        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                       JULY SESSION, 1997           FILED
                                                 September 17, 1997
STATE OF TENNESSEE,          )   C.C.A. NO. 02C01-9612-CC-00440
                             )                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
      Appellee,              )
                             )
                             )   HENDERSO N COUNTY
VS.                          )
                             )   HON. FRANKLIN MURCHISON
BOBBY G. WATKINS,            )   JUDGE
                             )
      Appellant.             )   (Impersonation of Licensed
                             )   Professional)


               ON APPEAL FROM THE JUDGMENT OF THE
               CIRCUIT COURT OF HENDERSON COUNTY


FOR THE APPELLANT:               FOR THE APPELLEE:

JAMES E. BROCKMAN                JOHN KNOX W ALKUP
203 Tennessee Avenue South       Attorney General and Reporter
P.O. Box 25
Parsons, TN 38363                KENNETH W . RUCKER
                                 Assistant Attorney General
                                 425 5th Avenue North
                                 Nashville, TN 37243

                                 JERRY W OODALL
                                 District Attorney General

                                 DONALD ALLEN
                                 Assistant District Attorney General
                                 P.O. Box 2825
                                 Jackson, TN 38302



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                      OPINION

         The Defendant, Bobby G. W atkins, appeals as of right pursuant to Rule

3 of the Tennessee Rules of Appellate Procedure. He was convicted by a

Henderson County jury of one count of impersonation of a licensed professional,

a Class E felony, and one count of violation of the private investigators licensing

act, a Class A misdemeanor. 1                He was sentenced to one year for the

impersonation of a licensed professional conviction and eleven months and

twenty-nine days for the violation of the private investigator licensing act, to be

served concurrently. Both sentences were suspended and the Defendant was

placed on supervised probation conditioned upon his paying all fines and court

costs within ten months. The Defendant appeals his convictions and raises two

issues: (1) That the evidence was insufficient to support his convictions; and (2)

that the trial court’s instructing the jury with a version of Tennessee Code

Annotated section 62-26-202 that was amended after the crimes were committed

was, in effect, a violation of the prohibition against ex post facto laws. After a

careful review of the record in this case, we affirm the judgment of the trial court.



         On February 2, 1993, George Plunk and James Faught were planning to

go to a pawn shop in Lexington to shop for a police scanner. They met with the

Defendant W atkins at a mutual friend’s house. Because they were going to

Lexington, W atkins asked them to check out information on five people just as

a favor and not for employment or compensation. Watkins handed each of them

“courtesy cards” with their names added.              He told them that when they were



1
    Tenn. Code Ann. §§ 39-16-302; 62-26-204,-230.

                                                -2-
checking for information if anyone gave them trouble, to show the cards and say

they were doing a favor for W atkins.



      Plunk and Faught presented themselves at the Henderson County Sheriff’s

office. Plunk talked with a jailer, who referred the two men to Gary Powers, Chief

Investigator for the Sheriff’s Department. Powers met them in the lobby and

Plunk stated that they were looking for information on two people regarding a

case they were working. They were not specific about the type of information

they were seeking.      Powers told the jailer to pull the file on the people in

question and wait for further instructions. Plunk stated that he and Faught were

private investigators. Both of the men showed the identification cards given to

them by Watkins. Powers examined Plunk’s card and determined that it looked

suspicious.



      The identification card had several items on it: “The State of Tennessee,”

“Office of the B & J Detective Agency.” There was a six-pointed star with the

state seal in the background with the following text:



      By the virtue of the authority vested in me as a private investigator
      pursuant to the law of Tennessee, I have this day commissioned
      GEORGE PLANK (sic) as an investigator for the B & J Detective
      Agency to execute any and all cases that may com e into (unreadable)
      hands, and to cooperate and assist City, County and State Police in
      anyway (sic) they may request. To also report any criminal violations
      of the law against the State of Tennessee.


The card was signed by Bob W atkins, B & J Detective Agency.




                                        -3-
      Powers took Plunk’s identification card and showed it to Robert Pollard,

who worked with the Fire Marshall’s office and with the Tennessee Commerce

and Insurance Department who also happened to be in his Henderson County

field office that day. Pollard asked for Faught’s card as well.       Faught never

made any statements while at the Sheriff’s Department. Faught thought he was

just going along and never considered himself acting as a private investigator.

Pollard determined that the card did not look like a licensed private investigator’s

identification card. He noted that the card lacked the photograph that normally

appeared on an official card. Pollard called the Private Investigation Commission

in Nashville.   Donna Hancock, the administrative director of the commission,

informed him that neither Plunk nor Faught were licensed private investigators.



      Powers and Pollard then issued citations to both men and took their

photographs.      Pollard requested that Ms. Hancock send a voided official

identification card issued by the State of Tennessee. The official card contained

a state seal and a place to insert the investigator’s photograph. This confirmed

that Plunk and Faught’s cards were indeed not official or valid. Records also

confirmed that the B & J Detective Agency was licensed by the state. Hancock

testified at trial that one cannot act as a private investigator in Tennessee without

being licensed.



      At Pollard’s request, W atkins met with him regarding the cards. Watkins

asserted that he did not see a problem with issuing the identification cards and

that he had authority to issue cards because the sheriff’s departments do it all the

time. Watkins did not deny that he issued the cards to Plunk and Faught.

Pollard issued a citation to Watkins.

                                         -4-
         Plunk and Faught were indicted on June 7, 1993 for violation of the private

investigators licensing act and impersonation of a licensed professional. Watkins

was indicted for the same offenses based on criminal responsibility for the

conduct of another and for transfer or attempt to transfer a private investigator’s

license.2 All three were tried jointly by a jury on February 9 and 10, 1995.

Faught was granted a Motion for Acquittal after the State presented its proof.

The trial court also dismissed Watkin’s indictment for transferring a private

investigator’s license. Plunk was convicted on both charges which were affirmed

by this Court. 3 The Defendant Watkins was convicted on both of the remaining

counts.



         In his first issue on appeal, the Defendant argues that the evidence was

insufficient to support the verdicts of guilt. When an accused challenges the

sufficiency of the convicting evidence, the standard is whether, after reviewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979).                     Questions concerning the

credibility of the witnesses, the weight and value to be given the evidence, as well

as all factual issues raised by the evidence, are resolved by the trier of fact, not

this court. State v. Pappas, 754 S.W .2d 620, 623 (Tenn. Crim. App. 1987). Nor

may this court reweigh or reevaluate the evidence. State v. Cabbage, 571

S.W .2d 832, 835 (Tenn. 1978).




2
    Tenn. Code Ann. §§ 39-11-402; 62-26-210.

3
  State v. George Plunk, C.C .A. No. 02C0 1-96 03-C C-0 0096, Hend erson C oun ty (Tenn.   Crim .
App., Jack son, Ma r. 18, 1997).

                                                 -5-
       A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in favor of the State. State v. Grace, 493 S.W .2d 474,

476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate

view of the evidence and all inferences therefrom. Cabbage, 571 S.W .2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tuggle, 639 S.W .2d 913, 914 (Tenn. 1982); Grace, 493

S.W.2d at 476.



       Plunk testified that the Defendant asked him to check on some information

about people as a favor. There was no intent to employ Plunk as a private

investigator. Plunk’s impression was that the card he was issued was a “courtesy

card” and nothing more. Plunk maintains that he never said he was a private

investigator. He also maintains that Robert Pollard never heard either Plunk or

Faught claim to be a private investigator and that the cards clearly did not appear

to be official identification cards.



       However, there is evidence in the record that the cards issued to Plunk and

Faught were designed to look somewhat like official cards. The text of the card

“vested” authority to serve as a private investigator from Bob W atkins, who

signed the card. Both Plunk and Faught testified that the Defendant gave them

the cards. There is also evidence that the Defendant directed the men to obtain

information and show the cards and say there were working for him. Finally,

Plunk presented the card at the Sheriff’s Department and stated he was a private

investigator.

                                        -6-
      Criminal responsibility for the conduct of another requires that “acting with

intent to promote or assist the commission of the offense, or to benefit in the

proceeds or results of the offense, the person solicits, directs, aids, or attempts

to aid another person to commit the offense.” Tenn. Code Ann. § 39-11-402(2).

There is ample evidence in the record that the Defendant not only aided but

directed his codefendants Plunk and Faught to appear as if they were licensed

private investigators. He created his own identification cards vesting authority to

Plunk and Faught as private investigators and he asked them to go to the

Sheriff’s Department and use the cards to obtain information.



      The statute prohibiting the impersonation of a licensed professional

provides in pertinent part that it is unlawful for “any person who is not licensed to

do so, to practice or pretend to be licensed to practice a profession for which a

license certifying the qualifications of such license to practice the profession is

required.” Tenn. Code Ann. § 39-16-302(a). Here, there is more than sufficient

evidence to prove that Plunk stated he was a private investigator, showed a fake

identification card, that private investigators must be licensed in Tennessee, and

that he was not licensed as a private investigator.



      A conviction for violation of the private investigator licensing act specifies

that “it is unlawful for any person to act as an investigations company or private

investigator, without first having obtained a license from the commissioner.”

Tenn. Code Ann. § 62-26-204(a). A private investigator is “anyone who engages

in the business or accepts employm ent to obtain or furnish information with

reference to (A) Crimes or wrongs done or threatened against . . . any . . . state”

or one who seeks information regarding the “identity, habits, conduct, business,

                                         -7-
        occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency,

        loyalty, activity, movement, whereabouts, affiliations, associations, transactions,

        acts, reputations or character of any person.”                      Tenn. Code Ann. § 62-26-

        202(5)(A),(B), (9) (Supp. 1996). 4 Again, we find that there is sufficient proof in

        the record to support the conviction. Although Plunk and Faught deny accepting

        employment for the investigative work, they did “engage in the business” of

        seeking information about certain individuals’ possible criminal records or other

        general information about them.



                 W e can only conclude that there was more than sufficient proof in the

        record to support the conviction for impersonation of a licensed professional and

        a violation of the private investigator licensing requirements. This issue is without

        merit.



                 W e now turn to the Defendant’s second issue on appeal. He challenges

        the trial court’s use in a jury instruction of amended sections of the private

        investigator law regarding the definition of “private investigator.” The crimes for

        which he was convicted occurred on February 2, 1993. The code provisions in

        effect governing private investigator licensing contained the following definition

        section in pertinent part:



                        (4) "Identification card" means a pocket card issued by the
                 commissioner evidencing that the holder has met the qualifications
                 required by this part to perform the duties of a private investigator in
                 this state;




        4
          W e no te that the D efenda nt has ch allenged the de finitions sec tion reg arding priva te
inves tigators .  Our conclusion about that issue warrants the use of the aforementioned definition.

                                                              -8-
             (5) "Investigations company" means any person who engages in
      the business or accepts employment to obtain or furnish information
      with reference to:

             (A) Crime or wrongs done or threatened against the United
      States or any state or territory of the United States;
             (B) The identity, habits, conduct, business, occupation, honesty,
      integrity, credibility, knowledge, trustworthiness, efficiency, loyalty,
      activity, movem ent, wh ere abouts, affiliations, associations,
      transactions, acts, reputations or character of any person;
             (C) The location, disposition or recovery of lost or stolen property;
             (D) The cause or responsibility for fires, libels, losses, accidents,
      damages or injuries to persons or to property; or
             (E) The securing of evidence to be used before any court, board,
      commission, officer or investigating committee;
      ...
             (9) "Private investigator" means any person who performs one (1)
      or more services as described in subdivision (4);


      As it stood when the Defendant committed the offenses, subsection (9)

referred to “identification card” as the definition of “private investigator,” which is

clearly a nonsensical cross-reference. Obviously, subsection (5) defines “private

investigator” correctly. In an amendment effective May 31, 1993, the legislature

changed the subsection (9) cross-reference and substituted the number (5) for

the number (4). Tenn. Code Ann. § 62-26-202 (Supp. 1993).



      At his trial on January 9 and 10, 1995, the trial court charged the jury with

the amended definition section contained in the statute. The Defendant contends

that the use of the amended statute at his trial amounts to an application of an ex

post facto law. The term "ex post facto" as used in Article I, § 10, cl. 1, of the

U.S. Constitution, provides that "[n]o state shall ... pass any ... ex post facto

law...." The Tennessee Constitution's ex post facto prohibition found in Article I,

§ 11, provides:




                                          -9-
      That laws made for the punishment of acts committed previous to the
      existence of such laws, and by them only declared criminal are contrary
      to the principles of a free Government; wherefore no Ex post facto law
      shall be made.


      Two critical elements must be present for a law to fall within the prohibition.

First, it "must be retrospective, that is, it must apply to events occurring before

its enactment"; and second, "it must disadvantage the offender affected by it."

Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987)

(quoting W eaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17

(1981)); State v. Ricci, 914 S.W .2d 475, 480 (Tenn. 1996).           Furthermore,

Tennessee Code Annotated section 39-11-112 provides that:

      whenever any penal statute or penal legislative act of the state is
      repealed or amended by a subsequent legislative act, any offense, as
      defined by the statute or act being repealed or amended, committed
      while such statute or act was in full force and effect shall be prosecuted
      under the act or statute in effect at the time of the commission of the
      offense.


      Although the amended statute in question is not a penal statute per se, the

Defendant argues that ex post facto concerns apply because the definition of

“private investigator” constitutes an element of the offenses for which he was

charged. The Defendant admits, and we agree, that the statute as written when

the offenses were comm itted is patently ambiguous.



      The basic rule of statutory construction is to ascertain and give effect to the

intent or purpose of the legislature as expressed in the statute. Metropolitan

Government of Nashville & Davidson Co. v. Motel Systems, Inc., 525 S.W.2d 840

(Tenn.1975); State v. South land News Co., Inc., 587 S.W .2d 103,106 (Tenn.

Crim. App. 1979). W e must consider the natural and ordinary meaning of the

language used, when read in the context of the entire statute, without any forced

                                        -10-
or subtle construction to limit or extend the import of that language. W orrall v.

Kroger Co., 545 S.W.2d 736 (Tenn. 1977).



       W e must try to reconcile inconsistent or repugnant provisions of a statute

and attempt to construe a statute so that no part will be inoperative, superfluous,

void or insignificant.   W e must try to give effect to every word, phrase, clause

and sentence of the act in order to achieve the Legislature's intent, and we must

construe a statute so that no section will destroy another. Tidwell v. Collins, 522

S.W.2d 674, 676-77 (Tenn. 1975); City of Caryville v. Campbell County, 660

S.W.2d 510, 512 (Tenn. App. 1983). Moreover, we cannot presume that the

legislature intended to place superfluous terms in the statute; and all language

in a statute is presumed to have some meaning. State v. Vestal, 611 S.W .2d

819, 821 (Tenn. 1981); see State v. Northcutt, 568 S.W.2d 636 (Tenn. Crim.

App. 1978).



       Furthermore, if a statute is ambiguous, it is proper to reference the original

acts   of the   legislature to determ ine the legislative intent. Automatic

Merchandising Co. V. Atkins, 205 Tenn. 547, 557, 327 S.W.2d 328, 332 (1959);

Roberts v. Cahill Forge & Foundry Co., 181 Tenn. 688, 693, 184 S.W.2d 29, 31

(1944). The definitions section in the Act relative to private investigator licensing

was passed March 26, 1990, during the 1990 session of the legislature. Pub.

Acts. 1990, ch. 780, § 3. A review of the Act reveals that the original version

contained the following order of definitions:

              (4) "Investigations company" means any person who engages in
       the business or accepts employment to obtain or furnish information
       with reference to:




                                          -11-
               (A) Crime or wrongs done or threatened against the United
        States or any state or territory of the United States;
               (B) The identity, habits, conduct, business, occupation, honesty,
        integrity, credibility, knowledge, trustworthiness, efficiency, loyalty,
        activity, movement, whereabouts, affiliations, asso ciations,
        transactions, acts, reputations or character of any person;
               (C) The location, disposition or recovery of lost or stolen property;
               (D) The cause or responsibility for fires, libels, losses, accidents,
        damages or injuries to persons or to property; or
               (E) The securing of evidence to be used before any court, board,
        commission, officer or investigating committee;
        ...
               (8) "Private investigator" means any person who performs one (1)
        or more services as described in subdivision (4);

               (10) "Identification card" means a pocket card issued by the
        commissioner evidencing that the holder has met the qualifications
        required by this part to perform the duties of a private investigator in
        this state.


        As it was originally enacted, the internal cross-references clearly indicated

that the definition of “private investigator” was contained in subsection (4) for

“investigations company.” This contrasts with the nonsensical cross-references

contained in the statute as it was codified by the 1990 Tennessee Codification

Act, section 1. We note that it is the practice of the Code Com mission which

reviews acts passed by the legislature and to be later codified in the Tennessee

Code Annotated, to place individual definitions in the definitions sections of

statutes in alphabetical order.5 Thus, “identification card” was apparently moved

from its original place after “qualifying agent” to between “commissioner” and

“investigations company,” its proper place alphabetically. Moreover, the caption

of the 1990 Tennessee Codification Act states that “to provide in case of any

conflict between the Acts of 1990 Session of the General Assembly and this Act,

the former shall be controlling.” (emphasis added).



5
 The Tenn essee Code Com m ission, in conjunc tion with the Michie Co m pany, the publishers of
Te nne sse e Code Ann otated, follow a policy of alphabe tizing definitions in new m aterial adde d to
the Code pursuant to Style Examples for T.C.A.(g)(7), an inform al policy m anual.

                                                    -12-
      Thus, the Act contained in Chapter 780 of the Public Acts of 1990,

containing the proper definitions, controls in the case sub judice. Even though

the trial court charged the statute as amended, it substantively comports with the

original form of the law that was applicable when the offenses were committed.

In effect, the elements required to prove that the Defendant violated the private

investigator licensing provisions or for impersonation of a licensed professional

did not change between the original enactment and the amendment. W ithout a

substantive change, the Defendant has suffered no disadvantage. For this

reason, the retrospective application of the statute in question in the form of a jury

instruction does not comprise an ex post facto violation. Although the Defendant

has made a very creative and intriguing argument, we conclude that this issue is

without merit.



      Accordingly, we affirm the judgment of the trial court.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
JOE G. RILEY, JUDGE




                                         -13-
