Opinion

State of Tennessee v. Danny Lynn Davis

Court: Court of Criminal Appeals of Tennessee
Filed: Feb 18, 2011
Status: Published
On the bench: Presiding Judge Joseph M. Tipton
Cited by: 0 cases
Authority: More cited than 29.3%

The opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs August 24, 2010

STATE OF TENNESSEE v. DANNY LYNN DAVIS

Appeal from the Criminal Court for Washington County

No. 34089 Robert E. Cupp, Judge

____________________________

No. E2009-02538-CCA-R3-CD - Filed February 18, 2011

____________________________

The Defendant, Danny Lynn Davis, was convicted at a bench trial in the Washington County

Criminal Court of theft of property valued at $60,000 or more, a Class B felony; official

misconduct, a Class E felony; and twenty-five counts of forgery, Class E felonies. See

T.C.A. §§ 39-14-103 (theft); 39-16-402 (official misconduct); 39-14-114 (forgery). He was

sentenced to ten years for the theft conviction and to one year for each of the Class E felony

convictions, all to be served concurrently with one year of split confinement and the

remaining nine years on probation. In this appeal, the Defendant contends that (1) the victim,

the city of Johnson City, had no standing to allege the crimes, (2) the prosecution of the

forgery and official misconduct offenses was barred by the statute of limitations; (3) the

evidence was insufficient to support his convictions; (4) the trial judge should have recused

himself because the judge’s wife was an employee of the city of Johnson City; and (5) he was

deprived of the opportunity to prepare a proper defense because the trial court failed to

release his income tax records during discovery. We note that two of the convictions were

rendered on counts dismissed by the State during trial. We vacate the convictions for forgery

in Counts 23 and 27, but we affirm the remaining judgments of the trial court.

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

Part, Affirmed in Part

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which T HOMAS T. W OODALL

and A LAN E. G LENN, JJ., joined.

Clifton Corker and Gene Scott (at trial), Johnson City, Tennessee, for the appellant, Danny

Lynn Davis; and Danny Lynn Davis (on appeal), pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant

Attorney General; Tony Clark, District Attorney General; and Dennis Brooks and Erin

McArdle, Assistant District Attorney Generals, for the appellee, State of Tennessee.

OPINION

The evidence at the trial reflects that in the years 2003 through 2007, the Defendant

was employed as the day-to-day coordinator of a Johnson City government program that paid

for home improvements for low- and moderate-income homeowners and was reimbursed by

the United States Department of Housing and Urban Development. Subject to review by two

other city officials, the Defendant had authority to award contracts for less than $10,000 to

the lowest bidder. During his employment, the Defendant submitted bids for contracted

construction work through Gray Home Improvements (GHI), a company he operated and his

wife owned. When the bids were accepted, the Defendant hired subcontractors to perform

the work for less than the bid amount and kept the difference for his personal use.

Homeowners were to sign a “Proposal” document that listed the terms of the contract and a

second “Proposal” document that listed the specific improvements to be made. The

Defendant signed these proposal documents listing GHI as the contractor, “by D.L. Neal.”

At times, the Defendant approved his own bid through GHI without obtaining bids from

competitors. Some of the work for which GHI was paid was never performed, even though

the Defendant, as D.L. Neal, signed documents certifying that the work had been completed.

City officials knew nothing of the Defendant’s actions until 2007. The Defendant admitted

his actions but claimed that his conduct was not unlawful.

At the trial, Tennessee Bureau of Investigation Special Agent Scott Lott testified that

he began investigating the Defendant’s actions in May 2007. He compiled information about

the home improvement contracts involving GHI and D.L. Neal into a spreadsheet, which was

received as an exhibit. Among other information, the spreadsheet listed the amount paid to

GHI by the city, the amount GHI paid the subcontractors who actually performed the

renovation work, and the profit GHI made on each contract. He said his investigation

revealed that the checks the city wrote to GHI were deposited into GHI’s bank accounts and

that after the deposits, the Defendant wrote checks to himself from the GHI accounts. He

said that during his investigation, he obtained documents from GHI’s banks, the city’s

records, and the Defendant’s home.

Special Agent Lott testified and the documents he presented established that the

Defendant systematically completed documents titled “Proposal” that listed the work to be

completed and the cost, bearing the signature D.L. Neal signing on behalf of GHI. A second

document, also titled “Proposal,” contained general terms to be accepted by the contractor

and the homeowner for the work. These second proposal documents were signed by D.L.

Neal on behalf of GHI and the homeowner. The Defendant then sent a memorandum to the

city manager and the city’s community development coordinator recommending

disbursement of funds for the home improvements. The work permit was obtained by the

subcontractor, not the Defendant as himself or as D.L. Neal. The Defendant signed a

“Certification of Completion and Final Inspection” both as D.L. Neal in the capacity of

contractor and Danny Davis as the inspector. He submitted a check request to the city

treasurer for payment to GHI on behalf of the homeowner and requested that the check be

returned to him. The check request listed a post office box that was registered to the

Defendant’s home address. Once received, the check was deposited into an account owned

by “Lisa K Davis DBA Gray Home Improvements.” The Defendant then obtained a

cashier’s check from the bank at which GHI had its account to pay the subcontractor that

performed the work. The cashier’s check lacked identifying information other than “Gray

Home Improvements” typed as the remitter. Special Agent Lott testified that during his

investigation, he found city records showing that Lloyd Osborne made bids for some of the

contracts but was underbid by GHI.

Special Agent Lott read the Defendant’s statement. In it, the Defendant

acknowledged that he and D.L. Neal were the same person, that he established GHI, that he

bid on city contracts through GHI, and that he sometimes called subcontractors to price the

work before bidding. The Defendant said that GHI did not have a contractor’s license but

that its subcontractors did. He admitted that his city coworkers and the subcontractors did

not know about GHI and that the subcontractors, not GHI, obtained the necessary permits.

He admitted that he deposited the city’s checks to GHI in an account and then paid the

subcontractors with a counter check. The Defendant said he used GHI’s profits from the

contracts with the city to pay his personal expenses. The Defendant said his bids were fair.

On cross-examination, Special Agent Lott testified that he began his investigation on

June 4, 2007. He acknowledged a May 30, 2007 memorandum from Steve Baldwin to

Michael Peterson, the city manager, about the Defendant’s actions. He said the city notified

the police as soon as the city was aware of the Defendant’s actions. He acknowledged that

of the four homeowners he contacted, most stated that the work had been completed. He

recalled one homeowner reporting that smoke detectors were not installed. He said,

however, that all four homeowners denied signing some of the documents. He said he knew

that the city’s building inspectors sometimes certified renovation work by using the permits

on file, rather than by completing an onsite inspection. He said that despite GHI’s lack of

a contractor’s license, GHI had a city business license. He admitted that GHI’s bank

statements were in the Defendant’s wife’s name, not the Defendant’s. He said the business’s

checks were signed by the Defendant. He acknowledged that he did not know whether the

city was reimbursed by the federal government for its payments for the home renovations and

that he did not know whether the homeowners made any payments to the city.

On redirect examination, Special Agent Lott said he did not find anything in the city’s

records linking GHI to the Defendant. He said the investigation began because a contractor

found checks that made him suspicious.

Steve Baldwin testified that he was Johnson City’s Community Development

Coordinator. He said the community development program’s purpose was to provide

affordable housing for low- and moderate-income individuals. He said the Defendant was

a former employee of the department. He said he was the Defendant’s supervisor from the

time Mr. Baldwin’s employment began until the Defendant’s employment was terminated.

He said that the program provided funds obtained from federal and state sources and from

the city’s general fund to homeowners for repairs and improvements affecting the health and

safety of their homes. He described the program as a zero percent loan to the homeowners

to make essential changes but not unnecessary cosmetic improvements. He said that a

homeowner who obtained funding signed a deed of trust to obtain the loan but that the city

released the lien if the homeowner lived in the home for a period of time that varied between

three and five years, depending on when the loan was made and the source of the funds used.

He said the homeowner repaid a prorated amount of the loan if he or she sold the home

before the end of the time period. He said that the maximum funding for a homeowner was

$25,000 and that city policy required approval of the city commission for any funding over

$10,000. He said the city manager had authority to approve funding under $10,000. He said

that the demand for the program exceeded its funding and that during the time that GHI was

contracting through the program, there was always a waiting list of twenty-five to thirty

homeowners seeking assistance. He said homeowners typically waited a year or longer

unless they were prioritized as having emergency projects. He said that in the years 2003

through 2007, the program spent its funds for housing rehabilitation before the end of its

fiscal year. He said the city began using money from its general fund to supplement the

program in the 2006-2007 fiscal year. He said the city typically paid the contractor from the

city treasury as the contracts were completed and then filed a quarterly reimbursement

request with the federal government.

Mr. Baldwin testified that federal guidelines required obtaining three bids for each

contract and documenting any instance in which three bids could not be obtained. He said

the usual procedure was to approve the lowest bid. He said that the city officials accepted

bids from general contractors who were licensed with the city and that they did not accept

bids from subcontractors. He said that either a general contractor or its subcontractors were

required to obtain permits for the work after a contract was awarded.

Mr. Baldwin testified that the Defendant was the day-to-day coordinator of the home

rehabilitation program and said the Defendant was the only person who received bids and

selected the lowest bid. He said that the Defendant’s duties included verifying that a home

needed work by personally inspecting it or having a building inspector go to the home and

that it would be unusual if the contractor provided this information without someone from

the city also visiting the home. He described the Defendant’s job duties:

[B]asically, from the time that an application became qualified

under the program until such time as the rehab was completed

all of the process that we’ve just talked about involving making

sure adequate work write-ups were done, making sure the

contractors were . . . brought in to bid on it, handling the

process, handling the paperwork. These files had a lot of paper

in them, every one of them do. And, basically, handling the . .

. rehab program all the way through to the point where I . . .

sign[ed] off on that.

He said that although he and the city manager “signed off” on the proposal, he was not

involved again until the work was completed and the Defendant submitted the check request

to him for approval. He said the city manager had the final authority to approve contracts of

less than $10,000.

Mr. Baldwin testified that he would not have forwarded a request for approval of any

projects if he had been aware that some of the work described would not be done. He said

that when a request came to him, he believed that the necessary work had been properly

determined and that all the work listed in the request would be completed. He said that GHI

did a substantial amount of work for the program from 2003 until 2007 and that he never met

D.L. Neal. He said he did not know that the Defendant was D.L. Neal or that the Defendant

had any involvement with GHI. He recalled that a few months after GHI began contracting

through the program, the Defendant told him that GHI “was probably going to be a good

contractor for us, that indications were that they had done good work in what they’d done so

far.” He said he never authorized the Defendant to award contracts that would benefit the

Defendant, nor would he, had he known of the Defendant’s involvement with GHI.

Mr. Baldwin testified that the federal program that provided grant money required that

homeowners be given a list of approved contractors and that a Receipt of Bids form be

completed and certified. He said he reviewed the city’s files in the spring of 2007 and found

them lacking written bids from contractors who were not low bidders. He said bids for

smaller projects were sometimes communicated by telephone. He said he trusted that the

Defendant’s certification of bids on the Receipt of Bids form was truthful.

Mr. Baldwin testified that the Certificate of Completion and Final Inspection must be

signed by the homeowner, the contractor, and a witness, who was usually the Defendant as

a representative of the program’s office. He said payment could not be issued until this

certificate was signed. He said that checks were typically sent to the Defendant at the

program’s office and that the Defendant notified the contractor the check was available.

Mr. Baldwin testified that his inquiry into the Defendant’s dealings began after Lloyd

Osborne raised concerns. He said that as a result of a meeting with Mr. Osborne, he

reviewed the program’s internal records for two projects Mr. Osborne called to his attention.

He said that he also asked an employee in the building department to review its records for

any permits obtained by GHI and that he discovered that subcontractors obtained all the

permits for the GHI projects. He said he discovered that the program’s files did not contain

recorded deeds of trust for the homes at which GHI was awarded contracts, even though the

Defendant was responsible for seeing that the deeds of trust were recorded. He said he

requested a meeting with the city manager and the city attorney to review his findings.

On cross-examination, Mr. Baldwin admitted he knew that the Defendant also owned

and worked on his own rental properties and sold real estate while a city employee. He said

that to his knowledge, these were not unauthorized activities for city employees before June

2007. He acknowledged that the city did not enact a policy requiring employees to disclose

personal interests in contracts with the city until June 2007. He admitted that the Defendant

did not have authority to approve funding for contracts or to issue checks and that the

Defendant’s role was to submit the proposal letter for Mr. Baldwin and the city manager to

approve.

Dwight Scott testified that he was a self-employed heating and air conditioning

contractor. He said he came into contact with the Defendant at the courthouse for several

years before the Defendant approached him about doing contract work. He said he began

meeting the Defendant at homes and giving the Defendant quotes for heating and air

conditioning work. He said that the Defendant usually had completed paperwork with him,

that the Defendant wrote the price quote on the papers, and that he signed the papers onsite.

He said the Defendant sometimes came to a home while he was completing the work. He

said that he notified the Defendant when a job was completed and that the Defendant would

call him a week or two later to notify him that his check was ready.

Mr. Scott identified exhibits involving heating and air conditioning work he

completed for the Defendant. He said that he asked the Defendant why he never met D.L.

Neal, given that Mr. Neal was signing GHI forms, and that the Defendant told him Mr. Neal

worked out of town during the week. He said the Defendant claimed that when Mr. Neal’s

father was on his deathbed, the Defendant promised to take care of the younger Mr. Neal.

He said he believed the Defendant was only helping Mr. Neal take care of the business.

On cross-examination, Mr. Scott acknowledged that he was not sure the person to

whom the Defendant claimed to have made the deathbed promise was D.L. Neal’s father and

that the Defendant might have said he made the promise to Doug Humphrey about Rocky

Humphrey. He said the Defendant used several contractors. Although the trial exhibits

contained representations that some of the homes had higher quality heating and air

conditioning systems installed than those Mr. Scott said he installed, Mr. Scott said that he

would not have substituted higher quality units because it was rare to find “much of a deal”

on the units. He said his prices were reasonable, but he admitted that it was not unusual to

give contractors a more favorable rate than homeowners due to the volume of work from

contractors. He said the Defendant received favorable rates because the Defendant gave him

a high volume of work.

Rocky Humphrey testified that during his father Douglas Humphrey’s lifetime, his

father operated Elite Construction. He said his father died in 2003. He said he knew the

Defendant through his father and through the city’s low-income home improvement program.

He said he was a salaried employee of Elite Construction when his father was alive. He said

that his father bid on city contracts and that he worked on some of the contracts awarded to

Elite Construction.

Mr. Humphrey testified that after his father’s death, he changed the name of the

business to Elite Enterprises. He said that any checks the city issued to Elite Construction

were for work done by his father’s business and that checks issued to Elite Enterprises were

for his business. He said Elite Enterprises completed three or four jobs for the city. He said

that he quit doing business as Elite Enterprises in 2004 because he had trouble due to unpaid

taxes and that he started painting. He denied that he made numerous bids for the city’s

program in 2004 through 2007 after he ceased operating Elite Enterprises for Elite

Enterprises to do work for the city’s home improvement program. He said the exhibits

purporting to show bids by Elite Enterprises during this time period were inaccurate.

On cross-examination, Mr. Humphrey acknowledged that he received payment in his

own name, Rocky Humphrey, for a few city projects. He admitted making bids and receiving

contracts for some city projects in which he used subcontractors. He admitted he filed a

claim for disability benefits about two months before the trial. He said he still painted but

could no longer do heavy construction work. He admitted he had fifteen- to twenty-year-old

felony convictions, including convictions for burglary, armed robbery, and four counts of

attempted first degree murder. He also admitted he had a misdemeanor drug paraphernalia

conviction from about a year before the trial, but he denied being “strung out” during the

time period for which he denied making the Elite Enterprises bids. He identified Lloyd

Osborne as his former brother-in-law.

Howard Ray testified that he owned Ray’s Heating and Air, which he had operated

for about thirty years. He said he first met the Defendant when the Defendant came to his

office and asked him to do work for the city’s home improvement program. He said that the

Defendant then called him to request quotes for work on homes and that he faxed estimates

on his company letterhead to the Defendant at the city’s telephone number. He estimated he

completed ten to fifteen projects from 2003 until 2006 for the Defendant.

Mr. Ray testified that in order to be paid by the Defendant, he obtained a permit, faxed

the Defendant an invoice, had the city inspection completed, and faxed the approval to the

Defendant’s office. He said that after completing these steps, he would receive a check

within a week or two.

Mr. Ray identified two exhibits that he said were written bids requested by the

Defendant. In the first, his bid called for less work and a larger heating and air conditioning

unit at a lower price than the work, equipment, and dollar amounts stated in the city’s project

approval document for the same home. This contract was awarded to GHI at the higher

price. The second bid Mr. Ray identified also called for less work and equipment at a lower

price than the contract eventually approved and awarded to GHI for work at the same home.

On cross-examination, Mr. Ray testified that he did not recall without review of his

records whether he completed the two projects about which he testified on direct

examination. He acknowledged that he would not have replaced the power box at the second

home because that was beyond his expertise. The record reflects that the approval document

included replacement of the power box, although Mr. Ray testified that he wrote on his quote

that no power box was needed. He said that he was required to obtain a permit for any work

he did and that a general contractor could not obtain a permit for heating and air work on his

behalf.

Sammy Fugate testified that he was self-employed as the owner of Fugate and Son

Heating and Cooling. He said that the Defendant contacted him about heating and air

conditioning work and that he knew the Defendant was employed by the city’s home

improvement program. He said that the Defendant called him and requested quotes on

projects, that he would call the Defendant later with quotes, and that the Defendant called

him again when he was selected to do the work. He said that in order to be paid for his work,

he completed an invoice and submitted it to the Defendant at the Defendant’s city office. He

did not recall the Defendant being present at a job site. He said that he was unaware of GHI

until the Defendant’s trial and that he believed he had been working for the city. He said he

never met D.L. Neal. He estimated that he completed ten to twelve jobs at the Defendant’s

request. He said he completed these jobs for reasonable prices.

On cross-examination, Mr. Fugate said that the checks he received from the Defendant

did not identify Johnson City but were drawn from Johnson City Federal Credit Union. He

said he did not realize that the checks were not from the city until one was dishonored. He

said that he notified the Defendant of the worthless check and that the Defendant brought a

cashier’s check to his office and exchanged it for the dishonored check.

David Giorgadze testified that he requested assistance from the city for home

improvements. He said that after he met with the Defendant about installing wall heaters and

receptacles, several people worked on his home for about two weeks. He said that the

Defendant was not present while the work was being completed but that the Defendant

inspected the work after its completion. He denied that he saw or signed a list of contractors.

He said the Defendant never told him he had a choice of contractors. He said he never saw

an exhibit that purported to be a proposal from GHI. He said he did not know D.L. Neal.

He also denied that he signed the Certification of Completion and Final Inspection.

On cross-examination, Mr. Giorgadze testified that he was satisfied with the wall

heaters installed at his home. He said that after the project was completed, an employee of

a utility company came to his home and told him a heat pump would be more cost-effective

to heat his home than wall heaters. He said he was advised that there was nothing he could

do about it at that point. He did not recall the identity of the people who performed the work

at his home other than that he thought two of them were father and son. He acknowledged

that he had not been required to repay the city for the renovation.

Gladys Hardin testified that she requested assistance from the city for home

improvement. She said that storm windows and central heating and air conditioning were

installed but that she did not recall any renovation of her roof or gutters. She did not recall

receiving a list of contractors from which she could choose to do the work. She said she did

not recall signing a proposal or a Certification of Completion and Final Inspection. She

acknowledged that the signature on the GHI proposal looked liked hers, but she did not think

it was hers.

Betty Jo Odom testified that she was the office manager of Johnson City’s Building

Division. She said she and two other employees issued all of the city’s construction permits.

She said that after projects were completed, contractors called her office to request that the

work be inspected. She said that her office previously entered data about the inspections but

that the inspectors began entering their own data in June 2007.

Ms. Odom testified that she did not know nor had she heard of D.L. Neal. She said

that at the request of Steve Baldwin, she obtained computer files about work at certain

addresses. She said that a permit was required for any electrical work that required

disconnecting the electricity. She said that a permit was not obtained for electrical work at

the home about which Mr. Ray testified that no power box was needed and for which

evidence demonstrated that GHI was paid for electrical installation. Ms. Odom testified that

a general contractor could receive building permits for “building work” but not for electrical,

plumbing, or heating and air conditioning projects, unless the general contractor was also

licensed for these areas.

Hazel Lucille Gentry testified that she requested and obtained the city’s assistance for

home improvements. She said that Howard Ray installed a furnace and that Lloyd Osborne

provided a new roof. She said that she had only recently learned of GHI and that she did not

know D.L. Neal. She denied that signatures of her name on a GHI proposal, a Certification

of Completion and Final Inspection, and a list of approved contractors were hers. She said

she did not talk to the Defendant until she complained that some of the work she requested

was not completed. She said she was advised by Steve Baldwin that not all of the

improvements were eligible for the program. She acknowledged that she had not been

required to repay the city for the work.

Lloyd Osborne testified that he was a general contractor and that he met the Defendant

through Doug Humphrey, Mr. Osborne’s former father-in-law. He said he was a

subcontractor for Mr. Humphrey’s company, Elite Construction, for several projects through

the city’s rehabilitation program. He said that he quit because of a disagreement with Mr.

Humphrey but that the Defendant approached him about becoming a contractor. He said he

obtained a contractor’s license from the city and became an approved contractor for the

program. He said this required that he obtain insurance, register to pay taxes, and attend a

lead paint certification class.

Mr. Osborne testified that the Defendant typically called him and asked him to look

at a home. He said he would evaluate the property and submit a written bid to the Defendant.

He said he always submitted a written bid and never made bids by telephone. He said that

the Defendant said the most urgent repairs should be made first and that the Defendant

decided the scope of the work to be done. He said that in the fiscal year 2004-2005, he had

over twenty contracts through the program but that he had fewer contracts in fiscal year

2005-2006. He recalled that there was a time in 2006 or 2007 when the Defendant was on

medical leave that he was awarded four contracts in a row. He said it was unusual to receive

this much work in a short period of time. He said that he continued to bid on projects after

the Defendant returned to work but that he was not awarded any more contracts.

Mr. Osborne testified that he had several conversations with the Defendant about

contracts he was not awarded and that the Defendant told him Hartley Electrician was

receiving most of these jobs. He said the Defendant never said anything about GHI or D.L.

Neal. He said he asked the Defendant several times whether there were projects on which

he could bid. He said that on one of these occasions, he bid and was awarded the contract

but that the Defendant told him the program was out of money for that year.

Mr. Osborne testified that he learned of GHI’s involvement with the program after a

discussion with Sammy Fugate. He said that Mr. Fugate showed him a check from GHI that

had been returned for insufficient funds, which made him realize that Mr. Fugate had been

paid for a project by GHI, not the city. He said he made inquiries in city offices but was

unable to locate any permits obtained by GHI or a business license for GHI. He said Mr.

Baldwin and another employee in the rehabilitation program’s office told him they had never

met the person who ran GHI in the four of five years they had been bidding and receiving

contracts. He said he suspected that the Defendant was involved with GHI and that he met

with Mr. Baldwin to discuss his suspicions.

Mr. Osborne identified six exhibits purporting to be bids on rehabilitation projects.

He said that the signatures appeared to be his name, but that he did not sign the documents,

and that the bid form used was not his. He said he was never aware that telephone bids were

permissible. He said that he never signed contracts with homeowners or the city and that his

written bids served as his contracts. He said the Defendant handled the contracts with the

homeowners.

On cross-examination, Mr. Osborne testified that the Defendant said only a project

under $5,000 could be approved as an emergency rehabilitation and that when he told the

Defendant a home needed more work than could be done for $5,000, the Defendant told him

the work would be split into smaller projects and completed over a period of time. He said

the Defendant told him this was his method to avoid having to obtain the city commission’s

approval. He said that the Defendant sent him or other contractors to evaluate homes to

determine the necessary work and that he advised the Defendant afterward. He said the

Defendant then specified the portion of the work on which Mr. Osborne should bid. He said

that after he performed work at a home where the work had been split, the Defendant

sometimes called him later and told him to bid on another portion of the work. He said,

though, that most of the time, he was not called to do a subsequent round of work.

On redirect examination, Mr. Osborne identified two exhibits that were written bids

on his authentic form and bore his authentic signature. He said he always took a written bid

to the Defendant or left it with another employee in the office. On recross-examination, Mr.

Osborne testified that when he was awarded a contract, he had the homeowner sign his bid

sheet and that after he completed the work, he had the homeowner sign the Certificate of

Completion and Final Inspection.

Frank Barry testified that he was the owner of Barry Heating and Air Conditioning.

He said he knew the Defendant from the city’s home improvement assistance program. He

said that he provided written quotes for projects to the Defendant and that his company did

the work on a couple of the projects. He said that after the work was completed, he faxed

an invoice to the Defendant’s attention at the Defendant’s office and that he received a check

within a week or two. He denied having heard of GHI or D.L. Neal. Mr. Barry testified that

despite an exhibit reflecting a request for approval for his company to install several items

at a residential property, his company was hired to complete only one of the items at a

contract price that was less than reflected on the request for approval. He said that this

property already had a sufficient electrical system for the heat pump his company installed,

even though the request for approval listed upgrading the electrical system as one of the

items to be completed. He acknowledged that he did not know whether the other was

completed.

Terry Hartley testified that he was the owner of Appalachian Electric. He said he

knew the Defendant and did work for the city’s community development program. He said

that he went to homes that needed work and then gave the Defendant a bid either by

telephone or at the Defendant’s office. He said he would sign a contract and then wait for

approval. He said he completed the work if his bid won the contract. He said that after the

work was completed and inspected, he submitted an invoice and was paid about a week later

by GHI. He said he did not know D.L. Neal, nor had he ever met a representative of GHI.

He said that when he had a question about his payment, he spoke with the Defendant, who

said he would get in touch with “Denny” about it.

Mr. Hartley testified that at one home, he included electrical work in his original quote

that was not authorized when the city approved the contract. The exhibits reflected that GHI

was paid for this work but that GHI paid Mr. Hartley for only the authorized work. He said

that he later did the work that had not been authorized the first time and that he was paid for

the work at that point. The exhibits reflected that GHI billed the city and was paid for the

same work at this home both times. Mr. Hartley provided estimates for work at other homes

but received authorization to do only part of the work. The exhibits reflected that the

Defendant wrote letters to the city manager requesting payment to GHI for both completed

and uncompleted work, that GHI was paid for work that Mr. Hartley did not complete, and

that GHI paid him only for completed work.

Michael Denis Peterson, the city manager, testified that he knew the Defendant

through the Defendant’s employment at the city’s community development program. He said

that the city received a budgeted amount of grant money from the federal government and

that the amount varied from year to year. He said that the city used the grant money for

programs that benefitted low- and moderate-income people and for the community

development program and that the city had to submit a grant request to the federal

government that allocated the requested grant among the city’s programs. He said he was

unaware of any way a homeowner could access these funds other than through the city’s

program.

Mr. Peterson testified that he reviewed over 100 of the city’s check requests weekly

and that he had authority to approve requests under $10,000. He said that he had a general

idea about the pricing for home improvements but that he did not always review the

supporting documentation for check requests from the Defendant. He said that he trusted the

accuracy of the documents the Defendant prepared and that he never had any reason to doubt

the Defendant’s job performance. He said that until the Defendant’s employment

termination, he had no personal knowledge of GHI or D.L. Neal, nor did he know that the

Defendant was involved with GHI.

Mr. Peterson testified that outside the scope of their employment, city employees were

not allowed to receive personal gain or do work for the city. He said that city employees

were not prohibited from having second jobs that did not involve business with the city. He

said he would not have approved any check requests for payment to the Defendant as Danny

Davis, nor would he have approved contracts for rehabilitation work if he had known that

GHI’s bank accounts were in the Defendant’s wife’s name. He said the city’s financial

records were audited annually.

On cross-examination, Mr. Peterson acknowledged that he had final approval for city

disbursements. He said that Steve Baldwin had to approve disbursement requests from the

Defendant before they came to him. He said that the city paid from its own funds for work

done through the community development program and was later reimbursed by the federal

government. He was unaware of the city not being reimbursed for any of the contracts that

were exhibits.

The trial court granted the State’s motion to dismiss two counts of the indictment

because the homeowner was ill and unable to testify. The Defendant did not offer any

evidence. The trial court found the Defendant guilty of theft of property valued at $60,000

or more, official misconduct, and twenty-five counts of forgery. The Defendant filed this

appeal.

As a preliminary matter, we address the State’s argument that the Defendant has

waived all but one of his issues by failing to cite legal authority to support his claims. The

State is correct that the Defendant’s brief is deficient. The Rules of Appellate Procedure

require citation to legal authorities supporting the appellant’s arguments. T.R.A.P.

27(a)(7)(A). The rules of this court provide that issues not supported by citation to

authorities will be waived. Tenn. R. Ct. Crim. App. 10(b). Because the Defendant is

proceeding pro se on appeal and is allowed some leeway in drafting his pleadings, we

evaluate the form of his brief with some leniency. See Hughes v. Rowe, 449 U.S. 5, 9-10

(1980); Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003). We likewise note

that this court has within its discretion the authority to suspend the Rules of Appellate

Procedure for good cause. See T.R.A.P. 2. We will consider all of the Defendant’s issues

on the merits. We caution, however, that a pro se appellant risks waiver of his issues by

filing a brief that does not comply with the Rules of Appellate Procedure.

We consider first the Defendant’s allegation that Johnson City lacked standing to

allege the crimes. We note that the Defendant was prosecuted by the State of Tennessee

under the State’s criminal code. See T.C.A. § 39-11-103 (2010) (“Every person . . . is liable

to punishment by the laws of this state, for an offense committed in this state, except where

it is by laws cognizable exclusively in the courts of the United States.”). The Defendant is

not entitled to dismissal of the prosecution on this basis.

The Defendant contends that the prosecution of the forgery and official misconduct

offenses was barred by the statute of limitations. The State contends that the prosecution was

commenced within the statute of limitations. We agree with the State.

Forgery and official misconduct are Class E felonies. T.C.A. §§ 39-16-402(d)

(official misconduct); 39-14-114(c) (forgery). The statute of limitations for Class E felonies

is two years. Id., § 40-2-101(b)(4) (Supp. 2010).

The official misconduct count was alleged to have been committed between March

2003 and June 2007. The forgery counts were alleged to have been committed on various

dates between May 2004 and May 2007. The Defendant was indicted on March 4, 2008, and

an amended indictment was filed on July 6, 2009. The State alleged that the crimes were

discovered on May 21, 2007. The counts that alleged crimes more than two years earlier also

alleged that the statute of limitations was tolled by the Defendant’s concealment of the

crimes.

The Defendant argues that the prosecution was barred by the statute of limitations

because more than two years passed between his arrest and the reindictment. This court has

held that for purposes of determining whether a prosecution was commenced within the

statute of limitations, an amendment to an indictment relates back to the time of filing the

indictment, provided the amendment does not charge a new offense. State v. Johnson, 10

S.W.3d 280, 284 (Tenn. Crim. App. 1999). When the statute of limitations is tolled by a

defendant’s concealing his crime, the tolling ends when the concealment ends. State v.

Davidson, 816 S.W.2d 316, 321 (Tenn. 1991).

We have reviewed both the original indictment and the reindictment and have

determined that each count charged in the reindictment for which the Defendant was

convicted corresponds with a count charged in the original indictment. The conviction

counts in the reindictment did not charge any new offenses. The Defendant is not entitled

to relief.

III

The Defendant contends that the evidence was insufficient to support his convictions.

The State contends that the evidence was sufficient to support the convictions. We agree

with the State.

Our standard of review when the sufficiency of the evidence is questioned on appeal

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). We do not reweigh the evidence but

presume that the trier of fact has resolved all conflicts in the testimony and drawn all

reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676

S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Questions about witness credibility are resolved by the jury. See State v. Bland, 958 S.W.2d

651, 659 (Tenn. 1997).

Circumstantial evidence alone may be sufficient to support a conviction. State v.

Richmond, 7 S.W.3d 90, 91 (Tenn. Crim. App. 1999); State v. Buttrey, 756 S.W.2d 718, 721

(Tenn. Crim. App. 1988). The jury decides the weight to be given to circumstantial evidence

and that “[t]he inferences to be drawn from such evidence, and the extent to which the

circumstances are consistent with guilt and inconsistent with innocence, are questions

primarily for the jury.” Marabel v. State, 313 S.W.2d 451, 457 (Tenn. 1958) (quoting 2

Wharton’s Criminal Evidence 1611). The standard of proof is the same, whether the evidence

is direct or circumstantial. State v. Genaro Dorantes, No. M2007-01918-SC-R11-CD, ___

S.W.3d ___, slip op. at 12 (Tenn. Jan. 25, 2011). Likewise, appellate review of the

convicting evidence “‘is the same whether the conviction is based upon direct or

circumstantial evidence.’” Id., ___ S.W.3d at ___, slip op. at 9-12 (quoting State v. Hanson,

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

Theft

“A person commits theft of property if, with intent to deprive the owner of property,

the person knowingly obtains or exercises control over the property without the owner’s

effective consent.” T.C.A. §§ 39-14-103 (2010). In pertinent part,

“Deprive” means to:

(A) Withhold property from the owner permanently or for

such a period of time as to substantially diminish the value or

enjoyment of the property to the owner;

...

under circumstances that make its restoration unlikely[.]

Id., § 39-11-106(a)(8)(A), (C) (2006) (amended 2009). Consent is not effective if it is

induced by deception. Id., § 39-11-106(a)(9)(A).

In the light most favorable to the State, the record reflects that the Defendant induced

the city, through its agents, to enter into contracts with a business owned by his wife and

operated by him. He accomplished this through deception of the city treasurer and the city

manager by submitting “low bids” for projects, fabricating bids from other contractors,

concealing his identity as D.L. Neal, concealing his involvement with GHI, and concealing

his wife’s ownership of GHI. The Defendant also forged Mr. Osborne’s and homeowners’

signatures, used a false identity, and falsified documents to deceive the city. Mr. Peterson

testified that he would not have approved the payments to the Defendant if he had known of

the Defendant’s relationship with GHI and the Defendant’s identity as D.L. Neal. In some

cases, the Defendant received compensation twice for work that GHI’s subcontractors

performed only once. The Defendant admitted using the money he obtained for personal

expenditures. The Defendant, acting through GHI, was paid from the city’s treasury. His

theft exceeded the $60,000 statutory threshold for a Class B felony. The evidence is

sufficient to support the Defendant’s conviction of theft of $60,000 or more.

In so holding, we have rejected the Defendant’s argument that his actions were not

illegal because he had “effective consent” to obtain a benefit as a municipal employee

pursuant to the Johnson City Code. As we noted in section I. above, the Defendant

committed an offense against the State of Tennessee and was prosecuted under the State’s

theft statute. See T.C.A. § 39-11-103. The Johnson City Code does not supersede the

State’s theft statute, and the question of whether the Defendant’s actions complied with or

violated the Johnson City Code is not determinative of whether he violated State law.

We have also rejected the Defendant’s argument that Johnson City did not own the

money he obtained. Mr. Peterson’s testimony established that the federal government

allocated money to the city through an annual grant. Once allocated, this amount was

included in the city’s annual budget. Within the parameters of the grant, the city had the

discretion to spend the money as it saw fit. The city paid the Defendant, acting through GHI,

from funds in the city treasury, and the city was reimbursed for its expenditures. Once the

city received the grant, the money was its to spend for the approved uses. Although the

Defendant argues that the federal government provided the money and that the city was only

deprived of the money temporarily until it received reimbursements, these facts do not

change the character of the city’s ownership of the funds.

Official Misconduct

The Defendant also challenges his official misconduct conviction. The State argues

that the conviction was proper. We agree with the State.

The Defendant was charged with committing official misconduct by unauthorized

exercise of official power. “A public servant commits an offense who, with intent to obtain

a benefit or to harm another, intentionally or knowingly . . . [c]ommits an act relating to the

servant’s office or employment that constitutes an unauthorized exercise of official power[.]”

T.C.A. § 39-16-402(a)(1) (2010).

The Defendant argues that the contracts for home improvement were made between

the individual homeowners and the contractor and that the city was not a party. Although he

argues that the homeowners approved all the work and the prices, the record reflects that by

virtue of his authority with the city, he was able to forge homeowners’ names on these

documents. Mr. Giorgadze, Ms. Hardin, and Ms. Gentry denied that they signed a proposal,

list of approved contractors, and certificate of completion and final inspection, even though

their names were signed on these documents. The Defendant also fabricated bids from Mr.

Osborne and used his work-related knowledge of the contents of authentic bids he received

to submit a lower bid from GHI. The record also reflects that the Defendant submitted

requests for the city to pay GHI for work that was never performed at some of the homes and

that he signed D.L. Neal’s name on the certificates of completion and final inspection.

The Defendant also argues that it was neither a function of his employment duties for

the city nor of the city itself to contract for improvements on private residences. He claims

that his “primary function was to certify the eligibility of citizens to receive monetary

assistance from the City of Johnson City with which the homeowners under private contracts

could cause the repairs to be done.” The evidence reflects, however, that the Defendant’s

job duties entailed assisting homeowners with the application process, obtaining competitive

bids for each project, completing the necessary paperwork for the project to be accepted by

the city for the program, completing the certificate of completion and final inspection, and

requesting payment for the completed project. The contractors who testified stated that the

Defendant, in his capacity as a city employee, solicited bids from them for projects, notified

them if they were awarded the contract, and received their invoices. Acting as a city

employee, the Defendant submitted false documentation to the city’s management to

perpetuate his scheme. The Defendant had authority to approve participation in the city’s

program for home improvement contracts of less than $10,000, and he split projects at some

homes into two contracts in order to stay within his authority. The Defendant received bids

from contractors for projects in his capacity as a city employee and took steps to conceal his

alias of D.L. Neal and his involvement with GHI There is sufficient proof that he

intentionally or knowingly obtained benefits through his unauthorized exercise of official

power. The Defendant is not entitled to relief.

Forgery

The Defendant challenges his forgery convictions on the basis that the State failed to

prove that he harmed or defrauded the city, Mr. Osborne, Ms. Brown, Ms. Gentry, Ms.

Hardin, or Mr. Giorgadze. The State contends that the Defendant signed documents with the

names of others with the intent to obtain the city’s money. We hold that the evidence is

sufficient to support the forgery convictions for the Defendant’s forgeries of Mr. Osborne’s,

Ms. Gentry’s, Ms. Hardin’s, and Mr. Giorgadze’s names, and the forgery of the false name

D.L. Neal. We hold, however, that the convictions for forgeries of Ms. Brown’s name must

be vacated.

“A person commits an offense who forges a writing with the intent to defraud or harm

another.” T.C.A. § 39-14-114(a). “‘Forge’ means to . . . [a]lter, complete, execute or

authenticate any writing so that it purports to . . . [b]e the act of another who did not

authorize that act[.]” Id., § 39-14-114(b)(1).

The Defendant’s forgery convictions relate to:

Count 7 - forgery of Lloyd Osborne’s name on a Solicitation of

Quotes form in May 2004

Count 8 - forgery of Lloyd Osborne’s name on a Solicitation of

Quotes form in May 2004

Count 9 - forgery of Lloyd Osborne’s name on a Solicitation of

Quotes form in July 2004

Count 11 - forgery of Lloyd Osborne’s name on a Solicitation of

Quotes form in September 2004

Count 15 - forgery of Lloyd Osborne’s name on a Solicitation of

Quotes form in March 2005

Count 16 - forgery of Lloyd Osborne’s name on a Solicitation of

Quotes form in April 2005

Count 23 - forgery of Mary B. Brown’s name on a Home

Approval Proposal form on or about April 25, 2006

Count 24 - forgery of Hazel L. Gentry’s name on a Home

Approval Proposal form on or about April 25, 2006

Count 25 - forgery of Gladys Hardin’s name on a Home

Approval Proposal form on or about April 25, 2006

Count 26 - forgery of David Giorgadze’s name on a Home

Approval Proposal form on or about May 7, 2007

Count 27 - forgery of Mary B. Brown’s name on a Certificate of

Completion and Final Inspection form on or about September 5,

2006

Count 28 - forgery of Hazel L. Gentry’s name on a Certificate

of Completion and Final Inspection form on or about October

18, 2006

Count 29 - forgery of Gladys Hardin’s name on a Certificate of

Completion and Final Inspection form on or about November

24, 2006

Count 30 - forgery of David Giorgadze’s name on a Certificate

of Completion and Final Inspection form on or about May 21,

2007

Count 108 - forgery of a Certificate of Completion and Final