State v. Finch
| Decision Date | 22 November 2013 |
| Docket Number | No. E2011-02544-CCA-R3-CD,E2011-02544-CCA-R3-CD |
| Citation | 465 S.W.3d 584 |
| Parties | STATE of Tennessee v. Cynthia J. FINCH. |
| Court | Tennessee Court of Criminal Appeals |
Robert L. Jolley, Jr., and Jennifer L. Gower, Knoxville, Tennessee, for the appellant, Cynthia J. Finch.
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel (on appeal); Michael A. Meyer, Deputy Attorney General (at trial); and William C. Bright, Special Assistant Attorney General (at trial), for the appellee, State of Tennessee.
The Defendant, Cynthia J. Finch, was indicted for one count of fabricating evidence, a Class C felony; one count of forgery of $1,000 or more but less than $10,000, a Class D felony; and one count of forgery of less than $1,000, a Class E felony. See Tenn.Code Ann. §§ 39–14–105, –14–114, –16–503. Following a jury trial, the Defendant was acquitted of the fabricating evidence count and convicted of the two forgery counts. The trial court sentenced the Defendant as a Range I, standard offender to two years to be served on unsupervised probation. In this appeal as of right, the Defendant contends (1) that the statute allowing a district attorney general to specially appoint the attorney general and reporter to conduct specific criminal proceedings violates the Tennessee Constitution; (2) that the evidence was insufficient to sustain the Defendant's convictions; (3) that the trial court erred by excluding evidence of a settlement in a civil lawsuit between the Defendant and Knox County; (4) that the trial court erred in instructing the jury with respect to its definition of “value” and in denying the Defendant's request for an instruction on the rule of cancellation; (5) that the State abused its discretion in denying the Defendant's request for pretrial diversion; (6) that the trial court abused its discretion in denying the Defendant's request for judicial diversion; and (7) that the trial court erred in its determination that the Defendant was not an especially mitigated offender. Following our review, we affirm the judgments of the trial court.
From September 2002 to February 2008, the Defendant served as the Senior Director of Community Services for Knox County. The Defendant's primary responsibility was to oversee all aspects of the Knox County government that provide direct services to the public, such as the health department, the public libraries, veterans' services, and the community development department. The Defendant supervised approximately 500 employees and reported directly to the Knox County Mayor. Because of her high ranking position in the Knox County government, the Defendant was given a purchasing card, commonly referred to as a “P card.”
P cards were issued to certain county employees to be used solely for “businessrelated purchases.” The P cards were intended “to expedite the processing of low dollar purchases” and to lessen the need for petty cash transactions. The cards operated like a personal credit card. Each month the county's finance department would receive a consolidated statement for all of the P cards and would pay the financial institution that had issued the cards from a miscellaneous expenditure account. The cardholders would then review their individual statements and submit receipts or explanations for the expenses to the finance department. The finance department would review these reports and then debit the appropriate expenditure accounts and credit the miscellaneous expenditure account. When a county employee had “inadvertently” made a personal purchase using a P card, the employee would reimburse the county. The Defendant had written checks in the past to reimburse the county for personal expenses charged to her P card.
Each Knox County employee who was issued a P card was required to go through a training program and sign an authorization agreement. The authorization agreement stated that “personal charges” were not to be made to the P card and would be “considered misappropriation of county funds.” In addition to this, the policies and procedures manual for the P card program stated that cardholders were to retain all of their receipts and to submit them with their monthly statements to the finance department. If a cardholder did not have a receipt for a specific charge she was to “attach a description of the purchase.” The manual further stated that “[c]ontinued incidents of missing documentation [could] result in the cancellation of [an] employee's purchasing card.” The Defendant completed the P card training program and signed an authorization agreement when she was first hired by Knox County.
In May 2007, the Knox County Auditor, Richard Walls, began an internal audit of the P card program at the request of a member of the Knox County Commission. The purpose of the audit was to determine if P card purchases were compliant with the program's polices and procedures and that purchases were “related to Knox County business.” The audit focused on the Knox County Mayor and several other high ranking county employees, including the Defendant. Monthly statements for each of the cardholders audited were reviewed, and the purchases listed on the statements were matched with receipts that the cardholders had previously submitted. All of the cardholders audited had purchases where they had not submitted receipts. The auditors prepared a list of purchases missing receipts for each cardholder and sent a copy of the list to the corresponding cardholder.
As pertinent to this review, the following purchases were included in the list of the Defendant's missing receipts:
| Purchase Date | Vendor | Amount | ||
| September 14, 2004 | Kinko's | $6.21 | ||
| October 12, 2004 | Kinko's | $15.47 | ||
| October 12, 2004 | Kinko's | $26.92 | ||
| April 13, 2005 | FedEx Kinko's | $64.00 | ||
| August 17, 2005 | FedEx Kinko's | $4.86 | ||
| August 17, 2005 | FedEx Kinko's | $50.07 | ||
| October 13, 2005 | FedEx Kinko's | $21.85 | ||
| December 22, 2005 | FedEx SHP | $16.13 | ||
| October 20, 2006 | FedEx Kinko's | $225.00 | ||
| November 29, 2006 | FedEx Kinko's | $1,759.00 | ||
| March 13, 2007 | FedEx Kinko's | $14.28 | ||
| April 10, 2007 | FedEx Kinko's | $14.38 |
Mr. Walls testified that he gave the cardholders “sufficient time to hunt receipts” and that the cardholders, including the Defendant, would periodically provide the auditors with missing receipts and the lists would be updated. Mr. Walls asked the cardholders to provide the auditors with a description of each purchase if they were unable to locate a missing receipt. On November 19, 2007, Mr. Walls received a memorandum from the Defendant's office. The memorandum was dated November 12, 2007, and was signed by the Defendant. The memorandum set out the Defendant's descriptions for the purchases that were missing receipts. The purchases listed above were described as being for “[o]ffice supplies, postage[,] and copies for departmental activities and events.” Under the entry for the $1,759.00 purchase, the memorandum stated that the purchase was for “booklets” for a presentation on teenage pregnancy and prenatal care.
Hugh Holt, the Purchasing Director for Knox County during the audit, testified that his office oversaw the P card program. Mr. Holt testified that in November 2007, the Defendant personally brought a manila envelope containing several receipts to his office. The Defendant told Mr. Holt that “she had found [the receipts] in her mailbox over the weekend” and “alluded that it was one of her former employees that ... left them there.” Mr. Holt told the Defendant to give the receipts to the P card program administrator, Matthew Munafo. Mr. Munafo testified that the Defendant gave him the manila envelope containing the receipts and told him that she found the receipts “either at home or the office.” Mr. Munafo then sent the receipts to Mr. Walls's office to be included in the audit.
Mr. Walls testified that on November 29, 2007, his office received a memorandum signed by the Defendant “remitting copies of receipts that [had] been found.” Shane Weaver, an auditor in Mr. Walls's office, testified that the memorandum was hand delivered by a woman from the Knox County Mayor's office. Attached to the memorandum were twelve receipts that purported to be from FedEx Kinko's for the purchases previously listed above. When the auditors reviewed the purported FedEx Kinko's receipts “it was pretty obvious” that they were not authentic because they did not look like other FedEx Kinko's receipts they had previously received. Mr. Weaver testified that the FedEx Kinko's logo was in a different place on each of the receipts; there was “a strange line running down the side” of the receipts; each receipt listed only one item, “copies”; and the “quantity of the copies was always one with just a price.”
Cindy Catlin, a district manager with FedEx Office, testified at trial that the twelve purported FedEx Kinko's receipts submitted by the Defendant were not authentic. Ms. Catlin testified that FedEx acquired Kinko's in 2004. The company was then renamed FedEx Kinko's and later changed its name to FedEx Office. Ms. Catlin testified that a FedEx Kinko's customer could get a duplicate receipt from the store where they made their purchase for ninety days after the purchase. After ninety days, the customer would have to contact the corporate office to “data mine” for a copy of the receipt. Ms. Catlin testified that FedEx Kinko's would never authorize another company or person to make a document purporting to be a duplicate receipt.
All twelve of the receipts purported to be from FedEx Kinko's. However, for three of the purchases made in 2004, the vendor was actually Kinko's, not FedEx Kinko's. Ms. Catlin testified that all of the receipts at issue listed “copies” as the item purchased. Ms. Catlin...
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