Opinion

IN RE: A-ACTION BONDING COMPANY

Court
Court of Criminal Appeals of Tennessee
Filed
Oct 15, 2014
Status
Published
On the bench
Judge Alan E. Glenn
Cited by
0 cases
Authority
More cited than 33.3%

The opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 15, 2014 Session

IN RE: A-ACTION BONDING COMPANY

Appeal from the Circuit Court for Maury County

No. B-100 Robert L. Jones, Stella L. Hargrove, Jim T. Hamilton,

and Robert L. Holloway, Judges

No. M2013-01526-CCA-R3-CD - Filed October 15, 2014

This is an appeal by A-Action Bonding Company of Columbia (“A-Action”) of an order of

the Maury County Circuit Court, sitting en banc, which suspended the bonding authority of

the company, its principal, and one of its agents based on its finding that the agent solicited

an inmate at the county jail, in violation of Tennessee Code Annotated section 40-11-126(6).

The appellant argues that the court improperly considered as evidence a cell phone recording

of a videotaped conversation between the agent and the inmate when the original jail

videotape had been destroyed and the cell phone recording was made by a competitor and

contained an altered version of the original. We agree. We also agree that, without the

improperly admitted recording, there was insufficient evidence that the agent solicited

business in violation of the statute. Accordingly, we reverse the judgment of the trial court

and dismiss the motion to suspend the bonding authority of A-Action, its principal, and its

agent.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and

Dismissed

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL, P.J.,

and N ORMA M CG EE O GLE, J., joined.

Samuel L. Patterson, Columbia, Tennessee (at hearing); and Robert E. Lee Davies, Franklin,

Tennessee (on appeal), for the appellant, A-Action Bonding Company.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; and

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

OPINION

FACTS

This case stems from the actions of A-Action president, James Bloss, and A-Action

employee, Debbie Farris, in having gone to the Maury County Jail to speak with an inmate

who, along with a co-defendant, was being held at the jail on a murder charge. In a letter to

the Maury County Circuit Court, Kendall Vandiver, President of Stoney’s Bail Bonding, and

Billy Hood, President of ABC Bonding, Inc., complained that A-Action had improperly

solicited their client, Billy Shouse, at the Maury County Jail on February 7, 2013. They

stated that they had reviewed the videotape of the jail conversation between their client and

the A-Action employee and were including a copy of the videotape, along with supporting

affidavits, with their complaint.

The trial court subsequently forwarded the letter and its attachments to the district

attorney’s office, which responded with a May 1, 2013 motion to suspend/strike from the

rolls of professional bondsmen in the district James Bloss, President of A-Action Bonding,

and Debbie Farris, A-Action Bonding employee, for having engaged in the unprofessional

conduct of soliciting a client at the county jail.

At the evidentiary hearing, Chief Deputy Nathan Johns of the Maury County Sheriff’s

Department testified that Kendall Vandiver asked to view the jail’s videotape of a

competitor’s conversation with inmate Billy Shouse. He said he viewed the videotape first,

which was of Ms. Farris, Mr. Bloss, and another female in the bonding room having a

conversation with Shouse, and then allowed Vandiver to view and record it on his cell phone.

He stated that only Farris’ and Bloss’s side of the conversation was audible on the recording

but that, as he recalled, it “appeared that they [were] . . . trying to get that inmate out and .

. . there was some confusion as to . . . if they [were] supposed to be there or if maybe

somebody else was supposed to be there.” After the disc of Vandiver’s cell phone recording

was played, Deputy Johns agreed that it appeared to be an accurate representation of part, but

not all, of the conversation contained on the original jail recording. The recording was

subsequently admitted as an exhibit to the hearing.

On cross-examination, Deputy Johns testified that Vandiver contacted him about

viewing the recording two or three days after the February 7 conversation between the inmate

and the competitor bail bondsmen took place. He said that the jail’s recording system, which

was “data driven,” saved videos on the computer for approximately seven to ten days. He

testified that the clock visible on the bottom of the screen in the recording was fairly

accurate. He described the jail’s computer recording system as “pretty antiquated” and said

that it recorded action in three-minute segments, which meant that “if you want to view

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something, then you have to click on – you have to watch three minutes, and then the system

stops, and then you have to click on the next three minute segment and then the system

stops.” There should not, however, have been a seven or eight-minute lapse in the recording,

as was visible on Vandiver’s cell phone recording, unless there was a seven or eight-minute

period of time during which there was no motion in the room, as the system was “set up on

motion.” Finally, he testified that he had no way of knowing whether Vandiver recorded

every section of the jail video on his cell phone.

Kendall Vandiver testified that on February 6 he met with Billy Shouse’s father,

uncle, and cousin for two to three hours about bonding Shouse out of jail. He said that when

Shouse’s father left his office that day, he told him that he would be back the following

morning. The next morning when he returned, Shouse’s father told him that he was ready

“to get Billy out” but had to go to the bank to obtain the funds. Vandiver said that while he

was gone, one of his agents, Candice Conner, contacted the jail to make sure there were no

holds on Shouse from other counties and was told that A-Action Bonding Company “had

Billy Shouse at the bonding window talking to him about getting him out of jail.”

Vandiver testified that when Shouse’s father returned, he told him that neither he, nor,

to his knowledge, any of his family members had contacted A-Action about bonding his son

out of jail. Vandiver said that his company bonded Shouse out of jail approximately an hour

later. The next day, he contacted Deputy Johns to voice his concerns about A-Action’s

behavior. Approximately an hour later, Deputy Johns called to ask him to come to the jail

to look at what he had found on the jail videotape.

Vandiver testified that he viewed the jail’s videotape of the encounter at the jail and

copied it on his phone. He said he heard no discussion by Bloss or Farris on the videotape

“concerning getting [Billy Shouse’s co-defendant] Joe Truett out of jail[.]” He stated that

the video contained on the disc he submitted in connection with his complaint against A-

Action was not a complete tape because he had lost one clip of the video he recorded on his

cell phone. The lost clip consisted of “Farris leaning up on the glass in the bonding room,

the hole that you would speak through . . . [and] whispering through that hole.” According

to Vandiver’s testimony, it was impossible to hear what Farris was saying during the portion

of the clip that had been lost. He had no idea how he had lost that particular clip and, to his

knowledge, it was the only portion of the original recording that had been lost.

On cross-examination, he testified that Shouse’s neighbor, Nicole Scott, had contacted

one of his agents, Candice Conner, about bonding Shouse out of jail. Although Scott did not

currently work for his company, he had sent her to school in order for her to be qualified to

write bonds in the district. He claimed he had no knowledge of her having business cards

indicating that she was a licensed bail bondsman for Stoney’s Bail Bonding or of her having

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advertised herself as such on her Facebook page. Finally, he testified that he watched and

recorded what Deputy Johns showed him of the jail video; he had no idea how the jail

recording system worked and was not controlling the system at the time he made his

recording.

Candice Conner, a seven-year employee of Stoney’s Bail Bonding, testified that

Nicole Scott contacted her on February 6 about posting Billy Shouse’s bond and later that

afternoon came into the office with Shouse’s father, “Baby Ray” Shouse, to fill out the

appropriate paperwork. Conner said she informed Mr. Shouse that Stoney’s could not write

the entire bond because it exceeded their bond limits and asked if it would be all right for her

to contact another company to write $100,000 of the bond. The next morning, Mr. Shouse

returned to the office and made the bond. Conner testified that she and Billy Hood of ABC

Bonding then went to the jail to post Billy Shouse’s bond. Before making that trip, she called

the jail to find out if Billy Shouse had any holds on him from other counties and learned from

the booking officer that Farris was at the bond window talking to Billy Shouse about posting

his bond. On cross-examination, Conner testified that Nicole Scott was a former employee

of Bloss and was currently in the process of trying to get qualified as an agent of Stoney’s

Bail Bonding.

Ray Shouse testified that his son told him to go to Nicole Scott, a neighbor, and that

she would accompany him to the bonding office to make bond. He said he stopped at an

office that he thought was owned by John Toddy,1 only to be told by the people there that

Toddy had “sold out.” He, therefore, sat and talked with those people and ultimately used

them to make his son’s bond. He could not recall their names, but later identified them at the

hearing as Vandiver and Conner. On cross-examination, he testified that Vandiver and

Conner told him that they had taken over Toddy’s bonding company. He said he had never

talked to Bloss or Farris and that neither one had ever called him.

The first defense witness, Mitzi Truett, testified that her son, Joseph Truett, was

currently in the Maury County Jail charged with murder. In an attempt to get him out of jail,

she and her husband had called several bonding companies listed in the Maury County

telephone book, including Debbie Farris of A-Action Bonding. Mrs. Truett testified that she

and her husband were unable to come up with all the money required and that her son told

her that his co-defendant, Billy Shouse, had informed him that his (Shouse’s) father would

help Truett make his bond. According to Mrs. Truett’s testimony, her son told her that Billy

Shouse said she should call his father and have him meet with Mrs. Farris at the jail to make

the arrangements:

1

We note that the appellant’s brief refers to this bail bondsman’s last name as “Totty” rather than

“Toddy.”

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[M]y son, when he called me, said that Mr. [Billy] Shouse wanted him to have

me call his father and have . . . Mr. Shouse’s father meet with Mrs. Farris at

the jail because he was going to – Joseph said that Mr. [Billy] Shouse told him

that if he got bonded, he would help him get bonded.

Mrs. Truett testified that she conveyed that information to Farris. She said that Farris later

called her back to inform her that someone else was in the process of bonding Billy Shouse

out and that she would be unable to help with Truett’s bond unless Mr. and Mrs. Truett were

able to come up with the full amount required. Mrs. Truett testified that she and her husband

were the ones who contacted Farris first.

On cross-examination, Mrs. Truett testified that Farris wanted her to give her the

Shouses’ telephone number so she looked it up in the telephone book and called and spoke

with Mrs. Shouse, who was “very upset” and told her that her husband and another relative

were at the jail. After that conversation with Mrs. Shouse, she called Farris back. In

response to questions by the court, Mrs. Truett testified that when she called Farris back, she

informed her that Mr. Shouse was meeting someone at the jail and asked her if she was the

person he was meeting. At that point, Farris told her, “[N]o, they already had somebody else

over there.”

Mrs. Truett further testified that her son told her in her phone conversation with him

that Billy Shouse wanted her to call both his father and Debbie Farris of A-Action Bonding.

She reiterated that she and her husband initiated all of their conversations with the various

bonding companies they contacted in their efforts to get their son out of jail. She said that

her son’s bond was set at $350,000 and that none of the bonding companies they contacted

quoted anything less than $35,000 as the amount they would be required to come up with in

order to make the bond.

Roger Truett, Mrs. Truett’s husband, testified that after his son called to inform him

he was in jail, he contacted all of the bonding companies, including Debbie Farris’, in an

effort to find one that would help get his son out of jail. In response to questions from the

court, Mr. Truett testified that his son told him that Mr. Shouse was “going to try to use

Debbie [Farris] and them for a bond” and that Billy Shouse had told him that if he called Mr.

Shouse, he would try to “help him out, too, you know, get the bond maybe together.” He said

he believed that Farris’ bonding company was the first one that he called, but he was unable

to speak with her and instead left a message before going on to call all the other bonding

companies listed in the phone book. He explained that he “just wanted [his son] out” and

was “trying to find the cheapest way to get him out[.]” He said that none of the companies

he talked with had offered him a discount and that he and his wife were currently “[j]ust

trying to come up with some money” to make the bond.

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Both Mr. and Mrs. Truett’s affidavits were introduced as exhibits at the hearing, as

were the affidavits of Debbie Farris and James Bloss.

Debbie Farris testified that she had been a licensed bail bonder for nine and a half

years and was employed by A-Action Bonding. On February 6, 2013, she received a

telephone call from Mr. Truett, which was interrupted when he had to take another call. He

called her back a short time later and they discussed in some depth the nature of bail bonds,

where he and his wife worked, and what kind of collateral they owned. From their

discussion, she concluded that the Truetts would not be able to make their son’s bond at that

time. Farris said that she received “a few phone calls that morning” from both Mr. and Mrs.

Truett, including one in which they informed her that their son had told them that Mr. Shouse

was going to help him make bond, and in which they asked her to go to the jail to speak with

him.

Farris testified that, after receiving that phone call from the Truetts, she, Bloss, and

another A-Action agent, Lydia Centeno, went to the jail and requested to speak with Billy

Shouse. Approximately fifteen minutes later, he was brought to the window. Farris said that

the video that was played in court did not contain the full version of the events that transpired

that day. She stated that the time that elapsed between her request to speak to Billy Shouse

and his arrival at the window was not in the video, nor was her initial conversation in which

she informed him she had received a call from the Truetts, who had asked her to see him and

who had told her he might be willing to help their son get bonded out of jail, and Shouse’s

answer of “yes.” Further conversation that was left out of the video played in court included

conversation surrounding Billy Shouse’s comment about having been told that he “couldn’t

do a property bond”:

And that’s – at that point is when Mr. Bloss asked what kind of property he

had or how much property, I’m not sure the exact wording. And then on the

video I think at that point it might cut off. And then there’s some conversation

that’s left out of the video where he said that they said I couldn’t do a property

bond. I said, who said you couldn’t do a property bond. He said, Toddy’s up

here on the corner. I said, are you working with another bonding company.

He said, well, we’ve talked to Toddy’s and we – I don’t think they’re going to

be able to do it because they want too much money. And I said, well, I said

why can you not do a property bond. Because he had previously stated that he

and his dad, I believe, owned quite a sum of property. And then I proceeded

to explain to him my knowledge of the process of a property bond.

Farris testified that when Billy Shouse told her that they had been working with

Toddy’s bail bonding company, she turned to Bloss and said that she thought they had been

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misled on the bonding company. She said that John Toddy, whose company was named A

First, was still actively writing bail bonds in Maury County and was doing so in February

2013, at the time the events in the video transpired. She identified the cell phone records of

the telephone calls she and the Truetts exchanged, which were admitted as an exhibit and

which, she said, showed that she received two phone calls from Mr. Truett on February 6 and

exchanged a total of four calls with Mrs. Truett on February 7. Mrs. Truett first called her

at 9:55 a.m. on February 7 to ask her to go to the jail; she called Mrs. Truett back at 10:55

a.m. after leaving the jail to inform her that Billy Shouse had indicated he was working with

another bonding company and had asked her to call his father but did not have a valid phone

number; Mrs. Truett called her back at 11:02 a.m. after talking to the Shouses to tell her that

they were, in fact, working with another bonding company; and Mrs. Truett called her again

at 11:57 a.m. to ask if they could still work with them on bonding her son out of jail.

Farris further testified that during her conversation with Billy Shouse, Bloss walked

over to the board that listed the bonding companies and their bonding limits and made the

comment that Stoney’s could only write a $273,000 bond and would obviously have to call

in somebody else to write the remaining portion of the bond. She said that the comment that

can then be heard about how the “backstabbing” was not going to stop was a reference to a

previous unpleasant incident she had had with Scott, who had been terminated from A-

Action Bonding Company. In response to questioning by the court, she testified that she

went to the jail on February 7 to talk to Billy Shouse about his father making the bonds for

both Billy Shouse and Joseph Truett.

In the short portion of her cross-examination testimony that is transcribed, she

acknowledged that no one from the Shouse family had approached her about making

Shouse’s bond. The rest of her cross-examination testimony, as well as the direct and cross-

examination testimonies of James Bloss and a defense computer expert, was lost due to the

court reporter’s having spilled a cup of coffee on her laptop.

Because of the loss of the remaining testimony, both the State and A-Action Bonding

submitted statements of the evidence in the case. According to A-Action’s statement, Bloss’s

testimony essentially corroborated Farris’ about why they went to the jail and the fact that

the video played in court did not contain a full and accurate recording of their conversation

with Billy Shouse. Bloss also testified that Nicole Scott was a former employee whom he

had fired for not turning in bond premiums. Mitchell E. Davis, the defense’s computer

expert, testified that he had examined the video clip and concluded that it was not a complete

and accurate recording of the events it depicted. Among other things, he testified that the

format of the original recording had been changed and re-generated using Windows Movie

Maker and that the video had evident starts and stops demonstrated by spectral analysis.

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According to the State’s statement of the evidence, Bloss admitted that he had been

suspended from writing bonds for six months on a prior occasion and that he would have

made Billy Shouse’s bond for $15,000, which, according to the State, “was less than one-half

of what the premium would have been for the original bond.” The State also characterizes

the evidence at the hearing with the following statement: “Neither Jimmy Bloss nor Debbie

Farris ever admitted asking Shouse about making Joe Truett’s bond which was the reason

they went to the Maury County Jail.” We note, however, that, at least with respect to Farris’

testimony, this is a misstatement of the evidence, as Farris testified that she spoke with Billy

Shouse about making Truett’s bond during the first part of her conversation with Shouse,

which was not included in Vandiver’s cell phone recording.

On May 29, 2013, the Maury County Circuit Court entered an order suspending the

bonding authority of A-Action Bonding Company for a period of thirty days, the bonding

authority of James Bloss for a period of ninety days, and the bonding authority of Debbie

Farris for a period of six months, with the bonding authority of A-Action and Bloss

automatically reinstated after their respective suspensions and Farris required to apply for

reinstatement at the end of her suspension period. In reaching this decision, the court found

that “[t]he most compelling evidence” was the video recording. The court noted that there

was “an unfortunate gap of six minutes” in the video and expressed its concerns that

“statements that could have been favorable to Bloss and Farris were, for some reason,

omitted from the DVD and are no longer available to the Court.” The court concluded that

fairness mandated that the loss of such evidence reduce its weight and “must result in a

significant reduction of any suspension for solicitation[.]” The court further found, however,

that it was clear from the video that, despite Bloss’s and Farris’ awareness that the Shouse

family was already working with Stoney’s Bail Bonding, Farris tried to persuade Shouse to

do business with A-Action instead. The court’s order states in pertinent part:

The most compelling evidence was the video recording which clearly

shows Debbie Farris asking Billy Shouse what he could “come up with.”

Almost immediately, Jimmy Bloss asked Billy Shouse, “How much property

have you got?” Then there is an unfortunate gap of six minutes which Mr.

Vandiver admits recording from the jail video before it was forever lost by

being recorded over seven to ten days later. Mr. Vandiver cannot explain how

those six minutes were lost, and the Court is concerned that statements that

could have been favorable to Bloss and Farris were, for some reason, omitted

from the DVD and are no longer available to the Court.

Fairness mandates that the loss of such evidence significantly reduces

the weight which could otherwise be given to a complete and accurate

recording. Such loss also must result in a significant reduction of any

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suspension for solicitation, because Vandiver’s loss of critical evidence should

not result in him and other competitors getting an undue increase in business

during any suspension of A Action.

After the six-minute gap, it is clear from the remaining few minutes of

video that Bloss and Farris are aware that Stoney’s has been contacted by the

Shouse family for making the bond, that Bloss comments that Stoney’s does

not alone have adequate authority to make Shouse’s bond, and that Farris is

encouraging Shouse to tell Stoney’s that he has changed his mind and decided

to do business with A Action.

Farris[’] phone records and sworn testimony clearly established that

Farris had been contacted by the Truett family about making Truett’s bond and

w[as] told that Shouse might help finance Truett’s bond premium if Shouse

himself could make bond. Those communications might have justified A

Action contacting Shouse about making a Truett bond but cannot be an excuse

for A Action soliciting at the jail the making of the Shouse bond. The Court

recognizes that the making of a Truett bond may have been discussed during

the six-minute gap in the recording, but that possibility does not excuse or

mitigate the obvious and flagrant effort of Debbie Farris to solicit Shouse’s

bond.

There are significant inconsistencies between the testimony of Farris

and Bloss on the one hand and their own affidavits, phone records, and video

statements on the other hand. Such inconsistencies sufficiently discredit their

testimony and defenses. The prosecution’s witnesses are not directly

discredited in their testimony, but their reliance upon the video recording as

evidence of solicitation is significantly weakened by the failure to preserve a

complete and accurate recording.

....

The undersigned judges find that Debbie Farris intentionally solicited

Billy Shouse to let A Action make his bond while he was still a prisoner at the

jail and after learning that another bonding company had been contacted by the

Shouse family and was in the process of making the bond. The undersigned

judges also find that Jimmy Bloss had sufficient knowledge of Farris’

solicitation efforts and condoned the same.

Both parties filed timely notices of appeal. The State, however, followed with a

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request for permission to voluntarily dismiss its appeal on the basis that “there is no vehicle

for the State to appeal the judgment of the trial court suspending an appellant’s bonding

privileges under Tenn. Code Ann. § 40-11-125 and Tenn. R. App. P. 3 (c)[.]” We granted

the State’s request, and the matter is now before us on the notice of appeal filed by A-Action

Bonding Company.

ANALYSIS

A-Action argues that the trial court committed reversible error by admitting into

evidence the altered tape of the conversation at the jail when the original had been destroyed.

The State responds by arguing that the appellant has failed to show that the court abused its

discretion in admitting the evidence and that the evidence supports the court’s decision to

suspend the bonding privileges of A-Action, its principal, James Bloss, and its agent, Debbie

Farris.

Tennessee Code Annotated section 40-11-125 provides that “approval of a

professional bondsman or other surety may be withheld, withdrawn or suspended by any

court if, after investigation, it appears that a bondsman . . . [i]s guilty of professional

misconduct as described in § 40-11-126.” Tenn. Code Ann. § 40-11-125(a)(3) (2010).

Tennessee Code Annotated section 40-11-126 provides in pertinent part that

the following is deemed unprofessional conduct and no bondsman or surety

agent shall: . . . [s]olicit business directly or indirectly, by active or passive

means, or engage in any conduct which may reasonably be construed as

intended for the purpose of solicitation of business in any place where

prisoners are confined or in any place immediately surrounding where

prisoners are confined[.]

Id. § 40-11-126(6). A bondsman whose authority to write bonds has been revoked or

suspended “shall have the right of appeal to the next highest court having criminal

jurisdiction, and the appeal shall be heard de novo.” Id. § 40-11-125(d).

At the hearing, A-Action objected to the admission of the videotape on the basis of

the Tennessee Rules of Evidence, arguing that the altered tape was not a true and accurate

depiction of the events it recorded and that its probative value was substantially outweighed

by the danger of unfair prejudice. Generally, the admission of evidence is a matter left to the

discretion of the trial court, and the trial court’s decision will not be disturbed on appeal

absent an abuse of discretion. State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). “An abuse

of discretion occurs when the trial court applies an incorrect legal standard or reaches a

conclusion that is ‘illogical or unreasonable and causes an injustice to the party

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complaining.’” State v. Dotson, 254 S.W.3d 378, 392 (Tenn. 2008) (quoting State v. Ruiz,

204 S.W.3d 772, 778 (Tenn. 2006)).

We agree with A-Action that the trial court improperly admitted the videotape as

evidence in this case. First, the videotape was neither the original nor an accurate

reproduction of the original. Tennessee Rule of Evidence 1002, the “best evidence rule,”

generally provides that in order to prove “the content of a writing, recording, or photograph,

the original writing, recording, or photograph is required.” “Stated simply, the underlying

theory is that only the best or most accurate proof of written or similar evidence should be

admitted, to the exclusion of inferior sources of the same proof, absent some extraordinary

justification for the introduction of secondary evidence.” Neil P. Cohen et al., Tennessee

Law of Evidence § 10.01[2][a] (6th ed. 2011). Although the rules provide for the

introduction of a duplicate in place of the original, the cell phone recording of the jail

videotape, which all the parties agreed did not contain the full version of the original

recording, does not meet the definition of a “duplicate,” which is “a copy produced by the

same impression as the original . . . or by other equivalent techniques which accurately

reproduce the original.” Tenn. R. Evid. 1001(4), 1003.

Second, the videotape was not properly authenticated. Tennessee Rule of Evidence

901 provides that “[t]he requirement of authentication or identification as a condition

precedent to admissibility is satisfied by evidence sufficient to the court to support a finding

by the trier of fact that the matter in question is what its proponent claims.” One manner in

which such authentication may occur is by testimony of a witness with knowledge “that a

matter is what it is claimed to be.” Tenn. R. Evid. 901(b)(1). As explained in Tennessee

Law of Evidence:

There are two common scenarios in which videos are utilized as

evidence. The first is the video that constitutes real evidence because it shows

the precise event at issue in the case. Examples include the bank camera’s

video of a robbery, or a home video that unintentionally captures an event

which later gives rise to a cause of action, such as a plane crash or automobile

accident. To authenticate such evidence, the photographer or one who set up

the automatic camera or monitored its tape or video images would be the ideal

witness. The authenticating witness should be prepared to show, to the court’s

satisfaction, that the video accurately portrays what it is presented to prove.

This will require the authenticating witness to establish when and where the

video was made, under what circumstances, and that it has not been altered in

any fashion. Even if the photographer is available, anyone else can

authenticate it who can establish that the video produced a true and accurate

depiction of the event recorded.

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Tennessee Law of Evidence, § 4.01[22] (6th ed. 2011) (footnote omitted).

As stated previously, the witnesses, including Chief Deputy Johns and Vandiver,

agreed that the cell phone recording made by Vandiver was not a full and complete version

of the jail recording. Vandiver testified that he was not controlling the jail recording and

recorded on his cell phone only what Deputy Johns showed to him. He acknowledged that

he lost one portion of the clip he recorded and could not say with certainty whether that was

the only portion he lost. Deputy Johns testified that there appeared to be a seven or eight-

minute gap on the recording and that he had no way of knowing whether Vandiver recorded

on his cell phone every portion of the jail recording that he showed to him. It is, thus,

abundantly clear that the cell phone recording did not produce a true and accurate depiction

of the events that transpired at the jail that morning.

Third, the probative value of the cell phone videotape was substantially outweighed

by the danger of unfair prejudice to the appellants. See Tenn. R. Evid. 403. In its decision

to admit the recording, the trial court concluded that the gaps went to its weight rather than

its admissibility and that, given the testimony of the appellants with respect to their

communication with the inmate, the recording, despite any gaps, was “going to be so

important for testing credibility.” We respectfully disagree. The recording was not the

original, was not a duplicate, and was made by a competitor bail bondsman who, along with

some of his staff or quasi-staff, apparently had an acrimonious relationship with the

appellants. Most significantly, it was a version of the original recording in which several

critical minutes of the initial conversation between Farris and the inmate had been “lost.”

As such, its probative value for testing the credibility of the witnesses was substantially

outweighed by the danger of unfair prejudice to the appellants’ case. We conclude, therefore,

that the trial court erred in admitting the videotape into evidence.

We further conclude that, without the improperly admitted videotape, there was

insufficient evidence to support a finding that the appellants engaged in unprofessional

conduct. Absent the videotape, the evidence consisted of the testimony of the witnesses at

the hearing and the affidavits submitted as exhibits in the case. From this evidence, it is clear

that Farris and Bloss had a conversation with Billy Shouse at the bonding window after Mr.

Shouse had, at the very least, begun the process of engaging Stoney’s and ABC Bail Bonding

to bond Billy Shouse at of jail. What is not clear, however, is exactly what the conversation

entailed. According to Farris, Bloss, and the Truetts, they went to the jail at the request of

the Truetts, who informed Farris that it was Billy Shouse’s request that she speak with him

and/or his father about the possibility of his bonding both Shouse and Truett out of jail. This

is at least partially corroborated by the testimony of Deputy Johns, who said that it appeared

from his viewing of the jail videotape that there was “some confusion” as to which bonding

company was “supposed to be there.” Although Vandiver testified that he heard no

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conversation on the videotape about A-Action bonding Truett out of jail, he also testified that

Farris’ initial conversation with Billy Shouse, on the portion of the clip that he had lost, was

inaudible. In sum, there was insufficient evidence, apart from the improperly admitted

videotape, to support a finding that the A-Action agents or principal solicited business at the

jail.

CONCLUSION

Based on the foregoing authorities and reasoning, we reverse the judgment of the trial

court and dismiss the motion to suspend the bonding privileges of A-Action Bonding, James

Bloss, and Debbie Farris.

_________________________________

ALAN E. GLENN, JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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