I t i s not appare nt f r om t he r ecor d bef

ore t hi s Co ur t wh en t he ori gi nal i ndi ct ment was f i l ed or w hat ch ar ges 1

were co nt ai ned t herei n. 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT NAS HVILLE Ja nua ry 22, 200 8 S es sio n

STA TE OF TEN NES SEE v. JAM SHID MA GHA MI

Direc t Appeal from the Circ uit Court for Cheatham County Nos. 14995, 14996, 14997 Larry Wallace , Judge

No. M2007- 01496-CCA -R3-C D - F iled March 3, 2008

Af te r a be nc h tr ia l, the De fe nd a nt, Jams hid Ma g hami, wa s c on vic te d o f t hr e e c ounts of

un lawf ull y maintaining a

n automobile g rave y ard. The trial court subsequently conducte d a sente ncing hear ing

and or de re d c on se c uti ve te rm s of thi rt y da y s on e a c h c ount. F ive da

y s w e re or de re d to be se rv e d in the local jail, with the bala nce of the sentenc es t o be served on probation. I n this direct appe al, the Def endant a rg ues that the e vidence is insufficient as a matter of law to support his convictions and that the trial cour

t erre d by order ing c onsecutive se ntence s. Following a re view of the sparse rec ord,

we a ff ir m th e jud g me nts of

the tr ia l c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

D AVI D H. W EL L ES , J. , d e li v e r e d th e o p in io n o f th e c o u rt, in w h ich T H O M A S T. W O O D A LL and R OB E R T W. W EDEMEYER , J J ., joined.

Da n. R. A le xan de r, Na sh vil le , T e nn e sse e , f or the a pp e lla nt, Jams hid

Ma g hami.

Robe rtE. Co op er, J r., At to rney Gen eral andRe po rt er; Benj ami n A. Ball , As si sta nt Atto rn e y

Ge ne ra l; Dan M. Alsobrooks, District Attorney Gene ral; and Robert S

. Wil son, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F ac tu al B ac kgr ound On J une 6, 20 0 6 , a super seding indictment was filed, whe rein a Cheatham County

g rand jury 1

c ha rg e d th e De fe nd a nt w iththr e e vio la tio ns of statut e s r e g ulati ng the op e ratio n o f a uto mob ile g r a v e y ar d s o r ju

n ky a r d s , Cl a s s C mi s d e me a n o r s

. Se e T e n n

. Co d e A n n

. § § 5 4

- 20-202, 205. Following a benc h trial, the trial cour t found the De fenda

nt guilty as cha rg ed.-2-

Be cause there was no c ourt repor ter at trial, the Def

endant ha s prepa

red a st at em ent of evidenc e as c ontemplated by Rule 24(c) of the Tennessee Rules of Appellate Procedur e. The state me nt o f t

he e vid e nc e re c ite s th e fa c ts, in r e le va nt p a rt , a s f

oll ow s:

The State fir st called Ha

rold Gooding of the Tenne ssee Hig hway Patrol who testified that he was a member of the Tenne ssee Hig hway Patrol. Trooper

Gooding testified that he wa s familiar with the prope rty at 5105 Hig hway 4 1
, i n Cheatham County Tenne ssee a

nd that the Depa

rtment of Safe ty , Tenne ssee Hig hway Patr o l, had conducte d an investi g ation of t he subj ect property and had r eac hed a c onclusion that the prope rty

was be ing use d as an a

utomobile gr avey ard in violation of the law

. Tr oo pe r G oo din g te stifi ed th a t th e pr op e rt y wa s st ill be ingus e d a s an a uto mob ile g rave y ard a

nd was at all times relevant to the pe riods all ege d i n t h e super seding indictments, September 6 and 7, 2005 a nd Dec embe r 30, 2004. Trooper Gooding further testified that he e stimated there w ere 2 0 0 or more junk ve hicles on the proper ty and these vehicles w ere within 200 feet of Hig hway 41. Trooper

Gooding testified that he wa s told by the Def endant that t he De fenda

nt was the mana g ing partne r.

The State nex t called to testify Geor g e Brac ey

. Mr. Brac ey testified t hat he lived near the ref

ere nced proper

ty on Hig hway 41 and that he could a nd did observe junk and salvag ed vehic les on the property at 5105 Hig hway

41 and that the ve hicles had bee n there during the time alleg ed in the super seding indictments and continued to the date of

the trial. Me. [ s i c] Bra cey testified that the junk and sa lvag ed automobiles were within 500 feet of H ighw ay 41. George Br ac ey testified the proper ty was not an [a]utomobi le [g]rave y ard until the mid-1970’s.

The State ne x t called to testify Buf ord B la c k w e ll. Mr. Blac kwell testified that he fa miliar [si c] with the property at 5105 Hig hway 41, that it was being operated as a [sic] automobile g rave y ard a nd that he has boug ht used parts at the location during the per iods in question.

The State next ca lled to te stify Wanda Kra ntz B rac ey

. Mrs

. Br ac ey ’s t e s t i m o n y w a s t h e s a m e a s t h e t e s t i m o n y o f G e o r g e B r a c e y w h o t e s t i f i e d p r e v i o u s l y.

The S t at e next called to testify Elvis Perry . Mr. Perry

testified that he wa s familiar with the property and busi ness at 5105 Hig hway 42 [si c], that it was being op e rate d a s a

[sic ] au tom ob ile sa lva g e bu sin e ss a nd that he ha d p ur c ha se d a

uto mob ile parts at the busine ss during the per iods in question.

Th e Sta te ne xt ca lle d M r. Ge or g e Di llo n w ho te st ifie d th a t he liv e s a t Rt 2 J oelton
, T en n essee on proper ty adjac ent to the business and prope rty at 5105 Hig hway 41 in Cheatham County , Tenne s s e e . Mr. Dillon identified Exhi bit #10, area photogr aph of the subject prope rty and the wa

rra nty deed identified as Exhibi t No.-3-

15 as we ll as the complaint to Senator Rosalind Kurita identified as Ex hibit No. 16. Mr. Dillion [si c] testified t hat his proper ty is adjace nt to the subject proper ty and that t he proper

ty has been and continues to be operated as a [si c] a utomobil e s al v age business and that salvage vehicles are located on the property
, and have bee n located on the subject prope rty

at all times relevan t t o the superse ding indictments, a nd continues [ sic] to be located on the pr operty . Mr. Dillon further testified that there

wer e hundre ds of vehicle s on the su bject prope rty and that he [sic] vehicles wer e within 500 feet of H i gh way 41 and had be en ther e duringthe times alleg ed in the supe r s e d in g in d ic tm e n t a n d r e ma in e d o n th e p r o p e rty o n th e d a te o f th e tr ia l. Mr. Dillon testified t h e p roper ty was not an [a]utomobi le [g]rave y ard until the mid19 70 ’s

.
After calling the above witnesses, and af ter introducingwithout objection the exhibi ts, the State rested. The Def endant moved a j udg ment of ac quittal on the g rounds that the business wa s owned and operated by a duly formed c orporation and that no pr oo f h a d b e e n int ro du c e d that the De fe nd a nt p e rs on a lly ow ne d th e bu sin e ss or had c ontrol of the busi ness or could be held criminally responsible for

the conduc t of the c orporation. The motion for judg ment of ac quittal was denied.

The De fenda

n t ca lled R.E. Foster to testify . Mr. Foste r testified that the business and salvag e y ard had been located on the subject proper ty since be fore 1965

and tha t he kn e w that th e bu sin e ss w a s loc a te d a t the loc a tio n a s a sa lva g e a uto mob ile junky ard a s far

back a s Dec ember 8, 1960 beca use he ha d purcha sed par

ts from the business at the location to re store a ve hicle in 1960 and 1962 to re store a ve hicle he ha d pur c h a s e d

. M r

. F o s t e r p r e s e n t e d

E xh i b i t# 1 9 t o s h o w t h e d a t e s o f t h e a c t i v i ty when he boug ht parts and wa s restoring the vehicle

.
The De fenda

nt then called to testify

the Def endant, Jamshid Magha

mi. [ The Def endant] testified that he wa s a shar eholder o wning one-third inter est in a corpor ation known as F .H.M. Auto Recycling I nc. a duly org an i z ed Tenne ssee
c or po ratio n. [Th e De fe nd a nt] t e sti fi e d th a t th e c or po ra tio n o wn e d the re a l pr op e rt y
and bu siness a t 51 05 Hi g hw a y 41 in C he a tha

m Co un ty , T e nn e sse e a nd ha d at a ll times releva

nt to the alleg ations dates in the super seding i n d i ctm ents. [The De fe nd a nt] t e sti fi e d th a t th e re we re tw o o the r o wn e rs of the sh ares and rig hts in F.H.M. Auto Recy cling I nc. and that he had one vote of t hree votes requir ed to take action for and on beha lf of the c orporation. [ T h e De fenda nt] testified that the “F .H.M.” name stood for the first letter of the name of the thre e per sons who had an interest in the cor

poration and that t h e “M” stood for his name, Ma g hami. [The Def endant] testified that when the proper ty and business was purcha sed on May 23rd 1997 by F.H.M. Auto Recy cling I nc., t h e b u siness was beingoperated as a [si c] automobile salvag e y ard a nd from his investiga

tion done at the time of the purc hase, it was his understanding that the business had been at that location being operated as a [sic] automobile salvag e gra vey ard since 1960. [The Def endant] testified that the-4-

business was still operating and has be en operating as a [sic] automobil e salva g e y ard

a t a ll t ime s a lle g e d in the su pe rs e din g ind ic tme nts a nd that he wo rk s a t th e bu sin e ss and sells par

ts. [ The De fendant] t estified that since the cha rg es had be en levied ag ains t h i m he had tr ied to have the corpor ation take some a ction or ac tions that would bring the prope rty

and business with i n t h e l aw but he does not have c ontrol of the c orporation as it takes two of the thre e votes a nd he has only

one vote.

On cr oss-examination [ the Def endant] testified he wa s an off ice r o f the corpor ation, he wor

ked ther e and could move c ars to beyond five hundre d (500) f eet from Hig hway

[41] . He a lso testified o n cross-e x amination that he sig ned the

warra nty deed a s an af

fiant stating the value of the prope rty

was One Hundre d Thousand Dollar s ($100,000.00).

At the conc lusion of the proof the D efe ndant ag ain moved the Court for a judgme nt of ac quittal arg uing that the proof showe d that at all re levant times the business and prope rty

was owne d by a duly

formed T ennesse e Corporation; and that the Def endant ha d only

one of thre e vote s i n the cor poration and c ould not control the conduc t of the cor

poration or br ing the proper ty into compliance without there being two votes within the corpor ation. T he De fenda nt arg ued that the De fenda nt was not criminally responsible for the offense alleg ed and the proper party was the corpor ation that owned the proper ty and operated the business. After hear ing f rom the pa rt ie s, the Court

de nie d th e mot ion

fo r j ud g me nt o f a c qu itt a l.

At the c on c lusi on of the p ro of and argume nt f

ro m th e re sp e c tiv e a tto rn e y s, the Court found the De fenda nt guilty on both char g es alleg ed in the indictment.

A s en tencing hear ing w as held on June 11, 2007. There is no transcript of the sentenc ing hear ing c ontained in the re cord. The statement of the e vidence does not mention what additional proof, if a

ny , was introduce d at the senten cing hear ing. T he trial c ourt imposed consec utive sentenc es of t h i rt y d ay s for e ach c onviction for unlawf ully maintaining a

n automobile g rave y ard. The trial c ourt furthe r orde red this e ffe ctive ninety -day sentenc e to be suspende d and the De fenda nt place d on probation af

ter he completed se rvice of five da y s in the county

jail.

The De fenda

nt timely appea ls.

AN AL YSI S On appe al, t he Defenda

nt first cha lleng es the suff iciency of the e vidence supporting his thre e convictions for unla

wfully maintaining a

n automobile g rave y ard. The substanc e of the Def endant’ s argument is that he ca

nnot be held cr iminally

responsible for

the ac ts of a corporation. He contends that, beca use he only owned a one-third interest in the corpor ation, he “c ould not control the conduc t of the c or po ratio n o r b ri ngthe pr op e rt y int o co mpl ianc e ” a nd , the re fo re , he wa s pow e rl e ss to c omp ly with the law.-5-

Tenne ssee Rule of A

ppellate Proc edure 13(e) presc ribes that “[f]indings of guilt in criminal actions whe ther by

the trial cour

t or jury shall be set aside if the evide nce is insuffic ient to support the finding s by the trier of fac t of g uilt beyond a rea sonable doubt.” A convicted criminal def endant who cha lleng es the suff

iciency of the e vidence on appea l bear s the burden of demonstrating why the evidenc e is insufficient to support the ve rdict, bec ause a verdic t o f g uilt destroy s the presumption of innoce nce a

nd imposes a pre sumption of guilt. See S tate v. Evans, 108 S.W .3d 231, 237 (Tenn. 2003); State v. Carruthe rs, 35 S.W.3d 516, 557-58 (T enn. 2000); State v. Tug g le, 639 S.W.2d 913, 914 (Tenn. 1982) . This Cour t m u s t reje ct a c onvicted cr iminal defenda nt’s challeng e to the sufficie ncy

of the e vidence if, afte r consider ing the evidenc e in a lig ht most favorable to the prosec ution, we deter

mine that any rational trier of fac t could have f ound the essential e lements of the cr ime bey ond a re asonable doubt. See J ackson v. Virg inia, 443 U.S. 307, 319 (1979); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

On a pp e a l, t he State is e nti tle d to the str on g e st l e g iti ma te vie w o f the evi den c e a nd a ll

rea sonable a

nd leg itimate infere nces which may be dra wn there from. See Ca

rruther s, 35 S.W .3d at 558; Hall, 8 S.W .3d at 599. A g uilty verdic t by the trier of fac t a ccr edits the testimony of the State’s wi tne sse s a

nd re so lve s all c on fl ic ts in the e vid e nc e in favo r of the pr os e c uti on ’s the or y . See State v. Bla nd, 9 5 8 S .W.2d 651, 659 (Tenn. 1997). Que stions about the cre dibilit y of witnesses, the weig ht and value of

the evidenc e, as well as all fac tual issues raised by the evidence are r esolved by the trier of

fac t, and thi s Court will not re-w eig h or re -eva luate the e vidence . See Eva ns, 108 S.W .3d at 236; Bla

nd, 958 S.W .2d at 659. Nor w ill t h i s C o u rt substitut e its own infer ence s drawn f rom circ umstantial evidence for those dr awn by the trier of

fac t. See Ev ans, 108 S .W.3d at 236-37; Carruthe rs, 35 S.W.3d at 557.

Th e De f e n d a n ts t a n d s c o n v i c t e d

o f t h r e e c o u n t s o f

u n l a w f u l l y m a i n t a i n i n g a n a

u t o m o b i le g ra ve y ard in v iol a tio n of Te nn e sse e Cod e Anno ta te d s e c tio ns 54 -2 0- 20 2 a nd -2 05 . A s r e le va

nt t o this case, se ction 202 prohibits the establishment o f an automobil e g rave y ard w ithin 500 feet of a

s tate h ig h w a y

. Se e T e n n

. Co d e A n n

. § 5 4

- 2 0

- 2 0 2

. Se c ti o n 2 0 5 in p e rti n e n t p a rt p r o v id e s th a t, “ [i ]n the ca se of a

utomobile gr avey ards e stablished prior to Marc h 26, 1965, the owner s or ope rators there of shall have a re asonable and nec essar y period of time in which to comply with” sec tion 202. Tenn. Code An n

. § 5 4-20-205( d). Section 205 fur ther provide s that “[e]ach day ’s subsequent viol a ti o n c o n stitut es a se parate offe nse.” Te nn. Code Ann. § 54-20- 205(c) . “Automobile g rave y ard” is defined a s “any

lot or place which is exposed to the weathe r and upon w hich more than five (5) mot or ve hic le s o f a

ny kin d, inc a

pa ble of be ingop e rate d, a

nd whi ch it wo uld

no t be e c on omi c a lly prac tical to make ope rative, a re pla ced, loc ated or

found . .

. . ” Te nn. Code Ann. § 54-20- 201(a)

.
The De fenda

nt does not challeng e the St at e’ s ev i d ence that an automobile g rave y ard w as established within 500 fee t of a state hig hway on the prope rty

in question or that such vehicles wer e not removed w ithin a reasonable period of time following notice. He arg ues onl y that he ca nnot be held cr iminally

responsible for

the ac ts of the cor

poration of whic h he is one-third- part owne r.

The de cisions of this s tate ar e dire ctly contra ry to this assertion. I n State v. Caldwell, 48 S.W. 2d 10 87 (T e nn . 1 93 2) , o ur

su pr e me c ourt

no te d th a t-6-

an o ff ic e r o r a g e nt o f a

c or po ratio n c a nn ot s hie ld him se lf fr om c ri min a l r e sp on sib ili ty for his own act on the g round that it wa s done in his off icial ca pacity nor asse rt for de fe ns e that c ri min a l a c ts w e re no t hi s act s mer e ly be c a us e c a rr ie d o ut b y

him throug h the instrumentality of a c orporation . . . .

48 S.W .2d at 1090 (c iting State v. Cooley , 206 S. W . 182, 18 5 (T en n. 1918)). The court fur ther noted that, when a

n offi ce r o f a co rporation “has in some way participated in the illeg al ac t as an aider , abettor, or acc essory [,] ” then the officer is criminally responsible. I d. at 1091 (c iting State v. Ross, 104 P . 596, 604 (Or. 1909) ).

Fur thermore , the s t at u t es o f this state are in acc ord with these de cisions. Tennesse e Code Anno ta te d s e c tio n 3 9- 11 -4 05 pr ov ide s f or ind ivi du a l li a

bil ity fo r c or pora te c on du c t: “ A p e rs on

is criminally

liable for c onduct constituting a n offe nse that the pe rson per forms o r ca uses to be perf ormed in the name of or on be half of a corp o ra t i o n to the same e x tent as if the c onduct wer e pe rf or me d in the pe rs on ’s ow n n a me or be ha lf .” Th e Se nte nc ingCom mi ss ion Com me nts to t

his

se c tio n s ta te a s f

oll ow s:

This section m akes it clea

r t hat a person who commits an offense w hile acting for a corpor ation can be persona lly liable for the offe nse if he or she would have been lia ble if a c tin g in h is o r h e r own beh a lf . T hu s, the hig h ma

na g e ri a l a g e nt w ho se actions constitute an of

fense ag ainst the corporation under § 39-11-404 c an also be pe rs on a lly

re sp on sib le fo r t

he mis de e ds

. Tenn. Code Ann. § 39- 11-405, Sentenc ing Commission Com ments.

Th e e vid e nc e , in

the lig ht m os t f

a vo ra ble to the State , e sta

bli sh e d that, fo llo wi ngc omp la int s from nea rby residents, Tr ooper G ooding c onducted a n investigation of the proper ty located at 5105 Hig hway 41 in Cheatham County
, T en n es see, a nd estimated that “the re w ere 200 or more junk vehicles on the proper

ty and these vehicles w ere wi t h in 200 fee t of Hig hway 41.” More over, Trooper Gooding testified t hat t he Defenda nt informed him that he was the “manag ing pa rtner” of the bu sin e ss. Th e Sta te fu rt he r of fered proof

that th e se vio la tio ns c on tin ue d th ro ug ho ut t

he tim e period re fer ence d in the superse ding indictment a nd that the automobile g rave y ard w as established on this property

in the 1970’s. An af

fidavit ref lecting the value of

the p ro p erty

and showing the Def endant a s responsible for the proper ty taxes wa s signe d by

the Def endant on Ma

y 23, 1997. The De fe nd ant t e sti fi e d th a t he was on e -t hir d- pa rt ow ne r o f F .H .M . A uto Re c y c lin g I nc . a nd that th is

c or po ratio n ow ne d the pr op e rt y in qu e sti on ; he a dmi tte d th a t he wa s c a pa ble of mov ingthe c a rs to bey ond 500 fee t from Hig hway 41.

The De fenda

nt is not shi elded f

rom criminal re sponsibili ty s i m p l y b ecause “ there are two other owne rs of the c orporation holding two-thirds of the stock.” A s an owne r, the De fenda nt was benef itting in the proceeds of the bus iness. See gene rally State v. Electroplating, I nc., 990 S .W.2d 211, 219-21 (Te nn. Crim. App. 1998) (evide nce suf ficient to support the de fenda nt -owne r’s conviction for w illf

u l l y discharg ing c hromium contaminated wa ste into the sewer sy stem of the-7-

Metropol i tan Gover

nment of Na shville and Davidson County in violation of the industrial user permit). Af

ter revie wing the statement of the evidenc e, we c onclude that the e vidence is sufficient to support the Def

endant’ s convictions for v i o l at i n g the statutes re g ulating the operation of automobile g rave y ards.

II. Co nse c ut ive Se nt e nc ing Next, the Def

endant contends that this Court should r ever se the order o f c o n s ec utive sentenc ing be cause “[t] here is nothing in this recor d wher e thi s t rial cour t placed its re ason for

arr iving at the final sentenc ing de cision or supporting eac h enhanc ement fa ctor found.”

The stateme nt of the evide nce, a s it pertains to the sentenc ing he aring , includes onlya onese nte nc e su mma

ry a s f oll ow s:

A sentenc ing hear ing was held on J une 11, 2007 and se ntence imposed of 30 day s on eac h co u n t consec utive for a total of ninety

(90) da y s with probation afte r
se rv ing5 d a y s.

Her e, the De fenda

nt was convicted of three Class C misdemeanors, and eac h count ca rries

a se nte nc e of no t gr e a te r tha n thir ty da y s. Se e Te nn . Code Ann. § 40- 35 -1 11 (e ). Th e tr ia l c ourt in this c ase order ed a sente nce of thirty day s on eac h count and or dere d that those thirty -day sentenc es be ser ved conse cutively

to one another . A tri al co u rt m ay impose consec utive sentenc ing upon a deter mination that one or more of the cr iteria set forth in Tenne ssee Code A nnotated § 40-35- 115(b) exis ts.

No pr e se nte nc e re po rt wa s p re pa

re d, bu t th e state me nt o f t

he e vid e nc e re fl e c ts that a se pa rate sentenc ing he aringwas c onducted some f our months subsequent to the t rial. We conclude that the statement of the e vidence as provided by the Defenda

nt is insufficient for

this Court t o conduct a

n adequate re view of t he trial c ourt’s dete rmination reg ardingconsec utive sentenc ing. It does not includ e an y in f

o r mati o n a s to w h a t, if a n y , f a c to r s th e tr ia l c o u rt c o n s id e r e d in s e n te ncing the Def endant to conse cutive ter

ms. Rule 24(c), Te nnessee Rules of Appellate Procedur e, states, “ The statement [of the evidenc e] should conve y a fair, acc urate and complete acc ount of what tra nspired with re s p ec t t o t h o s e issues that ar e the ba ses of a ppeal.” I t is the Defe ndant’s oblig ation to have prepa red a n adequate rec ord for revie w. See State v. Ba llard, 855 S.W .2d 557, 560 (Tenn. 1993)

. Ac c or din g ly , w e mus t f

ind that th e De fe nd a nt ha s wa ive d an y c on sid e ratio n of thi s issu e on a pp e a l. See g ener ally

State v. J immy Daniel Prater, No. M2006-00672-CCA-R3-CD, 2007 WL 152427, at *4 (T e nn

. Cr im. Ap p. , Na sh vil le
, Jan. 18
, 20 07 ) (c on c lud ing that, g ive n th e a bs e nc e of a re c or d to the c on tr ary , mi sd e me a no r s e nte nc ingde te rm ina tio n d e nyin g to ta l pr ob a tio n w a s p re su me d v a lid (citing State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998))) , perm. to appe al denied, ( Tenn. May 29, 2007).

CO NC LU SION For the re asons cited he rein, we conclude that the evidenc e is s u ff i cient to s upport the De fe nd ant’ s th re e c on vic tio ns fo r v iol a tin g statut e s r e g ulatin g a uto mob ile gravey ards. We a lso-8-

conclude that the Defenda nt’s challeng e to the consecutive nature of his misdemeanor se ntence s has been w aived due to his failure to provide a n adequate rec ord for revie w. The judg ments of the trial court a re a ffirme d.

______________________________ DAVI D H. WEL L ES, J UDGE