### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON May 8, 2001 Sess

ion STATE OF TENNESSEE v. JERRY M AXWELL Direct Appeal from the Criminal Court for Gibson County

No. 15756 J. Steven Stafford, Judge

No. W2000-01947-CCA-R3-CD - Filed June 7, 2001

Defendant,

the attorne y fo r the Dyer Industrial Development Boa rd, was convicted by a Gibson County jury of theft over $60,000 and theft over $1,000. On appeal, he contends the e vidence was insufficient to establish guilt. We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OE G. R ILEY , J., delivered the o pinion of the court

, in which J OHN E VERETT W ILLI AMS , J., and L. T ERRY LAFFERTY , S R
. J., joined.
J. Brook Lathram, Memphis, Tennessee,and Todd A. Rose, Paris, Tennessee, for the appellant, Jerry Maxwell.
Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney Ge

neral; Alfred L. Earls and Ke vin J. You ngb erg, A ssistant District At torneys Ge

neral Pro Tem, for the appellee, State of Tennessee.

OPINION
Defendant

was convict ed with regar d to his han dling of funds belonging to the Dyer Industrial Development Boa

rd in his capacity

as its attorney. He contends the s tate failed to est

ablish beyond a reasonable doubt that he acted with the intent to dep riv e th e Boa rd o f it s pr ope rty. Furthermore, with regard to the conviction for theft over $1,000, he contends the state failed to prove beyond a reasonable

doubt that he acted without the Board’s consent with regard to the handling of the funds. We affirm the judgment of the trial court.1 It is unclear in the record as to why the trust account had insuffici ent funds to cover these seven checks, each i n t he amount of $35,000. However, it is apparent that the defendant was not in compliance with the et hical requirem ents of the C ode of P rofession al Respo nsibility. See Tenn. S up. Ct. R. 8 , DR 9-1 02. -2- FACTS
The defendant was an attorney who practiced law in Dyer, Tennessee. He re presented the Dyer Industrial Development Board (hereinafter “Bo ard”) continuously from its incorpora

tion in 1972 until his ter mination in 1998. The Boar d was a not-for-

profit public cor

poration whose objective was to promote industry in the local area. See Tenn. Code Ann. § 7-53-102. In fulfilling its corporate purp

ose, the Board w

ould construct and

sell buil dings to industries. The co rporate charter provides th at any net earnings of the Board wer e to be paid to the municipality of Dyer. These theft charges centered

around two sales of property by the Board and the defendant’s handling of the funds. The def

endant did not testi

fy at trial; thus, the f ollowing fa cts were est ablished t hrough the testimony of other witnesses. A. Kellwood Transaction – Theft Over $60,000
The conviction for theft over $60,000 arose from the sal e of property by the Boar

d to KellwoodCompany for $425, 000 on September 20, 1996. The check was made payable to the Board; however, the defendant deposited the funds into his law practice trust account. The defendant concedes in this appeal that he did not have the autho

rization to deposit th

esefunds into his acco

unt. Upon depositing the $425,000, the defendant wrote checks pay able to two different banks totali ng over $263,000 on be half of the Boar

d in payment o

f certain loans.

Defendant also w

rote himself a check in an amount over $1,700 f or attorney’s fees associated with the Kellwood transaction. This left approximately $160,000 due the Board; ho

wever, the defe

ndant did not give these funds to the Board. Instead, the defendant used these funds to cover seve n checks wr itten a week earlier on the trust accou

nt to heirs of an estat

e. Had this deposit

not been made to the

trust account, the account would have had a negative balance of over $165,000. 1
TomBlakemore, Chairman of the Industrial Board, testified that the Board had its own bank account, and the defenda

nt was not authorize

d to deposit

Board funds into his account. He did not realize any funds were m

is sing from the Board’s bank account until around June 1997, when he discovered

the Board’s bank

account only had approximately $400 in it. He then called a me eting of the Board and questioned the defendant as to the missing funds. The defendant falsely stated to the Board that the moneywas invested in Atlanta, Georgia. The Board mistakenly assumed the defendant was truthful.
On Jul y 11, 1997 , the defendant s ubmitted a financ

ial statement to Fi

rst State Bank in Kenton, Tennessee, in connection with a personal loan and listed a $160,000 “note payable to others unsecured.” At some point after September 1996 and prior to January 1998,the defendant gave his wife an undated, handwritten list of assets and liabilities in connection wit h their divorce2 As previou sly stated, the w ritten prom issory no te was actu ally in the am ount of $ 161,00 0 at 61⁄4% interest.

-3- proceedings.

The handwritten list containeda notation of a deb t of $165,000 to the B oard as “atty for Board.” However, the defendant’s sworn answers to

interrogato ries in the divorce pro ceedings datedNovember 2, 1997, did not reveal this indebtedness or any other indebtedness to the Board.
The Board met again on November 6, 1997, and discussed money that it owed to the City of Dyer. The Board requested that the money “invested in Atlan ta” be transferred to the local bank within five days. At the December 16, 1997, meeting of the Board, the defendant advised the Board that the Atlanta investment funds would be forthcoming that week. A demand letter was sent by the B oard to t he defendant t

o deposit the funds by December 19, 1997. This deadline was not met, and the Board on January 2, 1998, terminated the services of the defendant. A state a udit was authorized at t his Jan uary 2 nd meeting.
The defendant repaid the amount due the Board on the Kellwood transaction pl u s 61⁄4% interest by two checks dated January 6 a nd 8, 1998.
An audit by a fraud

examiner with the state comptroller’s office began on January 13 or 14, 1998. When questioned by the fraud examiner, the defendant stated he had “borrowe d the money to invest.” The defendant a lso secured from

his office and pr

oduced for the f

raud examiner a no

te datedSeptember 21, 1996, payable “on demand” to the Board in the amount of “$161,000 @ 61⁄4%.” However, Blakemore testified that the Board never authorized

or approved such a loan. The minutes support Blakemore’s testimony. Furthermore, Blakemore testified that he had never seen the allege d promissory note until after the audit had begun.
Blakemorealso testified that the Board had

outstanding loans from the time the defendant depositedthe funds until he r epaid them. According to B lakemore, the loa ns ranged from

7% to 81⁄4%, and these funds could have been used to make payments on this indebtedness. Blakemor e also testified that the defendant had always bee

n paid his attorney’s fees in the past from the Board’s bank account.
The defendant was interviewed by auditors and TBI Special Agent Roger Hughes on January 18, 1998. The defendant

stated he met with Blakemore and Board member Reed Wright at a local restaurant on September 21, 1996, and secured their approval to borrow the $160,000 at 6% interest. Defendant

said he told

them this was more th

an the 4% interes

t the bank paid

and further told them it “wouldn’t show up on the [bank records] ....” He stated that he executed a promissory note at that time. 2
The defendant ac knowledged d uring the interv iew that he could n

ot have paid the e

state distribution checks unless he deposited the Kel

lwood funds into his trust accou nt. He further3 The sum of these two figures is only $6,258.83; howeve r, it appears the defendant was also due attorney’s

fees for the

month of A ugust 1994 in the appr oximate amount of $1, 800. Thus, t he combined figur

es account f

or the $8,000 profit from the sale. -4- admitted falsely

telling the Board that he had invested the money in Atlanta, Georg ia. He blamed “city politics” for the investigation since he, Blakem ore and Wright “felt we n eeded to hide this money to keep it from being cabbaged or to keep the city from spending it rather than the Industrial Board.” The defendant then reversed an earlier statement and said, “I can’t swear I told Wrightand Blak emo re t hat I per son all y bor row ed t his mon ey, but they got the money back at 61⁄4% interest.”
The defendant further stated in the interview that

he could not recall where he invested the Kellwoodfunds, and he made no attempt to keep these funds separate from his other assets since he considered

the $160,000 a loan to him personally. He contended he borrowed these funds in order to protect the Industrial Board from the “city politics” that existed at the time.
The defendant was asked during the inter view if ther e were any transactions prior to the Kellwoodtransaction in whi ch he deposited B oard funds into his tru st account. He sta ted that all prior payments went directly to the bank, a nd he had not handled any prior funds. B. Wis–Con Transaction – Theft over $1,000
After interviewing the defendant in January 1998, the auditors examined the defen dant’ s banking records beginning in 1994, particularly in v iew of de fendant’s statement in his interview that he had not handled Board funds from sales prior to the Kellwood transaction. Those r ecords revealed that the Board sold property to Wis–C on on September 1, 1994, for the amount of $320,000, and the defenda nt deposited these

funds into

his trust account. The defendant then paid two Board loans leaving an approximate balance of $8,000 in his trust account. These funds were not paid to the Industrial Board or to the City of Dy er.
In response to a rou

tine inquiry

by the Boar

d’s private audit

ing fir m, the defe ndant on Ja nuary 6, 1996, ad vised the au diting firm by letter that the Board owe d him for le ga l wor k performed

from September 19

94 to December 31, 1995, in the total amount of $5,118.75, “leaving the sum of

$1,140.08 held in trust for the Industrial Board at their direction.” 3 No funds were pa id to the Industrial Board or the city at that time.
Based upon the investi

gat ion, the Board’s new attorney on February 13, 1998, demanded payment of the defendant in the sum of $6,258.83 plus interest at 61⁄4% from September 1, 1994. The amount of $6,25 8.83 apparently represents the $ 8,000 profit from t he sale less appr

oximately $1,800 attorney’s fees due the defendant for work per formed in August 1994. In r espon se to the letter, the defendant paid the Board $7,627.96 in full payment of this demand.-5- STANDARD OF REVI

EW
The defendant contends the evidenc e is insufficient to sustain his conviction for either offense. In det ermining th e sufficien cy of the eviden ce, this Co urt does no t reweigh or reevaluate the evidence. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved by the trial judge accredits the stat e' s witnesses and resolves all conflicts in favor of the state. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is ent it led to the stronge

st legitimate view of the evidence and all legitimate o r reasonabl e inferences which may be drawn therefrom. Id. This Cou rt will not disturb a verdict of guilt due to the sufficiency of the evidence unless the defendant de

monst rates tha t the facts contained in the record and the inferences which may be drawn theref

rom are insuffic

ient, as a matt

er o f law, for a rational trier of fact to find the accused guilty beyond a reasona

ble doubt. State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly

, it is the appellate

court's duty to affirm the conviction if the evidence, viewed under these standards, was sufficient for any rational trier of fa ct to have found the essential elemen ts of the offense

beyond a re

asonable doubt. Te

nn. R. App. P. 13(e) ; Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 278 9, 61 L. Ed. 2d 560 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994). Although the evidence of defendant’s guilt is circumstantial in natur e, circumstantial evidencealone may be sufficient to support a conviction. State v. Tharpe , 726 S.W.2d 896, 899-900 (Tenn. 1987); State v. Buttrey , 756 S.W.2d 718, 721 (Tenn. Cri m. App. 1988). Howev

er, for this to occur, the circumstantialevidence must be consistent with gu ilt of the accuse

d, inconsistent with innocence, and must exclude every other reasonable theory or hypothesis excep t t hat of guilt. Tharpe , 726 S.W.2d at 900.
Whilefollowing the above guide lines, this Court must remember that the jury decides the weight to be given to cir

cumstantial evide

nce. “The infer

ences to be drawn from such

evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence are questions . . . for the jury.” Marable v. State , 313 S.W.2d 451, 457 (Tenn. 1958) (citation omitted); see also State v. Gregory , 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993).

INTENT TO DEPRIVE
Defendant

contends the state in both cases failed to establish beyond a reasonable doubt that the defendant intended to deprive the Board of the funds. We respectfully disagree.
A theft is committed “

if, with intent to deprive the owner of proper ty, the pers

on knowingly obtains or exercises control over the property without the owner’s effec tive consent.” Tenn. Code Ann. § 39-14-103. “

Deprive” means

to:4 We further note that the City of Dyer wa s unlawfully deprived of funds since the Board’s corporate cha

rter required th

at all net earnings be

paid to it. The defendant stated in his interview that it was his intent to “hide” these funds from the city.

-6- (A) [W]ithhold

pr operty from the owner permanently or for such a periodof time as to substan tially diminish

the value or enjoyment

of the property to the owner; (B) [W]ithhold property

or cause it to be w

ithheld for the pur

poseof restoring it

only upon payment of a rewar d or other compensation; or (C) [D]ispose

of property or use it or transfer any interest in it under circumstances that make its restoration unlikely. Tenn. Code Ann. § 39

-11-106(8). I

n ascertaining

whether a defe

ndant had the “inte

nt to deprive” the own er of the pro pert y, th e ju ry ma y infer such intent from the surrounding facts and circumstances. State v. Lowery , 667 S.W.2d 52, 57 (Tenn. 1984).
We view the evidence in a light most favorable to the state. With regard to the Kellwood transaction, the defendant, without consent of the Board, placed the Board’s funds in

to his personal trust account in order to cover checks he had written a few days earlier. He wa s untruthful with his client when asked about the whereabouts of the fu nds. He was also untruthful with regard to the Wis–Con transa

ction when he stated there were no prior sales in which he handled funds. The defendant was never authorized or approv ed to borrow any of the Board’s money . In fact, the defendant contradicted himself in his written statemen t b ut finally sa id, “I can’t

swear that I

told Wright and Blakemore that

I personally borrowed

this money.” The alleged promissory note was kept by the defendant and not seen by the Board until after the investigation had begun. The defendant ’s repa ym ent of funds with regard to both transactions did not occur until after the defendant’s termination.
At the very least the jury could rea sonably conclude

that the defenda

nt intended to withho

ld these funds from the Board for

a period of time, and the Board could have used these funds to make payment on its indebtedness at a 7% to 81⁄4% interest r ate. Clearly, the funds were withheld for a periodof time so as to “substantially diminish the value ... of the [funds] to the [Board].” See Tenn. Code Ann. § 39-11-106(8)(A). 4
In essence, defendant contends it is not a criminal offense for one to knowingly take money that belongs to someon

e else as long a

s he or she subjec

tively intend

s to pay it bac

k at some unknown future date. Under the defendant’s theory, a bank teller could pocket a large cash payment by a customer on a bank loan and not be guilty of a criminal offense, as long as the bank teller ha d the subjective intent a

t that time to repay

the funds at some in

definite time in the future. We reject this contention, especially since the intent of the 1989 Criminal Code was to abolish the distinctions-7-

among the previous t

heft-r elated offenses and consolidate them into the single offense of “theft.” Tenn. Code Ann. § 39-14-101.
We further reject defendant’s argument that his unauthorized acts are comparable t o the joyridin g statute classify

ing as a misdemea

nor the unlawful ta

king of an automo

bile where th

e defendant “does not have the intent to deprive the owner thereof.” See Tenn. Code Ann. § 39-14- 106. The unauthorized taking of an automobile for a short time may well not meet the definition of “deprive;”

thus, it is joyriding. See Tenn. Code Ann. § 39-11-106(8). The unauthorized taking of funds under the circumstances of this case does meet the definition of “deprive.” Id

. We further

rej ect defendant’s reliance upon his repayment of these f unds years after the unauthorized taking, and

after he was terminated. Defendant, in essence, contends the repayme nt at 61⁄4% interest establishes that the Board was not prejudiced by the una uth ori zed tak ing. Firs tly, we reject this contention factually since the Board was obligated on loans at a higher rate of interest than 61⁄4%. Secondly

, and most

imp ort ant ly, repayment

of funds improper

ly taken doe

s not negate the intent at the time

of the unauthorized taking. The crucial inquiry is whether the defendant had the “intent

to deprive” at the time of the takingor at the tim e of e xer cis ing c ont rol ove r th e pro pert y. See Tenn. Code Ann. § 39-14-103.
In summary, a rational juror could conclude be

yond a rea

sonable doubt that t

he defendant, withoutthe authority or consent of the Board, both took and exercised control over its funds in

both transactio ns intend ing to withhold the funds so as to substantially diminish the value of the funds to the Board. This issue is without merit.

BOARD’S CONSENT FOR POSSESSION OF FUNDS
Defendant

contends the state

failed to establish that he did not have the Board ’s consent with rega rdto the Wis–Con funds. He contends his January 1996 letter to the Board’s priva te audito r unequivocally

establishes he had the Board’s consent to possess these funds. Again, we disagree. Although Blak emo re di d no t re cal l th e 19 94 W is– Con tra nsa cti on, he d id t est ify t h at the Board never authorized or approved any loan to t he d efendant. Blakemore was unaware that any funds were missing with regard to the Wis–Con transaction until the investigation began. Upon being asked to repay the amount due, the d efendant did so. The January 1996 letter was to the auditor and not the Board, and there is no showing that the Board ever consented to the defe ndant’s use of these funds. Furthermore, the fact that the defendant advised the auditor that he set off certain attorney’sfees against th e trust fun ds provides no explanation for the remaining balance of over $1,000 for which there was no attempt to repay until he received the demand letter. Viewing the evidencein a light most favorable to thestate, the record before us indicates that the Board did not consent to the defendant’s personal use of these funds. This issue is without merit.-8- CONCLUSION Based upon a careful review of the record, we affirm the judg ment of the trial court.

___________________________________ JOE G. RILEY, JUDGE