State of Tennessee v. Allan Pope

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

February 29, 2012 Session

STATE OF TENNESSEE v. ALLAN POPE

Appeal from the Criminal Court for Sullivan County

Nos. S58286, S58287 R. Jerry Beck, Judge

No. E2011-01410-CCA-R3-CD-FILED-OCTOBER 5, 2012

In presentments by a Sullivan County Grand Jury, appellant, Allan Pope, was charged with

four counts of theft of services more than $1,000 but less than $10,000; one count of official

misconduct; one count of using public equipment for private purposes; and one count of theft

of services more than $10,000 but less than $60,000. A jury found appellant not guilty of all

counts of theft of services more than $1,000 but less than $10,000. He was found guilty of

the remaining counts. The trial court imposed a one-year suspended sentence for official

misconduct and a three-year suspended sentence for theft of services more than $10,000 but

less than $60,000 and placed appellant on probation for six years.1 On appeal, appellant

raises the following issues: (1) whether the trial court erred in denying appellant’s motion for

judgment of acquittal or motion for new trial; (2) whether the evidence was sufficient to

sustain a conviction for official misconduct; (3) whether the evidence was sufficient to

sustain a conviction for private use of county equipment; (4) whether the evidence was

sufficient to sustain a conviction for theft of services more than $10,000 but less than

$60,000, and; (5) whether the trial court erred in ordering restitution. Upon review of the

record, we agree with appellant and conclude that the evidence was insufficient to sustain the

convictions for official misconduct and private use of public property, therefore we reverse

the judgments of conviction and dismiss those counts of the indictment. We affirm the

judgment of the trial court on theft of services more than $10,000 but less than $60,000 and

remand the matter for entry of judgments consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

in Part; Reversed and Dismissed in Part; Remanded

R OGER A. P AGE, J., delivered the opinion of the court, in which J ERRY L. S MITH and T HOMAS

T. W OODALL, JJ., joined.

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The judgment form pertaining to the charge of private use of county equipment does not indicate

the length, manner, or percentage to be served of the sentence.

Dan R. Smith, Johnson City, Tennessee (on appeal); Ricky A. W. Curtis and Teresa Murray

Smith, Blountville, Tennessee (at trial) for the appellant, Allan Pope.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; H. Greeley Wells, Jr., District Attorney General; and Barry P. Staubus, Assistant

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

OPINION

I. Facts

This case involves the alleged misconduct of Appellant Allan Pope, the elected

highway commissioner of Sullivan County, with respect to projects under his supervision.

The State presented the facts of this case to the jury according to allegations pertaining to a

particular piece of property. For ease of reference, this court will recount the facts and group

them accordingly. Some testimony is more general in nature, and thus is set forth first.

A. General Trial Testimony

Special Agent Brian Pritchard with the Tennessee Bureau of Investigation (“TBI”)

testified first for the State. He stated that the District Attorney General for Sullivan County

contacted him in March of 2010 and requested that he initiate an investigation into various

activities of the Sullivan County Highway Department. The district attorney specifically

requested an investigation into the digging of a ditch on Graybeal Road in the Bluff City area

of Sullivan County. Agent Pritchard also investigated work that the highway department

performed on Hawley Road, on two areas of Rice Cross Road, and on Muddy Creek Road,

all in Sullivan County.

During the course of his investigation, Agent Pritchard spoke with “dozens” of

individuals. He also fielded various anonymous complaints against the highway department.

He reviewed financial disclosure forms and learned that none of the property owners

involved had donated money to appellant’s campaign. However, Agent Pritchard believed

that information to be “outside the scope” of and not pertinent to his investigation. Although

Agent Pritchard reviewed the records at the election commission office, he did not ask the

property owners if they had contributed less than $100 to appellant’s campaign fund, which

would not require reporting.

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On cross-examination, Agent Pritchard admitted that he did not personally view any

of the properties in question before any work began. He relied on the “before” and “after”

pictures provided to him by James “Jim” Montgomery at the highway department. He

acknowledged that variations in the camera angle could cause pictures to appear different

even though they are the same image.

As part of his investigation, Agent Pritchard formulated estimates of the work

performed at each location. According to Agent Pritchard, the highway department kept

limited files pertaining to projects. To gather the information necessary to assemble an

estimate, he interviewed people who actually worked on the jobs, along with their

supervisors.

Michael Joe Cunningham testified that he was a salesman at Stowers Equipment

Rentals. Stowers had previously provided rental equipment for the county highway

department at a negotiable rate. The State introduced a list of rental rates for 2007-2008

through Mr. Cunningham.

The State tendered Larry Bailey, the Director of Accounts and Budgets for Sullivan

County, as an expert in state and county auditing procedures and the trial court allowed him

to testify in that regard. He testified that the Tennessee County Uniform Highway Law was

enacted by the legislature in an attempt to regulate the duties, responsibilities, procedures,

and salary range for county highway department personnel. The statute refers to the “chief

administrative officer” of the department, the title held by appellant. The highway

commissioner does not have the authority to perform work on private property except for bus

or postal route turn-arounds. The commissioner can perform work for other jurisdictions,

but the work is subject to county commission approval and reimbursement by the recipient

city or county. The Sullivan County Commission never approved a resolution for the

Sullivan County Highway Department to perform work for Bluff City.

Mr. Bailey’s department was also responsible for payroll for county government

employees and for paying bills incurred by the county. His office paid a bill in the amount

of $3,525 to Stowers Equipment Rental and Supply for rental of a bulldozer in November

2006. The bill was incurred during the project at Muddy Creek Road. Mr. Bailey stated that

when an auditor reviewed county records, the auditor would ensure that the bills or invoices

were signed by the proper individuals and that the paperwork was in order. Unless someone

reported that a particular item was used in an improper fashion, auditors would not have the

“field” experience to notice an improper purchase or allocation. The auditors only confirmed

that the office implemented proper controls. If an auditor found an impropriety in the records

of a county department, the auditor completed an audit report and directed it to the district

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attorney general of the county. In conducting the Sullivan County audit in 2007, Mr. Bailey

found no improprieties.

Mr. Bailey confirmed that appellant had the authority to act upon Sullivan County

property or property over which the county exercised a right-of-way. Appellant also had the

authority to remove obstructions along the rights-of-way. Mr. Bailey was not certain about

the highway supervisor’s discretion to remove obstructions on private property outside of the

exceptions he noted. He testified that the statutory provision that addresses misuse of

property or funds provides that the supervisor should be immediately discharged in the event

of proof of improprieties.

Gary Wayne Medlin, a lieutenant with the Sullivan County Sheriff’s Office, reviewed

dispatch records from the sheriff’s department from January 1, 2003, through December 31,

2007, at the State’s request. He specifically focused on five locations: from 1000 to 1100

Hawley Road; 964 Rice Cross Road; 1200 Rice Cross Road; the intersection of Muddy Creek

Road and Hawley Road; and the intersection of Muddy Creek Road and Brown Circle. The

only incidents he located were at the two intersections joining Muddy Creek Road. He

reported five dispatches to the Muddy Creek Road/Hawley Road intersection and six

dispatches to the Muddy Creek Road/Brown Circle intersection. None of the traffic

accidents were attributed to sight distance problems, with the exception of one. One incident

at Muddy Creek Road and Brown Circle was reportedly caused by the sun setting in the

driver’s eyes. The records reflected a single-car accident resulting in a roll-over prior to the

date the work was completed on the slope, but no single-car accidents had been reported after

the work was finished. Lieutenant Medlin’s information did not contain details of how many

“close calls” may have occurred at the locations or how many complaints the department may

have received about the lack of safety at the locations.

Jim Montgomery testified that he had been employed by the Sullivan County Highway

Department for thirty-one years. He was the surveyor for the highway department and

assisted with the department’s budget and finances. He had an assistant named Mike Betley.

Before appellant began his tenure as highway commissioner, David Campbell was a roller

operator on the county’s paving crew. Appellant promoted Mr. Campbell to section foreman.

The county was divided into four sections with a section foreman assigned to each one.

Mickey Nottingham was a construction foreman. He would perform certain jobs at the

request of section foremen or the county road supervisor. After appellant took office, Mr.

Montgomery started keeping duplicate copies of certain files in his office.

When a project involved operating beyond the county’s right-of-way, the highway

department would obtain an easement from the property owner. Mr. Montgomery prepared

the easements prior to appellant’s taking office. The department secretary, Peggy Campbell,

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wife of David Campbell, wrote most of the easements from that point forward. She was not

employed by the highway department until appellant began his tenure.

Appellant testified at trial. He became the highway commissioner in 2006. Pursuant

to the Tennessee County Uniform Highway law, highway commissioners must be qualified

before they can run for the office. His background included construction, civil engineering,

and construction engineering. Appellant thought that he would be working in the field,

surveying land and designing. He did not realize that the position would entail more

management than anything else.

The highway department had 141 employees when appellant took office. The county

was subdivided into four sections, with a foreman assigned to each section. The foremen

assigned by appellant were John Salyers, David Campbell, Scotty Murray, and Terry

Schaffer. The highway department was responsible for all county roads, bridges, rights-of-

way, and utility rights-of-way. The department was also responsible for safety, which

entailed maintaining traffic signals, mowing, ditching, and shouldering (to prevent

hydroplaning). It paved roads and installed road signs, as well.

When appellant took office, he immediately demoted all of the previous foremen and

promoted his own men, including David Campbell, to the positions. He also hired Peggy

Campbell, Mr. Campbell’s wife, as the department secretary.

In deciding whether to correct the various sight distance problems, appellant did not

contact the sheriff’s office to ascertain whether their records reflected complaints or traffic

accidents. As chief administrative officer of the highway department, appellant felt that it

was within his discretion to perform the work. He stated that if he, in his judgment, thought

it was necessary, then it was necessary.

J. Rodney Carmical was the executive director of the Tennessee Highway Officials

Association. In that capacity, he worked for the elected and appointed road superintendents.

He provided technical assistance and training opportunities; monitored pertinent state and

federal legislation; attended meetings; circulated a newsletter; and monitored the General

Assembly.

Mr. Carmical was familiar with the highway department laws. The procurement of

easements over private property is covered by the Tennessee statutes. The reasons for

obtaining an easement are: (1) to gain control over the subject property; (2) to work on

“county” rather than “private” property; and (3) and to insulate the department from liability.

Because the highway department cannot perform work on private property, it is allowed to

obtain easements so that it can make problems on private property safe for citizens. Further,

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the highway department has total control over line of sight problems, including sloping banks

and cutting brush to enable better sight clearance.

B. Graybeal Road

Agent Pritchard testified first regarding the ditch on Graybeal Road that appellant

authorized his crew to dig. Graybeal Road is a cul-de-sac with three houses located at the

end of it. Those houses are serviced by a private water line that runs to the main line

supplied by Bluff City. Agent Pritchard photographed the ditch while it was in the process

of being dug and after it had been filled in and graded. He did not notice any indication of

an eighteen-inch drainage ditch being created along the road. The ditch he witnessed

appeared to be much deeper than that. Agent Pritchard photographed a pick-up truck, owned

by Joe Wilkinson, with PVC pipe on a trailer behind it. Agent Pritchard prepared his own

cost estimate of the work performed on Graybeal Road, factoring in the salary rates of county

employees, the hours spent on the job, and the cost of the equipment. He estimated that the

project cost Sullivan County $4,550.54.

Joe Wilkinson, a grading contractor from Bluff City, testified that someone contacted

him on behalf of Reed Booher and requested that he bid on a project to install a water line

off of Graybeal Road where Mr. Booher was developing land. Mr. Wilkinson believed the

person who contacted him was Bud Davies, the surveyor. Mr. Wilkinson submitted a bid for

the water line from the start of Graybeal Road to the back of it around October or November

of 2009. The proposal of $2 per foot of water line involved Mr. Booher purchasing all of the

parts and Mr. Wilkinson digging and installing the line. Mr. Wilkinson went to the area in

February or March of 2010 because Bluff City was installing a line under the road to a main

line. At that time, he noticed a couple of county trucks, an excavator, and a road grader. He

saw an open ditch of approximately 1,000 feet long, as well. Mr. Wilkinson and Mr. Booher

reached an agreement around the first of March, 2010, for Mr. Wilkinson to proceed with

installing the two-inch water line. Mr. Booher paid for the pipe, and Mr. Wilkinson picked

it up in Blountville. He traveled to the location with the pipe on a Friday morning. When

he arrived, the ditch had been completely covered and graded back as though it had never

existed. Mr. Wilkinson had to re-dig the trench so he could install the water line. He

installed six-inch pipe instead of two-inch pipe, which raised the price from $2 to $3 per foot.

He installed close to 2,000 feet of water line. During this time, Mr. Wilkinson never had a

conversation with anyone from the city of Bluff City.

Anthony Todd Malone was the mayor of Bluff City in March 2010. He also

performed the duties of city manager for a period of time. As city manager, he directed the

daily activities of the city government, including supervision of personnel. As mayor, he

attended meetings with the aldermen to discuss city resolutions and ordinances. Bud Davies,

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a surveyor, approached Mr. Malone, in his capacity as mayor, in October or November, 2008,

with a request that Bluff City install a water line and supply water to a planned housing

development for approximately sixteen houses on Graybeal Road. Mr. Davies made the

request on behalf of the property owner, Reed Booher. Mr. Davies stated that if Bluff City

would supply the pipe, install the pipe, and supply the water, the Sullivan County Highway

Department would open and close the ditch. In March of 2010, the city board decided that

Bluff City would supply the water after the developer installed the water lines. Mr. Malone

never had direct contact with anyone from the Sullivan County Highway Department.

Mayor Malone testified that on any occasion Bluff City and Sullivan County

collaborated on a project in Bluff City, the two entities entered into an agreement. He spoke

with appellant once during a previous transaction but not during the proposed digging of the

ditch on Graybeal Road.

William John McKamey testified that he was a Sullivan County commissioner in

January of 2010. That month, he, Don Weaver, appellant, and David Campbell met over

lunch. Don Weaver was the city manager of Bluff City. David Campbell was the section

foreman for the Bluff City area. The purpose of the meeting was to negotiate the sale of road

salt to Bluff City by Sullivan County. Bluff City ran out of salt that winter due to large

amounts of snow. They did not discuss the water line project on Graybeal Road.

Frederick “Don” Weaver was the city manager for Bluff City at the time of appellant’s

trial. He began his employment in December 2009. In his capacity as city manager, Mr.

Weaver attended the January 2010 lunch meeting regarding the purchase of road salt from

Sullivan County. He never had a conversation with anyone from Sullivan County about

digging the ditch on Graybeal Road.

James Allen Carr was employed by the Sullivan County Highway Department. He

was a track hoe operator. Appellant and David Campbell instructed him to go to the

Graybeal Road area and dig a ditch. The purpose of the ditch was for a water line. Aside

from the Graybeal Road project, Mr. Carr had never been asked to dig a water line ditch

during his thirty-six years of employment with the highway department. He had, however,

dug several drainage ditches. The request caused him some concern. Mr. Carr explained to

appellant and Mr. Campbell that he did not think they should dig the water line ditch until

Sullivan County obtained more information about the project. Appellant told Mr. Carr that

Bluff City was going to install the water line. Mr. Carr dug the ditch as instructed, but no

one installed the water pipe. The ditch was three feet wide, three feet deep, and three to four

hundred feet long. Mr. Carr believed that it would serve the dual purpose of containing water

pipe and providing drainage. The Friday morning after Mr. Carr completed digging, Mr.

Campbell instructed him to fill the ditch at appellant’s request because the water line was not

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going to be installed. Eddy Murray was present during the filling of the ditch to flag vehicles

for safety; however, Mr. Murray was not present during the digging of the ditch. No one

watched Mr. Carr dig the ditch, but several people watched him cover it back up.

Agent Pritchard testified that he arrested appellant on July 21, 2010. After Agent

Pritchard informed him of his Miranda rights, appellant agreed to speak with him. Appellant

gave a statement in which he told Agent Pritchard that during the process of widening

Graybeal Road, he was “pretty sure” that Reed Booher talked to David Campbell. Mr.

Campbell indicated to appellant that he knew Mr. Booher. Appellant, Mr. Campbell, and Mr.

Booher met to discuss widening the entrance of Graybeal Road. Appellant advised Mr.

Booher that the county could perform the work if it had the right-of-way. Appellant and Jim

Montgomery checked the file on Graybeal Road and confirmed that the county had a fifty-

foot right-of-way. Mr. Montgomery marked the right-of-way with stakes and they began the

process of widening the road.

In his statement, appellant further said that on another occasion, he met Mr. Booher

on Graybeal Road and asked if Mr. Booher had contacted Bluff City; Mr. Booher responded

in the affirmative. Believing that Bluff City would want to install a new water line at

approximately the same time Sullivan County finished paving the road, appellant suggested

that Mr. Booher communicate to Bluff City that Sullivan County would dig the ditch for the

water line if Bluff City would provide the labor and materials for the line. At that time,

appellant asked Mr. Booher for a right-of-way for a cul-de-sac at the end of the road, to

which Mr. Booher agreed.

Appellant further stated to Agent Pritchard that he heard nothing more of the project

until January 2010, when Commissioner John McKamey called David Campbell and asked

to have lunch with Mr. Campbell and appellant. Don Weaver from Bluff City was also to

attend. During the lunch at the Ridgewood restaurant, appellant told Don Weaver about

possibly digging the water line ditch on Graybeal Road in the near future. Appellant told Mr.

Weaver that it would save Bluff City a great deal of money. Mr. Weaver stated that Bluff

City appreciated all of the support that it received from the Sullivan County Highway

Department. Appellant believed that at the time of the lunch meeting, Bluff City had already

decided to forgo the project on Graybeal Road and that the meeting would have been the

appropriate time for Mr. Weaver to inform him accordingly. In March, 2010, after digging

a portion of the water line ditch, Sullivan County Highway Department learned that Bluff

City was not going to participate in the project. Mr. Booher was going to hire a private

contractor to install the water line. Appellant advised Mr. Campbell to fill in the ditch.

Leaving an open ditch over a weekend violated the Occupational Health and Safety Act

(OSHA) standards.

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Mr. Montgomery testified with regard to the work the highway department performed

on Graybeal Road. He stated that the Graybeal Road project was divided into two segments.

The first segment involved widening the road and creating a cul-de-sac at the end of the road.

The second part of the project involved digging the water line ditch. Mr. Montgomery was

familiar with the first segment of the project but was out of town when workers were digging

the ditch. He was familiar with the proposal regarding the water line ditch because he was

present when Bud Davies, a private surveyor working with Reed Booher, came into the

highway department office and asked if Sullivan County would dig the water line ditch if

Bluff City agreed to install the water line.

Mr. Montgomery and appellant were in Murfreesboro, Tennessee, for a conference

when appellant received a telephone call from David Campbell about the water line.

Appellant advised Mr. Campbell to proceed with the project. Later, Mr. Montgomery

learned that the property owner was going to hire a private contractor to install the water line.

Mr. Montgomery’s only involvement in digging the water line ditch was advising appellant

that he should obtain approval by the Sullivan County Commission before entering into an

agreement with another governmental entity. According to Mr. Montgomery, appellant did

not treat the Graybeal Road project any differently than he had any other project. Appellant

did not attempt to or request Mr. Montgomery to hide the specific costs of the project and did

not advise Mr. Montgomery to keep the details of the project quiet.

Appellant testified at trial that in 2010 he authorized the project at Graybeal Road.

The county had a right-of-way, and the road was very narrow. Beside the road, three water

lines ran at a depth of approximately one foot. The county workers kept breaking the lines

with the lawn mowers and having to patch them. Appellant was on site inspecting the

shallow water lines. He later spoke with Reed Booher about widening the road. Appellant

said that the county would widen the road if it had a right-of-way. Jim Montgomery

confirmed that the county had a right-of-way at that location, so the county widened the road.

While the crew was widening Graybeal Road, appellant saw Reed Booher on site.

Seeing Mr. Booher led appellant to think that Bluff City would likely be installing new water

lines the area. He had worked with Bluff City two times previously. Bluff City visited the

area to perform a water tap. Appellant expected that the water lines would be installed next.

Based on his experience with Bluff City, appellant authorized his department to dig the water

line ditch.

Appellant testified that he was in Murfreesboro when he learned that Bluff City would

not be installing the water line. He instructed Mr. Campbell to close the ditch. The

Occupational Health and Safety Administration (OHSA) prohibited a open ditch from being

left unattended over a weekend. In offering to dig the water line ditch, appellant did not

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receive any favors or benefit from Mr. Booher. He did not know Mr. Booher prior to this

project.

Appellant further testified that he did not think that he needed county commission

permission to dig a utility ditch for another municipality if it was located on the county’s

right-of-way. He felt that he, as commissioner, exercised absolute authority over the rights-

of-way. In fact, utilities would have to seek his permission before the company could do

work on the county right-of-way. During the pendency of the project, no one from Bluff City

ever told him that it would not install the water lines. Appellant further believed that the

statute authorizing the department to perform work for another municipality did not specify

whether the county commission must give prior approval or whether subsequent approval

was sufficient.

C. Hawley Road

Because appellant was acquitted of the charge associated with the project on this

property, we will briefly recite the facts associated with the transaction for the record.

Agent Pritchard presented photographs he obtained from the county highway office

of the property on Hawley Road belonging to the Garst family. The “before” photographs

depicted different camera angles of a curve in the road and a slight grade in the land adjacent

to the road. One picture showed a “sharp curve” sign on the road. The “after” photographs

showed how the grade had been minimized into a gentle slope, seeded, and covered with

straw. Agent Pritchard testified that he did not see a significant difference in the slope

between the “before” pictures and the “after” pictures.

Julia Garst testified that she lived with her parents, Wilber and Christina Garst, on her

family’s farm located at 1007 Hawley Road. She testified that a highway department

representative informed her that the department wanted to grade a slope on their property

located within a curve in the road. Her ninety-seven-year-old father continued to drive his

tractor, and she would have worried about him driving on Hawley Road prior to the bank

being graded. The Garst family did not pay appellant for the work, and Ms. Garst could not

think of any benefit that appellant would have received as a result of the project.

D. 1200 Rice Cross Road

Because appellant was acquitted of the charge associated with the project on this

property, we will briefly recite the facts associated with the transaction for the record.

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Agent Pritchard visited property located at 1200 Rice Cross Road, owned by Jeff

Boling. He identified a series of pictures designated as “before” pictures and “after”

pictures. The “before” pictures indicated heavy brush on Mr. Boling’s property. The “after”

pictures showed that the brush had been cleared and the slope had been graded. The grading

went past the county’s right-of-way. Agent Pritchard did not believe that the bushes in their

previous condition posed a visibility issue with respect to oncoming traffic and believed the

work to be cosmetic in nature.

Jeff and Tracey Boling owned the property on Rice Cross Road. Mr. Boling testified

that he had a steep slope on his property along the road that was difficult to cut with his

weed-eater. On advice of a friend, he called Mr. Campbell at the highway department and

learned that the county would perform work on their right-of-way, which extended thirty feet

from the center of the road. Mr. Boling marked the thirty-foot distance on his property. Mr.

Boling testified that his neighbor walked over to see what work was being done. The

neighbor had bushes on his steep slope; he planted them because weed-eating became

tiresome. Mr. Boling’s neighbor told him that as long as the slope was on the county right-

of-way, he should ask the track hoe operator to grade the slope on his property as well and

remove the bushes. The track hoe operator also cleared the bank of Mr. Boling’s other

neighbor without a request.

E. 964 Rice Cross Road

Because appellant was acquitted of the charge associated with the project on this

property, we will briefly recite the facts associated with the transaction for the record.

The next pictures identified by Agent Pritchard involved property owned by W.A.

Cross located at 964 Rice Cross Road. The county cleared a wooded section on Mr. Cross’s

property. Agent Pritchard did not think that the woods posed a visibility problem to drivers

on the road. Although there was a curve in the road, he noted that a driver could see

adequately. He also did not see a noticeable difference between the “before” pictures and

the “after” pictures.

William Anderson Cross testified that he resided at 964 Rice Cross Road. In October

2007, at his request, the county performed some work on adjacent property. Mr. Campbell

fixed the property to Mr. Cross’s liking. The work performed by the county was on the right-

of-way.

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F. Muddy Creek Road

The final piece of property Agent Pritchard investigated was on Muddy Creek Road

and owned by William and Mary Louise Cartwright. The property was close to the

intersection of Hawley Road and Muddy Creek Road. A portion of the property in question

was sold to James Paul Darnell. The “before” pictures showed a bank on the side of Muddy

Creek Road as the road began an uphill grade. Agent Pritchard testified that if a driver were

at the stop sign on Hawley Road, pulling onto Muddy Creek Road, he could easily see to the

left, to the top of the hill, as well as to the right.

The work extended around the property to the side adjacent to Hawley Road. The

highway department graded the slope, seeded it, and covered it with straw. Agent Pritchard

did not believe that a driver could see any farther after the work was done than before. Agent

Pritchard obtained a copy of an easement relating to the property owned by the Cartwrights,

as well as a real estate contract and a warranty deed to James Paul Darnell.

As part of his investigation, Agent Pritchard collated the information he gathered from

interviewing the property owners, then visited various private construction companies to

obtain an estimate of the number of hours and equipment needed to perform the work. For

the project on Muddy Creek Road, he received the following estimates: $129,008 from

Riggs Brothers Construction Company and $155,760 from Vic Davis Construction Company.

Agent Pritchard’s own estimate was $20,963.20 for the project.

Mary Louise Cartwright testified that she and her brothers inherited the farm located

on Muddy Creek Road following the death of her mother in 2002. She moved to Knoxville

to attend college and did not return to the home on Muddy Creek Road. Her brother Bill

lived in Arizona, and her brother Dick still lived in the area. In 2006, the siblings reached

an agreement dividing the farm among themselves. Dick Cartwright received a parcel of

land on one side of Muddy Creek Road, while Bill Cartwright and Mary Louise Cartwright

received two parcels on the opposite side of the road. The same year, Paul Darnell contacted

Ms. Cartwright about purchasing her parcel, but as the conversation continued, he became

interested in both her parcel and the parcel owned by Bill Cartwright. Mr. Darnell owned

a development, Barefoot Landing, that abutted her parcel. Ms. Cartwright quoted Mr.

Darnell a price of $790,000 for both parcels of land. They reached an agreement on

November 22, 2006.

While they were in negotiations, Ms. Cartwright received a telephone call from

someone with the highway department about the property where Brown Circle joined Muddy

Creek Road. The individual explained that the department was concerned about the safety

of the curve. Because they were actively involved in negotiations, Ms. Cartwright called Mr.

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Darnell to obtain his approval. He agreed that the intersection was unsafe, so Ms. Cartwright

signed the easement form provided to her by the highway department. She was not present

during any of the land improvements performed by the highway department. The parties

closed the real estate transaction on January 31, 2007.

Ms. Cartwright further testified that Jack Lawson from the economic development

board wrote a letter to her expressing an interest in purchasing a portion of the land. Ms.

Cartwright did not believe it was in her best interest to divide the property for sale. She

spoke with Mr. Lawson in September 2006. During the conversation, Mr. Lawson again

indicated a desire to purchase a portion of her property and also stated a concern about the

line of sight distances at Hawley Road and Muddy Creek Road.

James Paul Darnell, who purchased the land from Bill and Mary Cartwright, testified

that he was a developer in Sullivan County. He developed a subdivision called Barefoot

Landing located along Brown Circle. Appellant performed the survey work for Mr. Darnell

with respect to the development. He knew appellant and considered him a friend. Mr.

Darnell also felt that appellant had always treated him fairly. Mr. Darnell had no reservations

about the highway department working on the part of the Cartwrights’ property that he

wanted to purchase. He believed that it was a dangerous area because of overgrowth of plant

life.

Mr. Darnell further testified that during the course of the project, the highway

department removed dirt from the work site and delivered it to Mr. Darnell’s development

at Barefoot Landing. He agreed that the work that the county performed increased the value

of his land because Mr. Darnell did not have to bear the responsibility of grading two clay

banks on either side of the entrance to his subdivision. However, he believed that the work

also improved the safety of the intersection. Mr. Darnell subsequently divided the property

he purchased from the Cartwrights and sold a lot to another individual for $33,500. He did

not think he would have gotten that price had the work not been completed by the highway

department. Contractors built forty homes in Barefoot Landing. The only egress point from

the subdivision was via Brown Circle to Muddy Creek Road. Mr. Darnell stated that the

intersection was quite congested. Mr. Darnell never told appellant that he was interested in

purchasing the property from the Cartwrights. He never asked appellant to perform the work

on the property.

James “Mickey” Nottingham offered testimony with regard to the highway

department’s project on Muddy Creek Road. He served as foreman at the site. The project

lasted approximately six weeks, from November through December 2006; the county

completed additional work in March of 2007. Johnny Crain, Donny Faulk, Anthony

Holoman, Joseph Hughes, Bryant Noe, Ronnie Richards, Gary Wilson, and James Carr also

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worked on the project. The crew utilized two county bulldozers and rented one additional

bulldozer. The project also required two trackhoes, a rubber-tired backhoe, a road grader,

and four dump trucks. Mr. Nottingham recounted that the crew sloped the banks and

installed a shoulder on the road and performed the work pursuant to David Campbell’s

instructions as section foreman. Mr. Nottingham was told that they were improving the road

because of sight distance problems. Before the crew began work, Jim Montgomery marked

the right-of-way with stakes. Mr. Nottingham was under the impression that the crew would

be working only in the marked area. However, the grading of the slope extended beyond the

right-of-way. Appellant visited the site every few days or once a week. Mr. Campbell was

present nearly every day. Paul Darnell visited once a week, as well. Mr. Nottingham did not

think that Mr. Darnell’s presence was unusual because he heard that Mr. Darnell was

interested in purchasing the land.

The crew removed dirt during the grading process and delivered it to the development

at Barefoot Landing. Mr. Nottingham was not aware that Mr. Darnell owned the

development. He testified that when the highway department has excess dirt from a project,

they try to dispose of it at the closest possible location to minimize fuel costs. When the crew

returned to sow and seed the banks in March 2007, Mr. Darnell was present on the land with

logging equipment. The Environmental Protection Agency (EPA) required that the highway

department sow and seed banks on the sides of roads to prevent run-off and soil erosion. The

highway department was responsible for cleaning up any mudslides or erosion onto the road

way.

Johnny Lee Crain was an employee of the Sullivan County Highway Department. His

foreman was Mickey Nottingham. Mr. Crain’s responsibilities included operating a

bulldozer, a backhoe, a trackhoe, and other heavy equipment. He was involved in the project

at Muddy Creek Road, operating the bulldozer to strip, stock-pile, and haul off the top soil.

During the project, one of the highway department’s bulldozers broke down, so they had to

rent the equipment to complete the job.

While on the job site, Mr. Crain saw Paul Darnell four or five times. David Campbell

was also present occasionally. Appellant visited the project location on the day that Stowers

Equipment Rentals delivered the rental bulldozer. As he was working, Mr. Crain thought

that the crew could have done less work to accomplish the end result; however, the majority

of the work was necessary. In his experience, Mr. Crain had never worked on a piece of

property that was going to be developed for residential lots. In his thirty-eight years with the

highway department, he never dug a water line for a private developer.

Sherry Lynn Tipton was the office manager at Riggs Brothers Construction. Part of

her responsibilities included preparing estimates for grading, excavating, and preparing sites

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for construction. Agent Pritchard requested Ms. Tipton to prepare an estimate for the cutting

and grading of an embankment that would take approximately four weeks. Using specific

information provided by Agent Pritchard, Ms. Tipton estimated the project would cost

$129,008.

Appellant told Agent Pritchard that David Campbell first spoke with him about the

Muddy Creek Road project. Together they visited the intersection of Hawley Road and

Muddy Creek Road. Appellant determined that there was “definitely” a sight distance

problem at the intersection. He advised Mr. Campbell to find out who owned the property

and ask if they would sign a temporary construction easement to grade the bank. Mr.

Campbell then showed appellant the area of Brown Circle and Muddy Creek Road.

Appellant agreed with Mr. Campbell that the area posed a sight distance problem, in light of

the heavy traffic in the area. Mr. Campbell reached Mary Cartwright, who agreed to sign the

construction easement. Appellant dispatched Mickey Nottingham’s construction crew to

grade the banks. The highway department received several positive comments from people

in the community regarding the project. He never spoke with Paul Darnell and did not know

if Mr. Campbell had. To the best of his knowledge, Mr. Campbell did not know that Ms.

Cartwright’s land was for sale when he spoke with her. Appellant advised Mr. Campbell to

begin work on the project. However, appellant and Mr. Nottingham spoke about the job and

agreed that they needed to blend the two projects or the land would look strange.

In the fall of 2006, Mickey Nottingham requested Jim Montgomery to mark the

easement of Brown Circle with stakes so the highway department could correct a sight

distance problem at the intersection of Muddy Creek Road. Mr. Montgomery noted that one

could not see around the curve on Muddy Creek Road when stopped at the stop sign at the

end of Brown Circle. He marked a 350 to 400 foot strip of the easement. He confirmed with

Mr. Nottingham that the project would not extend past that point. He was aware of the

complaints about sight distance problems that had been lodged over the years, though prior

commissioners chose not to act on the complaints.

As the project was underway, Mr. Montgomery made a site visit and approached the

area from Hawley Road. He could see a member the highway department crew operating a

track hoe beyond the boundary he had marked. He took photographs of the sight clearance

at the intersection of Hawley Road and Muddy Creek Road, as well as photographs of the

track hoe’s location. While he felt that the original area he marked should be graded, Mr.

Montgomery did not believe that there was a reason to extend the work past the original

boundary. Someone working on the project extended the boundary to 2300 to 2400 feet. Mr.

Montgomery listed the different ways in which the work could have increased the property

values of the residential lots. Mr. Montgomery had repeatedly warned appellant to be

careful about working on an easement on private property, because all of the department’s

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work should benefit the county roads and the department. He maintained that simply because

the depart-ment has an easement over private property does not mean that work has to be

done.

Steve Michael Godsey, the mayor of Sullivan County, testified on behalf of appellant.

Mayor Godsey recalled that around 2006, his office received two or three telephone calls

regarding the Barefoot Landing area. The exit from the subdivision had a serious sight

distance problem. Mayor Godsey drove to the area to verify the condition. Upon seeing the

problem for himself, he asked his secretary to contact the highway department to correct the

problem. Barefoot Landing was an expensive neighborhood with many exclusive homes.

The subdivision had several residents with boats. Many children also lived in the area.

Mayor Godsey did not view the improvement on Muddy Creek Road but noticed the

improvements made by the county at Barefoot Landing/Brown Circle.

Appellant acknowledged that he and Paul Darnell were friends; however, he was not

aware that Mr. Darnell was considering purchasing the land. Appellant first visited the

property at the request of the mayor’s office. Appellant drove by the property after the crew

seeded it in 2007 to be sure that grass was growing. He noticed logging equipment along the

wood line and assumed that someone had purchased it. Before the project began, appellant

met David Campbell on site to instruct him regarding grading the banks. He left the

remainder of the project to Mickey Nottingham’s judgment.

Appellant stated that the pitch of a slope grade was determined by the topography of

the land. The county must blend the grade into the existing landscape. The crew could not

stop its work, leaving a vertical cut, just because the right-of-way ended. The grade would

naturally reshape itself over time and cause erosion issues. The EPA required that highway

departments preserve the land by seeding and/or laying straw along projects. For that reason,

temporary construction easements usually last from ninety to 120 days. The highway

department experienced a delay in seeding the Muddy Creek project because of the weather.

Appellant received no favors or benefits from Paul Darnell for the county’s work.

II. Analysis

A. Sufficiency of the Evidence

While appellant couches his arguments in terms of the trial court’s error in denying

his motions for judgment of acquittal and for a new trial on the counts of official misconduct,

private use of county equipment, and theft of services more than $10,000, the crux of the

issues concerns the sufficiency of the convicting evidence on the charges.

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The standard for appellate review of a claim by an appellant challenging the

sufficiency of the State’s evidence is “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Tenn. R. App. P. 13(e); see State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain

relief on a claim of insufficient evidence, appellant must demonstrate that no reasonable trier

of fact could have found the essential elements of the offense beyond a reasonable doubt. See

Jackson, 443 U.S. at 319. This standard of review is identical whether the conviction is

predicated on direct or circumstantial evidence, or a combination of both. State v. Dorantes,

331 S.W.3d 370, 379 (Tenn. 2011); State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

A criminal offense may be proven by circumstantial evidence alone. State v.

Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). However, for a conviction based

upon circumstantial evidence to stand, the facts and circumstances “must be so strong and

cogent as to exclude every other reasonable hypothesis save the guilt of the defendant.” Id.

at 779-80 (quoting State v. Crawford, 470 S.W.2d 610, 612 (1971)). In other words, “[a]

web of guilt must be woven around the defendant from which he cannot escape and from

which facts and circumstances the jury could draw no other reasonable inference save the

guilt of the defendant beyond a reasonable doubt.” Id. at 780 (quoting Crawford, 70 S.W.2d

at 613).

On appellate review, “we afford the prosecution the strongest legitimate view of the

evidence as well as all reasonable and legitimate inferences which may be drawn therefrom.”

Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010));

State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and the

weight and value to be given the evidence, as well as all factual disputes raised by the

evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659

(Tenn.1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that

the jury has afforded the State all reasonable inferences from the evidence and resolved all

conflicts in the testimony in favor of the State; as such, we will not substitute our own

inferences drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-

evaluate the evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State

v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the pre-

sumption of innocence that appellant enjoyed at trial and replaces it with one of guilt at the

appellate level, the burden of proof shifts from the State to the convicted appellant, who must

demonstrate to this court that the evidence is insufficient to support the jury’s findings.

Davis, 354 S.W.3d at 729; State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011) (quoting State v.

Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

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1. Official Misconduct

The Sullivan County Highway Department’s project at Graybeal Road formed the

basis for appellant’s indictments for theft of services more than $1,000, official misconduct,

and private use of county property. The jury found appellant not guilty of theft of services

more than $1,000 and guilty of the remaining two counts of the indictment. Appellant

contends that the State’s evidence was insufficient to establish that he acted outside of his

authority or with the intent to confer a benefit to another.

While the theft of services statute prohibits one who has control over the disposition

of services to others from knowingly diverting those services “to the person’s own benefit

or to the benefit of another not entitled thereto,” Tenn. Code Ann. § 39-14-104 (2010), the

official misconduct statute, however, criminalizes a public servant’s “intent to obtain a

benefit . . . to . . . another,” either intentionally or knowingly, while “[c]ommit[ting] an act

relating to the servant’s office or employment that constitutes an unauthorized exercise of

official power[.]” Tenn. Code Ann. § 39-16-402 (2010) (emphasis added). Evidence must

establish that the public servant acted intentionally or knowingly; the offense may not be

completed by reckless or negligent conduct. Tenn. Code Ann. § 39-16-402 (2010), Advisory

Comm’n Cmts. To sustain a conviction for official misconduct, a jury must not necessarily

find that another actually received the benefit, only that the public servant intended another

to receive a benefit. See Tenn. Code Ann. § 39-16-402 (2010).

In viewing the evidence in the light most favorable to the State, we are constrained

to find that the convicting evidence was insufficient to establish appellant’s requisite intent

with respect to the conviction for official misconduct. Testimony at trial established that

appellant did not know Reed Booher prior to the Graybeal Road transaction. Jim

Montgomery testified that Bud Davies, a private surveyor working with Reed Booher,

approached the Sullivan County Highway Department about digging the water line ditch on

Graybeal Road if Bluff City agreed to install the water line for a new development. Witnesses

testified that appellant had previously engaged in business transactions with Bluff City for

which Sullivan County was reimbursed and could have reasonably relied on those

transactions when he expected that Sullivan County would be reimbursed for the work on

Graybeal Road.

According to testimony developed at trial, the Sullivan County Highway Department

was in the process of re-paving a section of Graybeal Road. The evidence established that

during the course of the re-paving project, appellant saw Reed Booher on site, which could

have led him to believe, pursuant to the information garnered from Bud Davies, that Mr.

Booher was moving forward with developing the area on Graybeal Road and that Bluff City

had agreed to install the water line for the development. Bluff City employees visited the

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area to perform a water tap, which preceded installation of water lines. The State presented

no witnesses to prove that anyone from Bluff City advised appellant that it would not install

the water lines. Taking all of the information together, appellant authorized the highway

department to dig the water line ditch. Trial testimony established that upon learning that

Mr. Booher elected to hire a private contractor to install the water lines, appellant ordered

the highway department to refill the ditch pursuant to OSHA regulations.

The State charged, in the presentment, that appellant intended to confer a benefit on

Reed Booher by authorizing the digging of the water line ditch for Mr. Booher’s

development. Mr. Montgomery testified that Bud Davies’s request involved a collaboration

with Bluff City, not with Reed Booher. Despite conflicting evidence regarding conversations

between appellant and Bluff City officials, the State presented no evidence that appellant

intended to confer a benefit on Reed Booher. The jury had no evidence from which it could

have inferred that appellant intended to confer a benefit on Mr. Booher. Accordingly, we

reverse appellant’s conviction for official misconduct and dismiss said count of the

presentment.

2. Private Use of Public Property

The subsection of the statute under which appellant was indicted, tried, and convicted

reads, in pertinent part:

(d) Neither the chief administrative officer nor any other official or

employee of the county may use any county vehicle, equipment,

supplies or road materials for other than official county road purposes;

however, the county governing body has the authority to authorize the

county road department to perform work for other governmental

entities; provided, that the cost of the projects so authorized is to be

reimbursed to the county road department.

Tenn. Code Ann. § 54-7-202 (2008), amended by 2012 Tenn. Pub. Acts Ch. 689. While

appellant points out that “[t]he evidence is uncontroverted that the water line ditch that was

dug was entirely on county road right-of-way,” our review does not end there; the work must

also be performed for “official county road purposes.”

While the Graybeal Road water line ditch was not dug for Sullivan County road

purposes, the evidence at trial established the county had a history of collaborating with Bluff

City on various projects. Bud Davies’s request involved Sullivan County’s collaborating

with Bluff City. The statute in question granted appellant authority to authorize the highway

department to perform the work for Bluff City, provided the Sullivan County Commission

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authorized the work and the cost of the project was reimbursed to the county road

department. The evidence established that appellant did not have the approval of the

Sullivan County Commission prior to authorizing the digging of the water line ditch on

Graybeal Road. However, the statute does not require that the approval pre-date the project.

Appellant had experienced the workings of the county government in performing work for

Bluff City previously and was justified in relying on the same procedure being utilized during

this transaction. The State’s evidence is insufficient to sustain a conviction for public use

of county equipment, thus we reverse the judgment of conviction and dismiss this count of

the presentment.

3. Theft of Property More Than $10,000 but Less Than $60,000

Appellant challenges the convicting evidence underlying his conviction for theft of

property more than $10,000 but less than $60,000. “A person commits theft of services

who[,] [h]aving control over the disposition of services to others, knowingly diverts those

services to the person’s own benefit or to the benefit of another not entitled thereto.” Tenn.

Code Ann. § 39-14-104(3) (2010). Viewing the evidence in the light most favorable to the

State, any rational trier of fact could have found appellant guilty of this offense.

The evidence at trial was largely circumstantial and established that the Muddy Creek

project began nearly simultaneously with Mr. James Paul Darnell’s agreement with Ms.

Cartwright to purchase the parcels of land. Mr. Darnell and appellant were friends, attended

church together, and had known each other for a very long time. Ms. Cartwright received

a request for permission to begin the project from the Sullivan County Highway Department

before the real estate transaction with Mr. Darnell was completed. Because she had an

agreement for the sale of the land with Mr. Darnell, she contacted him to obtain his consent,

which he gave. Highway department crew members testified that Mr. Darnell was often

present at the location, even though he did not yet own the property.

Jim Montgomery testified that he agreed that a sight distance problem existed at the

intersection of Muddy Creek Road and Brown Circle. He marked a 350 to 400 foot strip of

easement and confirmed with Mickey Nottingham that the grading project would not extend

any farther. During a future site visit, Mr. Montgomery noted that the project had been

extended to approximately 2300 to 2400 feet, which he did not believe was necessary. Mr.

Nottingham confirmed that the highway department crew’s grading of the slope extended

well beyond the county’s right-of-way. The crew graded the slopes and installed a shoulder

on the side of the road. Mr. Montgomery had repeatedly advised appellant to be cautious in

working on an easement and on private property.

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Mr. Darnell testified that the work done by the highway department increased the

value of his property. He sold a lot in the subdivision for $33,500 and did not think he could

have obtained that price had the highway department not performed the work it did. He also

did not have to bear the responsibility of grading both clay banks on either side of the

entrance to his development. The highway department delivered two loads of dirt from the

grading project to Mr. Darnell’s development at Barefoot Landing.

The six-week project involved several crew members from the Sullivan County

Highway Department, use of county property, and rental of private construction equipment.

The cost estimates ranged from $20,963.20 to $155,760.2 Based on the foregoing, the jury

had before it sufficient evidence by which to find appellant guilty of theft of services over

$10,000 but less than $60,000. He is not entitled to relief on this issue.

B. Propriety of Appellant’s Conviction for Official Misconduct Based on the

Applicability of Tennessee Code Annotated Section 54-7-109

In addition to challenging his conviction for official misconduct based on insufficient

evidence, appellant also questions the applicability of Tennessee Code Annotated section 54-

7-109 to his case, which he claims the State relied upon in securing his conviction. Because

we have reversed and dismissed appellant’s conviction for official misconduct, review of this

issue is moot.

C. Restitution

Appellant argues that the trial court erred as a matter of law by failing to consider his

ability to pay when it ordered restitution. As an element of sentencing, this court conducts

a de novo review, with a presumption of correctness, of a trial court’s order of restitution.

State v. Johnson, 968 S.W.2d 883, 884 (Tenn. Crim. App.1997). However, we are unable

to review this issue because appellant failed to include a copy of the transcript of the

restitution hearing.

It is well-settled that the duty to prepare a record which ‘conveys a fair,

accurate, and complete account of what transpired with respect to those issues

that are the bases of the appeal’ rests on the appellant. What is in the record

sets the boundaries for what the appellate courts may review, and thus only

evidence contained therein can be considered.

2

The State presented cost estimates from two local construction companies. TBI Agent Pritchard

also estimated the cost of the project. While a large discrepancy exists among estimates, each estimate

provided proof that the value of the services diverted was more than $10,000.

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State v. Bobadilla, 181 S.W.3d 641, 643 (Tenn. 2005) (internal citations omitted); Tenn. R.

App. P. 24(b). Operating within said boundaries, we hold that appellant has waived this

issue for appellate review.

CONCLUSION

We have thoroughly reviewed the record, the parties’ briefs, and the applicable case

law. We reverse and dismiss appellant’s convictions for official misconduct and private use

of public property; we affirm appellant’s conviction for theft of property over $10,000 but

less than $60,000; and we remand the case to the trial court for entry of judgments consistent

with this opinion.

_________________________________

ROGER A. PAGE, JUDGE

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