                                                                                      04/09/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                          Assigned on Briefs June 6, 2017

          STATE OF TENNESSEE v. DANYELLE MCCULLOUGH

                 Appeal from the Criminal Court for Shelby County
                    No. 14-02525       W. Mark Ward, Judge
                     ___________________________________

                          No. W2016-01942-CCA-R3-CD
                      ___________________________________

Defendant, Danyelle McCullough, was charged with one count of theft over $1,000 and
one count of forgery over $1,000 in an indictment returned by the Shelby County Grand
Jury. Following a jury trial, she was found guilty as charged. The trial court sentenced
Defendant to concurrent sentences of four years for each count to be served in
confinement. In this appeal, Defendant’s sole issue is a challenge to the sufficiency of
the evidence to support the convictions. After a thorough review of the record and the
briefs of the parties, we affirm the judgments of the trial court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Charles Edgar Waldman, Memphis, Tennessee, for the appellant, Danyelle McCullough.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Byron Winsett,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                      OPINION

FACTS


       On October 2, 2008, Defendant began working as the sole employee and manager
of AAA Cash Fast located at 5000 Raleigh LaGrange Road in Memphis. The store was
one of three businesses owned by Gordon Ballinger that provided both check advance
loans and automobile title loans to customers at each store. An employee from one of
Mr. Ballinger’s other store locations would occasionally fill in for Defendant. Mr.
Ballinger testified in detail concerning the intricacies of his businesses and how the
company would “charge off” any loan that was not paid back or rewritten within 31 days
of the due date. Mr. Ballinger testified that he kept close track of the “charge off” rates at
each store, and he awarded bonuses to employees at stores who kept that rate below ten
percent. He took corrective action when a store consistently exceeded a charge off rate of
ten percent.

       Mr. Ballinger testified that before Defendant became the manger of the Raleigh
LaGrange store, the charge off rate sometimes rose to between eleven and twelve percent
and then it dropped back down to less than ten percent. In July 2009, Mr. Ballinger
noticed that Defendant’s charge off rate at the Raleigh LaGrange store was significantly
higher than the ten percent threshold. He noted that “her numbers were going up into the
twenties on occasions.” Mr. Ballinger testified that he had terminated previous
employees for having numbers that high but because he and his wife knew Defendant
they wanted to “give her the benefit of the doubt” and help her be successful. Mr.
Ballinger talked with Defendant, who claimed that she was not adequately trained by
manager Gloria Jones, which surprised Mr. Ballinger because “Gloria had been part of
the training for everybody that we’ve hired in the last fifteen years.” Defendant then
asked to be retrained. He transferred Defendant to another store to be trained by store
manager Dorothy Wilder. Mr. Ballinger testified that after Defendant left the Raleigh
LaGrange store for retraining, the charge off numbers dropped to below ten percent while
a clerk from another store worked there. Defendant returned as manager of the Raleigh
LaGrange store on August 24, 2009. She told Mr. Ballinger that she had learned a great
deal from Ms. Wilder and that Ms. Wilder had taught her about “collections.”

        Mr. Ballinger testified that the charge off rate at the Raleigh LaGrange store began
to rise three to four weeks after Defendant returned as the manager. He did not
immediately notice the increase due to several urgent situations that occurred during that
time. Mr. Ballinger testified that he finally noticed the problems with Defendant’s charge
off rates on January 25, 2010. He noted that the rate was between seventeen and nineteen
percent.

        Mr. Ballinger and two other employees reviewed the files at the Raleigh LaGrange
location and discovered evidence of rampant fraud and theft. Defendant refused to come
in and discuss the situation with Mr. Ballinger, and she was suspended while police
conducted their investigation. Mr. Ballinger noted that there were discrepancies in more
than forty of the accounts at the Raleigh LaGrange location. The State presented evidence
at trial concerning nine of those accounts in which Defendant falsified loan documents
and pocketed money supposedly loaned to the individuals whose names were on the
documents. Defendant was the only person working in the Raleigh LaGrange Store when
the money was taken. The total amount taken from the nine loans was $2,580.00.



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       Defendant claimed that Mr. Ballinger fired her before she had an opportunity to
speak with him. She denied pocketing the money or signing a check without the
customer’s permission. Defendant further claimed that Mr. Ballinger had authorized a
mutual friend to sign loan documents and rewrite checks for him. She also said that other
employees often covered for her at the Raleigh LaGrange store. However, the State
presented testimony disproving Defendant’s claims.

ANALYSIS

        Initially, we note the State’s correct assertion in its brief that the notice of appeal
in this case was not timely filed. Defendant failed to address this problem in a reply brief
and did not file a motion to waive the timely filing on the notice of appeal. In a recently
filed opinion with a procedurally identical issue, this court stated,

        Even though, in criminal cases, the notice of appeal is not jurisdictional
        and may be waived in the interest of justice, Tenn. R. App. P. 4(a), it
        probably should not be waived in circumstances such as this. Similar
        conduct, primarily due to failure to follow simple procedural rules,
        seems to be on the increase statewide. The bar should be put on notice
        that the days of routine waiver of timely filing a notice of appeal,
        especially in situations where the appellee raises the issue but the issue is
        ignored by the appellant, may be coming to an end.

Gregory Nelson v. State, No. W2016-02600-CCA-R3-PC, slip op. at 4 (Tenn. Crim.
App., Jackson, Feb. 22, 2018) (emphasis in original).

       While this appeal could justifiably be dismissed because of the untimely filed
notice of appeal, we will forgo this disposition and address the sole issue raised on the
merits. We do this even in light of the additional problems noted below.

       Furthermore, Defendant’s brief in this matter is meager and almost inadequate to
allow a meaningful review of the issue that she raises. Defendant’s entire brief in this
matter consists of two and a half pages. Rule 27(a)(6), (7) of the Tennessee Rules of
Appellate Procedure states that an appellant’s brief shall contain the following with
respect to the statement of the facts and argument:

        (6) A statement of the facts, setting forth the facts relevant to the issues
        presented for review with appropriate reference to the record;
        (7) An argument, which may be preceded by a summary of argument,
        setting forth:
           (A) the contentions of the appellant with respect to the issues
           presented, and the reasons therefor, including the reasons why the
           contentions require appellate relief, with citations to the authorities

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           and appropriate references to the record (which may be quoted
           verbatim) relied on; and
           (B) for each issue, a concise statement of the applicable standard of
           review (which may appear in the discussion of the issue or under a
           separate heading placed before the discussion of the issues)[.]

Tenn. R. App. P. 27(a)(6), (7)(A)-(B). Under Rule 10(b) of the Rules of the Court of
Criminal Appeals, “Issues which are not supported by argument, citation to authorities, or
appropriate references to the record will be treated as waived in this Court.” Defendant’s
statement of the facts does not contain any reference to the record nor does it contain
sufficient facts relevant to the issue raised by Defendant. Additionally, Defendant’s
argument does not contain any references to the record or the reasons why her
contentions require appellate relief.

       T.C.A. § 39-14-103(a) states, “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.” The aggregate value of stolen
property in multiple thefts may be used to support the grade of the theft offense “when
separate acts of theft are: (1) from the same owner; (2) from the same location; and (3)
are pursuant to continuing criminal impulse or a single sustained larcenous scheme.”
State v. Cattone, 968 S.W.2d 277, 279 (Tenn. 1998) (citing State v. Byrd, 968 S.W.2d
290 (Tenn. 1998) (emphasis in original). A person commits forgery who forges a writing
with intent to defraud or harm another. T.C.A. § 39-14-114(a). “Forge” means to:

        (A) Alter, make, complete, execute or authenticate any writing so that it
        purports to:
          (i) Be the act of another who did not authorize that act;
          (ii) Have been executed at a time or place or in a numbered
          sequence other than was in fact the case; or
          (iii) Be a copy of an original when no such original existed;
        (B) Make false entries in books or records;

Tenn. Code Ann. § 39-14-114(b)(1)(A)(i-iii), (B). Forgery is “punishable as theft,” and
the value of multiple forgeries occurring over a period of time is aggregated in the saw
way as the value of multiple thefts. T.C.A. § 39-14-114(c); State v. Jeffery Combs, No.
E2014-01175-CCA-R3-CD, 2015 WL 2400793, at *9 (Tenn. Crim. App. May 20, 2015).

       The State, on appeal, is entitled to the strongest legitimate view of the evidence
and all reasonable inferences which may be drawn from that evidence. State v. Davis,
354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318 S.W.3d 850, 857 (Tenn.
2010)). When a defendant challenges the sufficiency of the evidence, the standard of
review applied by this court is “whether, after reviewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential

                                           -4-
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states,
“[f]indings of guilt in criminal actions whether by the trial court or jury shall be set aside
if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a
reasonable doubt.” Guilt may be found beyond a reasonable doubt where there is direct
evidence, circumstantial evidence, or a combination of the two. State v. Matthews, 805
S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331
(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)).

       The standard of review for sufficiency of the evidence “‘is the same whether the
conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)). The jury as the trier of fact must evaluate the credibility of the witnesses,
determine the weight given to witnesses’ testimony, and reconcile 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 and the inferences to be drawn from this
evidence, and the extent to which the circumstances are consistent with guilt and
inconsistent with innocence are questions primarily for the jury. Dorantes, 331 S.W.3d
at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When considering the
sufficiency of the evidence, this court shall not reweigh the evidence or substitute its
inferences for those drawn by the trier of fact. Id.

       Under these well established standards, the proof admitted at trial was clearly
legally sufficient to sustain Defendant’s convictions of one count of theft over $1,000 and
one count of forgery over $1,000. T.C.A. § 39-14-103(a); T.C.A. § 39-14-114 (A)(i-iii),
(B).

                                      CONCLUSION

        After a thorough review of the record and applicable law, we affirm the judgments
of the trial court.

                                    ____________________________________________
                                    THOMAS T. WOODALL, PRESIDING JUDGE




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