08/09/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

March 21, 2017 Session

STATE OF TENNESSEE v. ROY ALLEN CAREY

Appeal from the Criminal Court for McMinn County

No. 14-CR-36 Sandra Donaghy, Judge

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No. E2016-01125-CCA-R3-CD

___________________________________

Defendant, Roy Allen Carey, was convicted of hindering a secured creditor. He received 

an alternative sentence of two years’ probation after serving ten days in incarceration. 

On appeal, he argues that (1) the evidence was insufficient to support his conviction; (2) 

the amended indictment was void; (3) the bill of particulars was insufficient; (4) the trial 

court committed error by not providing the requested jury instructions; and (5) the lack of 

notice as to the prohibited conduct violated his due process rights. After review, we find 

that the evidence was insufficient to support a conviction for hindering a secured creditor 

and that the trial court erred by not providing a jury instruction on the creation of a 

security interest. The judgment of the trial court is reversed and vacated. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed 

and Vacated.

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and J. ROSS DYER, JJ., joined.

Andrew S. Cunnyngham, Chattanooga, Tennessee, for the appellant, Roy Allen Carey.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr Assistant 

Attorney General; Stephen D. Crump, District Attorney General; and Joseph V. Hoffer, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background
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This matter invites this panel of the Criminal Court of Appeals to wander into an 

exercise that has the scent of a civil law maneuver. Defendant was employed by George 

Thomas, the owner of Cedar Grove Industries LLC (“Cedar Grove”) in Decatur, 

Tennessee. During Defendant’s employment at Cedar Grove, Mr. Thomas had a 

discussion with Defendant about loaning some money to Defendant for the purpose of 

obtaining reliable transportation to and from work. Mr. Thomas found a vehicle on 

Craigslist, called about the vehicle, and went to look at the vehicle with Defendant on 

June 6, 2013. The vehicle, a 2002 Honda Odyssey, was purchased for $2500. At the 

dealership, Mr. Thomas and Defendant dealt with a salesperson named Anthony Osborne.

Mr. Thomas was listed as the lienholder on the Bill of Sale, a document titled Tennessee 

Department of Vehicle Services Division Multi-Purpose Application, and a document 

titled Statement of Title Held By Lienholder, Security Interest Holder or Leasing 

Company. All of those documents were signed by Defendant, but Defendant indicated 

on cross-examination that he did not understand that Mr. Thomas would have a lien on 

the vehicle at the time he signed those documents. 

According to Mr. Thomas’s testimony, he and Defendant executed a promissory 

note pertaining to the loan to purchase the Honda Odyssey on June 7, 2013. The 

promissory note for $2800 was dated June 6, 2013, and signed by Defendant and Mr. 

Thomas. The signatures were witnessed by Sandra Hood. Mr. Thomas testified that the 

total amount of the promissory note was $2800 because it encompassed both the $2500 

loan to obtain the vehicle and $300 in outstanding debt that Defendant owed Mr. Thomas. 

The loan was to be repaid to Mr. Thomas via payroll deductions of $100 per month. The

promissory note stated that the “Note” was secured by a 2002 Honda Odyssey and listed

a VIN number. The promissory note further stated that if Defendant defaulted, the Honda 

Odyssey “will be immediately provided to George Thomas and George Thomas is 

granted all rights of repossession as a secured party, and may immediately take 

possession of Security without recourse.” It also contained a provision which required 

Defendant to “maintain in good standing at all times until note is paid in full, full 

comprehensive insurance on said vehicle with George Thomas listed as Loss Payee.”

With regard to the title of the Honda Odyssey, the promissory note provided that “George 

Thomas will be listed as a lender on the title of the Security whether or not George 

Thomas elects to perfect his security interest in the Security.” Additionally, it provided

that Defendant “grants to George Thomas a Security interest in the Security until this 

Note is paid in full.” Mr. Thomas testified that it was his understanding that Defendant 

“would register the car with [Mr. Thomas] as lienholder and also carry full insurance on 

the car until the note was paid in full.”

On July 18, 2013, Defendant executed a Title Pledge Agreement and 

Disclosure/Receipt with Tennessee Title Loans, Inc. Defendant received a loan of $2000, 

and the “Item Pledged” was the 2002 Honda Odyssey purchased on June 6, 2013. At the 

time that Defendant went to Tennessee Title Loans, Inc., he had an “open title” to the 

vehicle because the vehicle had not been registered to Defendant. In order to get a loan 
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from Tennessee Title Loans, Inc., he registered the vehicle at the Meigs County Clerk’s 

Office.

Janie Meyers, the Meigs County Clerk, testified that her office examined each title 

to determine if there was a lienholder on a particular vehicle. She indicated that if there 

was no lienholder information on the title, then it would be safe to assume that there was 

not a lien on the vehicle. There were two Official Vehicle Registration forms signed by 

Defendant on July 19, 2013. One did not indicate a lienholder; the second listed 

Tennessee Title Loans, Inc., as the first lienholder on the 2002 Honda Odyssey. Ms. 

Meyers did not explain precisely why there were two forms, but she said that it might be 

due to Defendant indicating that there was a lien after the form was filled out or the 

Clerk’s Office discovering an unmentioned lien. She explained that the back of the title 

lists the transfers of the vehicle, and when the back is full, as was the case for the title to 

the 2002 Honda Odyssey, an Extension of Title form is used to document further 

transfers of title. She indicated that the title to the vehicle and the extension were all that 

Defendant would need to register his vehicle. Ms. Meyers further testified that the only 

way to properly encumber a vehicle in Meigs County would be to register it with the 

County Clerk’s Office. After Defendant registered the vehicle with the Meigs County 

Clerk’s Office, the title to the vehicle was mailed directly from the State of Tennessee to 

Tennessee Title Loans, Inc. This title listed Tennessee Title Loans, Inc., as the first 

lienholder on the vehicle. 

With regard to the promissory note between Defendant and Mr. Thomas, 

Defendant testified that he actually signed it on August 22, 2013, and that Ms. Hood 

witnessed it on the same day. After Defendant signed the promissory note, Mr. Thomas 

handed the Defendant a demand letter for the vehicle and a letter of termination. Misty 

Carey, Defendant’s wife, testified that Defendant had no paperwork with him when he 

entered Mr. Thomas’s house on the day that the vehicle was seized by Mr. Thomas. 

However, when he exited the house he had a promissory note and a letter of termination. 

Sandra Hood, the person who witnessed the signatures on the promissory note, 

testified that the promissory note was signed on the same day as Defendant’s termination 

from Cedar Grove. However, Ms. Hood also testified that she did not think that she 

witnessed the promissory note on the same day that Defendant’s vehicle was taken away. 

She was unable to specifically testify that the promissory note was signed on June 6, 

2013, but remembered that is was a Friday because “it was a payday.” When asked to 

verify or confirm that June 6, 2013, was the day that Ms. Hood witnessed the promissory 

note, she responded, “I would think it would be that date, because that’s the day I signed 

it.” When further questioned if she would have corrected the date if it were wrong, Ms. 

Hood said, “Yes, I think I would have.” The demand letter from Mr. Thomas to 

Defendant states that the Promissory Note was signed on June 6, 2013. 
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Mr. Thomas terminated Defendant because he “became aware of the fact that 

[Defendant] did not follow through with securing me as lienholder on the vehicle.” Mr. 

Thomas discovered that he was not listed as a lienholder on the vehicle when he called 

the courthouse in Decatur, Tennessee, to determine what steps were necessary to 

repossess the 2002 Honda Odyssey. At that time, he was informed that he did not have a 

lien on the vehicle. That same day, Mr. Thomas provided Defendant with a demand 

letter which stated that Defendant was in default according to the terms of the promissory 

note, that the insurance coverage on the 2002 Honda Odyssey had lapsed, and that Mr. 

Thomas demanded that Defendant “relinquish this vehicle to me immediately upon 

receipt of this notice until the terms of the Note are met.” Defendant testified at trial that 

AllState had told him that “your insurance is still good until September 8th, because 

when you opened the policy you paid for two months.” However, a document from 

AllState that was entered into evidence shows the termination date of the policy to be 

August 8, 2013. 

Mr. Thomas decided to repossess the 2002 Honda Odyssey and return the vehicle 

to the dealership from which it was purchased. According to Mr. Thomas, he demanded 

Defendant return the vehicle, the Defendant voluntarily returned it to him, and Mr. 

Thomas took the vehicle back to the dealership. According to the Defendant, the vehicle

was repossessed when Mr. Thomas told him, “Get your shit out of that van. Get your 

family out of that van. I’m taking it now,” and Mr. Thomas’s brother parked a tractor 

behind the vehicle. After Mr. Thomas repossessed the vehicle, he received no further 

payments from Defendant. Mr. Thomas tried to obtain title on the 2002 Honda Odyssey, 

but he was denied title because Tennessee Title Loan, Inc., held a lien on the vehicle. 

Mr. Thomas testified that he had not given Defendant permission to obtain another lien 

on the vehicle. 

At some point, Mr. Thomas spoke with Janie Meyers at the Meigs County Clerk’s 

Office, and he spoke to the dealership from which the automobile came. Mr. Thomas 

testified, “I had lost my security interests, and I decided in working with the dealer that 

the best thing to do was to return the car to them, because . . . we thought at that time that 

it was a mistake that they made that caused the problem.” After repossessing the vehicle, 

Mr. Thomas took the vehicle back to the dealership. He testified that he had an 

“agreement” with the dealership whereby they would “reimburse” him from the money 

that they received for the vehicle, but he was never reimbursed. Shawn Allen, the Area 

Manager for Tennessee Title Loans, Inc., was also in contact with the dealership that had 

possession of the vehicle in his attempt to recover the vehicle as collateral for the loan 

from Tennessee Title Loans, Inc. Melissa Williams, the proprietor of Wholesale Auto 

Group, would not relinquish the vehicle to Tennessee Title Loans, Inc., because she

claimed that she was supposed to be the lienholder. Eventually, Mr. Allen and Ms. 

Williams reached an agreement to sell the vehicle and split the proceeds. 
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Defendant was originally indicted for fraudulent transfer of a motor vehicle, but 

the indictment was amended by an agreed order to change the charge to hindering a 

secured creditor. Defendant moved for a bill of particulars, and the State filed a bill of 

particulars further describing the charge against Defendant. 

Prior to trial and at the close of proof, Defendant requested jury instructions 

regarding the formation of a contract and applicable defenses as well as the creation of an 

enforceable security interest. The State “vehemently” objected to “any kind of civil jury 

instruction.” The trial court denied Defendant’s requests. Before closing arguments, the 

trial court instructed the jury about security interests by saying, “Security interest means 

an interest in personal property of [sic] fixtures that secures payment or performance of 

an obligation. Lien means a charge or security or encumbrance upon property.” 

Following deliberations, the jury found Defendant guilty of hindering a secured creditor. 

Analysis

On appeal, Defendant argues that the amended indictment is void because its

vagueness and conclusory language failed to provide adequate factual notice of criminal 

conduct. He argues that the Bill of Particulars was insufficient because it did not identify 

the form of hindering alleged against Defendant and did not identify the location of the 

alleged offense. Defendant also claims that there was insufficient evidence to support the 

verdict of hindering a secured creditor. Additionally, he argues that the trial court’s 

refusal to provide requested jury instructions violated Defendant’s right to have the jury 

instructed upon all the issues of law raised by the proof at trial and that the lack of notice 

as to the conduct prohibited by the statute violated the Defendant’s due process rights.1

The State disagrees. 

I. Sufficiency of the Indictment

Defendant argues that the amended indictment is void due to vagueness and its use 

of conclusory language. Specifically, Defendant contends that the amended indictment 

did not provide sufficient facts upon which to fix a judgment or to give notice to 

Defendant. 

The United States and the Tennessee Constitutions require that an indictment 

inform the accused of “the nature and cause of the accusation.” U.S. Const. amend. VI; 

Tenn. Const. art. I, § 9. An indictment satisfies this constitutional requirement “if it 

provides sufficient information (1) to enable the accused to know the accusation to which 

answer is required, (2) to furnish the court adequate basis for the entry of a proper 

 

1 Defendant’s initial brief claimed that the trial court committed reversible error by not declaring 

a mistrial upon the prosecutor introducing evidence of payments to Defendant’s wife’s criminal defense 

attorney. In Defendant’s reply brief, Defendant withdrew that issue from review. 
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judgment, and (3) to protect the accused from double jeopardy.” State v. Duncan, 505 

S.W.3d 480, 484-85 (Tenn. 2016) (quoting State v. Hill, 954 S.W.2d 725, 727 (Tenn. 

1997)). Generally, an indictment must allege the material elements of the offense and 

give adequate notice to the accused. Hill, 954 S.W.2d at 729. The validity of an 

indictment is a question of law and, therefore, our review is de novo. Id.

The amended indictment in this case states the following: 

THE GRAND JURORS of McMinn County, Tennessee, duly impaneled 

and sworn, upon their oath present that

ROY ALLEN CAREY

On or about the 18th day of July, 2013, in McMinn County, Tennessee, and 

before the finding of this indictment, did unlawfully, intentionally or 

knowingly claim ownership or interest of certain property which was the 

subject of a security interest, security agreement, deed of trust, mortgage, 

attachment, judgment or other statutory or equitable lien held by George 

Thomas, to-wit: a 2002 Honda Odyssey, and did unlawfully and with the 

intent to hinder enforcement of that interest remove, conceal, encumber, 

transfer or otherwise harm or reduce the value of the property, without the 

effective consent of George Thomas, in violation of T.C.A. 39-14-116, all 

of which is against the peace and dignity of the State of Tennessee. 

The indictment satisfies the requirements under the United States and Tennessee 

Constitution. First, it sets forth the material elements of hindering a secured creditor 

under Tennessee Code Annotated section 39-14-116 by stating that Defendant claimed 

ownership in the vehicle that was subject to a security interest, hindered the enforcement 

of the security interest, and had the requisite intent. Next, the indictment sets forth 

factual allegations of the year, make, and model of the vehicle, the holder of the security 

interest, the date on which the alleged crime occurred, and the county in which it was 

alleged that the crime occurred. This information was enough to give Defendant 

adequate notice that an action that affected the value of the 2002 Honda Odyssey, such as 

obtaining a second lien on the vehicle, taken by Defendant on July 18, 2013, was 

allegedly criminal. By setting forth the material elements and providing adequate notice, 

the indictment enabled Defendant to know the accusation to which answer was required, 

furnished the court with adequate basis for entry of proper judgment, and protected 

Defendant from double jeopardy. We conclude that the indictment was sufficient. 

II. Sufficiency of the Bill of Particulars

Next, Defendant argues that the bill of particulars provided to Defendant was not 

sufficient to meet the purposes for which it was required by the trial court and Article I, 
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section 9 of the Tennessee Constitution. Defendant argues that the insufficiency results 

from the failure to identify the location of the alleged offense and the failure to identify 

the type of hindrance that the Defendant allegedly committed. Further, he contends that 

the evidence at trial fatally varied from the bill of particulars. 

Article 1, section 9 of the Tennessee Constitution provides “[t]hat in all criminal 

prosecutions, the accused hath the right to . . . demand the nature and cause of the 

accusation against him, and to have a copy thereof . . .” The Tennessee Rules of 

Criminal Procedure provide a method by which a defendant may make such a demand. 

“On defendant’s motion, the court may direct the district attorney general to file a bill of 

particulars so as to adequately identify the offense charged.” Tenn. R. Crim. P. 7(c). A

bill of particulars serves three purposes: it provides a “defendant with information about 

the details of the charge against him if this is necessary to the preparation of his defense;” 

it assures that a defendant has an opportunity to “avoid prejudicial surprise at trial;” and it 

enables the defendant to preserve a plea against double jeopardy. State v. Sherman, 266 

S.W. 3d 395, 408-09 (Tenn. 2008) (internal citations omitted); see also State v. Speck, 

944 S.W.2d 598, 600 (Tenn. 1997). A bill of particulars is not a discovery device and is 

limited to information a defendant needs to prepare a defense to the charges. Tenn. R. 

Crim. P. 7(c), Advisory Comm’n Cmts.

The trial court should make every effort to ensure that the State supplies all critical 

information in its bill of particulars, but lack of specificity will not result in reversible 

error unless a defendant can prove prejudice. Sherman, 266 S.W. 3d at 409 (citing Speck, 

944 S.W.2d at 601; State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991)). When there is a 

variance between a bill of particulars and the proof at trial, it “is not fatal unless it is both 

material and prejudicial.” State v. Shropshire, 45 S.W. 3d 64, 71 (Tenn. Crim. App. 

2000).

In this case, the bill of particulars prepared by the State consisted of the following 

text: 

That on or about June 6, 2013, the defendant borrowed $2,500.00 from the 

victim, George Thomas. In order to mislead the victim into loaning those 

funds, the defendant executed Bill of Sale, a Tennessee Multi Purpose 

Application and a Statement of Title in favor of victim, George Thomas. 

Then, the defendant filed the title application without the proper 

documentation so that the vehicle title would not reflect the lien of George 

Thomas. After that, the defendant applied for an [sic] received a title loan 

on the vehicle based on the title that he fraudulently obtained. Then, the 

defendant failed to pay on that loan. 

This text, while not extensive, provided Defendant information in addition to that 

contained in the indictment. The bill of particulars informed him that the pertinent 
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actions which he should investigate and for which he should prepare a defense were his 

actions surrounding the purchase of the vehicle and the obtaining of a title loan for which 

he used the vehicle as collateral. This information about the “title loan” in conjunction 

with the information regarding an “encumbrance” contained in the indictment provided 

Defendant with the details of the charge against him that would aid in his preparation of a 

defense. Further, this information also prevented a prejudicial surprise at trial and 

enabled the defendant to preserve a plea against double jeopardy. 

Defendant also argues that there was a fatal variance between the bill of 

particulars and the proof at trial. At trial, there was no indication that Defendant 

fraudulently obtained title to the vehicle as alleged in the bill of particulars, but rather, an 

employee of the car dealership committed the mistake that led to Mr. Thomas not being 

listed as a lienholder on the title. While we recognize that there was a variance between 

the evidence at trial and the bill of particulars, Defendant has failed to point to any 

prejudice that resulted from the variance. A variance alone will not be fatal to a bill of 

particulars. Id.

Therefore, we find that the bill of particulars in this case was sufficient because it 

provided Defendant with information about the nature and cause of the accusation against 

him, and even though a variance existed between the bill of particulars and the proof at 

trial, Defendant has failed to show that he was prejudiced. 

III. Sufficiency of the Evidence

Defendant challenges the sufficiency of the evidence for his conviction for 

hindering a secured creditor. He argues that the State failed to prove that an enforceable 

security interest existed at the time that he obtained a second lien on the vehicle. Further, 

he argues that he did not possess the requisite intent to violate Tennessee Code Annotated 

Section 39-14-116(a) and that the facts established at trial present a matter that is better 

suited for resolution in a civil proceeding.

When a defendant challenges the sufficiency of the evidence, this Court is obliged 

to review that claim according to certain well-settled principles. The relevant question is 

whether any rational trier of fact could have found the accused guilty of every element of 

the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 

443 U.S. 307, 319 (1979). The jury’s verdict replaces the presumption of innocence with 

one of guilt; therefore, the burden is shifted onto the defendant to show that the evidence 

introduced at trial was insufficient to support such a verdict. State v. Reid, 91 S.W.3d 

247, 277 (Tenn. 2002). The prosecution is entitled to the “‘strongest legitimate view of 

the evidence and to all reasonable and legitimate inferences that may be drawn 

therefrom.’” State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (quoting State v. 

Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Questions concerning the “‘credibility of the 

witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the 
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proof are matters entrusted to the jury as the trier of fact.’” State v. Wagner, 382 S.W.3d 

289, 297 (Tenn. 2012) (quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)). 

“‘A guilty verdict by the jury, approved by the trial court, accredits the testimony of the 

witnesses for the State and resolves all conflicts in favor of the prosecution’s theory.’” 

Reid, 91 S.W.3d at 277 (quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). It is 

not the role of this Court to reweigh or reevaluate the evidence, nor to substitute our own 

inferences for those drawn from the evidence by the trier of fact. Id. The standard of 

review is the same whether the conviction is based upon direct evidence, circumstantial 

evidence, or a combination of the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 

2011); State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).

The crime of hindering a secured creditor occurs when “[a] person who claims 

ownership of or interest in any property which is the subject of a security interest, 

security agreement, . . . or other statutory or equitable lien . . . , with intent to hinder 

enforcement of that interest or lien, destroys, removes, conceals, encumbers, transfers, or 

otherwise harms or reduces the value of the property.” T.C.A. § 39-14-116(a). 

Defendant argues that the State failed to prove that an enforceable security interest 

was held by Mr. Thomas at the time the Defendant obtained a second lien on the vehicle. 

While there was conflicting testimony in the trial record about the date upon which the 

promissory note was signed, this Court does not analyze the credibility of trial testimony.

Rather, that is a function of the trier of fact. The promissory note is dated June 6, 2013, 

and multiple exhibits either refer to the promissory note being signed on June 6, 2013, or 

list Mr. Thomas as a lienholder. Additionally, Mr. Thomas testified that the promissory 

note was actually signed on June 7, 2013, but was back dated to June 6, 2013, and Ms. 

Hood indicated at trial that she would have changed the date on the promissory note had 

it been wrong when she witnessed the signatures. Based upon this evidence in the record, 

a rational trier of fact could have accredited the testimony of Mr. Thomas and Ms. Hood 

and found beyond a reasonable doubt that a security interest existed when Defendant 

obtained a second lien on the vehicle on July 18, 2013. 

Defendant further contends that the State failed to prove that he possessed the 

requisite mental state to hinder a secured creditor under Tennessee Code Annotated 

section 39-14-116(a). The text of the statute requires a Defendant to possess “the intent 

to hinder enforcement of that interest or lien” at the time the hindering act is committed. 

T.C.A. § 39-14-116(a). This intent requirement is the only thing that separates criminal 

liability from civil liability when a person takes out a second loan using the same piece of 

property as collateral for both loans. Cf. Ashworth v. State, 477 S.W.2d 224, 226-27 

(Tenn. Crim. App. 1971) (holding that Tennessee Code Annotated § 39-1957, the 

predecessor to § 39-14-116, did not punish the creation of a debt but rather the fraudulent 

act of selling a vehicle that the defendant knew was subject to a security interest). While 

Defendant argues that the facts of this case make a civil forum more appropriate, the 

requisite intent can make the actions in this case criminal. Thus, the proper inquiry here 
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is whether a rational juror could find beyond a reasonable doubt that Defendant possessed 

the intent to hinder Mr. Thomas from enforcing his security interest at the time that he 

obtained a second lien on the vehicle from Tennessee Title Loans, Inc. 

The record contains no direct evidence of the Defendant’s intent, but the State 

argues that the circumstantial evidence in this case is enough for a rational juror to find 

beyond a reasonable doubt that Defendant had the requisite intent. The State argues that 

Defendant knew that Mr. Thomas was a lienholder on the vehicle because Defendant had 

Mr. Thomas added as lienholder on the documents pertaining to the ownership or transfer 

of the vehicle and agreed to list Mr. Thomas as a lienholder on the title in the promissory 

note. The State argues that a rational juror could infer Defendant’s intent to hinder 

enforcement of Mr. Thomas’s security interest from this knowledge of the prior lien at 

the time Defendant obtained the second lien. Further, the State argues that Defendant’s 

intent to hinder Mr. Thomas can be derived from his failure to disclose Mr. Thomas’s 

lien to Tennessee Title Loans, Inc., or the Meigs County Clerk’s Office and from his 

failure to notify Mr. Thomas that he was taking out a second lien on the vehicle. The 

State argues that the jury could infer that Defendant wanted to present a clear title to 

Tennessee Title Loans, Inc., and that Defendant agreed to grant them a security interest 

even though he knew that Mr. Thomas had a prior interest in the vehicle. However, we 

disagree that the proof supports this inference. 

Many prior cases from this Court involving sufficiency of the evidence for 

hindering a secured creditor are factually distinguishable from this case. In State v. 

William “Bill” E. Bolinger, the defendant was loaned a sum of money from a bank and 

used two cars and some business equipment as collateral. No. E2008-01777-CCA-R3-

CD, 2009 WL 1507676, at *2-4, (Tenn. Crim. App. May 29, 2009), no perm. app. filed. 

After failing to make payments on the loan, the defendant returned one of the cars to the 

bank but made conflicting statements about the whereabouts of the second car. Id. at *1-

2. This Court held that there was sufficient evidence to support a conviction for 

hindering a secured creditor because “the defendant did more than lie to the bank and the 

police about the car’s location” and actually attempted to sell the car while the bank was 

attempting to repossess it. Id. at *4. In State v. Daniel Paul Batchelor, this Court also 

found sufficient evidence to support a conviction for hindering a secured creditor where

the defendant was notified that the collateral was going to be repossessed and then 

damaged the collateral during the repossession process. No. E2000-02264-CCA-R3-CD, 

2001 WL 1089768, at *1-4, (Tenn. Crim. App. Sept. 18, 2001), no perm. app. filed. In 

Ashworth, this Court upheld convictions where the defendants were involved in a 

fraudulent scheme whereby a bank employee would purchase a vehicle from a car dealer 

using a loan from the bank, then return the car to be sold to a third party without 

recording the bank’s lien on the title. 477 S.W.2d at 225-226.

In each of these prior cases, there were facts in addition to the defendants’

knowledge of a prior lien on the collateral to support a rational inference of intent. See
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William “Bill” E. Bolinger, 2009 WL 1507676 at *2; Daniel Paul Batchelor, 2001 WL 

1089769 at *1-2; Ashworth, 477 S.W.2d at 225-26. Here, there are no additional facts to 

support an inference of intent. Mr. Thomas was not engaged in the act of repossessing 

the vehicle at the time Defendant obtained the loan from Tennessee Title Loans, Inc. 

Though Defendant was not forthcoming about Mr. Thomas’s lien to Tennessee Title 

Loans, Inc., or the Meigs County Clerk’s Office, there is no indication that Defendant 

was involved in a fraudulent scheme to prevent Mr. Thomas from repossessing the 

collateral or receiving payment on the loan. In fact, the testimony at trial indicated that 

funds were being withheld from Defendant’s paycheck as repayment of Mr. Thomas’s 

loan up until Defendant’s termination and receipt of the demand letter on August 22, 

2013.

From the evidence presented by the State, a rational juror could only find beyond a 

reasonable doubt that Defendant knowingly obtained a second lien on the vehicle. Under 

Tennessee Code Annotated section 39-14-116, this does not constitute a crime because 

the statute explicitly requires “intent to hinder enforcement.” T.C.A. § 39-14-116(a). If 

mere knowledge of a prior lien was all that it took to violate section 39-14-116, then 

every person who knowingly obtained a second mortgage on their home or a second lien 

on their vehicle would be a criminal. Such an interpretation cannot be derived from the 

ordinary meaning of the statutory language and would certainly yield an absurd result. 

See State v. Fleming, 19 S.W.3d 195, 197 (Tenn. 2000); State v. Butler, 980 S.W.2d 359, 

362 (Tenn. 1998). Accordingly, we find the evidence to be insufficient to support 

Defendant’s conviction of hindering a secured creditor. While we find the evidence to be 

insufficient, we have chosen to analyze the other issues raised on appeal in case further 

litigation arises. 

IV. Request to File Written Jury Instructions

Defendant also argues that the trial court committed reversible error by requiring 

Defendant to submit written jury instructions prior to trial. Rule 30 of the Tennessee 

Rules of Criminal Procedure states that “any party may file written requests” for jury 

instructions “[a]t the close of evidence or at such earlier time during the trial as the court 

reasonably directs.” Rule 30 of the Tennessee Rules of Criminal Procedure contains 

permissive language, as indicated by its used of the word “may.” However, this rule does 

not limit the trial judge’s ability to request jury instructions at a time prior to trial so long 

as the defendant still has the opportunity to submit jury instructions during the trial or at 

the close of proof, as enumerated in Rule 30. In this case, Defendant was allowed to 

argue for his requested for jury instruction at the close of evidence, and the trial court 

considered his request. Therefore, the trial court did not err by requesting jury 

instructions prior to the trial. 

V. Adequacy of Jury Instructions
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Next, Defendant argues that the trial court’s refusal to provide jury instructions 

related to contract formation and applicable defenses as well as the creation of an 

enforceable security interest was reversible error. He contends that jury instructions 

regarding the formation of a security interest under the Uniform Commercial Code as 

adopted by the State of Tennessee in Tennessee Code Annotated section 47-9-203 were 

necessary for the jury to be given a complete charge of the applicable law. 

A defendant in a criminal case “has a right to a correct and complete charge of the 

law, so that each issue of fact raised by the evidence will be submitted to the jury on 

proper instructions.” State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); see State v. 

Leath, 461 S.W.3d 73, 105 (Tenn. Crim. App. 2013). When reviewing jury instructions 

on appeal to determine whether they are erroneous, this Court must “review the charge in 

its entirety and read it as a whole.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997). 

A jury instruction is considered “prejudicially erroneous,” only “if it fails to fairly submit 

the legal issues or if it misleads the jury as to the applicable law.” Id. Because the 

propriety of jury instructions is a mixed question of law and fact, the standard of review 

is de novo with no presumption of correctness. Carpenter v. State, 126 S.W.3d 879, 892

(Tenn. 2004); State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).

When instructing the jury, the trial court stated the following:

For you to find the Defendant guilty of this offense, the State must have 

proven beyond a reasonable doubt the existence of the following essential 

elements: (1) That the Defendant claimed ownership of or interest in 

property, a 2002 Honda Odyssey, which was subject to a security interest or 

security agreement; and (2) That the Defendant encumbered, transferred, 

harmed or reduced the value of the said property; and (3) That the 

Defendant did so with intent to hinder enforcement of the security interest 

or lien. 2

The trial court went on to instruct the jury that “[s]ecurity interest means an interest in 

personal property of [sic] fixtures that secures payment or performance of an obligation.” 

In the instruction given by the trial court, the existence of a security interest is required 

for the first element of the crime to be met. The trial court defined a security interest 

pursuant to the language contained in Tennessee Code Annotated section 39-14-

116(b)(2), but the trial court did not instruct the jury as to the creation of a security 

interest. 

The legal concept of attachment is the process by which a person creates an 

enforceable interest in property, and attachment occurs at the instant an enforceable 

security interest is created. AmSouth Bank v. Trailer Source, Inc., 206 S.W.3d 425, 435 

 

2

See Tennessee Pattern Jury Instruction, T.P.I. Crim. 11.07.
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(Tenn. Ct. App. 2006); see also T.C.A. § 47-9-203. In order for an enforceable security 

interest to exist and for Mr. Thomas to possess anything for Defendant to hinder, the 

requirements of Tennessee Code Annotated section 47-9-203 must be met. Those 

requirements are that (1) value be given; (2) the debtor has right or power to transfer 

rights in the collateral; and (3) a security agreement plus satisfaction of an evidentiary 

requirement. T.C.A. § 47-9-203. The advisory comments to the Uniform Commercial 

Code, as adopted by Tennessee, refer to those requirements as “basic prerequisites to the 

existence of a security interest.” T.C.A. § 47-9-203 cmt. 2. By failing to instruct the jury 

as to the creation of a security interest, the trial court failed to instruct the jury on how to 

determine the existence of the very thing that Defendant was accused of hindering. Thus, 

the trial court failed to fairly submit the legal issue of the existence of a security interest 

to jury and committed a prejudicial error. 

With regard to Defendant’s argument that the trial court erred by not giving 

instructions on contractual formation, specifically the requirement of consideration in 

order to form a contract, we find that the jury instructions did not need to contain an 

instruction regarding consideration in order to fairly submit the legal issues to the jury. If 

the jury had been instructed as to the creation of a security interest, which requires that 

value be given, then an instruction regarding consideration would have been redundant. 

The trial court did not err in refusing to grant Defendant’s request for an instruction on 

consideration. 

With regard to Defendant’s argument that the jury should have been instructed on

the contractual defenses of fraud and duress, we find that the jury instructions did not 

need to contain such an instruction to fairly submit the legal issues to the jury in this case. 

Defendant argues that fraud or duress occurred when he signed the promissory note on 

August 22, 2013, and was subsequently fired. However, the critical date for the existence 

of the security interest was July 18, 2013, the date that Defendant obtained the second 

lien from Tennessee Title Loans, Inc. Even if the jury believed Defendant’s claims that 

he signed the promissory note as a result of fraud or duress on August 22, 2013, the fraud 

or duress would be inconsequential because, if it were true that the promissory note was 

signed on August 22, 2013, no security interest would have existed on July 18, 2013. 

Thus, the trial court did not err in refusing to grant Defendant’s request for an instruction 

on the contractual defenses of fraud or duress because the issues at trial would have been 

fairly submitted to the jury if a proper instruction on the creation of a security interest had 

been given. 

The proper remedy for a jury instruction error is a reversal of the conviction and a 

remand for a new trial. State v. Thorton, 10 S.W.3d 229, 242 (Tenn. Crim. App. 1999) 

no perm. app. filed. However, the judgment of the trial court is being vacated for 

insufficiency of the evidence. Thus, the case will not be remanded. 

VI. Due Process
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Defendant also argues that the prosecution of the case against him violated his due 

process rights because he did not know and could not have known that acquiring a second 

loan that used the vehicle as collateral would have violated Tennessee Code Annotated 

section 39-14-116. As stated above, section 39-14-116 does not criminalize the act of 

obtaining a second lien on a piece of property. It criminalizes doing so with the intent to 

hinder a secured creditor. Due process only requires the State to provide fair notice to its 

citizens of prohibited conduct and potential consequences flowing form such conduct. 

State v. Smith, 48 S.W.3d 159,164 (Tenn. Crim. App. 2000) (citing United States v. 

Batchelder, 442 U.S. 114, 123 (1979)). One purpose of the codification of a criminal 

offense is to provide such a warning. Id. (citing State v. Boyd, 925 S.W.2d 237, 242 

(Tenn. Crim. App. 1995)). Tennessee Code Annotated section 39-14-116 clearly sets 

forth the offense of hindering a secured creditor and provided fair notice to Defendant, as 

a citizen, of the conduct prohibited by the statute. 

Conclusion

Because there was insufficient evidence that Defendant possessed the requisite 

intent to hinder the enforcement of a secured interest, we reverse the judgment of the 

criminal court and vacate Defendant’s conviction.

_________________________________

TIMOTHY L. EASTER, JUDGE