State v. Poole
| Decision Date | 29 May 2008 |
| Docket Number | No. M2007-01041-CCA-R3-CD.,M2007-01041-CCA-R3-CD. |
| Citation | 279 S.W.3d 602 |
| Parties | STATE of Tennessee v. Christopher Shane POOLE. |
| Court | Tennessee Court of Criminal Appeals |
v.
Christopher Shane POOLE.
[279 S.W.3d 603]
William B. Lockert, III, District Public Defender; Dawn Kavanagh, Assistant District Public Defender, for the appellant, Christopher Shane Poole.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Carey Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.
DAVID H. WELLES, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER, J., joined. JAMES CURWOOD WITT, JR., J., filed a concurring opinion.
The Defendant, Christopher Shane Poole, pled guilty in the Dickson County Circuit Court to two counts of misdemeanor theft. Under the plea agreement, he received consecutive terms of eleven months and twenty-nine days, and his sentence was probated. Following a hearing, the trial court ordered the Defendant to pay restitution in the amount of $1400.00 to the bank where he made the fraudulent withdrawals of funds. On appeal, the Defendant argues that the bank is not a "victim" for the purposes of the restitution statute, Tennessee Code Annotated section 40-35-304. After a review of the record, we uphold the order of restitution to the bank. We remand for entry of corrected judgments.
The September 2006 term of the Dickson County Grand Jury returned a ten-count indictment against the Defendant. He was charged with one count of theft of property over the value of $500.00 but less than $1000.00, a Class E felony; three counts of theft of property valued at $500.00 or less; Class A misdemeanors; three counts of forgery involving less than $1000.00, Class E felonies; and three
counts of uttering forged instruments up to $1000.00, Class E felonies. See Tenn. Code Ann. §§ 39-14-103,-105,-114. It appears from the record and the briefs of the parties1 that the Defendant entered a nolo contendere plea on February 26, 2007, to two counts of theft of property valued at $500.00 or less and that all of the remaining charges were dismissed. Pursuant to the plea agreement, the Defendant received sentences of eleven months and twenty-nine days for both of these convictions to be served consecutively.2 He was placed on probation. The trial court was to determine the amount of restitution.
Prior to the restitution hearing, the parties stipulated to the pertinent facts underlying the Defendant's crimes. The stipulation recites as follows:
[The Defendant] received a small insurance settlement in May or June of 2006, a few weeks before the transactions at issue. He gave the $3000 settlement money to his mother, Vicki Gunning, to hold for him and help him manage his spending. Mrs. Gunning kept the money in an envelope in her bedroom, but led [the Defendant] to believe the money was in the bank. She told him he could ask her once a week for as much as he wanted. Whenever [the Defendant] asked his mom for some of his money, she told him she would go to the bank and get it for him. If he asked for it after banking hours, she told him he would have to wait until the bank opened. This arrangement worked until the Gunnings went out of town in June. When the Gunnings left town, [the Defendant] still had around $1500 in his envelope/"the bank". The following transactions took place while the Gunnings were out of town:
On June 22, 2006 [the Defendant] went into the First Federal in Charlotte and withdrew $600 from Mr. and Mrs. Gunning's money market account. He went up to the counter and asked the teller, Irene Schneck, for the money. According to Ms. Schneck's statement, she filled out a counter check, had him sign it and gave him the money. She never asked for identification because [the Defendant] had the account number on a card.
On June 23rd [the Defendant] went into the White Bluff and Dickson-Highway 46 branches and withdrew a total of $500. These transactions were caught on tape and [the Defendant] is clearly identifiable. There are no statements from the tellers involved in these transactions.
On June 24th [the Defendant] went back to the Dickson branch and withdrew $300. According to the teller, Mrs. Fielder, she did not ask for identification. Because [the Defendant] had a carbon copy of a checking withdrawal, she let him withdraw from the money market account.
A hearing was held on April 17, 2007. At the outset, both parties agreed that the Gunnings had been reimbursed by First Federal Bank for their losses resulting from the Defendant's actions. Defense counsel then argued that the bank was not a victim for restitution purposes despite the fact that the bank had paid the Gunnings for their losses because the bank had "a fiduciary duty and an obligation to do
so." Defense counsel further cited to the bank's negligence in accepting the forged instruments.
The trial court relied on State v. Donnie Lomax, No. M2003-01443-CCA-R3-CD, 2004 WL 1773437 (Tenn.Crim.App., Nashville, Aug. 4, 2004), and ordered restitution to First Federal Bank in the amount of $1400.00. The trial court reasoned as follows:
Donnie Lomax ... was essentially a floor plan situation where the extender of credit of the floor plan was alleged to be the victim and the same argument was made that they are essentially an insurer.
However, the Court in this situation said that an insurer in the sense that an insurant [sic] assumes the risk in return for premiums paid by the defendant. In this case the bank didn't plan on assuming a risk.
Obviously if a bank makes a mistake, they have to make it good, so does anybody else; but they are not assuming that this risk will happen, so I don't find that their liability is so contingent that they would not be a victim; and the [c]ourt finds that the bank was a victim as contemplated under [Tennessee Code Annotated section] 40-35-304.
The fact that this is a no contest plea really is of no consequence[], it's a conviction. It's a theft; and the victim is the person who is out the money; and the only person who is out the money is the bank.
The trial court then heard testimony from the Defendant...
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...with [the victim] to assume liability for the damages arising out of [the defendant's] criminal misconduct."); State v. Poole, 279 S.W.3d 602, 607 (Tenn. Crim. App. 2008) ("The bank was not an insurer in the present case; it did not insure the account against the risk of the [d]efendant's c......
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...with [the victim] to assume liability for the damages arising out of [the defendant's] criminal misconduct."); State v. Poole, 279 S.W.3d 602, 607 (Tenn. Crim. App. 2008) ("The bank was not an insurer in the present case; it did not insure the account against the risk of the [d]efendant's c......