State v. Norwood

• Decision Date: 05 January 2021
• Docket Number: No. E2020-00042-CCA-R3-CD,E2020-00042-CCA-R3-CD
• Parties: STATE OF TENNESSEE v. TERESA ANN NORWOOD
• Court: Tennessee Court of Criminal Appeals

STATE OF TENNESSEE v. TERESA ANN NORWOOD

No. E2020-00042-CCA-R3-CD

COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE

October 27, 2020 Session

January 5, 2021

Appeal from the Criminal Court for Knox County

No. 114893

Steven W. Sword, Judge

The State appeals the Knox County Criminal Court's order dismissing the 2019 presentment charging the defendant, Teresa Ann Norwood, with a single count of passing a worthless check, arguing that the trial court impermissibly ruled on the sufficiency of the evidence. Discerning no error, we affirm.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Cody N. Brandon, Assistant Attorney General; Charme P. Allen, District Attorney General; and Randall Kilby and William Bright, Assistant District Attorneys General, for the appellant, State of Tennessee.

Eric Lutton, District Public Defender; and John Halstead, Assistant District Public Defender, for the appellee, Teresa Ann Norwood.

OPINION

In February 2019, the Knox County Grand Jury charged the defendant via presentment with a single count of passing a worthless check in the amount of $2,325.00 to the victim in December 2017. The defendant moved to dismiss the presentment on "grounds that pursuant to undisputed facts in the case," the defendant was "legally not guilty of the charge of writing a bad check." The defendant asserted that "the parties agree that the facts of the case will show" that the victim worked for the defendant for two weeks "and that after she performed those services she was written the check, which then did not clear the bank." Citing Code section 39-14-121 and State v. Newsom, 684 S.W.2d 647 (Tenn. Crim. App. 1984), the defendant asserted that a check tendered as payment for a pre-existing debt did not fall within the purview of the bad check law.

At the hearing on the motion to dismiss, defense counsel indicated that the parties had

stipulated to certain facts. This is a worthless check case. But what we have discovered is that the alleged victim worked for two weeks for [the defendant], had worked for a long time, but then the last period that [the victim] worked, [s]he worked for two weeks. At the conclusion of that two-week period, [the victim] was paid with a check that ended up not clearing the bank.

Counsel argued that, because the check was tendered to the victim for the purpose of satisfying a debt for services already rendered instead of for the purpose of obtaining money, services, labor, or credit, the defendant could not be guilty of a violation of Code section 39-14-121. The State agreed "that this is the fact pattern. . . . [T]his check represents two weeks of work that was done prior to the issuance of the check." The State argued, however, that, because "an ongoing employee provides their services in consideration of that check," "they're induced to do that work with the promise of getting payment. So we think if they're given a check that turns out to be invalid, then it would come under the statute." Following the argument of the parties, the trial court recessed to consider the motion.

Upon returning to open court, the trial court reiterated the stipulated facts, specifically inviting the parties to "correct me if I'm wrong on this." "[T]he parties seem to agree . . . that [the defendant] employed somebody to do some work for her. At the conclusion of the work, wrote a check. That check bounced for insufficient funds, and she didn't make it right. She hasn't paid it." Neither party objected to the trial court's summary of the stipulation. The trial court specifically asked whether "[t]he services had already been rendered" and whether this was "just . . . an outstanding debt." The State replied, "Yeah. It was the work she was being paid for" and agreed that all of the work had been completed before the defendant tendered the check at issue. The State argued that it could prove that the defendant's conduct satisfied the elements of the statute because "she obtained services, valuable services, and didn't pay for them, or attempted to pay for them with a bad check." The prosecutor candidly acknowledged, however, "this check's for debt."

The trial court, observing that it was "always hesitant" to make "a factual finding," again discussed the stipulated facts:

So I think . . . what we do agree on is that the services were performed. That created a debt to the alleged victim in this case. And then the check was paid subsequent to the completion of those services. There were no services, right, after everything had been done?

After the State agreed to this stipulation of facts a second time, the court ruled, "[i]n that case," the defendant's conduct "does not violate the statute." The court granted the defendant's motion to dismiss the presentment but warned the defendant, "[Y]ou still owe that debt. I suggest you pay that before the attorney general in Nashville gets involved in your case or they sue you civilly, okay?"

In this timely appeal, the State contends that the trial court erred by granting the defendant's motion to dismiss, arguing both that the trial court engaged in impermissible pretrial fact finding and that the trial court's decision rested upon an erroneous interpretation of Code section 39-14-121. The defendant asserts that the trial court did not err because, based upon the facts as stipulated by the State, the defendant's conduct could not be prosecuted under Code section 39-14-121.

When assessing the propriety of the dismissal of an indictment via Rule 12, a reviewing court engages in a two-step process:

First, we must determine whether the trial court based its decision upon findings of law, which would be appropriate, or findings of fact that should have been presented to a jury. Second, as to questions of law, we review the trial court's holding de novo with no presumption of correctness.

State v. Sherman, 266 S.W.3d 395, 403 (Tenn. 2008) (citations omitted).

Tennessee Rule of Criminal Procedure 12 provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Tenn. R. Crim. P. 12(b)(1). "Generally speaking, pre-trial motions to dismiss that are 'capable of determination' involve questions of law, rather than fact." Sherman, 266 S.W.3d at 403 (quoting United States v. Covington, 395 U.S. 57, 60 (1969)). That being said, Rule 12 permits the trial court to "make findings of fact necessary to decide the questions of law presented by a pretrial motion so long as the factual findings are not intertwined with the general issue of guilt or innocence." State v. Goodman, 90 S.W.3d 557, 561 (Tenn. 2002) (citations omitted). "Where the factual findings necessary to resolve the motion are intertwined with the general issue, a ruling must be deferred until trial since, in criminal cases, there simply is no pretrial procedure akin to summaryjudgment for adjudicating questions of fact involving the general issue of guilt or innocence." Id. (citations omitted). To this end, the trial court "may consider evidence beyond the face of the indictment" so long as the facts to be considered are "relevant only to the legal question presented by the defendant's motion, not to the general issue of guilt or innocence" and do not "qualify as 'factual evidence of the defendant's conduct at the time of the alleged offense.'" Sherman, 266 S.W.3d at 402 (quoting Goodman, 90 S.W.3d at 561). "If, on the record, the State and the defense unequivocally agree to" a stipulation of "facts, whether written or verbal, then the trial court may rely upon those stipulations as 'formal enough' to serve as the basis for deciding a motion to dismiss." Sherman, 266 S.W.3d at 403. In any event, the trial court's factual findings must "not encroach upon the province of the jury." Sherman, 266 S.W.3d at 403 (citation omitted).

In this case, the defendant asked the trial court to dismiss the indictment on grounds that her conduct, as alleged by the State, could not support a prosecution under Code section 39-14-121. The parties stipulated that the defendant issued a check to the alleged victim for the payment of services already rendered. When specifically asked by the trial court whether anything else followed the issuance of the worthless check, the State replied that it had not. In our view, because the stipulation of facts was all encompassing and because the determination whether, as a matter of law, a prosecution could be had under 39-14-121, was "a question of law which do[es] not involve factual findings about the general issue of guilt or innocence," Goodman, 90 S.W.3d at 561, the issue was capable of determination in a pretrial motion to dismiss. In consequence, the trial court did not err by ruling on the defendant's motion.

We turn, then, to our de novo review of the trial court's conclusion that the defendant's conduct could not be prosecuted under 39-14-121. See Sherman, 266 S.W.3d at 403; see also State v. Henderson, 531 S.W.3d 687, 692 (Tenn. 2017) ("Issues of statutory construction present questions of law which we review de novo, with no presumption of correctness.").

As charged in this case, Code section 39-14-121 provides that

[a] person commits an offense who . . . knowingly [i]ssues or passes a check . . . for the purpose of obtaining money, services, labor, credit or any article of value, knowing at the time there are not sufficient funds in or on deposit with the bank or other drawee for the payment in full of the check or order.

T.C.A. § 39-14-121(a)(1). "As with prior law, a defendant is liable for criminal sanctions for passing a check knowing there are insufficient funds on account to make payment orfor stopping payment on a check when the value obtained was at the time the check was issued." Id., Sentencing...