State of Tennessee v. Andy L. Allman

09/27/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

January 9, 2024 Session

STATE OF TENNESSEE v. ANDY L. ALLMAN

Appeal from the Criminal Court for Sumner County

Nos. 548-2017, 875-2017, 133-2020 Dee David Gay, Judge

___________________________________

No. M2022-01542-CCA-R3-CD

___________________________________

Defendant, Andy L. Allman, appeals his convictions for twelve counts of theft and six

counts of falsely holding oneself out to be a lawyer in case Nos. 2017-CR-548, 2017-CR-

548, and 2017-CR-875 for which he received an effective thirty-five year sentence to be

served in confinement. Multiple counts were either nolle prosequied by the State before

trial or dismissed during trial. On appeal, Defendant argues that (1) the evidence was

insufficient to support his convictions; (2) the trial court erroneously charged the jury

concerning his charges for falsely holding oneself out the be a lawyer; (3) his sentence is

excessive; (4) a portion of the State’s closing argument resulted in plain error; (5) the trial

court deprived Defendant of his right to present a defense by excluding evidence; (6) the

trial court improperly admitted evidence of the Board of Professional Responsibility’s

findings; (7) the trial court abused its discretion by denying Defendant’s motion to exclude

evidence; and (8) the cumulative effect of these errors entitle him to a new trial. Following

our review of the entire record, the briefs and oral arguments of the parties, and the

applicable law, we affirm the judgments of the trial court but remand for entry of judgment

forms for those counts that were either nolle prosequied by the State before trial or

dismissed during trial.

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

JILL BARTEE AYERS, J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.

Patrick T. McNally, Nashville, Tennessee (on appeal) and Andy L. Allman, Pro Se (at

trial), for the appellant, Andy L. Allman.

Jonathan Skrmetti, Attorney General and Reporter; Richard D. Douglas, Senior Assistant

Attorney General; Ray Whitley, District Attorney General; and Thomas Boone Dean and

Tara Wyllie, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

The charges in this case arose when Defendant, a licensed attorney, deposited

retainer fees paid by clients into his firm’s operating account and personal checking

account, which frequently had negative balances, and thereafter failed to perform the

agreed-upon legal work and failed to refund the retainer fees. Additionally, Defendant

transferred client funds from an insurance settlement, and several estate, divorce, and child

support settlements from his firm’s trust account into his firm’s operating account and his

personal account where such funds were depleted. After Defendant was suspended from

practicing law, he continued representing clients, taking fees, and providing legal advice

without advising clients that his license to practice law had been suspended.

Defendant was indicted for nineteen counts of theft of property, eight counts of

falsely holding oneself out as a lawyer, and one count of the unlawful practice of law. The

Grand Jury later returned two additional indictments charging Defendant with ten counts

of theft and three counts of falsely holding himself out as a lawyer. The trial court

consolidated the three indictments for one trial. We have compiled the following chart to

outline Defendant’s charges, convictions, and dispositions:1

Indicted Jury Indicted Disposition

Case Victim

Count Count Offense Effective 35 year sentence

2017- 4 years 30%;

CR- Concurrent: 5,11,14,16,18,19,21,22,23, &

theft of Roger

548 2 1 25 (2017-CR-548) and count 11 (2017-CR-

$4,500 Brown

875); Consecutive: 2020-CR-133 and

counts 3, 9, 12, & 13 (2017-CR-548)

theft of > Michael 12 years 30%; Consecutive: all counts in all

3 2

$60,000 Kevin Dycus cases

theft of Bethany

5 3 4 years; alignment the same as count 2

$4,500 Stollar

1

The counts in which the State entered a nolle prosequi before trial or that were dismissed during trial

are not included in the chart.

-2-

6 years 30%;

Concurrent: counts 9 & 12 (2017-CR-548)

and count 2 (2020-CR-133)

theft of >

9 7 Rosa Ponce Consecutive: counts 2, 3, 5, 11, 13, 14, 16,

$10,000

18, 19, 21, 22, 23, & 25 (2017-CR-548) and

count 11 (2017-CR-875) and count 1 (2020-

CR-133)

theft of Robert

11 9 4 years; alignment the same as count 2

$4,500 Lussier

Floyd

theft >

12 10 Kenneth 6 years; alignment the same as count 9

$10,000

Sutton

theft > Estate of 12 years 30%; Consecutive: all counts in all

13 11

$60,000 Jane Denney three cases

theft of Yvonne

14 12 4 years; alignment the same as count 2

$4,500 Prather

theft of Nancy

16 14 4 years; alignment the same as count 2

$4,500 Whitman

2 years 30%;

falsely

Concurrent: counts 2, 5, 11, 14, 16, 18, 19,

hold out

Sharon 21, 22, 23 & 25 (2017-CR-548) and count

18 16 as a lawyer

Sullivan 11 (2017-CR-875)

T.C.A. §

Consecutive: counts 3, 9, 12, & 13 (2017-

23-3-108

CR-548) and 2020-CR-133

falsely Danielle

19 17 hold out Dianne 2 years; alignment the same as count 18

as a lawyer Means

theft of Wanda

21 18 4 years; alignment the same as count 2

$4,500 Kelley

falsely

22 19 hold out Lisa Smelser 2 years; alignment the same as count 18

as a lawyer

Theft of

23 20 "$2,500 or Lisa Smelser 4 years; alignment the same as count 2

more"

falsely

25 21 hold out Rachell Scott 2 years; alignment the same as count 18

as a lawyer

2017- falsely

Ginny 2 years; alignment the same as count 2

CR- 11 22 hold out

O’Kelley (2017-CR-548)

875 as a lawyer

-3-

(Jinny

Broughton)2

falsely

Mario 1 year 30%; Consecutive: all counts in all

2020- 1 5 hold out as

Herrera cases

CR- a lawyer

133 Theft of Mario 6 years 30%; Concurrent: counts 9 and 12

2 6

$54,269.11 Herrera (2017-CR-548)

Defendant ultimately proceeded to trial on twelve counts of theft and six counts of

falsely holding oneself out as a lawyer as referenced in the above chart.3

Pretrial Motions

A. Motion to Sever

On May 17, 2019, Defendant filed a motion to sever the “flat fee” retainer counts

arguing that “joinder of these [c]ounts at trial are not necessary to the proof of the remaining

issues and are unduly prejudicial to . . . Defendant’s defense, denying . . . Defendant a fair

determination.” More specifically, Defendant averred that the retainer fee counts were

“contract disputes” because of their nonrefundable nature and were thus civil disputes and

not criminal offenses. The State countered that the retainer fee counts were based on the

same conduct or arose from the same criminal episode, requiring mandatory joinder, and

the retainer fee counts showed a common scheme or plan, thus allowing permissive joinder.

The State also pointed out that previous defense counsel had agreed to joinder.

A report from forensic accountant Jennifer Stalvey was entered as an exhibit at the

hearing. She did not testify, but the State noted that she had linked the check number or

cash amount paid by each victim to a deposit into one of Defendant’s bank accounts. The

report also listed whether the account into which the money was deposited had a negative

balance immediately before the deposit.

Tennessee Bureau of Investigation (“TBI”) Special Agent Reilly Gray testified that

she was the lead investigator on Defendant’s case and began her investigation in the “latter

part of 2016.” She said that the Board of Professional Responsibility (“BPR”),

Hendersonville Police Department, and the District Attorney General’s office provided her

with the names of “close” to seventy to seventy-five individuals as potential victims in this

2

Jinny Broughton is the same person as Ginny O’Kelley, who was listed as the victim in count eleven

of case No. 2017-CR-875 of the first indictment. We will refer to her as Jinny Broughton or Ms. Broughton.

3

While the chart shows the counts as they are charged in the indictments as well as how they were

charged to the jury, we will refer to the counts as they are charged in the indictment.

-4-

case. Special Agent Gray was also aware of a Davidson County theft case involving

Defendant.

Special Agent Gray interviewed the potential victims and obtained “close to a

dozen” search warrants for Defendant’s residence, storage facility, and three different

banks in which Defendant had firm and personal accounts. She interviewed a

representative from each bank and obtained files and electronic devices. Concerning the

retainer fee cases, Special Agent Gray testified:

[I]ndividuals that had gone to seek out [Defendant] for various types of cases

such as work place discrimination, employment issues, and they had retained

[Defendant]. Most of those individuals talked about having a personal

meeting with him at which time they gave him general information. He had

them sign an agreement.

In some of the cases, we received a copy of that agreement and in some of

those they had signed their copy but did not have a copy that [Defendant] had

signed. And they had been giving him roughly - - in most cases it was

$4,500. In some cases it varied, but that was the typical retainer amount.

And then to their knowledge no work was done on the case.

And in some cases the statute of limitations had run out so that after

[Defendant’s] suspension, they were not able to seek other representation for

their case.

* * *

For the most part, most of them had not had any communication with

[Defendant] after that initial meeting.

They had made numerous attempts to call the office [in] which case they may

actually speak with a staff member or a paralegal. They would mostly get

the run-around that [Defendant] was in a meeting, he was on the phone, he

was out of the office, and never [were] able to make contact with him.

In some cases[,] they may have made contact, but he also told them I’m

working on it, something will be done, and they never saw any actual hard

evidence of that. There were no papers filed, nothing sent to them, nothing

other than word of mouth that something was being accomplished.

As to other cases, Special Agent Gray testified that Kenneth Sutton retained Defendant to

represent him in a child support case and gave “over $12,000 to [Defendant] for that case.”

She noted that on the same day that Defendant met with Mr. Sutton, $12,000 was deposited

-5-

into Defendant’s personal account. Special Agent Gray testified that “nothing was

completed” on Mr. Sutton’s case, and “[w]e couldn’t find anything through the court

system that anything had been done on Mr. Sutton’s case.” She said that the money was

never deposited into Defendant’s firm’s trust account. Special Agent Gray agreed that the

money was supposed to “be held as a result of a court order ordering [Mr. Sutton] to pay

that into [Defendant’s] trust account as potential child [support] payment[.]”

Special Agent Gray testified that Kevin Dycus contacted Defendant about

representing him and his minor son, G.D.,4 in an estate case where Mr. Dycus’s ex-wife,

G.D.’s mother, had passed away. G.D. was the beneficiary of her life insurance policy,

and the funds were to be held in a trust account for G.D. to access after he became an adult.

Special Agent Gray testified:

Mr. Dycus had a check. This was over a hundred thousand dollars that was

signed over to [Defendant]. That check was deposited into [Defendant’s]

account. It was never actually given out or appropriated anywhere else in a

separate trust account.

Upon search of various records, either through Mr. Dycus [sic] and then also

verified through other account records, at one point [Defendant] had actually

texted a picture of an account to Mr. Dycus alleging that yes, the funds are

here, these are the funds, basically to show this is where it is.

Mr. Dycus had asked several times for an account number, for information

to basically verify where this money was being held, and [Defendant] had

texted him a picture, which we later found out through alternative records

was actually a picture of another trust account for another victim in this case,

and the funds for the Ingr[a]m5 estate had already been spent in various ways

by [Defendant].

Special Agent Gray confirmed that Mr. Dycus never received any distribution of funds

from the estate for G.D.

As to the Jane Denney estate for which Defendant had been appointed executor,

Special Agent Gray testified that the proceeds of the estate, which totaled “upwards of over

a hundred thousand dollars[,]” were deposited by Defendant into a separate firm’s trust

account at Pinnacle Bank. She noted that “this was the only account that we were aware

of that he placed in a separate trust[.]” Special Agent Gray further testified: “[t]hat money

4

Because it is the policy of this court to protect the identity of minor victims, we will identify them by

their initials.

5

This was the estate of G.D.’s late mother.

-6-

was deposited, and within, I would say, approximately a 30-day period or a month’s time,

that account was completely drained to the pennies.”

Concerning Defendant’s other charges, Special Agent Gray testified that Rosa

Ponce hired Defendant to represent her “in a claim against her previous employer to which

that case had actually been settled” and Ms. Ponce was to receive a settlement of

approximately $14,000. Defendant did not advise Ms. Ponce that the funds had been paid

nor did he distribute the settlement funds to her. Special Agent Gray testified, “It wasn’t

until her taxes were filed, then, that following year, that then her tax statement came in the

mail that she had actually received the settlement, but she never received any payment from

[Defendant].”

Special Agent Gray also testified that she investigated several cases in which

Defendant was practicing law while his license was suspended. She said that various

individuals came forward who sought Defendant’s representation “after what we knew to

be the permanent suspension date, and then, obviously, I had obtained the recording from

Cheryl Garrett where she had stated that she had asked [Defendant] outright if he was her

lawyer and he had said yes.” Special Agent Gray noted that on the day a search warrant

was served at Defendant’s house, she called him and “he had asked me if it could wait

because he was meeting with a client at that time[.]”

The trial court denied Defendant’s severance motion, concluding:

If you look at the mandatory joinder rule that the General pointed out, you’ve

got that. If you look at permissive joinder, you look at whether they are part

of a common scheme or plan and whether they are of the same or similar

character. Same or similar character is a no-brainer. Yes. Offenses

constitute parts of a common scheme or plan, we look and see what common

scheme or plan evidence, and the one that would apply here is part of a larger

continuing plan or conspiracy.

What I’ve heard today, just briefly - - I mean, we’ve got similar situations:

Denn[e]ys, hundred thousand dollars; Dycus, hundred thousand dollars;

Sutton, $12,000; Ponce, $14,000. These are non-retainers and these [people]

don’t know where the money is.

You take the retainers - - and I do not believe that the Reguli6 case is

authoritative here. What I think we need to look at is whether the

[D]efendant was given money and whether he took that money or used it to

do what he was supposed to do, and that’s what we’ll look in each of those

other cases and we’ll have to go through each one of them. In order to do

6

Bd. of Pro. Resp. v. Reguli, 489 S.W.3d 408, 421-22 (Tenn. 2015).

-7-

that - - we’ll have to do that - - and it’ll take a week to go through that just

pretrial.

So as of this stage, I will not grant a severance. All these motions [sic] will

be tried together, and that’s really what the parties agreed to do a long time

ago.

B. Motion to Dismiss Retainer Fee Cases

On May 17, 2019, Defendant filed a motion to dismiss the “flat fee” retainer counts

in case Nos. 2017-CR-548 and 2017-CR-875, or in the alternative for a bill of particulars,

arguing that the indictments were not particular enough for him to establish a defense.

Defendant asserted, relying on Reguli, that the fees were “advanced retainer fees” which

were earned upon receipt. He further asserted that “[t]here is no evidence of a security

retainer agreement which makes the paid fees held by the Defendant identified in the

disclosures and documents as being property of the client payees. There is therefore no

probable cause for the crimes of embezzlement, fraudulent conversion and similar

offenses.” Defendant also attached the “Attorney-Client Litigation Agreement” for

multiple listed victims and pages of forensic accountant Jennifer Stalvey’s report showing

deposits, expenses, and total financial loss for multiple listed victims.

At the hearing, Defendant reiterated his argument that the fees paid were

nonrefundable fees, which under Reguli, were earned upon receipt. The State argued that

under Reguli, retainer fees are refundable unless stated otherwise in an agreement signed

by the client, and Defendant’s Attorney-Client Litigation agreements did not include this

language. The trial court denied the motion to dismiss.7

C. Motion to Dismiss on Double Jeopardy Grounds

On October 15, 2021, the trial court denied Defendant’s motion to dismiss four

counts of falsely holding oneself out as a lawyer on double jeopardy grounds because the

evidence presented was not “amenable to a Blockburger8 [a]nalysis because this [c]ourt

cannot determine what charges or what allegations . . . [D]efendant was convicted of in the

Board of Professional Responsibility to compare with the charges or the indictments[.]”

The trial court concluded that the convicting document that required review under

Blockburger was the plea agreement, which was not before the court at that hearing.

7

The hearing transcript mentioned a hearing from June/July 2019, but the record does not include a

transcript of that hearing.

8

When analyzing double jeopardy issues, the appropriate two-part test is set out in Blockburger v. United

States, 284 U.S. 299 (1932).

-8-

Thereafter, on October 20, 2021, Defendant filed a motion to reconsider the trial

court’s denial of his motion to dismiss. Defendant attached to his motion a copy of his

BPR plea agreement and argued that counts twenty (falsely holding himself out as a lawyer

to Wanda Kelley), twenty-one (theft from Ms. Kelley), twenty-two (falsely holding himself

out as a lawyer to Lisa Smelser), and twenty-three (theft from Ms. Smelser) in case No.

2017-CR-548 should be dismissed as violating double jeopardy protections. He asserted

that these counts were identical to the criminal contempt charges to which Defendant pled

guilty to in front of the BPR.

According to the plea agreement, Defendant pled nolo contendere in 2018 to two

counts of criminal contempt before the BPR. The plea agreement stated that those criminal

contempt convictions were predicated on Defendant’s “undertaking the representation of

Lisa Smelser in a wrongful termination action and accepting a $4,500 cashier’s check on

November 22, 2016,” and “undertaking the representation of Wanda Kelley in a wrongful

termination action, executing an Attorney-Client Litigation Agreement and accepting

$4,500 in cash on November 7, 2016.”

The trial court considered Defendant’s motion immediately before trial on

November 1, 2021, noting that the appropriate analysis was in accordance with the two-

step Blockburger approach. The court stated that the “[f]irst step of the Blockburger test

is the threshold question of whether the convictions arise from the same act or

transaction[,]” and the second is whether “each offense includes an element that the other

does not.”

The trial court concluded that the elements of theft, as indicted in counts twenty-one

and twenty-three, were “completely different” from the elements of criminal contempt in

the plea agreement. Therefore, counts twenty-one and twenty-three did not violate double

jeopardy. Regarding falsely holding himself out as a lawyer to Ms. Smelser in count

twenty-two, the trial court found that the dates in the indictment were different from the

dates in the plea agreement. Thus, count twenty-two did not violate double jeopardy. The

trial court found that count twenty, holding himself out as a lawyer to Ms. Kelley, was “in

violation of the double jeopardy provisions of our constitution. You’ve got the same date.

You’ve got the same conduct. And my ruling is [c]ount [twenty] will be dismissed.

D. Motion to Allow Evidence of Delayed Paychecks by Defendant’s Employees

Prior to trial, the State filed a motion to allow evidence that Defendant’s employees

had delayed paychecks. On September 17, 2021, the trial court entered an order stating in

relevant part: “[f]or reasons stated on the record, the State’s motion is taken under

advisement and there will need to [be] a hearing outside the presence of the jury before

these matters are addressed.” Although it appears the trial court heard argument on this

motion on September 8, 2021, neither the motion nor the transcript of the hearing on this

motion are included in the record on appeal.

-9-

During trial on November 4, 2021, the trial court held a jury-out hearing to consider

whether to allow testimony from Defendant’s prior employees regarding “bounced and

delayed paychecks.” The State argued that the employees should be “allowed to say that

there were issues with their checks clearing and for the bank people to say that there were

lots of issues with that.” Defendant responded that there were many witnesses and that

“the bank statements speak for themselves.” The trial court held:

[Defendant], we’ve kind of covered that and I put that off until we got closer

to trial so I could know a little bit about what’s happened. Now, evidence

has been pretty substantial here about negative balances and kind of walking

the line there on the accounts. One of the arguments or a couple of the

arguments would be motive and intent, and that would go to show not a

propensity for violating the law, but as an element of proof for the underlying

offenses.

* * *

. . . I’ve got to follow the Rules of Evidence, and my ruling stands. The State

can call any witnesses they want to, and when it comes to [Defendant], if you

want to call witnesses and the testimony is admissible under the Rule of Law,

we’ll do it, so I will allow the testimony for those reasons.

E. Motion to Exclude Testimony of Bank Employees

On October 22, 2021, Defendant filed a motion in limine to exclude the testimony

of Volunteer Bank employees Jimmy Overton and Alisha Matthews and testimony from

the custodian of records for Pinnacle Bank. He argued that the parties had stipulated to the

admission of his bank records, and the State was calling numerous witnesses to testify,

thereby “making their testimony irrelevant, confusing, and a waste of time.” Before trial

on November 1, 2021, Defendant reiterated his position that the testimony would be

irrelevant and a “waste of time” because of his stipulation to the admission of the bank

records. The State countered that a stipulation did not limit the presentation of its case,

and the testimony would not be redundant because the witnesses would also testify about

personal interactions with Defendant. Defendant responded that they “might need to voir

dire each of [the witnesses].” The trial court refused this request and denied Defendant’s

motion.

G. Motion to Exclude Health Conditions of the Victims’ Family Members

Defendant moved to exclude evidence at trial concerning the health conditions of

Cathy Brown’s9 nephew, who was paralyzed and ultimately passed away, and Mario

9

Ms. Brown was a victim in Defendant’s Davidson County case.

- 10 -

Herrera’s mother. Mr. Herrera indicated in text messages exchanged with Defendant that

he needed the money from the sale of his home for his mother who was ill. The State

argued that the information was relevant, probative, and not overly prejudicial because it

was one of the reasons that Mr. Herrera needed his money, which was supposed to be held

in trust by Defendant. Ms. Brown had conversations with Defendant that she needed

money from the sale of a home, also supposed to be held in trust by Defendant, for her

nephew and that the money was needed quickly.

Defendant argued that the evidence had no relevance because it did not prove any

elements of the theft charge. He further asserted that the evidence “just invokes prejudice,

sympathy, things that don’t really need to be in the jury’s analysis as to whether or not

there was a theft.” The trial court disagreed and concluded:

You know, one of the things about a jury trial, it involves humanity. It

involves, you know, what happened. It involves facts. We just can’t take a

count at a time, this happened, he didn’t do it; this happened, he said he was

an attorney and he wasn’t.

You know, we’ve got to deal with humanity, and this goes to intent. If

somebody is telling you that they need this money to take care of a nephew,

that goes - - you know, it’s prejudicial. And I’m sorry that it’s prejudicial,

but most proof in a criminal trial is prejudicial.

I find that the probative value outweighs the prejudicial effect on both of

these, and these motions will be denied.

Trial

Doug Bergeron and Russell Willis, attorneys with the BPR, testified that the Rules

of Professional Responsibility govern the ethical obligations of attorneys, including trust

accounts. Mr. Bergeron explained that an attorney often holds another person’s money as

a “fiduciary,” and there are a number of rules that are applicable to that practice. He

testified that: “[a]s a fiduciary, you have certain obligations. You have to handle that

property or money in the best interest of the person whose property or money it is,” “at all

times.” He further explained that the money is usually held in one of two types of trust

accounts: a regular trust account and an IOLTA account, which is an Interest On Lawyers’

Trust Accounts.

Mr. Bergeron testified that an IOLTA is “for short-term placement of funds,

whereas a trust account separately would be for very large amounts of money sitting for

very long periods of time.” He explained that attorney fees that have not yet been earned

and prepaid discretionary costs, such as in a contingency case, are the types of funds that

go into a trust account until the work is performed and the expenses are incurred. Mr.

- 11 -

Bergeron testified that “any other funds received from clients or third parties to be held on

behalf of the client or third party,” such as a settlement from a car accident case, “would

be something that would have to go in a trust account until it was disbursed.” Mr. Bergeron

testified that a client’s funds cannot be co-mingled with an attorney’s funds in a trust

account. He said: “[i]f you earn funds, you have to remove them from a trust account.”

Mr. Bergeron also identified the types of fees that an attorney may charge, which

include contingency fees, hourly fees, refundable fees, and nonrefundable fees. He

explained that any refundable fee is required to go into a trust account and not the attorney’s

personal account or firm’s account until the money is earned. Mr. Bergeron testified that

it would be improper for an attorney to deposit a refundable fee directly into an operating

account instead of an IOLTA account. Attorneys are required to provide thorough billing

statements, evidence that work on a case was completed, before moving portions of a

refundable fee into an operating account. Mr. Bergeron explained that for a retainer fee to

be nonrefundable, “[i]t has to be plainly stated in writing.” On cross-examination, Mr.

Bergeron agreed that from the BPR’s perspective, a violation of a Rule of Professional

Conduct is not a crime.

Mr. Willis testified that he was the lawyer assigned to prosecute the disciplinary

complaints against Defendant. He said that Defendant’s license to practice law was

temporarily suspended on September 9, 2016, effective immediately. Pursuant to that

suspension, Defendant was not to accept any new clients, and within thirty days, he was

required to have stopped practicing law and to have withdrawn from all his cases.

Defendant was also required to file a motion with the trial court to withdraw from

representation or to file a notice of substitute counsel in his cases. It was also mandatory

for Defendant to inform his clients and opposing counsel of his suspension.

For existing clients, Defendant was required to send a certified letter, return receipt

requested, informing them that he had been temporarily suspended from the practice of law

and could no longer represent them. He was also required to return their case files and any

unearned fees. Mr. Willis testified that Defendant was required to be “upfront” with his

clients by telling them that he was suspended and that he could not provide any legal advice

except to advise them to hire a new attorney. He said that Defendant was prohibited from

presenting any “indicia of a lawyer,” meaning that Defendant could not “look like,” “sound

like,” or “act like a lawyer.”

In the BPR proceedings regarding Wanda Kelley and Lisa Smelser, Defendant did

not contest the allegation that he continued practicing law without a license. He admitted

before the BPR to violating certain rules and that he owed $108,077.08 to Kevin Dycus,

$24,377.52 to Rosa Ponce, and $4,500 each to Bethany Stollar, Yvonne Prather, Robert

Brown, and Nancy Whitman.

- 12 -

Erin Roach, a loan officer with Volunteer State Bank, testified that Defendant had

three firm checking accounts with the bank. She explained that the signature cards for the

accounts indicated that Defendant was the owner and “the presumption is that he’s the one

who actually controls the funds.” There were also other individuals who had “signatory

access.” Ms. Roach explained that “NSF” in bank records means “non-sufficient funds[,]”

and “NSF/uncollected” means that the “account was charged back and the bank was unable

to collect those funds.” She also said that “OD” is an overdraft, and a “returned item fee”

means that a “check or transaction tried to clear the account and we chose not to pay it so

we returned the item and did not pay it.” As for a “charge back[,]” Ms. Roach testified that

“means a check was deposited into the account and the funds were not collected at the other

bank and so we charged those funds back to the account to recoup them.”

Ms. Roach testified that Defendant’s accounts were “regularly negative” which

meant that he went below his balance “once a week, if not more.” Ms. Roach noted that

because it was usually difficult to contact Defendant, branch manager Becky Rogers

regularly attempted to contact Defendant and “Gloria” by email to collect funds to make

the accounts “positive.” She said that Defendant eventually brought money in to make the

accounts positive, sometimes after numerous attempts to contact him. Ms. Roach testified

that in 2015 and 2016, Defendant’s loan payments were constantly late. She said, “After

a while, it got to the point where the guarantor - - which just means an additional signer on

the loan - - had to supplement some of the payments, and then [Defendant] just stopped

paying altogether and the guarantor had to take over completely.”

Ms. Roach testified that Volunteer State Bank ended its financial relationship with

Defendant after his firm “operating” account had been negative for forty-five days. The

bank eventually filed a lawsuit which resulted in a judgment that Defendant later paid. Ms.

Roach testified that Defendant’s firm’s accounts had a total of $31,940 in NSF,

NSF/uncollected charges, and returned item fees in a three-year period and that his personal

accounts incurred an additional $10,000 in fees. She also noted that Defendant’s

employees regularly had issues with cashing their paychecks due to insufficient funds.

Jimmy Overton, Vice President of Loss Mitigation at Volunteer State Bank, testified

that when Defendant’s accounts were referred to him because they were overdrawn, he

would attempt to reach Defendant by phone. He said, “[a] lot of times I couldn’t get him,

but I tried to reach him on the phone as many times as I could. I’ve texted him several

times, called him on the phone to try to communicate with him.” Mr. Overton testified that

after the bank ended its financial relationship with Defendant, on behalf of the bank, Mr.

Overton obtained a judgment for $8,372.79 for an account that was overdrawn, which

Defendant paid.

Becky Rogers was previously employed by Volunteer State Bank as the branch

manager of the Hendersonville location. When any of Defendant’s accounts were

overdrawn and needed a deposit, which was a common issue with the accounts, she emailed

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Defendant about bringing in funds. On cross-examination, Ms. Rogers testified that after

she contacted Defendant, he usually brought a deposit to cover the negative balance in his

accounts. Sometimes it would take a few days, and one email she sent to Defendant

indicated that one of his accounts had been overdrawn for twenty-six days. She agreed that

due to regulatory changes in banking, Defendant’s relationship with the bank changed

because the bank was no longer allowed to “float” small business like it had in the past.

Mary Jane Isham, a Senior Vice President at Pinnacle Bank, testified that Defendant

had a personal and firm checking account and a line of credit at Pinnacle Bank that were

opened in “probably 2014 to 2016.” She said that his firm’s account was frequently

overdrawn, “[a]lmost every day or every Friday whenever payday was[,]” and “his

employees were trying to get their payroll checks paid every week and it was overdrawn.”

Ms. Isham further testified: “we tried to pay the checks that we could pay, but not all the

employees would get paid at some periods. Some might and all might not. It just depended

on what monies or funds were in the bank.” She said that Defendant made the banking

decisions on his accounts, and she did not interact with anyone else.

Ms. Isham testified that Defendant also opened a trust account for an estate for

which he had been appointed as executor of the estate. She said that as executor, Defendant

had the authority to transfer money out of the account. She noted that there were numerous

transfers out of the account into two of Defendant’s Pinnacle checking accounts. Ms.

Isham testified that Defendant’s relationship with the bank ended when they asked him to

leave because there was “turmoil” every pay period. “It involved our entire office as to

who we could pay and who we couldn’t pay[,] and it was very time-consuming.” She said

that the total amount of fees charged to Defendant’s accounts by Pinnacle from December

2015 through March 2016 was $11,459, which was highly unusual. Ms. Isham testified

that Defendant’s unsecured line of credit at the bank was $100,000, and it was ultimately

“charged off” and never paid back.

On cross-examination, Ms. Isham agreed that Defendant was contacted when there

was a problem with payroll checks, and it was corrected “[m]ost of the time.” She

reiterated that this problem occurred on a weekly basis.

Patricia Elliott was previously employed as the Financial Center Manager at

Simmons Bank. She said that Defendant first opened accounts at the bank in March of

2016, which included a firm’s operating account, an IOLTA account, and three personal

accounts. She noted that the Tennessee Bar Foundation was also listed on the IOLTA

account and thus would have received notifications of any overdrafts. Ms. Elliott testified

that on December 8, 2016, the bank sent Defendant a letter notifying him that his accounts

would be closed on December 16, 2016, due to the “unsatisfactory handling of his

accounts.” She said that checks were frequently returned on the firm’s operating account

because it was overdrawn, and Defendant’s employees began having difficulty getting their

paychecks cashed each week.

- 14 -

On cross-examination, Ms. Elliott agreed that the bank began placing a temporary

hold on a portion of some of the larger checks Defendant deposited for them to clear the

bank. On redirect examination, Ms. Elliott agreed that in November 2016, Defendant’s

IOLTA account was $4.09 overdrawn and a check written by Defendant for $230,064.09

on the account was returned for insufficient funds. She noted that Defendant had

previously deposited a check in the account for that same amount on August 15, 2016.

Michael Kevin Dycus – Theft of Property Greater Than $60,000

Teena Vincent testified that she had been a licensed attorney for twenty-two years

and primarily practiced probate law. She testified that when she is probating an estate, she

“open[s] a bank account in the estate of the decedent, and then I operate out of that,

specifically for uses of that estate.” The estate has a separate “estate trust account, because

only monies from that estate are deposited, only checks written from that estate account

applies to that estate. You can’t co[-]mingle the - - the estates, they have to be separate.”

She said that an attorney’s own money cannot be co-mingled with that of the estate.

Ms. Vincent testified that she was appointed as the “administrator ad litem” for the

Estate of Brenda Ingram in 2008. Defendant filed a notice of appearance in 2013 indicating

that he represented Kevin Dycus, the father and guardian of G.D., Ms. Ingram’s minor son

and an heir of her estate. In closing Ms. Ingram’s estate, Ms. Vincent prepared the “final

receipt and release” for the funds in the estate and issued a check for $108,077.08, payable

to Michael Kevin Dycus for G.D. That check was released to Defendant on March 14,

2014.

Michael Kevin Dycus testified that after discovering Ms. Ingram had a $180,000

life insurance policy at the time of her death, with her estate as the beneficiary, he initially

paid Defendant, a high school friend, $2,500 to represent him and G.D. with regard to the

estate. Mr. Dycus and Ms. Ingram were divorced and shared joint custody of G.D. at the

time of her death, and she had been married to her current husband for one and one-half

years. Mr. Dycus testified that Ms. Vincent had shown him “some paper with bills,

including funeral bills and various bills that the estate owed.” At that point, it was

estimated that G.D. would receive seventy-five percent of Ms. Ingram’s estate. Mr. Dycus

testified that Defendant advised him “that that figure should be closer to 90 percent.”

Mr. Dycus testified that the $2,500 fee that he initially paid to Defendant was “to

run an ad in the paper to notify [Ms. Ingram’s] husband that we were pursuing additional

funds [from the life insurance policy]. [Defendant] said that was part of the law, and he

said the rest of it would - - you know, would be his fee.” They never discussed Defendant

receiving a portion of G.D.’s inheritance. Mr. Dycus testified that G.D. was appointed a

guardian, and pursuant to the court order establishing the guardianship for the purposes of

receiving the funds on behalf of G.D., no money was to be spent nor any change in

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investments made from G.D.’s funds until a property management plan had been approved;

any disbursements had to be approved by the court.

Mr. Dycus testified that after Ms. Ingram’s estate was settled, the insurance

company wrote a check in the amount of $108,077.08 payable to “Michael Kevin Dycus

for [G.D.].” Mr. Dycus endorsed the check and gave it to Defendant. Mr. Dycus explained:

So I wanted it - - a judge to put it in kind of a semi-trust, until [G.D.] was

either 21 or 25, to be used for college. Or at a later date, like, 21 if you’re

out of college, 25 if you’re not, and you can’t touch the fund without my

consent, just - - that’s it.

I wanted the funds to go [to] an investment group. I needed a judge to court

order that, and so I signed the check over to [Defendant].

Mr. Dycus testified that Defendant was aware of the plans for the money, and he and

Defendant never discussed Defendant charging a large fee or taking one third of the funds.

He said Defendant “explained that he simply needed an investment plan from Edward

Jones, and we’d take that to the judge, and the judge would sign it.” Based on his

conversations with Defendant, Mr. Dycus was hoping that the process would take a few

months to complete.

Mr. Dycus testified that he communicated with Defendant on a regular basis over

the two years following the receipt of the insurance check, but Defendant did not establish

or complete an investment plan for G.D. to file with the court. When asked what Defendant

told him about moving the funds into the court supervised account, Mr. Dycus testified:

Generally that the case had been postponed. “I got called to a hearing out of

town, going to have to postpone it again.” I heard several times that. You

know, “Well, now the money has changed a little bit since it accrues a little

bit [of] money in my” - - in his attorney trust account. “I need Edward Jones

to send me a new plan. It’s got to be down to the penny.”

Text messages exchanged between Mr. Dycus and Defendant were admitted at trial.

Various court dates were discussed in the messages, but no hearing was ever held. At one

point, Mr. Dycus received an approved management plan directly from his financial

advisor at Edward Jones, told Defendant that he needed a court date to release the funds,

and requested that he and Defendant meet to discuss the plan. However, Defendant

repeatedly postponed the meeting and never set a date for a hearing. Mr. Dycus’s financial

advisor at Edward Jones indicated that Defendant never gave her the information she

needed to submit a plan to the judge.

- 16 -

Defendant denied receiving a plan from Mr. Dycus’s advisor at Edward Jones. He

also claimed to have left messages for the advisor. In September 2015, Defendant told Mr.

Dycus: “I got it all done. You don’t have to come in. It’s taken care of.” Mr. Dycus then

assumed that “we got the court order from the judge signed and that [Defendant] could now

release the money to Edward Jones.” However, Edward Jones never received any

documentation from the court or funds from Defendant. Defendant later sent Mr. Dycus

unsigned documents that were supposedly filed with the court. In January 2016, Defendant

assured Mr. Dycus that G.D.’s money was still safe in Defendant’s firm’s trust account,

and he provided a printout showing the amount of money in the account. Defendant never

mentioned taking additional fees out of the funds. In August 2016, Mr. Dycus learned that

Defendant had not yet filed a motion to release G.D.’s money.

Mr. Dycus eventually enrolled G.D. in a rehabilitation program and needed some of

G.D.’s funds to pay for it. Defendant sent Mr. Dycus a screenshot of his firm’s trust

account showing a balance of $230,000 and noted that not all of the money in the account

belonged to G.D. He indicated that he would get the money to Mr. Dycus the following

day. When Mr. Dycus found out Defendant wrote a check directly to the rehabilitation

center, Mr. Dycus informed Defendant that he had already paid the center and needed the

check to be payable to him for reimbursement. However, Defendant sent the rehabilitation

center the check and after it was deposited, the rehabilitation center contacted Mr. Dycus

to let him know Defendant’s check did not clear the bank.

In December 2016, Mr. Dycus was informed by his Edward Jones representative

that Defendant’s law license had been suspended and that there were lawsuits pending

against Defendant. Mr. Dycus and Defendant exchanged numerous text messages in which

Mr. Dycus asked Defendant to contact someone at Edward Jones about disbursing G.D.’s

funds. Mr. Dycus was supposed to receive a check for $97,000, the remaining balance of

G.D.’s trust fund, less the amount subtracted for the cost of the rehabilitation center. Mr.

Dycus became concerned about receiving this amount after the check for the rehabilitation

center did not clear; however, Defendant assured him that the check was good. Mr. Dycus

stopped hearing from Defendant after January 2017, and he never received any of the funds

owed to G.D.

Estate of Jane Denney – Theft of Property Greater Than $60,000

Defendant was appointed as executor of Jane Denney’s estate. Ms. Denney passed

away in February 2015, and her beneficiaries included Elizabeth Brown, Sheila Andrews,

A.B. (a minor), and Defendant’s stepfather Paul Moore. The estate consisted of Ms.

Denney’s home, jewelry, coins, guns, and a van, and Defendant was responsible for the

sale of the home and distribution of the personal property. In his fiduciary capacity as

executor of the estate, Defendant received a check for $119,941.39 from the sale of Ms.

Denney’s home, which he deposited into a separate trust account on October 8, 2015. At

some point, Defendant provided a final accounting and distribution document to the

- 17 -

beneficiaries concerning the distribution of Ms. Denney’s estate, which they signed,

indicating the amount of personal property each beneficiary had received and the amount

of money to be distributed to each of them from the estate. Thereafter, Defendant made a

series of transactions from the trust account distributing funds into his firm’s operating

account and other trust accounts, so that by December 18, 2015, the balance of the account

was $2.82. Ms. Andrews, A.B.’s mother Darlene Batey, and Mr. Moore all testified that

they did not authorize any of the transactions, and none of the funds from Ms. Denney’s

estate were ever distributed to them. Defendant indicated to some of the beneficiaries that

he was waiting for the “trustee” to release the funds from the estate account.

Mark Smith, the Clerk and Master for the Sumner County Chancery Court, testified

that Ms. Denney had a will at the time of her death, and Defendant was named as the

executor. A petition for probate was filed on July 7, 2015, and a hearing took place on

August 25, 2015. An order was entered and signed by the judge on August 26, 2015, which

contained the following notation: “net funds derived from the sale of the real property are

to be held in the estate account and not disbursed without an order from the Court[.]” Mr.

Smith also noted that Defendant signed an affidavit and swore that he would “honestly and

faithfully execute the duties of the executor” of Ms. Denney’s estate “according to the laws

of Tennessee to the best of my knowledge and ability[.]” Mr. Smith testified that neither

Defendant nor anyone else requested permission or was granted authority to make any

distribution of the funds from the sale of Ms. Denney’s property. He noted that Ms.

Denney’s will excused a final accounting by the executor.

Kenneth Floyd Sutton – Theft of Property Greater Than $10,000 but Less Than

$60,000

Kenneth Floyd Sutton hired Defendant to represent him in a child support case, and

paid Defendant a retainer fee of $1,500 in cash on November 26, 2013. Mr. Sutton testified

that the case was not very complicated and involved child support arrearages for a child

who Mr. Sutton was unaware of until the child was nearly eighteen years old. The child’s

mother was seeking a large sum of money for the arrearages. Mr. Sutton was initially

happy with Defendant’s work. Mr. Sutton later wrote Defendant a check in the amount of

$941 to reimburse Defendant for a fee Defendant had paid on Mr. Sutton’s behalf. On June

15, 2015, Mr. Sutton wrote a check payable for $4,000 which he understood would go into

an “escrow account” and remain there until it was determined if Mr. Sutton was required

to pay child support arrearages, in which event the funds would be applied to the child

support awarded. The money would be returned to Mr. Sutton if he was not required to

pay child support. Mr. Sutton wrote “CSA” on the memo line of the check, which meant

“[c]hild support arrearages.” Mr. Sutton did not give the money to Defendant for personal

use.

Approximately one year later, Defendant told Mr. Sutton that an additional $12,587

was needed in his account to pay child support arrearages. Mr. Sutton believed the amount

- 18 -

to be accurate because he had received a letter from the judge specifying that amount.

Defendant told Mr. Sutton to bring the amount in cash or a money order because a personal

check would not clear the bank in time. Mr. Sutton gave Defendant $12,587 in cash and

received a receipt stating that the money was for child support arrearages. Defendant never

told Mr. Sutton that amount was for his fee. On that same date, Defendant deposited

$12,000 into his personal bank account he shared with his wife, and that amount was then

withdrawn from his personal account to make a credit card payment. Mr. Sutton testified

that Defendant did not have his consent to use his money for Defendant’s personal

expenses.

Mr. Sutton testified that his child support case was eventually appealed and

remanded to the trial court. Another attorney from Defendant’s firm represented Mr.

Sutton on appeal. On remand, the trial court found that Mr. Sutton owed approximately

$12,000 in child support arrearages, the amount Mr. Sutton had previously given Defendant

to pay the arrearages. Mr. Sutton then hired a second attorney to prove that he had already

paid that amount. Mr. Sutton testified that he gave Defendant more than $16,000 which

was never returned to him. To Mr. Sutton’s knowledge, Defendant only made one payment

of $941 on Mr. Sutton’s behalf. Mr. Sutton never received a bill from Defendant for his

services.

Rosa Ponce - Theft of Property Greater Than $10,000 but Less Than $60,000

Rosa Ponce hired Defendant in 2012 to represent her in an employment dispute with

the Clarksville Montogomery County Community Action Agency, Head Start Department

(“Head Start”) and paid him $4,500 for his services. Ms. Ponce was eventually fired from

her job and filed for unemployment, which was initially denied but later approved after

Defendant helped her with an appeal. She had started a complaint on her own with the

Equal Employment Opportunity Commission (“EEOC”), and after Ms. Ponce gave

Defendant her employment-related paperwork, Defendant made “some adjustments” to her

claim to make it stronger. Ms. Ponce later received a “right to sue” letter from the EEOC.

She worked with an attorney named Jedidiah in Defendant’s office who “made it seem like

we didn’t have a strong case and that we should think about settling.” She told him to “go

ahead and figure out a settlement.” They ultimately agreed to a settlement, and she

reviewed a settlement agreement at Defendant’s office.

Ms. Ponce did not know the settlement had been completed until she began publicly

speaking out about her case and asking Montgomery County officials for her money. She

then received a call from someone at Defendant’s office instructing her that the settlement

agreement prohibited her from speaking publicly about the lawsuit. Ms. Ponce spoke with

Defendant about that issue, but he did not mention that he had received a settlement check.

On March 3, 2015, Head Start wrote a check payable to Ms. Ponce in the amount of

$14,694.14, which Defendant received and signed Ms. Ponce’s name as her attorney. He

then deposited the settlement check into his firm’s operating account at Pinnacle Bank

- 19 -

without informing Ms. Ponce he had received the check. He also received a check payable

to his firm in the amount of $15,622.48. In January or February of 2016, Ms. Ponce

received a W-2 statement from Head Start for 2015 showing she received wages, tips or

other compensation in the amount of $24,377.52. She cried upon receipt because that

“confirmed that there was a settlement.” Her “only assumption was to think that

[Defendant] had [the money] and just didn’t give it to [her].” Ms. Ponce directed all future

communications about the settlement to the BPR. Ms. Ponce lived at the same address

from the time she retained Defendant to represent her until Defendant’s trial, and she never

had any difficulty receiving other mail from the EEOC concerning her case. She testified

that she did not give Defendant permission to deposit the money into his account, and she

never received any of her money. Defendant admitted that he owed Ms. Ponce money.

On cross-examination, Ms. Ponce agreed the settlement that she signed with Head

Start contained a “non-disparagement clause” and that she violated that clause by emailing

numerous individuals, including county commissioners, about her case. Ms. Ponce

asserted that she was not aware of the clause, even though she had signed the agreement,

because she had never received a copy of the settlement signed by Head Start and was

“under the assumption that things were still being worked out and that I was free to speak

my mind and say whatever I wanted[.]” She said that she had asked Defendant when she

signed the agreement in February of 2015 if she could speak out against Head Start, and he

said that she could. Ms. Ponce testified: “It was my mistake to not read the agreement

because I trusted [Defendant] as my lawyer.” Thereafter, Head Start requested that the

settlement money be returned to them because Ms. Ponce had violated the settlement

agreement by speaking out.

On redirect examination, Ms. Ponce testified that she contacted Defendant after

receiving the W-2. Defendant never mentioned the settlement amount and replied:

I have reached out to their attorney about withdrawing their complaint or W-

2, either of which should fix the tax issue. I have had multiple phone

conversations with them about giving up their intent on suing you for breach

of the settlement agreement. I anticipate having an answer from them no

later than next Wednesday as to whether they are going to continue pursuing

this. We will get this wrapped up before your tax deadline. As for the W-2,

I had anticipated you receiving a 1099 instead of a W-2, but I’ll get

clarification on that when I talk to them.

Roger Brown - Theft of Property Greater Than $2,500 but Less than $10,000

Roger Brown worked as a dispatcher for Robert Orr Sysco. After his employment

was terminated, he noticed that the company was firing employees once they turned sixty

years old. He contacted Defendant on December 13, 2013, which was a Friday afternoon,

about a potential age discrimination lawsuit because he had seen Defendant on television

- 20 -

commercials. Defendant told Mr. Brown that his claim was valid and to bring payment to

Defendant’s office that night so that Defendant could file the lawsuit the following

morning, which was Saturday. Mr. Brown informed Defendant that it would take some

time to get to Defendant’s office in Hendersonville because it was late, and traffic was bad,

but Defendant said that he would wait. Mr. Brown testified that he and Defendant had a

brief meeting, and he provided Defendant with documentation from his termination. He

and Defendant then entered into an Attorney-Client Litigation Agreement pursuant to

which Mr. Brown paid Defendant $4,500 by check for his legal services. The agreement

did not state that the fee was nonrefundable. Mr. Brown asked Defendant if the money

was for a retainer fee, and Defendant directed him to write “admin remedy fee” on the

memo line. Defendant then deposited the check into his Volunteer State Bank firm’s

operating account on December 16, 2013, which at that time had a negative balance.

Defendant did not tell Mr. Brown that he was going to immediately spend the money, nor

did he say that he needed to deposit it directly into his firm’s operating account to apply to

his negative balance. Mr. Brown testified that he did not give Defendant permission to

take his money and spend it before it was earned.

Mr. Brown testified that he did not talk with Defendant very often after their initial

meeting. At that meeting, Defendant told Mr. Brown that he “could contact a lady named

Nicole” who worked at Defendant’s office to discuss the case. However, when Mr. Brown

contacted Nicole, she would not give him any information about his case and said that he

needed to speak with Defendant. Mr. Brown testified:

Every few months or something, I’d get a - - you know, I’d finally get

through to him, and he’d tell me he was real busy, he was out of state working

other cases and everything, and it just kept on and on, you know. He would

tell me all the lawyers - - or all the judges retired at the same time, and so he

was having to wait, you know, for them. And then he said that he did get me

- - there was another judge that was going to take it, but he was waiting - -

he was getting ready to retire, so he was holding onto it until he got - - you

know, he retired, then he could just pass it on to somebody else.

Mr. Brown detailed his attempts to contact Defendant from August 17, 2015, until March

28, 2016. On March 28, 2016, Defendant finally responded that he would call Mr. Brown

the following morning. Again, Defendant never called, and Mr. Brown texted him on

March 31, April 6, and April 12, 2016, indicating that Defendant had failed to call him.

Defendant finally responded on April 12, 2016, saying that he had not forgotten about Mr.

Brown.

Mr. Brown texted Defendant on June 3, 9, and 20, 2016, asking about his case, and

Defendant responded on June 21, 2016, asking if Mr. Brown was free the following

morning and to call him at 10:00 a.m. Mr. Brown called at 10:00, and Defendant texted

that he was “on the other line.” Mr. Brown requested that Defendant return his call, but

- 21 -

Defendant never called back. Defendant then sent a text asking if Mr. Brown could meet

on July 14, 2016, at 2:00 p.m. After that, Mr. Brown was unable to get in touch with

Defendant, and Defendant sent a text on July 30, 2016, asking Mr. Brown if they were

meeting that day. Mr. Brown agreed and said that they were supposed to meet at 9:00 a.m.

Defendant responded that he might be “about ten minutes late[.]” Defendant later asked to

move their appointment to the following morning or the next Saturday morning because he

had been at the hospital most of the night with his daughter. Mr. Brown agreed to meet

Defendant the following Saturday at 10:00 a.m.

On October 31, 2016, Mr. Brown sent Defendant a text that read in part:

I’m contacting you again because I am both tired and frustrated by the lack

of information about my case. I was in your office on August 6th, and you

promised me and my wife that you would send my paperwork by mail. That

was almost three months ago. What is the next course of action?

On November 2, 2016, Defendant responded: “Sorry for the delay. I didn’t know you

hadn’t received it. On the way to you now. I’ll call you this afternoon.” However, Mr.

Brown never received any legal documents from Defendant. He called Defendant on

November 4, 2016, because he had seen information about Defendant’s suspension in a

news article. Defendant answered the call and told Mr. Brown that it was “just a

misunderstanding.” Mr. Brown testified that he never received any notice from Defendant

in September or October 2016, that Defendant had been suspended from practicing law.

Mr. Brown testified that he received “nothing” in exchange for the $4,500 that he

paid Defendant “to represent [him] in [his] case.” Defendant never filed a complaint on

his behalf. Defendant told Mr. Brown that there would be a deposition, but it never took

place. Mr. Brown testified that Defendant once mentioned a class action lawsuit in

Houston, Texas, but he told Mr. Brown that he did not need to join the case. Mr. Brown

also never received an accounting from Defendant detailing how the $4,500 was spent.

Bethany Stollar - Theft of Property Greater Than $2,500 but Less than $10,000

Bethany Stollar worked as a professor at Middle Tennessee State University for six

years and was fired in May of 2014. She contacted Defendant to discuss her case, and he

said that she “had a very good case.” Ms. Stollar signed an Attorney-Client Litigation

Agreement with Defendant on May 16, 2014, and wrote him a check for the $4,500 retainer

fee. She noted that her check was initially returned for insufficient funds because the

money she had borrowed from her father was not yet in her checking account. Ms. Stollar

wrote Defendant a second check, which he deposited into his firm’s operating account,

which had a negative balance at the time. She thought that in exchange for the retainer fee,

Defendant would “create a case” for her wrongful termination. She also noted that

- 22 -

Defendant told her that “he would take me on contingency and that the [$]4,500 was all I

was going to pay him at that point.”

Concerning Defendant’s representation, Ms. Stollar testified:

I contacted [Defendant] multiple times to find out what we were doing

because I had never experienced anything like this before. I was told that the

judges were - - had retired - - most of the judges had retired and there was a

huge backlog. That went on for about a year.

The year after that, I - - I was under the understanding that we only had a

year to file for the case. So after a year had passed, I was like, you know,

“what are we doing,” you know, “Can you give me some information,” and

there were just lots of excuses for why we hadn’t filed anything yet.

Ms. Stollar mainly communicated with Defendant by email and text messages. On

December 1, 2015, she texted Defendant indicating that she had emailed him the first week

of September and was still waiting for some kind of update on her case. She also noted

that her father wanted the money that he loaned her for the retainer fee repaid, and she did

not have the funds to pay him. Defendant replied that he was preparing for the trial date

and could try to schedule an early mediation date. He did not have an actual date at that

time. At that point, Ms. Stollar thought Defendant had filed a lawsuit on her behalf,

although she had not seen the actual pleading.

Ms. Stollar continued texting Defendant requesting updates on her case. Sometimes

he replied but did not give her any substantive information. She also called him multiple

times, and someone answered one time and promised her that she would receive a call back

“after that week was over.” On June 6, 2016, after calling Defendant multiple times, Ms.

Stollar sent Defendant a text indicating that she had not heard from him or “Shelly” and

asked if she needed to drive to his office to get some answers. Defendant then replied:

“Sorry. I’m in downtown in deep depos. Promise I will call this afternoon.”

On November 20, 2016, Defendant sent Ms. Stollar a link to a document that could

only be accessed through “Dropbox.” Defendant did not tell her at the time that his law

license was suspended. Ms. Stollar testified that she then asked Defendant for a case

number for her lawsuit. The following day, she tried to call “Shelly,” but got no answer.

Thereafter, Ms. Stollar sent the following text to Defendant: “Okay. Well, hmmm, I tried

to call. No answer. I tried Shelly’s extension, no answer. I’ve tried to find a case number.

Nada. Why can’t someone just tell me what’s going on?” Defendant replied: “Hold on.”

Ms. Stollar testified that the Dropbox document referenced the Tennessee Board of

Regents (“TBR”), and she called the board and learned that nothing had been filed with

them on her behalf. She then texted Defendant stating that nothing had been filed with the

- 23 -

TBR, and Defendant responded, “That’s not correct. It’s in the system.” Ms. Stollar called

the TBR, and texted Defendant the following message: “I called again today and spoke

with Mickey Sheen. Absolutely nothing filed with them in your name or mine. Hey, I’m

tired of the lies. Something needs to happen today or that’s it.” Ms. Stollar later sent

Defendant a text message indicating that she had spoken with another attorney, Patrick

Parker, and he would not take her case. She further said that she was still waiting to hear

from Defendant. Ms. Stollar also sent Defendant an email when she learned of his

suspension.

Other than the Dropbox document, Ms. Stollar testified that she never received a

complaint filed on her behalf by Defendant nor did she attend any depositions or participate

in mediation. Ms. Stollar testified that she received “nothing” for the $4,500 retainer fee

that she paid Defendant. It was not her “understanding” that the money would be deposited

into Defendant’s firm’s operating account to be used immediately to pay his expenses. Ms.

Stollar testified that she would not have given Defendant any money had she known that

he was not going to file a lawsuit on her behalf.

On cross-examination, Ms. Stollar agreed that there was some difficulty with

Dropbox and that Defendant emailed her a signed copy of the complaint against the TBR

that had been drafted on her behalf. She further agreed that she met with Defendant on

July 7, 2014, to discuss her case.

Robert Lussier - Theft of Property Greater Than $2,500 but Less than $10,000

Robert Lussier testified that he was a union trustee in 2015 and suspected that

embezzlement was occurring because the union president and secretary refused him access

to the “books.” He decided he needed an attorney, and a friend recommended Defendant.

Mr. Lussier contacted Defendant’s office and later met with him. He hired Defendant to

gain access to the union records and signed a “retainage agreement” with him on May 19,

2015, agreeing to pay a $4,500 retainer fee. Mr. Lussier paid the fee in cash and noted that

the agreement did not state that the fee was nonrefundable. Defendant told him that “it

would take a little while,” which did not “shock” Mr. Lussier because he was aware that

the court system “is not the fastest beast in the world.” Mr. Lussier estimated that it would

“take at least a few months” to get his case started.

To Mr. Lussier’s knowledge, his case against the union never progressed. Mr.

Lussier testified:

After about three months of absolutely nothing happening, I started getting

suspicious, and [Defendant] had informed [him] that his preferred means of

communication was text messages because phone calls just weren’t working

very well. And text messages was fine for me. But after about three months,

I was starting to get suspicious that this case should have moved farther along

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by now. I understood it was going to take some time, but something should

have been done within the first three months. So I started saving all text

messages.

Mr. Lussier noted that it had been difficult to reach Defendant by phone which was very

frustrating.

Thereafter, Mr. Lussier repeatedly texted Defendant requesting updates and the

status of his case, and he called Defendant and left some voice messages. He also asked if

Defendant had completed the “paperwork” he had promised to file. Mr. Lussier explained

that the paperwork he and Defendant had discussed was to “force the union to give [him]

the documents” which was the “gist of the whole case.” He said that Defendant frequently

failed to respond to the texts; however, in October 2015, Defendant indicated that he would

file something with the court within a week. Mr. Lussier testified that by December 2015,

despite his repeated inquiries, nothing had been done on his case.

From January 2016 until April 2016, Mr. Lussier continued sending Defendant text

messages requesting Defendant to contact him because he had not heard from anyone about

the status of his case. In an April text, Mr. Lussier indicated that he may need to “call

CAP” to file a complaint to get a response from Defendant. At that point, Defendant

responded and claimed that he had “been on the road” and would have information for Mr.

Lussier the following day and for Mr. Lussier to call Defendant’s cell phone at 10:00 a.m.

Mr. Lussier called the following morning at 10:00, and Defendant did not answer. They

eventually had a conversation, and Defendant indicated that he would soon file the

complaint against the union. On May 19, 2016, Defendant told Mr. Lussier that the

paperwork was ready and asked if they could meet the following week. Defendant

scheduled a meeting with Mr. Lussier, and Mr. Lussier asked Defendant to email him a

copy of the complaint to review before the meeting. Mr. Lussier testified:

The reason for this is because in the phone calls, he would have me come

down to the office supposedly to review this document that’s done. But every

time I get there, it’s not done. And for me to go from where I was living all

the way to Hendersonville to review and sign a document that’s not ready is

getting ridiculous. It’s a pain, it’s a long trip out of my way, you know. Why

am I wasting my time doing this? You know, better question is, why is he

wasting his time making me come down there to do that? And he’s supposed

to e-mail it to me, but he’s not.

Beginning on May 21, 2016, Mr. Lussier repeatedly asked Defendant to email him a copy

of the complaint, but he never received it, nor did he meet with Defendant.

On December 6, 2016, Mr. Lussier learned that Defendant’s law license had been

suspended. When Mr. Lussier asked Defendant if he ever had any intention of working on

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his case, Defendant replied: “Yes. It has taken a little longer than expected. I am

responding to your board complaint.” Mr. Lussier noted that he had filed a complaint with

the BPR. He also requested that Defendant return the $4,500 retainer fee. Defendant then

indicated that he thought Mr. Lussier wanted him to stop working on the case. Mr. Lussier

testified that he never received any notification from Defendant stating that Defendant had

been suspended from practicing law. Additionally, Mr. Lussier never received any

invoices or billing from Defendant concerning work performed on Mr. Lussier’s case.

On May 19, 2016, when Mr. Lussier paid Defendant $4,500 in cash, Defendant

deposited $1,000 into his firm’s operating account at Pinnacle; the deposit raised the

balance from negative $460 to positive $541.48. Mr. Lussier testified that he did not

consent to Defendant spending his retainer fee before it was earned, and Defendant did not

inform him that he would immediately spend it. When asked what he received for his

$4,500 retainer fee, Mr. Lussier replied: “[t]o put it bluntly, I got a year of stalling and lip

service.” He felt that Defendant could not “have used a whole lot of money” on his case,

and he expected Defendant to return his money or at least the part Defendant had not

earned. Mr. Lussier never received a refund of his retainer fee.

On cross-examination, Mr. Lussier agreed it was his understanding that the most he

would pay for Defendant’s representation would be $4,500 and that Defendant would not

bill him any additional fees. Mr. Lussier further agreed that he gave Defendant a copy of

the minutes and approximately hour-long audio recordings of each monthly union meeting

Mr. Lussier attended, and that Mr. Lussier had ongoing problems with the union. Mr.

Lussier acknowledged that he and Defendant had approximately five to six in-person

meetings, and he provided Defendant with the name and phone number of his maintenance

craft director. He was aware that Defendant contacted the director who said that they had

a short conversation. Mr. Lussier found this surprising “because when [the director] starts

talking, you cannot shut him up.”

Yvonne Prather - Theft of Property Greater Than $2,500 but Less than $10,000

Yvonne Prather was previously employed as a professor at Austin Peay State

University teaching in the Department of Communication, both undergraduate and

graduate. She had previously contacted Defendant when she was up for a promotion in

2004 or 2005, but he was not accepting new clients. Ms. Prather contacted Defendant when

she was up for a promotion again in 2006 or 2007 and had paid him a retainer; however,

she received the promotion in 2007 and no longer needed Defendant’s assistance. Ms.

Prather called and requested Defendant return her retainer fee, which he did “after several

attempts.”

Ms. Prather testified that she was up for promotion to “full professorship” in

December 2015. Anticipating challenges with her promotion, she again decided to retain

Defendant for legal services. She met with Defendant on December 4, 2015, and wrote

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him a check for the $4,500 retainer fee, which Defendant deposited into his firm’s

operating account later that day. She acknowledged that Defendant signed the Attorney-

Client Litigation Agreement, but she did not. The agreement did not state that the retainer

fee was nonrefundable. The day before Defendant deposited Ms. Prather’s check, the

balance in his firm’s operating account was $416.75; after the deposit of her retainer fee,

the balance was $3,482.26.

Three days later, on December 7, 2015, Ms. Prather was promoted to a full

professorship and thus did not need Defendant’s services. She testified that she

communicated to Defendant that she no longer wanted him to pursue her case and that she

called and sent emails and text messages to Defendant, but her efforts at communication

were unsuccessful.

On November 5, 2016, Ms. Prather asked Defendant about the status of the refund

of her retainer fee. She sent a second message on November 13, 2016. She did not hear

from Defendant or anyone in his office between December 2015 and November 2016, and

she never received a refund of her retainer fee. She said that Defendant did not file a

lawsuit on her behalf, and she did not attend any court hearings or mediation. Ms. Prather

testified that she received “[a]bsolutely nothing” for the money that she paid to Defendant.

On cross-examination, Ms. Prather agreed that her salary was also an issue when

she hired Defendant in December 2015. She also acknowledged her understanding that

she would not have to pay Defendant any more than $4,500 regardless of the amount of

work done on her case. She never received a refund of her retainer fee or any portion

thereof.

Nancy Whitman - Theft of Property Greater Than $2,500 but Less than $10,000

Nancy Whitman was employed as the Executive Director of the Homesafe Domestic

Violence Shelter (“Homesafe”) and sought legal services after she and a disabled coworker

were notified on July 18, 2016, by email that they had been fired. Ms. Whitman testified

that she left a message for Defendant, and she and her coworker went to the EEOC to file

a complaint. However, Defendant returned her call and advised her not to file the

complaint but to “come see him because time was of the essence.” She scheduled an

appointment with Defendant on July 21, 2016. Ms. Whitman noted that she had contacted

a total of five attorneys, including Defendant, about her case. Defendant was the only

attorney who agreed to take her case.

Ms. Whitman described the meeting she and her coworker had with Defendant on

July 21:

So we just had a discussion, kind of overview of what our case was and any

of the issues that we wanted to bring forward. We talked about - - there were

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kind of three different things that [Defendant] said that he would do. One

would be to file a preservation of evidence letter with our former employer;

Number 2, he was going to file with the Tennessee Human Rights

Commission; and Number 3, that he ended - - we would end up going to

court and that that would take about 90 days from beginning to end of that

whole process. We had requested that . . . [Defendant’s] office communicate

with us on a weekly basis so we kind of knew what was happening and

wouldn’t be left in the dark, and there was an agreement for that to happen.

Ms. Whitman testified that Defendant agreed to represent both her and her coworker for

$4,500, and Ms. Whitman wrote a personal check for the entire fee. Both Ms. Whitman

and her coworker signed an Attorney-Client Litigation Agreement with Defendant, but he

did not sign them. The agreement did not state that the $4,500 retainer fee was

nonrefundable. Defendant deposited Ms. Whitman’s check into his firm’s operating

account that same day and immediately withdrew $500 in cash.

Ms. Whitman testified concerning her attempts to contact Defendant by phone and

email to obtain updates on her case. She said, “[s]ometimes e-mails were answered,

sometimes they weren’t. Sometimes I called the office and left messages and no one got

back to us.” On one occasion, Ms. Whitman called “every single extension” in Defendant’s

office and “left a message for every single staff person in that office to get back to me and

tell me what was happening because I was so frustrated and hadn’t heard anything from

anyone.” On October 31, 2016, she learned that Defendant’s law license had been

suspended, and he claimed that it “was just a small misunderstanding.” Defendant also

told her that on November 2, 2016, she would receive a “copy of the case filing that was

going to go to mediation.” She never received a copy of the filing.

Ms. Whitman testified that she sent a certified letter to Defendant on November 15,

2016, terminating her agreement with him and requesting a refund of the $4,500 retainer

fee. She recited the entire history of the case, including all meetings, phone calls, text

messages, and email correspondence with Defendant. Ms. Whitman also noted in the

termination letter that on October 21, 2016, she had received from Defendant a copy of a

letter dated August 1, 2016, Defendant claimed had been sent to Homesafe for preservation

of evidence. However, there was “no corresponding proof that it was certified return

receipt and anyone had ever signed it - - received it.” She said that on October 14, 2016,

it was determined during a conference call that “this was no longer [an] appropriate [case]

to file.” Defendant was out of the office that day and did not participate in the conference

call, but Ms. Whitman later called Defendant and spoke with him. The return receipt

showed that Defendant’s office received Ms. Whitman’s termination letter on November

18, 2016. Ms. Whitman testified that Defendant never notified her verbally when they

spoke, or by written notification, that his law license had been suspended. She never

received a refund of her $4,500 retainer fee.

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On cross-examination, Ms. Whitman acknowledged it was her understanding that

Defendant would not bill her any amount over $4,500 for his representation. She said: “[i]t

was my understanding that we would go to court, that there would be a filing with the

Tennessee Human Rights Commission.” Ms. Whitman agreed that it appeared a letter was

sent to Homesafe approximately eleven days after she signed the agreement with

Defendant.

Mario Hererra – Theft of Property Greater Than $10,000 but Less Than $60,000

and Falsely Holding Oneself Out as a Lawyer

Defendant initially agreed to represent Mario Herrera during his divorce and post-

divorce proceedings, but they did not discuss a fee. Mr. Herrera’s and his ex-wife’s home

later sold for $121,000, and they had agreed to equally divide the proceeds. On December

16, 2014, the Sumner County Chancery Court Clerk and Master issued a check made

payable to Mr. Herrera and Defendant for $59,969.11 for Mr. Herrera’s share of the

proceeds from the sale of the home. Defendant told Mr. Herrera he would deposit the

check for him and asked for his bank account number. However, Defendant did not deposit

the check into Mr. Herrara’s account and instead wrote “Mario O. Herrera by attorney” on

the check, signed his own name on the back of the check as an endorsement, and deposited

the check into his firm’s trust account. Defendant then wrote a check out of his firm’s trust

account for $54,269.11 with “Herrera Fee” written on the memo line and deposited that

check into his firm’s operating account. Mr. Herrera did not authorize Defendant to take

any money from the proceeds of the sale of the home.

Mr. Herrera made attempts to contact Defendant about the money over the next

several years, but still had not received it when he saw Defendant in court in 2016. At that

time, Defendant agreed to help Mr. Herrera with a child support matter. Again, there was

no discussion concerning legal fees. Mr. Herrera contacted Defendant again in 2019 for

help with a child support issue. He said that he had received a letter from the State of

Tennessee indicating that he owed $25,000 in child support. Defendant had told Mr.

Herrera he should wait until both of his daughters turned eighteen before getting his money

from the home sale “because the State is saying that - - that if you get your money right

now, you’re going to run - - run with the money, you’re not going to pay your child

support.”

Mr. Herrerra identified text messages that he exchanged with Defendant on August

5, 2019, concerning the child support matter. He said that he and Defendant also had some

phone conversations about the matter. Defendant never told Mr. Herrera that his law

license had been suspended and that he could no longer represent Mr. Herrera. Defendant

indicated that he was still working on Mr. Herrera’s case. Mr. Herrera testified that as of

November 6, 2019, he still believed Defendant was a lawyer and was working on his case.

When Mr. Herrera inquired about the status of the money from the sale of the home,

Defendant claimed that he was “working on it” and blamed the court system for the delay.

- 29 -

He said Defendant “always mentioned a name” of a person which led Mr. Herrera to

believe that the money was safe in an account.

By February 2020, Mr. Herrera learned that Defendant no longer had any of his

money. He testified that he and Defendant never discussed Defendant’s taking any of the

money from the sale of Mr. Herrera’s home as a legal fee and Mr. Herrera never agreed to

that arrangement. Mr. Herrera did agree that he was expecting to pay and would have paid

Defendant a reasonable fee out of the proceeds from the sale of the home for his work if

Mr. Herrera had been asked to do so. During one phone conversation, Defendant

mentioned conducting an accounting of the money, but Mr. Herrera never received an

accounting or any money from Defendant. Mr. Herrera resolved the child support matter

on his own.

Christopher Jay Ingrum testified that he represented Mr. Herrera’s ex-wife, Brenda

Primeau, during their post-divorce proceedings. He asserted that when hired by a client,

he placed the client’s money into a trust account before it was earned and then it went into

an attorney or operating account after it was earned. Mr. Ingrum testified that the

Herrera/Primeau case was not overly complicated; he charged Ms. Primeau a total of

$4,468.27 in legal fees for his work. On behalf of Ms. Primeau, Mr. Ingrum received a

check in the amount of $59,969.11 from the sale of the home. The check was payable to

himself and Ms. Primeau; they both endorsed it, and Mr. Ingrum deposited the check into

a trust account. The balance of his fee was taken from those proceeds, and he issued Ms.

Primeau a check for the balance of $57,500.84 along with an itemized bill “show[ing] all

of the professional services rendered by the attorneys and by the paralegals” and for

“additional charges for things like copies, postage, things of that nature.”

Lisa Smelser - Theft of Property Greater Than $2,500 but Less than $10,000 and

Falsely Holding Oneself Out as a Lawyer

Lisa Smelser testified that she contacted Defendant in November 2016 about a

workplace issue, and Defendant agreed to proofread a document she planned to send to her

employer. She and Defendant communicated about the issue, and Defendant answered her

questions on how to proceed. Ms. Smelser then decided to hire Defendant to represent her,

and she signed an Attorney-Client Litigation Agreement with him that did not state that the

retainer fee was nonrefundable. Thereafter, on November 22, 2016, at Defendant’s request,

Ms. Smelser brought him a cashier’s check for $4,500 for the retainer fee. On that same

date, Defendant deposited $3,500 from the cashier’s check into his firm’s operating

account and $500 into his personal account at Simmons Bank. Defendant’s firm’s

operating account had a negative balance at the time of the deposit.

Ms. Smelser later learned that Defendant had been suspended from practicing law.

When she contacted him about the suspension, he claimed that it was “only temporary[,]”

and that “Patrick” was helping with his cases until the suspension was lifted. Defendant

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also told Ms. Smelser at that time that he would send a letter to her employer. Ms. Smelser

contacted Defendant several days later and asked him to send her a copy of the document

he sent to her employer. Ms. Smelser communicated exclusively with Defendant, and she

contacted him on December 2, 2016, to inform him that she had not heard anything from

her employer. Ms. Smelser testified that ultimately Defendant did not file the lawsuit that

they had discussed, and he did not send her copies of any documents he claimed to have

sent to her employer. She said that she received “[n]othing” in exchange for the $4,500

retainer fee that she paid Defendant, and she never received a refund of her money.

Wanda Kelley - Theft of Property Greater Than $2,500 but Less than $10,000 and

Falsely Holding Oneself Out as a Lawyer

Wanda Kelley testified that she contacted Defendant about representing her in a

potential discrimination case against her employer, and they met at his office on November

7, 2016. Defendant agreed to represent her and told her his fee was $4,500 in cash. Ms.

Kelley told Defendant that she did not have that much cash but offered to go and withdraw

the funds from her bank account. Defendant instructed her to withdraw the funds that day.

Ms. Kelley testified that she had to withdraw the money from two different banks, and she

got delayed in traffic on her way back to Defendant’s office. While she was driving,

Defendant called and asked her whereabouts because she “was taking so long” to return.

She said that the Attorney-Client Litigation Agreement with Defendant did not state that

the retainer fee was nonrefundable. She paid him the $4,500 fee on November 7, 2016,

and on November 10, 2016, Defendant deposited $4,400 into his firm’s operating account

at Simmons Bank. The account had a negative balance at the time.

Ms. Kelley testified that she met with Defendant one additional time after paying

the retainer fee. After that, he either missed appointments with her or asked to reschedule.

Ms. Kelley testified that Defendant told her that he would file a lawsuit for discrimination,

backpay, and violation of the Family Medical Leave Act. However, he never filed any

legal documents on her behalf, and she said that all she received in exchange for paying

the retainer fee was “[d]epression” and “heartache.”

Sharon Sullivan – Falsely Holding Oneself Out as a Lawyer

Sharon Sullivan testified that in December 2013 she hired Defendant to represent

her in an employment matter. Concerning the progress of his representation, Ms. Sullivan

testified: “[w]ell, over the years until about January 2017, it was just me reaching out to

him, trying to get information. Basically[,] nothing was done toward the lawsuit.” Ms.

Sullivan noted that after October 9, 2016, the bulk of her communication with Defendant

was by text message, which continued until January 26, 2017. Based on their

communications, Ms. Sullivan thought Defendant was acting as her attorney and was in

the process of “working a deal with [her] former employe[r]’s attorney for settlement[.]”

She noted that Defendant agreed to meet with her on January 18, 2017, to discuss a

- 31 -

settlement, but the meeting never occurred. Ms. Sullivan continued communicating with

Defendant by text message until she learned that Defendant’s law license had been

suspended. She testified: “I had family members that had seen it on the news and

questioned me about it, and I questioned [Defendant] and he said that it was not true.” Ms.

Sullivan never received a certified letter or any other communication from Defendant

advising her that his law license had been suspended and that he could no longer act as her

attorney. She requested her case file, and Defendant eventually returned it to her.

Danielle Means - Falsely Holding Oneself Out as a Lawyer

Danielle Means testified that she hired Defendant to represent her in January 2013.

The representation was still ongoing in 2016. Defendant never informed her that he could

no longer represent her after his law license was suspended. Beginning November 3, 2016,

Ms. Means said that she exchanged text messages with Defendant regarding a settlement

of her case, and Defendant advised her that she could do an “e-signature” if she was in

California at the time. Ms. Means testified that Defendant conveyed a settlement offer, but

she did not know that he had been suspended from practicing law. When she asked

Defendant if he was sending an agreement for her to sign, he asked if she sent her “W-9.”

He then confirmed that he had received her tax document. Ms. Means expected her

settlement to be complete once she sent the tax document.

Ms. Means texted Defendant in January 2017 and asked if he had lied to her or if

she had gotten a settlement that he failed to distribute to her. Defendant responded that

there was a “settlement and that we ‘needed to finalize[.]’” He also offered advice on how

to prevent defense counsel from learning that she had gone to a rehabilitation facility. Ms.

Means testified that Defendant told her that “Patrick” was an attorney assisting with her

case and that “Patrick” had discussions with opposing counsel about a settlement and that

“Patrick” would return shortly.

Ms. Means sent Defendant a Facebook message in April 2017 asking why she had

received a bill from the court if her case had settled. Defendant responded that he did not

know. At the time, she was still unaware that Defendant had been suspended from

practicing law, and she considered him to be her attorney. Ms. Means testified that

Defendant asked her to email him a copy of the bill and said that it could be the result of

the “original nonsuit.” Defendant sent Ms. Means a message stating that he would ask

“Patrick” about the issue and that “[w]e nonsuited the case and refiled it.” Defendant also

said that the nonsuit occurred a “while back” and was a “procedural step” that did not

change the case “at all.” Defendant messaged Ms. Means that “Patrick” was finalizing her

settlement. When Ms. Means asked when the settlement would occur, Defendant replied

that he was unsure but would make inquiries.

Ms. Means testified that in July 2017 she learned that Defendant’s law license had

been suspended, and she confronted him about it. She said that Patrick Parker successfully

- 32 -

resolved her case, but that Defendant had repeatedly communicated with her as her attorney

after his suspension.

Rachell Scott – Falsely Holding Oneself Out as a Lawyer

Rachell Scott testified that in 2016, she hired Defendant to represent her in a lawsuit

against her former employer. The agreement that she signed with Defendant indicated that

she paid him a $4,500 retainer fee. She said that Defendant claimed to have filed the

lawsuit, and she believed that her case was active based on Defendant’s representations to

her. Ms. Scott testified that she exchanged phone calls and text messages with Defendant

about her case in 2017, and he attempted to set up meetings with her. In January 2017, she

learned that his law license had been suspended. Defendant claimed that it was “just a

minor thing” that he would resolve by sending in “some paperwork.” When Ms. Scott

further pressed Defendant about the suspension, he said that someone was helping him

“knock some of these cases out” until his law license was reinstated.

According to text messages, Ms. Scott and Defendant were to meet in January 2017.

She texted Defendant that she was “looking through [her] records” and did not have

“anything with [her] case number on it.” Ms. Scott asked Defendant if their meeting was

still scheduled for 3:00 p.m. on January 10, 2017, and Defendant said he would “never

make it” by that time. She texted Defendant that he needed to call her and that she needed

answers. Ms. Scott testified that she never received a response from Defendant or any

further communication about her case.

Jinny Broughton - Falsely Holding Oneself Out as a Lawyer

Jinny Broughton testified that she hired Defendant in August 2015 to represent her

in an employment dispute. She testified that Defendant never filed a lawsuit on her behalf,

did not give her any completed paperwork, and was “very hard” to contact. Ms. Broughton

texted Defendant about her case on September 14, 2016, and he claimed that he was

“incorporating” information into discovery.

Ms. Broughton testified that in December 2016, she texted Defendant a screenshot

of his order of suspension. He responded, “[t]hat’s old.” Ms. Broughton later texted

Defendant and asked him to send her a copy of interrogatories and “paperwork” he had

received on her case, and Defendant said he would send the documents. Ms. Broughton

testified that she did not receive any documents from Defendant, but Defendant assured

her he would send them. He later sent an email explaining changes that had been made to

the documents and his reason for the changes. Ms. Broughton said that she continued

asking Defendant to provide her with “legal paperwork.” She also asked for filed copies

of documents rather than drafts. Defendant responded that a family member died and asked

her to “give [him] a bit.”

- 33 -

Ms. Broughton testified that she sent Defendant multiple text messages in January

2017 asking that they talk “ASAP.” Defendant eventually responded claiming that he

thought Ms. Broughton had “terminated” his services.

Other Trial Testimony

Kristie Wixson, a criminal intelligence analyst for the Regional Organized Crime

Information Center, testified that she performed an analysis of Defendant’s bank accounts

from three different banks and organized them into Excel spreadsheets as well as prepared

charts for trial. She also entered information concerning some of Defendant’s credit cards

and organized the bank records to reflect the transactions involving each victim and charges

related to Defendant’s case. Ms. Wixson testified concerning several transactions made

between Defendant’s various accounts showing declining balances. She also compiled a

list from Defendant’s accounts of “all the fees charged, non-sufficient funds fees, overdraft

charges, paid item fees, uncollected charges, returned item fees, [and] charge-back fees[,]”

which totaled $58,393. Her spreadsheets were exhibited to her testimony.

Jennifer Stalvey, who was working as a forensic accountant with the Tennessee

Department of Commerce and Insurance, reviewed Defendant’s financial records,

settlement statements, and the victims’ interview summaries and prepared a report as to

each victim, excluding Mr. Herrera, from a period of December 3, 2012, to November 22,

2016. Concerning the theft of trust cases, Ms. Stalvey determined that after deducting his

expenses, Defendant owed $14,694.14 to Ms. Ponce, $16,433.00 to Mr. Sutton,

$108,122.65 to Mr. Dycus, and $105,299.13 to the beneficiaries of Ms. Denney’s estate.

Ms. Stalvey further testified about the theft of retainer cases and verified that Defendant

owed $4,500 to Mr. Brown, $4,490 to Ms. Stollar, $4,500 to Mr. Lussier, $4,500 to Ms.

Prather, $4,500 to Ms. Whitman, $4,500 to Ms. Kelley, and $4,500 to Ms. Smelser.

On cross-examination, Ms. Stalvey testified that she did not conduct an independent

search of records from the Sumner County court, EEOC, or Tennessee Department of

Labor related to the victims but relied on information the TBI had been provided by the

District Attorney General’s Office. She also spoke with Ms. Wixson who did not provide

substantive information about Defendant’s clients. Ms. Stalvey agreed that her conclusions

were only as reliable as the information she had been given. She testified: “That’s why

I’m very selective about what I utilized within the scope that I was provided. I did not rely

on many of the records. I only chose the records that were - - for the most part, that were

independently prepared.”

Ms. Stalvey testified that from the records she reviewed, a pattern of behavior

emerged where Defendant transferred and kept clients’ retainer fees when no legal work

had been performed and no expenses had been paid on behalf of the clients. She understood

from the investigators that no “meaningful work” was performed by Defendant, which

meant that the victim “paid a retainer” and “did not benefit from any work.” Ms. Stalvey

- 34 -

testified that her task “was to identify were there any fees returned to the victims.” She

was unaware of how many meetings, phone calls, and email exchanges Defendant had with

the victims or how much documentation had been provided by victims to Defendant at the

beginning of his representation for him to sort through, review, and research. Ms. Stalvey

did not know how much legal research Defendant had performed or how many legal

documents or pleadings Defendant had drafted and filed on behalf of the victims.

However, she said that was “not what my task was for this assignment.” She was looking

for “financial impropriety.” Ms. Stalvey testified that she was not provided with client

files from Defendant’s office, and she did not speak with any of the victims in this case.

She agreed that she was “working off an assumption.”

On redirect examination, Ms. Stalvey testified that the TBI files contained

information related to the victims and their statements. She agreed that each count

Defendant had been charged for each victim could stand alone and did not require a pattern

with the other counts to be shown.

Michael Tolbird attended law school with Defendant and began working remotely

for Defendant from Florida in 2013. They had an agreement in which Defendant would

pay Mr. Tolbird a monthly stipend plus a percentage of any settlement monies or judgment

monies for cases on which Mr. Tolbird worked. He received the monthly stipends but did

not receive the “percentage payment until much later” after he filed a lawsuit against

Defendant in general sessions court in August 2015, which he and Defendant agreed to

settle. Mr. Tolbird estimated that the settlement was for $13,000 which was originally paid

in December 2015 by a check that did not clear and was later replaced by a cashier’s check.

Sarah Morgenstern was employed by Defendant as a paralegal for approximately

one year from 2015 until 2016. She said that Defendant oversaw the office, was in control

of the finances, made banking decisions, and cashed and deposited the checks. Ms.

Morgenstern did not have access to online banking for Defendant’s firm’s accounts. She

testified that Defendant sometimes refused to “put money on the stamp machine” for letters

to be sent out, and Defendant would not set up payroll so that employees could be paid by

automatic deposit. Ms. Morgenstern said that she would was paid with a paper check which

she sometimes was unable to cash due to insufficient funds. She noted that at one point,

she had three paychecks from Defendant that she could not cash and had to borrow money

from her parents to pay her bills.

Charity Demay-Samuels began working for Defendant as a paralegal and office

manager in January or February of 2012 and left in August of 2014. She said that

Defendant was in control of the finances in his office, and he made the banking decisions,

including the cashing of clients’ checks. Ms. Demay-Samuels did not have access to online

banking while working for Defendant, despite her requests to do so. She said that at times

her paycheck would not clear due to insufficient funds in Defendant’s account, which also

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caused insufficient funds in her account. She noted that at one point, her bank would no

longer accept Defendant’s checks for deposit.

Ms. Demay-Samuels testified that sometimes when clients called upset or inquiring

as to the status of their cases, Defendant directed her and other employees to tell clients

that work had been performed when such work had not actually been done. She said that

Defendant took cases on contingency fees rather than billable hours. Ms. Demay-Samuels

testified that “if the case was won and the [c]ourt was going to award attorney’s fees,

[Defendant] would have us go back through the file and start creating the time to be paid

for our time.” She noted that “[t]here were too many clients for the paralegals to handle.”

Ms. Demay-Samuels eventually left employment at Defendant’s office due to her health

and was offered a three-month severance package. She was eventually paid for all of the

time that she worked for Defendant, but she had to “have an attorney” get her last month’s

pay.

Nicole Canter testified that she began working for Defendant as a paralegal in the

spring of 2012 and remained there until the summer of 2015. She said that Defendant was

in control of the office and finances, and he made all the banking decisions. She did not

have any access to online banking or any of Defendant’s firm’s accounts. Ms. Canter

testified that her paychecks “were not always accepted by [her] bank and frequently [she]

had to wait for them to go through.” She was unable to cash her final paycheck.

Ms. Canter testified that during her employment with Defendant, there were many

unhappy clients calling Defendant’s office about the status of their cases, and there were a

lot of overdue invoices. She spoke to some of the clients and gave them what information

she had, and she referred them to Defendant. Ms. Canter testified that some clients did not

get their settlement checks. She said that before leaving employment at Defendant’s office,

“there was a client at the door asking to see [Defendant] because he had settled her case

and I didn’t have the money and I didn’t know where it was and I didn’t have anything to

tell her and [Defendant] wasn’t there.” Ms. Canter testified that she left Defendant’s office

because “the rent check bounced and paychecks were always questionable and I realized I

needed more stable employment.” She asserted that Defendant’s financial issues “trickled

down to the clients.”

Shelly Biemel testified that she worked for Defendant from June 2015 until

December 2016. She began as a paralegal and later became the office manager. Ms.

Biemel testified that Defendant was in control of the office and finances, and he made

banking decisions, such as determining in which account to deposit checks. Ms. Biemel

did not have access to online banking. She said that she had trouble multiple times cashing

her paycheck. Ms. Biemel testified: “I did know that when he would get a retainer from a

client, that he would go deposit the check and then our checks would be available. So I

knew that the retainer was paying our payroll.” She also said that there were clients who

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were upset about the way their cases were being handled and noted that deadlines were

missed in some of the cases. A large number of Defendant’s cases were EEOC cases.

Katlin Dinkens, formerly Wilburn, worked for Defendant from October 2015 until

November 2016 as an assistant and later a paralegal. She said that Defendant oversaw the

office and made banking decisions, including cashing checks and depositing them. She

did not have access to online banking while working for Defendant. Ms. Dinkens testified

that her paycheck was returned several times for insufficient funds while working for

Defendant.

Christine Gaetano worked for Defendant from 2013 until 2016. She was initially

hired by Defendant to work from home as a staff writer and “specifically write fact sections

of responses to summary judgment motions.” Ms. Gaetano testified that Defendant was in

control of the office, and she assumed he was in control of the finances. She said that her

first paycheck from Defendant was rejected by her bank, Volunteer State Bank, and that

they would not cash it or take it for deposit. Ms. Gaetano called Defendant, and he gave

her what she thought at the time was a rational explanation. She said that Defendant made

the check good, but the problems persisted with her paychecks. Ms. Gaetano thought

Defendant had too many cases to be adequately handled by the paralegals, noting that the

case list for each paralegal was “extremely long.”

Allison Porter was an associate attorney with Defendant for one year from 2015

until 2016. She explained that she handled some cases after Defendant did the “initial

interviews to take on the clients, and then from that, if we needed to file anything with the

court, do their court complaints, any EEOC complaints, anything that needed to be filed,

talking to the client, going to court for them, I handled all that from the time after he took

them on as a client.” Ms. Porter testified that Defendant oversaw the office and finances

and made banking decisions. She had no access to online banking.

Ms. Porter testified that a few months into her employment with Defendant, her

paycheck “bounced.” She spoke with Defendant and got a new one. Because she was paid

only once per month, she arranged with Defendant to be paid by cashier’s check. Ms.

Porter testified that she did not get paid for the last “couple of months” she worked for

Defendant.

Ms. Porter testified that there were issues in Defendant’s office with paying the fees

to file complaints for new clients, causing deadlines to be missed. She said, “[c]lients were

calling, and - - yeah, we were just fielding a lot of phone calls with people trying to get in

touch with [Defendant] and get their cases going.” She “definitely” felt that Defendant’s

clients were not being properly served. Ms. Porter testified that she was named, along with

Defendant, in a complaint to the BPR concerning the mismanagement of a client’s case.

She was named in the complaint because she had conducted one of the depositions. Ms.

Porter was aware of some clients who requested that their retainer fees be refunded by

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Defendant. She noted that at one point, Defendant’s practice lost access to legal research

platforms, making it difficult to respond to various motions in cases. Ms. Porter testified

that the deadline in certain cases is very strict and that there is no recourse if a complaint

is not timely filed.

Jedidiah Cochran entered into an “of counsel” agreement with Defendant in June or

July of 2014 and was paid a $3,000 monthly retainer to work on cases Defendant assigned

to him. Mr. Cochran testified: “[s]o there was an arrangement where any attorney’s fees

from the cases which I actively worked, I would - - I would get a percentage of that, and I

think the percentage was 50 percent.” He said that Defendant was in control of the office

at Allman & Associates, and he assumed that Defendant was also in control of the finances

and banking decisions. Mr. Cochran testified that his last $3,000 retainer check from

Defendant did not clear the bank. He called Defendant, and the issue was handled “fairly

quickly.” Mr. Cochran never received the agreed upon percentage for any of the cases he

worked on.

Mr. Cochran testified that he worked on Rosa Ponce’s case and negotiated a

settlement for $40,000. He took and “defended” depositions and handled mediation in

Atlanta. Mr. Cochran testified:

Ms. Ponce would get her portion. [Defendant] would get his portion, then

cut a check to me for my portion. But that - - that settled roughly the same

time as I was leaving Nashville. So I was dissolving the arrangement

between [Defendant] and I, so I - - I never followed up on that.

Mr. Cochran identified two checks from Head Start. One was written to Defendant for his

legal fees and contingency fee, and the second was written to Ms. Ponce for the settlement

amount. Pursuant to Mr. Cochran’s agreement with Defendant, he should have received

half of the legal fees; however, never received his half.

Margaret Brooke Smith worked for Defendant as an associate attorney from July

2016 until November 7, 2016. At the end of September 2016, she learned that Defendant

had been suspended from practicing law effective October 9, 2016. She noted that the

order suspending Defendant had been entered on September 9, 2016, but Defendant did

not notify her of his suspension. She learned of it from some of the paralegals who worked

in Defendant’s office. Ms. Smith testified that Defendant and Shelly Biemel oversaw the

office, and Defendant had control of the finances and made banking decisions. Ms. Smith

did not have access to online banking.

Ms. Smith testified that she and Aaron Ryan, another attorney employed by

Defendant, asked Defendant about the suspension order, and he said that he had hired an

attorney who was taking care of everything and that the order of suspension would be lifted

by October 9, 2016. Ms. Smith later spoke with someone else and realized “the situation

- 38 -

was like much more dire than [she] was initially led to believe” and that there were a

significant number of complaints against Defendant. She noted that on November 3, 2016,

Channel 4 News showed up at Defendant’s office, and on November 4, 2016, an eviction

notice was sent to the office stating that rent had not been paid in months. On November

5, 2016, Ms. Smith received a call from a paralegal at the office who said that several of

the paralegals’ checks had “bounced.” After that, on November 7, 2016, she and Mr. Ryan

tendered their resignations. Ms. Smith testified:

I think there were like 400 clients on the Listserv, something like that, if my

memory serves me correctly. And we were doing everything we could to -

- and “we” being the two paralegals, Katie and Shelly, Aaron and I were

burning CDs with the clients’ files and getting the clients their files as quick

as we could, and letting them know that we were no longer - - we were no

longer associates at the firm. And that, you know, we would be gone by

December 9th, so to come and get their files by then.

Ms. Smith said that she exclusively worked on labor and employment cases. She did not

keep track of her billable hours but noted that it was customary in private practice to keep

track of those hours. She further testified that “it’s imperative to let the client know, ‘I

worked, you know, four hours on this initial pleading,’ and keep them apprised of the

expenditure[s].” Ms. Smith explained:

If they’ve deposited anything in the trust, it’s kind of like a representation

agreement, you would have a retainer. So if your retainer - - it’s typically

$5,000 initially. And so that’s held in a trust for the client, and it’s earned

upon attorneys working to receive it.

So if you work on a complaint for three hours, you would let Client A know,

“Hey, I drafted your complaint for three hours.” They would review and

approve it, and then it allows you the ability to remove that, those funds from

the retainer and earn them.

So it’s just imperative that the client is kept aware and apprised of the work

being done and the amount that they’re being charged - - charged throughout

the process of their complaint, I guess.

Ms. Smith testified that she worked on Mr. Sutton’s child support case and later represented

him pro bono after she was employed by another law firm. She agreed that the $12,000 in

cash Mr. Sutton had given to Defendant to hold for the child support arrearages should

have been deposited into a trust account and disbursed to the child pursuant to the court

order. The money should not have been deposited into Defendant’s personal account.

- 39 -

Aaron Ryan’s testimony was similar to Ms. Smith’s concerning retainer fees, and

he also asserted that “[w]hen a settlement comes in from a case, then the attorney would

put that money into a trust account until it can be transferred over to the client.” He noted

that one client’s money cannot be removed from the trust account to pay another client.

Mr. Ryan testified that he began working for Defendant as an associate in late July 2016

and resigned on November 7, 2016. He remained at the office until December 2016 to

“help wind things down.” Mr. Ryan testified that Defendant oversaw the office, and he

assumed Defendant was in control of the finances and made banking decisions. Mr. Ryan

did not have access to online banking for any of Defendant’s accounts.

Mr. Ryan testified that he arrived to work one day in early September 2016, and the

office door was locked. He later learned that Defendant had been suspended from

practicing law, and the BPR had issued an order instructing Defendant not to take any new

cases at that time. Defendant had thirty days from entry of that order to stop practicing

law. Mr. Ryan testified that Defendant gave him the impression that the matter would be

resolved soon. He said: “[Defendant] told us that he had received three complaints from

clients who were filed to the B[PR] and that he needed to respond to those, that he had

failed to respond, and that after he did that, then the suspension would be lifted.”

Mr. Ryan testified that Defendant’s course of conduct did not change after his

license was suspended and things at Defendant’s office got worse after clients learned of

the suspension. He said:

So at that point, clients were starting to find out that his license was

suspended and were starting to come into the office and ask questions and

have concerns. And, you know, like I said, he was out of the office for about

two weeks.10 And so we really didn’t have any guidance, and it felt like we

were falling further and further behind with all of these cases.

Mr. Ryan testified that he and others then spoke with someone at the BPR because

Defendant was still saying that it was a misunderstanding, that he had failed to respond to

some clients, and that everything would be straightened out. After speaking to someone at

the BPR, Mr. Ryan and Ms. Smith informed Defendant they would be resigning and

“getting clients their files and telling them to seek other counsel.” Mr. Ryan testified:

From that point on, we were basically just trying to triage these cases, and

get clients their files, and ensure that these cases were taken care of while

they found new counsel. There was a steady stream of clients coming into

the office who were angry and who wanted to know what was going on with

their case and what was going on with their attorney.

10

Mr. Ryan had previously testified that Defendant was out of the office due to his brother’s death.

- 40 -

And so we had to meet with these clients on a pretty regular basis every day

to fill them in on the situation to get them their files.

Mr. Ryan concluded his interactions with Defendant on December 9, 2016. He was never

required to keep track of billable hours while working for Defendant. He had one paycheck

that was returned for insufficient funds while working for Defendant and later had two

paychecks and one insurance reimbursement check that he was unable to cash while

working for Defendant. He said that Defendant gave him cash for the check that was

returned.

On cross-examination, Mr. Ryan testified that Defendant drafted a letter to send to

his clients concerning his suspension and notifying them that associate attorneys, including

him and Ms. Smith, would be taking care of their cases. However, he did not remember

when the letter was sent out. He agreed that this caused some panic with clients. Mr. Ryan

testified that he and Ms. Smith sent out a second letter to clients. He agreed that during

Defendant’s suspension, Mr. Ryan and Ms. Smith drafted pleadings, continued to seek

Defendant’s guidance, and used Defendant’s electronic signature on pleadings.

Theresa Scott Swanson testified that after passing the bar examination, she worked

for five and a half years with attorney Patrick Parker. She said that their office was “of

counsel” with Defendant’s office, “which means that we could help [Defendant] with cases

that he had.” Ms. Swanson noted that she and Mr. Parker took some of the “overflow

cases” that Defendant’s office could not handle. She said that it became clear after some

time, that some of Defendant’s cases were ones that should not have been taken because

“there were some quality issues with the type of case that was being accepted[.]” Ms.

Swanson testified: “[e]mployment law cases are - - are really hard to win anyway. And

there were just a lot of clients who maybe had hurt feelings about losing their job, but it

was not - - it didn’t rise to the level of a - - of a federal lawsuit.” She noted that some of

Defendant’s clients thought that they had excellent cases. Ms. Swanson testified that

deadlines for employment law cases are firm and that clients do not have any recourse or

remedy if a deadline is missed.

On cross-examination, Ms. Swanson estimated that she and Mr. Parker handled

approximately eighty of Defendant’s clients after his suspension. She agreed that

Defendant’s office had already provided quite a bit of work on some cases that she and Mr.

Parker took over. She did not have any knowledge of the fee arrangement between

Defendant and Mr. Parker. Ms. Swanson was aware that a letter had been sent to clients

regarding the suspension of Defendant’s law license. She thought that the letter “quoted

the Supreme Court rule about the suspension, and it gave a time frame by which they could

seek other counsel.” She could not remember what other information was included in the

letter. Ms. Swanson did not recall a second letter that went out to clients informing them

that they no longer had legal representation.

- 41 -

Merry Lewellyn, owner of Tennessee Business Services, provided accounting,

payroll, and cashflow management services for Defendant’s law office from early 2013

until September 2016. She used QuickBooks software to keep track of Defendant’s income

and expenses. The payroll services involved “paying his weekly salary payments to

employees.” Ms. Lewellyn’s husband used separate software for Defendant’s cash flow

management. However, that service stopped because it was hard for Defendant to “have

time to sit down and go over the cash flow and things like that, and that just eventually

stopped working.” Ms. Lewellyn’s relationship with Defendant ended after his business

closed. She said that he still owed them $2,400 at the time for multiple months of service.

Ms. Lewellyn explained that she had “view-only” access to Defendant’s firm bank

accounts and would receive “information of deposits and outgoing funds and record those

in Quickbooks.” She was unable to transfer money from one account to another and did

not have any interactions with the banks. Ms. Lewellyn had the authority to print the

payroll checks without Defendant’s permission and issue checks in small amounts for case-

related expenses. However, she was not authorized to write checks for anything else. She

was aware that some of the payroll checks were returned for insufficient funds. Ms.

Lewellyn identified one handwritten check for $37,000.40 that Defendant had written out

to himself. The memo line stated “Dycus settlement fee.” Ms. Lewellyn noted that when

she first began working for Defendant, he had some old debts, or “accounts payable,” that

she was eventually able to clear by paying them over a period of time.

Ms. Lewellyn testified that Defendant made the banking decisions for his firm,

including on which account a check would be drawn. She did not make deposits or

withdrawals on his behalf. In late 2016, Defendant directed her to write two checks for

$230,000, one from his firm’s trust account and one from his firm’s operating account

because he was not sure on which account the check would be drawn. However, her quick-

view access showed that at the time the checks were written, neither account had sufficient

funds for that amount. Ms. Lewellyn testified that when she would notify Defendant that

he did not have the funds to cover a check she had written, he would tell her that “he had

money coming in” and to write the checks and drop them off at his office. Ms. Lewellyn

was never involved in the settlement of a case or the calculation of how much money the

attorney or client should receive.

Ms. Lewellyn was recalled as a witness during Defendant’s proof and testified that

she did “[n]ot really” handle accounts receivable for Defendant’s office. She explained

that the deposits were made through the office, which she would record to the best of her

ability. The profit and loss statements she created for Defendant used information from

Defendant’s bank accounts. She had to “make some assumptions because [she] didn’t see

who the money actually came from or anything.” Ms. Lewellyn knew that Defendant

charged a certain amount for a retainer fee, and she assumed a deposit for that amount was

for a client fee. She also assumed that larger deposit amounts were “settlements of some

- 42 -

sort for clients . . . from cases.” She broke down expenses from the bank transactions as

either debits or checks.

Cathy Brown testified that on December 15, 2015, she met with Defendant, who she

knew from high school and church, for assistance with probating her father’s estate. She

wrote Defendant a check for $1,500 that day. Her father lived in Nashville at the time of

his death. Ms. Brown explained that there was a need to expedite the probate proceedings

because her nephew had sustained a “total brain injury” in a high school football game

approximately eight weeks earlier in October 2015, and “was in the hospital fighting for

his life.” Ms. Brown testified:

My brother-in-law is a pastor, my sister was a teacher. She had to quit her

job and, you know, their lives were just in shambles, so I just wanted to get

somebody to take this over and do it and get it closed as soon as possible so

we could use some of the funds for him.

Ms. Brown testified that her father’s house was paid for, and he did not owe money for

anything else, so “it was like this is going to be easy, it’s not going to be a problem.”

On February 23, 2016, Ms. Brown checked with Defendant on the progress of the

probate proceedings and Defendant indicated that everything was “rolling right along.”

She did not hear anything else from him and contacted him again in May 2016. Defendant

told Ms. Brown that the probate hearing was scheduled for June 9, 2016. However, on that

day, thirty minutes before she was to leave the house, Defendant’s secretary called and said

that Defendant had unexpectedly been called out of town and could not attend the hearing.

Ms. Brown testified: “[a]t that time, we were still friends on Facebook[,] and I have a

picture of him and his family in Alaska on a vacation. So it certain[ly] wasn’t a family

emergency, which it just made me totally livid.”

On July 15, 2016, Ms. Brown asked Defendant if they could go ahead and sell her

father’s house because her sister’s family needed the money. Defendant indicated that it

would not be a problem due to the way her father’s will was written. He also said that he

would ask permission from the court for the sale. Ms. Brown testified that there was a

hearing on June 21, 2016, but Defendant was missing paperwork, so they could not get

the approval. She said, “but we did go up to a desk and fill out papers, which now I know

at that point was when the four months actually started” to notify potential creditors; that

process was actually just the start of the probate proceedings.

Ms. Brown testified that on August 1, 2016, she again asked Defendant about selling

the house. She found out six or seven months later that the letters testamentary were sent

to Defendant’s office on August 4, 2016. She said, “but once the letter of testamentary

came out, then I could have had that money in an estate account that I could have then

given my sister.”

- 43 -

Ms. Brown testified that her father’s house was sold “in days” for $230,000, and the

closing was held on August 8, 2016. After the closing, Ms. Brown found out that

Defendant had instructed the closing attorney to “send the check to his office so he could

put it in his estate account, which all sounded legit to me.” At that time, Ms. Brown thought

that they were still waiting on the letters testamentary. A check dated August 15, 2016,

was sent to Defendant’s office from Belle Meade Title for $230,064.09, payable to Ms.

Brown’s father’s estate. Ms. Brown acknowledged that she endorsed the check at

Defendant’s office. The check was deposited into Defendant’s firm’s trust account on

August 15. The balance of the account before the deposit was $407.50, and after the

deposit it was $230,471.59. By the end of August 2016, the balance of the account was

$96,344.84, and on September 26, 2016, there was $149 left in the account.

On August 25, 2016, Ms. Brown emailed Defendant and asked if she could have

some of the money from the estate for her sister because her nephew was transferring to

another facility not covered by insurance. Her brother-in-law also asked Defendant for a

portion of the funds for the transfer but Defendant “[j]ust kept putting [them] off.”

On November 3, 2016, after Ms. Brown and her husband saw a story on the news

about Defendant’s suspension, she became concerned and drove to Defendant’s office the

following morning; the office door was locked. She texted Defendant, and he told her not

to worry about anything, that he was working “on it,” and it was “going to all get taken

care of.” Defendant also said that he was in Fort Lauderdale and would have “Merry Ann”

write her a check. Ms. Brown testified that she could not get a check from either Defendant

or “Merry Ann,” so she eventually hired another attorney to help get the money from

Defendant. Defendant initially claimed that he had wired the money to her; however, her

bank never received a wire transfer. She said that on November 18, 2016, Defendant finally

wrote a check payable to her attorney, but the check was returned for insufficient funds.

Ms. Brown testified that neither she nor her sister ever received any money from her

father’s estate. Ms. Brown testified that she did not give Defendant permission to use

money from her father’s estate to pay his own bills, other clients, or his employees.

Defendant testified that he primarily practiced employment law and handled civil

rights claims and opened his own law firm in 2012. Defendant testified that he designed a

timeline and templates specific to employment law and civil rights cases to use for his

practice, which was important “because there are deadlines in each of the phases[.]” He

further testified that he instructed the paralegals who worked in his office to “stagger out

when you ask for that right-to-sue letter[,]” which started the clock for deadlines, to ensure

that their caseload was manageable. Defendant also outlined his process for working on a

case after the initial phone consultation, including researching the employer, meeting with

clients, obtaining employment and medical records, and identifying potential claims. He

testified that the next step was to file “paperwork with the appropriate governmental

agency” or court, and he explained the process for each type of case.

- 44 -

As to the trust cases: Dycus, Denney, Brown, and Ponce, Defendant did not dispute

that the victims were entitled “to a disbursement or a payment of money.” He asserted:

As the owner of that firm, I was entrusted to keep that money separate, safe,

secure, and I didn’t do it. I failed at doing that. I did not have any proper

controls in place, any separation of the money. It was mixed in with other

money that went through the trust. I transferred money. I allowed checks to

be written against that money, and it’s my fault. The business, I owned it.

The business is my responsibility, and I just wholly failed to keep that money

safe for those trust cases, and that’s on me.

I will say to you that at no time did I have intent - - criminal intent to deprive

them of this money permanently, and I don’t. In fact, I’ve worked hard to

ensure that hopefully they get paid, but at the end of the day I am responsible

for that money not being held safe. But like I said, at no time did I have any

criminal intent to deprive them of this money permanently.

Defendant testified that his office was not “designed” for those types of cases.

Regarding the theft of retainer fee charges, Defendant testified concerning the

circumstances and the amount of legal work he claimed he performed for Mr. Brown, Mr.

Lussier, Ms. Stollar, Ms. Prather, and Ms. Whitman. He agreed that there was a breakdown

in the communications and handling of their cases. Defendant further testified:

They should have been communicated with more on a regular basis. They

should have been given - - they should have - - it should have been ensured

that they were assigned a specific paralegal, a designated paralegal, when the

one they had left, and that didn’t happen. They, in some instances, should

have handled - - had their claims handled a little more quickly. You know,

when I look at some of these, yes, they should have had their claims handled

more quickly.

But at the end of the day it was the intent of [Defendant] and his staff to

perform the work they were hired to perform, and it’s the same work that

[Defendant] has been doing for 20 years.

As to the charges of falsely holding himself out as a lawyer, Defendant testified that on

October 6, 2016, Mr. Willis of the BPR instructed him to communicate with his clients and

to give them what they needed. He asserted:

There turned out to be, in my mind, some gray area about communicating

with the clients. Now, I continued to do what Mr. Willis told me to do. I did

that. My clients needed answers. They needed to know about their cases.

- 45 -

They needed a status: where is it; what’s going on; what’s happening. Now,

remember there’s 270 of them all wanting the same information.

Defendant testified there was a directive for letters to go out to all clients during his

suspension notifying them that his office would remain open, and there would be two

associate attorneys to “pick up and handle the cases.” He said that he communicated with

clients as directed.

Concerning the charge for falsely holding himself out as a lawyer in Ms. Smelser’s

case, Defendant asserted that Ms. Smelser was aware of his suspension because she was a

witness in a federal trial he had been given permission to try during his suspension.

Defendant admitted that he should have told Ms. Smelser that he could not help her when

she contacted him after his suspension; he should have made certain that she knew of the

suspension and should not have accepted her payment. He claimed that he did not intend

to permanently deprive Ms. Smelser of her money. Defendant further admitted that Ms.

Smelser’s retainer fee was deposited into his firm’s operating account and that “ultimately

she didn’t get the help that she was looking for.”

Defendant testified that Mario Hererra did not have the ability to pay an upfront

retainer fee, and Defendant agreed to perform the work on his case and “get paid on the

back end.” He claimed that he and Mr. Hererra had conversations about how Defendant

would be paid, and they agreed that Defendant would be paid from the sale of Mr. Herrera’s

house. Defendant testified that Mr. Hererra was out of the country when Defendant

received the check for the proceeds from the sale of the home. Defendant then signed Mr.

Hererra’s name to the check and deposited it into his firm’s trust account. As to falsely

holding himself out as a lawyer to Mr. Hererra, Defendant testified that in the fall of 2016,

he and Mr. Hererra had a conversation in Defendant’s dining room about the suspension.

Defendant said that Mr. Herrera later called about something that was happening in his

child support case. He said that he did not accept a payment or create any legal documents

for Mr. Hererra and told him that he needed to send a “letter” to appeal. Defendant testified

that he intended for Mr. Parker to handle anything else that arose in Mr. Hererra’s case,

and he advised Mr. Hererra that he needed to contact Mr. Parker.

Defendant testified that he initially advised Mr. Sutton that child support cases “can

get expensive.” He claimed that Mr. Sutton said that he did not have a lot of money to pay

upfront and that he could afford to pay Defendant $1,500. Defendant testified that Mr.

Sutton’s case “grew into something much larger” than he anticipated, and they went

through two trials, “lots” of in-court motions, and an appeal. Defendant claimed that he

had no intention of depriving Mr. Sutton of his money.

Defendant agreed that Ms. Ponce’s case settled for $40,000. He said that pursuant

to his agreement with her, he “would receive a third, plus the expenses that I had advanced,

and she would receive the two-thirds less her withholding in income tax because it was

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wages.” Defendant testified that he received the settlement checks and deposited his check

into his account and mailed Ms. Ponce’s check to her that same day on March 4, 2015. He

said that the check was returned to him on March 23, 2015, “with an insufficient-address-

unable-to-forward sticker on it.” Defendant testified that he then deposited Ms. Ponce’s

check into his firm’s trust account and instructed a paralegal to locate Ms. Ponce. He said

that he later received a letter from opposing counsel demanding the return of the settlement

money due to Ms. Ponce’s breach of the settlement agreement and he began defending Ms.

Ponce on that claim. Defendant agreed that Ms. Ponce never received her money but that

he did not intend to deprive her of it.

Defendant agreed that he incurred a large number of insufficient fund fees in his

firm’s operating account, and “there were issues with the cash flow management.” He

said that he did not help Ms. Lewellyn as he should have or adequately communicate

with her.

Based on this proof, the jury convicted Defendant of twelve counts of theft and six

counts of falsely holding oneself out to be an attorney.

Sentencing

A corrected presentence report was admitted as an exhibit, and the trial court noted

that it had read all of the letters sent to the court on Defendant’s behalf written by family

members, friends, and a client. Additionally, some of those individuals, along with others,

testified on Defendant’s behalf at the sentencing hearing.

Susan Morrow, an employee of the Tennessee Department of Correction, Probation

and Parole, prepared the presentence report. She said that Defendant did not initially

cooperate with her, but after hiring and speaking with an attorney, Defendant spoke with

her and was forthcoming about his personal information. Ms. Morrow testified that

Defendant did not provide his financial information or assets but provided his wife’s

instead. He said that his wife lived in their residence in Hendersonville, but he did not give

any information on the value of the home or any information on bank accounts, vehicles,

or other assets. Ms. Morrow testified that in Defendant’s STRONG-R assessment,

Defendant denied any criminal behavior and said that everything was a “mistake.”

Cynthia Taylor testified that she contacted Defendant after being terminated from

her employment and she paid him a full retainer. She met with Defendant numerous times

to discuss her case, and he gave her hope, made promises, and she felt like he was in her

“corner” and understood her situation. Ms. Taylor thought that she would regain her job

with compensation. However, because of Defendant’s “lies and deception,” she lost that

opportunity because “the time lapsed with [the] EEOC.” This caused Ms. Taylor to

experience a “hardship” because she was unemployed and unsure how she would “make

ends meet.” She testified that she lost her money and a chance of regaining employment.

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Linda Cela paid Defendant $4,500 to represent her in recouping money from her

employment with the United States Army. Defendant failed to file any legal documents

on her behalf and repeatedly lied to her about the status and progress of her case. After

Ms. Cela filed a complaint against Defendant with the Better Business Bureau, Defendant

threatened to sue her for defamation. She then filed a civil complaint against him to recoup

the $4,500 fee she paid him. However, she never recovered the fee payment. Ms. Cela

testified that she lost both her retainer fee and the ability to pursue her case against the

Army.

Tonya Blades testified that she also paid Defendant $4,500 to represent her and that

he never filed a complaint with the EEOC or a lawsuit on her behalf. She borrowed the

money from her father for the fee. Ms. Blades said that on top of the stress from a hostile

work environment, she experienced theft by Defendant. Her workplace issues continued

after paying Defendant, and she ultimately lost the ability to file a complaint with the EEOC

for a right to sue.

Pamela McInish testified that she hired Defendant to represent her in an

employment discrimination matter. She borrowed money from her mother to pay

Defendant, and she did not believe that he ever intended to pursue her case. Ms. McInish

testified that Defendant claimed she had a court date and that he was litigating the matter,

but she later learned that he never filed a lawsuit on her behalf. She said that because of

Defendant’s actions, she lost the opportunity to regain her pension and that her lifetime

pension losses totaled nearly “half a million dollars.” Ms. McInish testified that Defendant

had been ordered to repay her, but he had not yet done so.

TBI Special Agent Reilly Gray testified that her investigation included numerous

bank records from Defendant’s accounts involving the victims’ cases. She gave detailed

testimony as to Defendant’s banking activity as it related to the victims’ funds and how

Defendant used money from some of the victims’ cases to pay other clients. Defendant

also took out loans to pay clients. Special Agent Gray testified that Defendant lied about

certain assets in his possession, and he fabricated certain documents, including those

related to work he claimed he had performed for Kenneth Sutton and Mario Herrera.

Special Agent Gray also found documents in Defendant’s home that appeared to have been

fabricated, including bills, credit reports, and bank statements.

The trial court made extensive findings concerning Defendant’s sentence as to the

enhancement and mitigating factors and consecutive sentencing. The court ultimately

imposed a sentence of twelve years for the two convictions of theft of property greater than

$60,000, Class B felonies; six years for the three convictions of theft of property greater

than $10,000 but less than $60,000, Class C felonies; four years for the seven counts of

theft of property greater than $2,500 but less than $10,000, Class D felonies; two years for

five of the convictions for falsely holding oneself out as a lawyer, and a one-year sentence

for the sixth count of holding oneself out as a lawyer, Class E felonies. The trial court

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imposed partial consecutive sentencing for an effective thirty-five-year sentence to be

served in confinement.

Analysis

I. Sufficiency of the Evidence

When evaluating the sufficiency of the evidence on appeal, the relevant question 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.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting Jackson

v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). The standard of review

is the same whether a conviction is based on direct or circumstantial evidence. State v.

Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing State v. Hanson, 279 S.W.3d 265, 275

(Tenn. 2009)). “Because a verdict of guilt removes the presumption of innocence and

raises a presumption of guilt, the criminal defendant bears the burden on appeal of showing

that the evidence was legally insufficient to sustain a guilty verdict.” State v. Shackleford,

673 S.W.3d 243, 250 (Tenn. 2023) (quotations omitted) (quoting Hanson, 279 S.W.3d at

275). Further, the State is afforded “the strongest legitimate view of the evidence as well

as all reasonable and legitimate inferences which may be drawn therefrom.” State v. Davis,

354 S.W.3d 718, 729 (Tenn. 2011) (quotations omitted) (quoting State v. Majors, 318

S.W.3d 850, 857 (Tenn. 2010)).

The jury evaluates the credibility of the witnesses, determines the weight to be given

to witnesses’ testimony, and reconciles all conflicts in the evidence. State v. Campbell,

245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn.

Crim. App. 1978)). Moreover, the jury determines the weight to be given to circumstantial

evidence, the inferences to be drawn from this evidence, and the extent to which the

circumstances are consistent with guilt and inconsistent with innocence. Dorantes, 331

S.W.3d at 379. A guilty verdict “accredits the testimony of the witnesses for the State and

resolves all conflicts in favor of the prosecution’s theory.” State v. Bland, 958 S.W.2d 651,

659 (Tenn. 1997) (citing State v. Grace, 493 S.W.3d 474, 476 (Tenn. 1973)). This court

“neither re-weighs the evidence nor substitutes its inferences for those drawn by the jury.”

Wagner, 382 S.W.3d at 297 (citing Bland, 958 S.W.2d at 659).

Theft Cases

“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(a). “Three elements must be proven to establish

theft under our statute: ‘(1) the defendant knowingly obtained or exercised control over

property; (2) the defendant did not have the owner’s effective consent; and (3) the

defendant intended to deprive the owner of the property.’” State v. Gentry, 538 S.W.3d

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413, 422 (Tenn. 2017) (quoting State v. Amanns, 2 S.W.3d 241, 244-45 (Tenn. Crim. App.

1999)). “‘Effective consent’ means assent in fact, whether express or apparent, including

assent by one legally authorized to act for another.” T.C.A. § 39-11-106(a)(11).

A. Theft of Retainer Fees

Defendant argues that the evidence was insufficient to support his convictions of

theft in the retainer fee cases because he lacked the intent to deprive the victims of their

money, “as he always planned to work on their cases to reach a satisfactory resolution.”

He further contends that he provided “extensive testimony” of the work he completed on

the victim’s cases, although he conceded that there was “certainly more work” to be done

to get them resolved. Therefore, he asserts that the evidence in this case demonstrates that

there was a fee dispute rather than intent to commit theft. The State disagrees.

Viewed in a light most favorable to the State, both Mr. Willis and Mr. Bergeron

explained at trial that for a “flat fee” retainer to be nonrefundable, it had to be explicitly

stated in the agreement between the lawyer and client. Mr. Willis further testified that any

fee not explicitly stated to be nonrefundable was subject to being returned to the client. See

Tenn. R. S. Ct. R. 8, RPC 1.5(f)

Victims Mr. Brown, Ms. Stollar, Mr. Lussier, Ms. Prather, Ms. Whitman, Ms.

Kelley, and Ms. Smelser each testified that Defendant requested a $4,500 retainer fee to

represent them and that the Attorney-Client Litigation Agreement they signed did not state

that the retainer fee was nonrefundable. In each case, Defendant immediately deposited

the entire retainer fee or a portion thereof into one of his firm’s accounts, other than a trust

account, and the account into which the retainer fee was deposited had either a negative

balance or a low balance. In particular, we note Mr. Brown’s testimony that Defendant

pressed Mr. Brown to meet at Defendant’s office to pay a retainer fee after hours on a

Friday evening and Defendant’s claim that he would file a lawsuit on Mr. Brown’s behalf

the following day on Saturday. When Mr. Brown said that traffic might delay his arrival,

Defendant insisted that he would wait. Additionally, regarding Ms. Kelley and Ms.

Smelser, Defendant was suspended from practicing law and taking new clients at the time

he accepted their retainer fees, although he claimed that he planned to transition them to

Patrick Parker. Defendant did not tell any of the victims that he intended to spend their

retainer fees right away, and none of the victims gave Defendant permission to spend the

retainer fees before he earned them.

The victims testified that they had difficulty communicating with Defendant after

paying the $4,500 retainer fee, and he either misled them into believing that he had

completed paperwork to file legal documents on their behalf, that he had actually filed

pleadings, or he gave excuses as to why he had not taken action. For example, he told Ms.

Stollar that some of the judges had retired and that “there was a huge backlog.” He also

told her that he was preparing for a trial date which clearly had not been set. In all the

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proof other than Defendant’s own self-serving testimony, there were only two clients for

whom Defendant may have actually prepared legal documents: Defendant sent drafts of

legal documents to Ms. Stollar through Dropbox, and he sent Ms. Whitman a copy of a

letter to her employer, but she confirmed Defendant never actually sent the letter as he

claimed. Each of the victims testified that Defendant did not file any legal documents to

initiate the work for which they hired him, nor did they receive any legal work in exchange

for their $4,500 retainer fee. Additionally, Ms. Kelley and Ms. Smelser were never

transitioned to Mr. Parker for representation as Defendant assured them they would be.

Defendant relies on State v. Kendrick, 178 S.W.3d 734 (Tenn. Crim. App. 2005), in

support of his claim that he did not commit theft in the retainer fee cases. However,

Kendrick is distinguishable from the present case. In Kendrick, the defendant was

contracted to build a garage to be paid in four installments but failed to complete the portion

of the work for the second installment. Id. at 735-36. He had poured a concrete pad, built

two walls of the foundation block, and placed some lumber in the yard. Id. at 736. He did

not complete the foundation, driveway apron, and floor of the garage as required by the

contract to receive the second payment. Id. This court concluded that the defendant had

completed at least a portion of the work that he was hired to perform although he did not

complete the job. Id. at 739. Unlike Kendrick, in this case, the proof shows that Defendant

did not complete any portion of the work in the retainer fee cases, other than Defendant’s

own testimony that he performed some of the work, or that he intended to complete work

on the cases and therefore, lacked intent to deprive the victims of their property. However,

the jury rejected his testimony as was its prerogative.

Based on the evidence presented at trial that Defendant’s Attorney-Client Litigation

Agreement with each victim failed to specify that the retainer fees were nonrefundable,

that Defendant deposited money into his firm’s operating accounts, other than trust

accounts, that such accounts had negative or low balances, and that Defendant failed to

perform any legal work or return the victims’ money, a rational juror could reasonably find

that Defendant intended to deprive each of the victims of their $4,500 retainer fee without

their effective consent.11

As part of his challenge to the sufficiency of the evidence for the retainer fee cases,

Defendant argues that the trial court erred by admitting expert testimony by Jennifer

Stalvey as to what kinds of transactions constitute theft. At trial, Ms. Stalvey was qualified

as an expert in forensic accounting.12

11

We note that Defendant admitted to owing $4,500 to Mr. Brown, Ms. Stollar, Ms. Prather, and Ms.

Whitman.

12

The State argues that Defendant waived this issue by failing to contemporaneously object to Ms.

Stalvey’s testimony at trial. However, Defendant raised the issue in his motion for new trial. Therefore, it

is not waived. “[I]n all cases tried by a jury, no issue presented for review shall be predicated upon error

in the admission or exclusion of evidence, . . ., unless the same was specifically stated in a motion for new

trial; otherwise such issues will be treated as waived.” Tenn. R. App. P. 3(e).

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Expert testimony, like other evidence, must be relevant in order to be admissible.

See Tenn. R. Evid. 402 (“Evidence which is not relevant is not admissible.”). Relevant

evidence is defined as any evidence “having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.” Tenn. R. Evid. 401. This court reviews a trial

court’s decisions concerning the admissibility of expert evidence under an abuse of

discretion standard and will reverse a decision only “‘when the trial court applied incorrect

legal standards, reached an illogical conclusion, based its decision on a clearly erroneous

assessment of the evidence, or employed reasoning that causes an injustice to the

complaining party.’” State v. Parker, 350 S.W.3d 883, 897 (Tenn. 2011) (quoting State v.

Banks, 271 S.W.3d 90, 116 (Tenn. 2008)).

The admission of expert testimony is governed by Tennessee Rule of Evidence 702,

which provides that “[i]f scientific, technical, or other specialized knowledge will

substantially assist the trier of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill, experience, training, or

education may testify in the form of an opinion or otherwise.” Tenn. R. Evid. 702. “The

witness may acquire the necessary expertise through formal education or life experiences.”

State v. Reid, 91 S.W.3d 247, 302 (Tenn. 2002) (Birch, J., concurring in part) (citing Neil

P. Cohen et al., Tennessee Law of Evidence § 7.02[4] (4th ed.2000)). “However, the

witness must have such superior skill, experience, training, education, or knowledge within

the particular area that his or her degree of expertise is beyond the scope of common

knowledge and experience of the average person.” Id. The determining factor is “whethe

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