, 1998, after Ritchie called he r because he
w as “desper ate” to have her come back to work. She e xplained that Ritchie paid her the $20,000 bonus she had requested, but the payment wa s made in installments. Those payments we re reflected in the chec

ks includ ed in count one of the indictment. Additionally, the a ppellant claimed that Ritchie did not pay her in full, but she kept a r unning balance of the amount she was owed. Furthermore, the appe

llant con tended th at she be gan bill ing Parr is Prin ting t hrough Data Solutions in December 1998 despite the fact that no invoices we re addressed from Data Solutions until March 1999.

Fi na ll y, the appellant called Leona May Walker to testify on her be half. Walker was
a former employee of Parris Printing who was laid off in Jul y 1999. Walker testified that the appellant was firedbecause

Ritchie wa s angry

with the a

ppellant , but she w as later rehire d “beca

use nobody else could do what she could do.” Walker asserted that the appellant was fired on a Tuesday and did not

return to work for a week. Walker sta

ted that sh

e would be

surprise d to learn that the appellant made $30 0,000 a year because during Walk er’s year-l ong emp loyment with Parri s Pri ntin g, Walker asked for a raise three times and wa s refused.

Based upon the f

orgoing , the appe

llant wasfound guilty

of counts two throu gh si x. However, the jury

was u nable to rea ch a verdict on count one of the indictment. Thereaf ter, a sentencing hearing wa s held. B. Sentencing Hearing

At the sente ncing hea ring, th e State su bmitted the

appella nt’s pre sentenc e repor

t. Next, the State called Bart Witsman, an accountant for Ver meer Corporation in Laver gne. Witsman stated that he began working for V ermeer in April 1998 while the appellant was the comptroller for the company . The app ellant ob jected to Witsm an te stifying re garding any uncharged criminal activity involving the appellant’s employ ment at Vermeer. However, the trial court overruled the appellant’s objectio n becau se “if th ere’s a showing of prior criminal beha vior, I can consider, whether she’s charged or

not.”-15- Witsman testified: We found forty-f

ive thousand dollars worth of checks that were – our understanding that they

had bee n deposite d in the bank f

or the I RS for
a pay roll tax deposits in August of ‘98. And an IRS agent c ame and said we were behind on our payroll taxes, at which time, the investigation led t hat those forty-f ive thousand dollars worth of checks had b een dep osited into various a

ccounts u

nder Jamie Waldr um[, th e a pp el la nt ’s na me pr io r t o h er ma rr ia ge to Llo yd Jones].” The checks t

hat were supposed

to be depo si ted into Vermeer’s pay roll tax account had been deposited into one of the appellant’s personal accounts. The appe llant ap propria

ted these funds during approximately half a y ear. Moreover, the appellant made a $5,000 loan and a $10,000 loan to Vermeer, using these appropriate d funds.

Witsman averre d that “[t]he coupons th at go al ong with the payroll tax deposits were filled out just as i f they ’d been p ut into the a

ccount a nd sa tisfied the IRS requirements.” Ac co rd in gl y, without the intervention of the IRS, the missing funds probably would not have been discovered.

Ad di ti on al ly, Witsman testified that “[t]here was about twenty- five thousanddollars worth of checks that were written for made out to cash or made ou t to [the appellant]. There was
a double bonus at the end of ‘97 that she made out to herself, also, th os e t ot al li ng [s ic ] a bo ut tw en tyfive thousand.” The checks pay able to the appellant or to cash were never a uthorized. The appellant was fired from Vermeer af ter the discovery

of these checks.

The appella

nt c hose not to testify at the sentenc ing hearing. However , appellant’s counsel asked the

court to consider a letter and proposed order which ha d been su bmitted to Pa

rris Printing’s attorne y. The p roposed order provided that the appellant would sell her house a nd pay the remaining funds from the sale to Parris Printing as re stitution.

The appellant’s husband, Lloyd Wallace Jones, Jr., testified on her behalf. He asserted that he had been married to the appellant since October 1998. He stated that

he worked as
a truck driver

earning approximately

$47,000 per yea

r. He acknowledged that he a nd the appellant
were selling their house, which had an appraised value of $238,000. The firs t mortga ge on the home was in the amount of $144,000 and there was also a second mortga ge for $10,000. Jones asserted that upon the sale of their home, any funds re maining after pay

ment to the lien holders would be used to pay restitutio n to Parri s Printing . Regar dless, Jones testified that he believed the appellant when she said that she did not steal any mone y from Parris Printing.

Jones testified that the a

ppellant bought h er son an “‘84 or ‘ 85 model” car using the funds in her son’s savin gs accoun t. Addition ally , Jones obse rved tha t the appe llant han dled all

of the family finance s and Jones “didn’t question anything.” Jones maintained that he never asked the appellant how much m

oney she ear ned while working for Parr is P rinting , but he knew that she-16-

“made good money .” However, Jones admitted that he learned how much money the appellant made when he signed their joint tax return for 1999.

Moreover, Jones conceded that he knew the appellant was being sued by Vermee

r. He did not know the particulars of the litigation because the appe llant assuredhim that he did not needto worry. He

testified that the appellant bought a Lincoln Town Car and th en came home with
a Lincoln Navigator. The

appellant bought a pool, a fence, an e lectronic gate, and $2,100 worth of furnitur e. The appe lla nt also ha d a patio e

nclosed a nd a sunro om built. Jone s admitted that in October and November

1999, he bought the appellant $2,400 worth of jewelry . They also owne d a $15, 000 t ime sh are uni t at t he Sun rise R idge Re sort i n Gatl inbu rg.

Jones asserted that

the appellant

was remorseful for her actions. He a lso stated that when he visited her in jail she was upset, cried and wanted out of jail. He said the appellant did not think that she belonged in jail.

On cross-examination, Jones conceded that the appellant owed $100,000 to the IRS because she had failed to pay her taxes. She had not yet made the payment or arranged a pay

ment plan. He stated that he had not met with an IRS ag ent in or der to arrange a pay ment plan. Ad di ti on al ly, Jones n oted that the appellant was willing to repay the almost $42,000 she was convictedof taking, but she had no plans to repay the $300,000 taken from Parris Printing or the money taken fr

om Vermeer.

The appellant’s counsel explained to the tria l court tha t the appe llant plan ned to sell her home and any f

unds remaining after pay

ment of the mortgages were to be paid to Par

ris Prin ting, even if the amount exceeded $42,000.

After considering the foregoing facts, the trial court sentenced the appellant to four yearsincarceration on each offe nse. The court further found that the appellant was a professional criminal , and ordered the sentences for c ount two and count six to be served consecutively for a total effectivese ntence o f eight years. The trial court ordered the appellant to serve one y ear of the sentence in confinement and the remainder on community corrections. The trial court instructed the appellant to make restitution in the amount of $41,460 to Parris Printing while she was serving her community corrections sentence.

The appellant timely appea led, raising the following issues: (1) whether the evidence
was sufficient to sustain the convictions; (2) whether the trial court erred in allowing the introduction of evidence presented by

Witsman at the sentencing hearing; (3) whethe r th e trial c ourt err

ed in declaring the appellant to be a professional criminal; (4) whether the trial court

erred i n finding

only
one mitigating factor applicable to the appellant ; (5) whether the trial court erred in deny ing the appellant probatio n; (6) whe

ther the trial cou rt erre d in granting the

State’s oral motion to amend the indictmenton the first day of trial; (7) whether the trial court er red in allowing L

arry Parris to r

emain in the courtroom after his testimony when the defens e noti fied the trial cou rt that the

defense intended to reca

ll him as a witness, in v

iolation of

Tenness ee Rule

of Evidence 615; (8) whether the6 W e will ad dress these issu es in a d ifferent or der tha n that in wh ich they w ere ra ised.

7 W e note that the ap pellan t was ultima tely grante d a m istrial on c ount o ne du e to a d ead locke d jury.
-17- trial court er

red in allowing the State to pr esent to th

e jury , during

rebutta l closing argume nts, exhibits/evidence not i ntrod uced d uring trial; (9) w hether the trial court erred in sentencing the appellant to the maximum sentence of four ye ars on each forgery count; and (10) whether “the trial court err[ed] in refusing to grant the [appellant] a new trial when the defense presented new evidence to the trial court that the State’s main witness, [Ritchie] Parris, lied on the witness stand concerning his manner of signature, based on the signature that [he] had provided in his respo nse as a v

ictim in the presentence report of the [appellant].” 6 II. Analysis

Init ia ll y, we note that the appellant provides no citations to the record within the argument portion of her brief. Accordingly , all of the appellant’s issues could be treated as waived by this court. See Tenn. Ct. Crim. App. R. 10(b). However, we will briefly address the appellant’s issues.

A. Amendment of the Indictment

Under both the federal and state constitutions, a criminal accused

is entitled “to be informed of the natureand cause of the accusation” ag ainst her. U.S. Const. Amend. VI; see also Tenn. Const. Art

. I, § 9. This requirement is met when an indictment charging an acc used “provides sufficient information (1) to enable the accused to know the accusation to which answer is required, to furnish the court adequate basis for the entry of a proper judgment, and (3) to protect the a ccused from double jeopardy.” State v. H ill , 954 S.W.2d 725, 727 (Tenn. 1997). Such indictmentmay be amended “in all cases with the consent of the defendant.” Tenn. R. Crim. P. 7(b). However, even withoutthe defe

ndant’s c onsent, the trial court may pe rmit an amendment before jeopardy a

ttaches “[i]f no additional or

different offense is thereby charged and no substantial rights of the defendant
are thereby pr

ejudiced.” Id. In a jury

trial, jeopardy ty

pically only

attaches when the jury

is sworn, notduring any

pretrial procedures. See State v. Pennington , 95 2 S.W .2d 420, 422 (Tenn. 1997). This court has previously obse rved that the “denial of a motion to amend a

n indictme

nt is a matter within t he trial c ourt’s dis cretion , and this c ourt will a lter the t rial cou rt’s dec ision only

if tha t discretion has been abused.” State v. Kennedy , 10 S.W.3d 280, 283 (Tenn. Crim. App. 1999).

Prior to empaneling the ju ry, the appellant moved the court to dismiss count one of the indictmen

t becaus e the indi ctment re flected that the o ffense

was committed between December 31, 1999, and January 10, 2000, yet none of th

e proof a lleged by t he State o ccurre d betwee

n these two dates. 7 The State

informed the trial court that the appellant had been put on actua l notice of the offense dates involved in count one, which dates were Dece mber 31, 1998, through January 10, 2000. The appellant admitted that she had actual notice of the offense date s and conceded that an amendment

of the ind ictment w ould

cure any double jeopardy pr

oblem. Accordingly , we conclude that the trial court did not abuse

its discretion in allowing the State to orally amend the indictment prior to trial to correct the dates involved in count one. See id. at 284. “[T]he record amply reflec ts-18-

that it was known to all parties that the incorrect date was mere ly a ty pographicalerror. Jeopardy had not attached, no additional offense was charge d, and no substantial rights of [the appellant] were prejudice d.” State v. D arrell F ritts , No. 132, 1992 WL 236152, at *7 (Tenn. Crim. App. at Knoxville, Se

pt. 25, 199 2). This is sue is with out merit.

B. Violation of Tennessee Rule of Evidence 615 Tennessee Rule of Ev

idence 6 15 is the r

ule of se questra

tion and is “now colloquially referred to as ‘The Rule.’” Neil P. Cohen et al., Tennessee Law of Evidenc e , § 6. 15[ 2] (LEX IS publishing , 4th ed. 2 000). Rule 615 provid

es: At the request of a party

the court shall or der witne sses, including rebuttal witnesses, excluded at trial or other adjudicatory hearing. In the court's discretion, the requested sequestra tion may be eff

ective before voir dire, but in any eve nt shall be ef

fectiv e before opening statemen ts. The cour

t shall ord

er all pe rsons not to disc lose by any
means to exclude d witnesse s any live tria l testimony

or exhibits created in the cou

rtroom by a witness . This rule

does not a

uth orize exclusion of

(1) a party who is a

natural person, or (2) a person designated

by counsel for a

party that is not a natural person, or (3) a person whose presence is shown by a party to be e ssential to the presentation of the party’s ca use. This rule does not forbid testimony of a witness called at

the rebu ttal stag e of a he aring i f, in the court’s discretion, co un se l i s g en ui ne ly s urprised and demonstrates a need for rebutta l testimony

from an u

nsequest ered wit ness.
At the conclusion of Larry

Parris’ testimony, the ap pellant asked the trial court for “the Rule.” T he State ar gued th at beca

use L arry had conc luded his d

irect te stimony

and cros sexamin ations, there was no further need for his seque stration. The appellant argued that L arry’ s name was included on her witness list and she might want to recall Larr

y subsequent to the testimony of Ritchi e and Lackey . The tria l court sta

ted, “I understa nd y our positio n; but just ba se d on th e contempl atio n t hat you might use [L arry] in the future is not a r eason to prevent him from being here.” The appellant contends that “[t]he disallowa

nce to ha ve this rule exacte d upon this witness was in direct contradiction to Rule 615, and a violation which tainted the trial of this matter.”

We observe that the language of Rule 615 mandates the exclusion of a witness from the courtroom upon the request of a party unless that witness falls within the listed exceptions. See Statev. Anthony

, 836 S.W.2d 600, 605 (Tenn. Crim. App. 1992). Th e proof doe s not reveal that Larry met any of the exc eptions for sequestrat ion. Clearly, he wa s excluded from the courtroom prior to his testimony. I

n our view, he should not have been allowed to remain inside the couroom after counsel advised the court that he might be c alled as a rebuttal witness. See id.

Regar dless, the appellant never

recalled Lar

ry to testify , nor

did she attempt to show how she was prejudiced by the trial court’s failure to exclude him from the courtroom. Notably, on appeal, the appe

llant only claims in a conclusory state ment that the trial court’s error “tainted” the-19-

trial. It is well-established that “[a] de

fendant may not be g ranted r elief on appella te review when [she] fails to takes action reasonably necessary

to prevent or nullify the e rror.” Id. ; see also

Tenn. R. App. P. 36(a). Moreover, when a sequestration issue is raised on appeal, this court considers the seriousness of the violation and the prejudice endured by the appellant. See St ate v. C oulter , 67 S.W.3d 3, 52 (Tenn. Crim. App. 20 01). In light of the fa ct that Larry ’s testimony was consistent withthe remainder of

th e S ta te ’s pr oo f, we fa il to se e w ha t p re ju di ce , i f a ny, the appellant suffered. Accordingly , we conclude that the trial court’s error wa s harmless. Tenn. R. Crim. P. 52(a).

C. Rebuttal The appe llant arg ues: During rebuttal closi ng, the State presented several documents which
were not presented during the trial as evide nce. The State use d these document s, invoi c es, to attempt to prove to the jury that the Defend ant/Appe

llant had fraudul ently

prepar ed docume

nts while in the emplo y of Parri s Pri ntin g, and in prepar ation of a defense agains t these charges. As such, the State attempted to introduce extraneous inform ati on to the jury which was not pre sented during the proof states of the trial.

As we noted earlier, the appellant has failed to provide any citations to the rec ord to indicate which exhibits she found objectionable. Accordingly , we deem this issue to be waived. Tenn. Ct. Crim. App. R. 10(b). Moreove r, we co nclude th at the ap pellant a lso waive d this issue by failing to object

at trial. Tenn. R. A

pp. P. 36(a

); State v. L

ittle , 854 S.W.2d 643, 651 (T enn. Crim. App. 1992). D. Sufficiency of the Evidence In order to

success fully

challen ge the s ufficie

ncy of the evidence s u pport ing her convicti ons, the appe

llant must d

emonstra te to this court that no “rational trier of fact” could have found the essential elements of the crime bey ond a reasonable doubt . Jackson v. V irginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982); Tenn. R. App. P. 13(e). In other words, on appeal, the State is entitled to the strongest legitimate view of the evidence and

all reasonable inferences which may be drawntherefrom. State v. Will iams , 657 S.W.2d 405, 410 (Tenn. 1983). Questions concerning the cr edibility of the witnesses and the weight and value to be given

the evidence, as well as all factual issues raise d by the evidence, are resolved by the trier of fact and

not the appellate courts. State v. Pr uett , 788 S.W.2d 559, 561 (Tenn. 1990).

The appella

nt was co nvicted o f fiv e cou nts of for gery . The off

ense of f orger y is codified in Tennessee Code Annotated section 39-14-114(a ) and (b) (1997): (a) A person commits an offense who forge s a writin g with intent to defraud or harm another. (b) As used in this pa

rt, unles s the cont

ext otherw ise requ

ires: (1) “Forge” mea

ns to:-20- (A) Alter, make, complete , execute or authenticate any

writing so that it purports to: (i) Be t he act of another who did not

authorize that act;

. . . . (C) Issue , transf

er, reg ister the transfe r of, pas s, publish, or other wise utter a writing that is forged within the meaning of su bdivision (1)(A); or (D) Possess a writing that is forged within the meaning of subdivision (1)(A) with intent to ut ter it in a manner specified in subdivision (1)(C). Forgery “is punishable as theft pursuant to [Tennessee Code Annotated section] 39-14-105.” Id. at (c).

Lar

ry Parris, Ritchie Parris, Lackey , and Moseley maintained that only Ritchie and Lackey had autho

rity to sign checks for

Parris Printing; no employee had such authority. Ritchie, Lac ke y, Moseley, and

Kraft te stified th at the ap

pellant w as orig inally

hired asa full-time bookkeeper for Parris Printing and she was to earn a salary of approximately $40,000 per y ear. However,
ac cor ding to Ritchie and Moseley, due to the a ppellant’s inability to work the required number of hours, Ritchie hired the appellant as an independent contractor. She w as to be paid $20 per hour for the time sh

e worke d at Parr

is Printing

and $15 pe

r hour fo r the wor k she did at home. Moseley t estified that the appellant was the only person who controlled the bank statement s for Parri s Prin ting. Additionally, Ritchie and Moseley noted

that Mose

ley and the a ppellant had the a uthority to preparechecks , but not to sign them. After several months of financial difficulties with the
co mp an y, Ritchie and Moseley discove red five sus picious c hecks. After the appellant was confronted, she wrote

a letter of apolog

y f or writin g those c

hecks to h

erself and she gave Ritchie a personal check for $42,000.

Larry Parris, Lackey , and Moseley examined the signa tures on the checks underlying counts two through six. They eac h maintained that the signatures on the checks wer e not Ritchie’s signature. Further

more, Ritc

hie denied signing the checks or g iving anyone

else the authorization to sign them. Moreover, the appellant’s own expert witness asserte d that the signat ur es on the checks were not Ritchie’s signatures. However , because the signatures were attem pts to copy Ritchie’s signature, the e xpert w as unable to determine any characteristics of the actual writer. Therefore, he could neither exculpate nor inc ulpate the appellant as the source of the signa tures.
The appellant

agreed that

she was originally

hired as a full-time employ ee. However, she maintained that she

was fire d becau se of her absences from work. Shortly after her employment was terminated, Ritchie asked the appellant to return to work. Accordin g to the a ppellant , Ritchie agreed to pay her a $20 ,000 ince

ntive bonu s to retur

n to work. He also

agreed to pay

the appellant $120 an hour, despite the fact that he had previously paid the appellant only $17 or $18 an hour. The appellant admitted t

hat she pr epared the chec ks underl yin g count s two t hrough six and conceded that she deposite d those

checks into her personal account. Reg ardless, she maintained that she watched Ritchie sign the checks and she

asserted that the checks were legitima te pay ments for her ser vices.-21-

She created “dummy ” checks to record in the business recordsat Ritchie ’s direc tion; he did not want anyone to know that she was being paid $300,000 per ye ar. She claimed that she wrote the letter of apology to “help” Ritchie because he had “bee n good to” her.

The issue ultimately

was one of credibility . As we earlier noted, credibility is issue to be determined by

trier of fact, not the appellate court. Pruett , 788 S.W.2d at 561. The jury, as wa s its prerog ative, choseto believ e Ritchie ’s testimo ny t hat he did not sign t he chec ks nor did he agree to pay the appe

llant the exorbitant salary she claimed t o have e arned. T

hus, the ju

ry could find that the appellant, who admitted preparing and depositing the checks, forged the writing s. This issue is without merit. E. Witsman’s Testimony

The appellant

comp lainsthat t

he tr ial c ourt e

rron eous ly

allow ed Ba

rt Wi tsman to testify at her sentencing hearing in contravention of Tennessee Rule of Evidence 608. Initially , we reco gniz e that “ [t] he rul es of ev idenc e shal l appl y [at a sen tenci ng heari ng] , except that reliable hearsay including , but not limited to, ce rtified c opies of c onviction s or docum ents, may be admitted if the op posi ng party

is a ccorded a fair opportunity to rebut any hea

rsay evide

nce so admitted.” Tenn. Code Ann. § 40-35-20 9 (b) (1997). The admission or exclusion of evidence rests in the discretion of the trial court and this court will reverse such a ruling only if the trial court

abused that discretion. State v. We st

, 737 S.W.2d 790, 793-94 (Tenn. Crim App. 1987).

Tenness ee Rule o f Evidenc e 608(b) provides : Specific instance s of condu ct of a wi tness for the purpose

of attacking
or supporting the witness’s credibility , other than co n victions of a crime as provided in Rule 609, may not be proved b y e

xtrinsic evidence. They may , howeve r, i f probative of truthfulness or untruthfulness . . . , be inquired into on cross-examination. In the instantcase, Witsman’s testimony was not prese nted at the sentencing hearing as an attack on the appellant’s credibility. I nstead, the State called Witsman to demonstrate the appellant’s prior criminal activity.

Over the appellant’s objection, the trial court

allowed Witsman to te stify , corre ctly ruling that “if there’s a showi ng of prior criminal behavior, I can consider, whether she’s char ged or not.” In State v. Carico , 968 S.W.2d 280, 287 (Tenn. 1998), our supreme court stated that “the trial court may utilize criminal behavior shown by a preponderance of the evidenc e to enhance a sentence withoutviolating federal or state due process.” See also State v. Win field , 23 S.W.3d 279, 283 (Tenn. 2000). As noted, the State called Witsman to attempt to establish, by a preponderanc e of the evidence, that the appellant had been pre viously involved in criminal activity . We conclude that the trial court did not abuse its discretion in allowing Witsman to testify at the sente nci n g hearin g. F. Sentencing-22- Appellat e review of the length, range or manner of ser vice of a sentence is de novo. Tenn. Code Ann. § 40-35-401(d) (1997). I n conduc ting its de novo review, this court considers the follo wing factors: (1) the evidence, if any , received at the trial and the sentencing hearing; (2) the presentencereport; (3) the principles of sentencing a nd arguments as to sentencing alterna tives; (4) the nature and characteristics of the c riminal conduct involved; (5) evidence and information offered by the parties on enhancement and mitigating f actors; (6) any

statement by the

appella nt in her own behalf; and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102 and -103 (1997), -210 (Sup

p. 2002); see also State v. Ashby , 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on the appellant to demonstrate the impropriety of her sentence(s). Tenn. Code Ann. § 40-35-401, Sentencing Commi ssion Comments. Moreover, because the record re veals that the trial court adequa tely considered sentencingprinciples andall relevant facts and cir cumstanc es, this c ourt will accord the trial court’s determinations a presumption of correctness. Id. at (d); Ashby , 823 S.W.2d at 169. 1. Length of Sentenc e

The appellant raises two issues regarding the length of her sentenc e. First, s he contends that the trial cou

rt erre d in apply

ing only one mitig ating f

actor wh en deter mining the lengt

h of her sentence. Second, she complains that the trial court erred in sentencing her to the maximum
se ntence of four y

ears on e ach off

ense. Asthese issu es are i nterlocking, we will addr

ess th e m si mu lt an eo us ly.

The appella

nt was co nvicted o f five c ounts of forgery more than $1,000 but less than $10,000. The forgery

statute provides that forgery “is punishable a s t heft pursuant to [Tennessee Code Annotate d sectio n] 39-14- 105.” Tenn. Code Ann. § 39-14-114(c). Tennessee Code Annot atedsection 39-14-105(3) (1997) classifies theft of more than $1,000 but less than $10,0 0 0 as a Class D felony. Additionally, the appellant was sente nced as a standard Range I offender.

“The presumpt

ive sente nce for a Class . . . D . . . fel o ny sha ll be the minimum sentence in the range if there are no enhancement

or mitigating factors.” Tenn. Code Ann. § 40-35- 210(c). Therefore, the presumptive sentence f or each of the appellant’s convictions is two years, the mi nimum sentence for a Class D felony committed by a Rang e I offender . However, if there a r e enhancement

but no miti g ating factors, then the sentence may be set above the minimum in that range but still within the range. Id. at (d). If there are both enhancement and mitigati ng fac tors, a court should begin at the presumptive sentence and enha nce for the enhancement factorsthen reduce as appropriate for the mitigating fa ctors. Id. at (e).

As we earlier noted, the State submitted into ev idence the appellant’s presentence report and produced the testimony of Witsman at the sentencing hearing. Witsman t estified regarding the appellant’s previous appropriation of funds while she worked for Ve rmeer. The appellant’s husband, Lloy d Jones, testified on her behalf. At the conclusion of the hearing, the trial court dete rmined that the only mitigating factor applicable was that the appellant’s “criminal conduct ne ither caused nor threa tened serious8 This court must assume that these are the mit

igating f actors the appellant

complains the trial cou rt failed to app ly. The app ellant did not sp ecifically se t out the a pplic able m itigating facto rs in her b rief.
-23- bodily injury.” Tenn. Code Ann. § 40- 35-113(1) (1997). Ho wever, the trial court af forded t his factor little weight because it would be found in “most ever y theft rela

ted” crime.

The other mitigating factors which were proposed by the a

ppellant at the sentencing hearing were: 8 (3) Substantia l ground s exist te nding to excuse or justify the [appellan t’s] criminal

conduct, though failing to establish a defense; (7) The [appellant] was motivated by a desire to provide necessities for [her] f amily or [herse lf]; (12) The [appellant] acted under duress or und erthe domination of another person, even though the

duress or the domination of another person is not sufficient to constitute a defense to the crime; [and] (13) The [appellant] is attempting to make restitution for the $42,000.00 under the

Forge ry convicti ons, Counts Two th roug h Six, by the sale of he

r house. Tenn. Code Ann. § 40-35-113(3), (7), (12), and (13). I n examining these factors, the trial court stated that “the

y ju st don’t me sh with the [appella nt’s] positi on, now or at trial.” The trial court determinedthat there were no grounds to “excuse or justify ” the appel lant’ s criminal behavior. Ad di ti on al ly, in light of the appellant’s lavish spending, the trial court found that the a ppellant was notacting under a desire to provide necessi tie s for herself or her family . The trial court further observed that there was no pr

oof in the record that the appellant acted under dur ess or domination. Moreover, in connection with the appellant’s restitution, the trial court observed: In terms of restitution, and that being submitted as a mitigating factor, I just think she’s ca

ught in th e position where Pa rris app arently

is not going to lay

down like

Vermee r did and g et m on ey b ack fro m their insur ance , and then jus[t] s ay , wel l, the

rest of it i sn’t w orth [ it].

. . . So I don ’t think it’ s something she’s vol unteeri ng to pro vide toParris Prin ting, but for

their efforts to make her do it, because her position, al l a lo ng , h as be en th at sh e d es er ve d t hi s m on ey. Based upon the trial court’s reasoning, we c onclude t hat the tr ial cour t did not er

r in refu sing to a

pply these miti gating

factor s.
The trial court found the presenc e of two enhancement factors: (6) the a mount of damage t o property sustained by or taken from the victim was particularly great and (15) th e appellant abused a position of public or private trust, or used a special skill in a manner that9 As of July 4, 2002, the st atutory enhancement fact ors have b een re numb ered . Ten n. Co de A nn. § 40-35- 114

(Supp. 200 2). Ho weve r, in the i nstan t case , we wi ll u se the numbering of th e 1997 version of Tennessee Code Annotat ed sect ion 40- 35-114.
-24- signific antly

facilitated the com missi on or fulfillment of the offense. Tenn. Code Ann. § 40-35- 114(6) and (15) (1997). 9 The trial court afforded these factors great weight.

We no te th at , g en er al ly, “since the punishment for theft is enhanced based upon the amount take n by

the accused, use

of this en

hanceme nt facto r constitu tes double

enhanc ement i n violation of the statute.” State v. Grissom , 956 S.W.2d 514, 518 (Tenn. Crim. App. 1997). However, this court has also noted that when the amount taken a pproaches the upper end of the offense spectrum or the amount taken is as much as six times the amount of the minimum of the offense, then the application of enhancement factor ( 6) is proper. See Grissom , 956 S.W.2d at 518 n.4; State v. Cy

nthia Taylor Mann , No. M1999-01390-CCA-R3-CD, 2001 WL 487686, at *4 (Tenn. Crim. App. at Na shville, Ma y 8, 2001); State v. Barbara D. Frank , No. 03C01-9209-CR-00303, 1993 WL 539401, at *4 (Tenn. Crim. App. at Knoxville, Dec. 22, 1993). In the instant case, the trial cour t observed that “each co unt of t his indictm ent that sh

e’s now b een con

victed on obviously

are well above the minimum amount for that particular finding; that is, above one thousand dollars. And the
cases allow the Court to consider that fact when y ou get up near and around the maximum amount within that range.” Accordingly, we ag ree with the trial court’s application of this fa ctor an d concluded that the

trial cou rt did not e

rr in ac cording

it grea t weigh t.
The trial court also found that the appellant had abused a position of trust. See Tenn. Code Ann. § 40-35-1 14(15). T he appellant had

the autho rity to prepa re the checks fo

r the busi ness. In exercising this ability, she forged several

checks to herself. Additionally , she ensured that she was in sole control of the bank sta tements for the company in order to disguise her appropriation of funds. Moreover, even though she knew Ritchie wa s concerned abou t the company having insufficient

funds to cover the company pay roll, she nevertheless blamed the bank for the financ ial difficul ties. We conclude that because t he appe llant “ was an employee of the victim company, a position of trust w

hich ena ble d her to c ommi t these crimes,” t he trial c ourt prop erly

applied t his enhancement factor. Grissom , 956 S.W.2d at 518.

The appellant complains that the tria l cou rt “improp erly

sente nced the [a ppel lant]

.

. . when it f

ail ed to start atthe minimum, then enhance upward, then downward as pre scribed.” However, [t]he appellant's sentence is not determined by the mathematical processof addi ng the sum total of enhancing factors present then
s ubtracting from this f

igure t he mitiga ting fa ctors pr esent f or a ne t number of y ears. Rather, the weight to be afforded a n existing factor is left t o the t rial c ourt's discretion so long as the cour t complieswith the purp oses and p

rinciple s of the 19 89 Sentencing Act and its findings are adequately

supported by the record.-25-

Statev. Boggs , 932 S.W.2d 467, 475-476 (Tenn. Crim. App. 1996). We find no error in the appellant’s sentence of four y ears for each offense. 2. Consecutive Sentencing The tr ial court then examined the evidence found and determined that consec utive sentencing was appropr

iate, de termining that the appellant was a professional criminal. The trial court then orde

red the s ente nce for co unt six to be served consecutively to count two with the remaining sentences to run concurr ently. The appellant appeals this ruling. I nitially, we note that “[w]hether

sentences are to be

served c oncurrently or

consecutively is a ma

tter addressed to the sound discretion of the trial court.” State v. A dams , 973 S.W.2d 224, 230-3 1 (Tenn. Cri m. App. 1997).

Tennessee Code Annotated section 40-35-115(b) (1997) contains the discretionary criteri a for imposing consecutive sentencing. See also State v. Wilk erso n , 9 05 S.W.2d 933, 936 (Tenn. 1995). Th

e trial c ourt imposed consecutive sen tencing on the bas is that “[t]he

[appellan t] is
a professional criminal who has knowingly de voted such [appellant’s] life to criminal acts as a major
source of livelihood.” This clas sificati on derived from Gray v. State , 538 S.W.2d 391, 393 (Tenn. 1976). See Tenn. Code Ann. § 40-35-115, Sen t encing Commission Comments. Gray defined a professional criminal

as “one w ho has kno wingly

devoted [h

er]self t o crimina l acts as a major source of livelihood or who has substantial income or resources not shown to be derived from a source other than criminal activity.” Id.

The trial court stated that “I do thi nk the

re is a suf fici ent showing

that [ the a

ppel lant] , because o f her lifestyle

and her major source of livelihood, being throug h criminal activity, either throu gh Vermeer or Parris Printing, is a professional cr iminal.” T he f

acts support this assertion. Over ap pr ox im at el y t wo ye ars, the appellant engag ed in a pattern of bilking her employ ers out of valuable funds. See State v. Rhoden , 739 S.W.2d 6, 18 (Tenn . Crim. App. 1987 ). She ap plied the se funds to lavish purchases and stopped only when discovery of he

r deeds was imminent. Moreover, this court has previously state d that “[o]ne who derives ‘ a major source of livelihood’ from criminal activity may als o rece ive substantial livelihood in a legitimate business. The operation of a legitima te business will not insul ate a professional criminal . . . from consecutive sentencing.” State
v. Walker , 713 S.W.2d 3 32, 334 (T enn. Crim. App. 1986 ) (empha sis in original). Th e trial c ourt did not er r in it s ruli ng.
3. Probation

In the appellant’s statement of the issues raised on appeal, she contends that the trial court erred i n denying

proba tion. However, this issue was never addressed in her br ief. “Issues which are not supported by argume nt, citati on to authorities, or appropriate referenc es to the record will be treated as waived in this court.” Tenn. Ct. Crim. App. R. 10(b).

G. Motion for New Trial As her final issue, the appellant contends that the trial court erred by refusing to grant
a new trial based on new evidence prese nted at the sen tencing hearing. The “ new evidence” the-26-

appellant presented was Ritchie’ s signat ure on hisvictim

impact statement which was included as part of the appellant’s presentence repor t. The appellant alleged that the signature demonstrated that the “descenders . . . on the e nd of the J’ s squirrel back to the right,” contrary to Ritchie’s trial te st im on y. “Bas ed o n the assertion that [Ritchie’s] testimony was contradictory to his own signature, and that his signatu

re was th e basis f or all of t he convictions [the a

ppellant ] received in this case, the [appellant] requested a new trial.”

This court has previously obse rved that th e d ec is io n t o “ gr an t[ ] o r d en [y] a new trial
on the basis of newly discove red evidence rests within the sound discretion of the trial judge.” State
v. Caldwell

, 977 S.W.2d 110, 117 (Tenn. Crim. App. 1997). Accordingly , we will not overturn the trial court’s decision absent an abuse of discretion. See State v. Meade , 942 S.W.2d 561, 565 (Tenn. Crim. App. 1996). I

t is the law

of this sta

te that
a trial court should grant a defendant a ne w trial on the bas is of newl y discovered

evidence when [(1)] the d e fendant has been reasona bly diligent in obtaining evidence , [(2)] the materiality of the new evidence is apparent, and [(3)] the evidence is likely to ch ange the result [of the trial]. It is true that ne wly discovered impeachment evidence will not constitute grounds for a new trial, as a ge neral rule. But if the impeaching evidence is so crucial to the def

endant’ s guilt
or innocenc e that its a

dmission wi ll probab ly

result in an acquittal, a new trial may be

ordered. Statev. Sin gleton

, 853 S.W.2d 49 0, 496 (Te nn. 1993) (citatio ns omitted) . This cou rt has als o observed that a new trial will not be granted on the basis of newly discove

redevidence when such evidence will serv e only

to im peach a witness. See State v. A rnold , 719 S.W.2d 543, 550 (Tenn. Cri m. Ap p. 19 86 ). Ad di ti on al ly, “[w]here evidence tends only to contradict or impeach the tri a l evidence, a new trial based on such alleged newly

discovered evidence is not warranted.” Statev. LeQuire , 634 S.W.2d 608, 615 (Tenn. Crim. App. 1981). All three prongs of the afore m entioned test must be met before an appellant is en titled toa new trial based on newly discovered evidence. See State v. N

ichols , 877 S.W.2d 722, 737 (Tenn. 1994).

The trial court ruled: In te rms of the

new evid ence, w hich I don’t thin

k there’ s a basis for saying this is new evidence–I mean, the defendant’s own

expert took knowing exemplar samples from [Ritchie], along with the defenda nt’s, and made

his analy sis of that . So the fa ct that – I mean, we can make it an

exhibit, but the fact that there may be some quirk in your opinion in terms of what – how his signature was exhibited on the victim impa

ct statem ent, I don’t think under the case la w rises to the level of being new evidence, suff icient for me to gran t new tria l. We agree with the trial court. I n light of the overwhelming evidence at trial that the signatures on the chec ks un derlying

counts two through six were not Ritchie’s, we conclude that this “new evidenc e” is not li

kely to chang e the re sult of the trial. Th is issue is without mer

it.-27- III. Conclusion Finding no reversible error, we affirm the judgments of the trial court.

___________________________________ NORMA McGEE OGLE, JUDGE