                  IN THE SUPREME COURT OF TENNESSEE
                             AT NASHVILLE
                                   June 13, 2012 Session

                STATE OF TENNESSEE v. WANDA F. RUSSELL

              Appeal by Permission from the Court of Criminal Appeals
                        Circuit Court for Rutherford County
                       No. F62535      David M. Bragg, Judge


                 No. M2010-00852-SC-R11-CD - Filed October 1, 2012


A defendant was indicted on four counts of theft. At trial, the trial court ruled that the
defendant’s prior misdemeanor convictions for passing worthless checks were admissible to
impeach her credibility pursuant to Tennessee Rule of Evidence 609, which states that a
conviction punishable by less than one year of imprisonment is admissible if the crime
involves dishonesty or false statement. See Tenn. Code Ann. § 39-14-121 (2010). The
defendant elected not to testify, and the jury convicted her on three of the four counts of
theft. We hold that the crime of passing worthless checks involves an element of dishonesty
or false statement and that the trial court did not abuse its discretion when it determined that
the defendant’s prior convictions could be used to impeach her credibility if she testified.
We affirm the decision of the trial court.

                     Tenn. R. App. P. 11 Appeal by Permission;
                 Judgment of the Court of Criminal Appeals Affirmed

J ANICE M. H OLDER, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J., and
C ORNELIA A. C LARK, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Russell Nelson Perkins (at trial and on appeal) and Gerald L. Melton (on appeal),
Murfreesboro, Tennessee, for the appellant, Wanda F. Russell

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor
General; Lacy Elaine Wilber, Assistant Attorney General, for the appellee, State of
Tennessee
                                         OPINION

                              I. Facts and Procedural History

       Wanda F. Russell was an assistant manager at a McDonald’s restaurant in Smyrna,
Tennessee. One of the assistant manager’s responsibilities was to tally the amount of cash
received during her shift and deposit the cash in the bank. Prior to depositing the cash, the
assistant manager prepared a deposit slip reflecting the tally, recorded the amount of the bank
deposit in a deposit log maintained at the restaurant, and placed both the deposit and the
deposit slip into a deposit bag.

       On August 2, 2007, the deposit log showed that Ms. Russell made a deposit of
$2,212.00. Ms. Russell told Mark Pelletier, the restaurant owner, that she placed the deposit
in the night deposit box at the bank. Bank records, however, did not reflect receipt of the
deposit.

       On August 30, 2007, Ms. Russell prepared a deposit in the amount of $1,651.34. The
deposit bag was not sealed, and another employee took the bag to the bank for deposit. The
bank issued a receipt for the amount of $352.34, which was $1,299.00 less than the amount
that was purported to be deposited.

       On October 4, 2007, the restaurant’s deposit log listed a deposit of $2,309.05 made
by Ms. Russell. Ms. Russell told Mr. Pelletier that she placed the deposit in the bank’s night
deposit box. The bank, however, had no record of receipt of the deposit.

       On October 10, 2007, the restaurant’s deposit log reflected that Ms. Russell made a
deposit of $1,893.85 in the night deposit box. Bank records did not show receipt of the
deposit. Mr. Pelletier subsequently terminated Ms. Russell’s employment on October 11,
2007.

        A grand jury indicted Ms. Russell on four counts of theft over $1,000 but less than
$10,000 pursuant to Tennessee Code Annotated sections 39-14-103 and -105 (2010). Prior
to trial, the State provided written notice that it intended to introduce Ms. Russell’s prior
convictions for passing worthless checks to impeach her testimony if she testified. See Tenn.
R. Evid. 609(a)(3); see also Tenn. Code Ann. § 39-14-121 (2010). A jury trial was held on
October 14, 2009.

       After the close of the State’s proof, the trial court considered the State’s motion to
introduce Ms. Russell’s convictions for passing worthless checks for impeachment. Ms.
Russell argued that a conviction for passing worthless checks does not necessarily show

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fraud or dishonesty. See Tenn. R. Evid. 609(a)(2). Ms. Russell also argued that the
prejudicial effect of the evidence of her prior convictions for passing worthless checks
outweighed its probative value. See Tenn. R. Evid. 609(a)(3).

       The trial court ruled that passing worthless checks was a crime of dishonesty and
therefore was admissible to impeach Ms. Russell pursuant to Tennessee Rule of Evidence
609(a)(2). In addition, the trial court held that the probative value of the evidence as to Ms.
Russell’s credibility outweighed the prejudicial effect of the evidence on the substantive
issues. See Tenn. R. Evid. 609(a)(3). Ms. Russell elected not to testify and called no
witnesses on her behalf.

        The jury convicted Ms. Russell of three of the four counts of theft. On each count,
the trial court sentenced Ms. Russell to three years as a Range I offender. The trial court
ordered each of the sentences to be served concurrently, suspending service of the sentence
after ninety days, and sentenced Ms. Russell to three years of probation following release
from custody. In addition, Ms. Russell was ordered to pay restitution to Mr. Pelletier in the
amount of $2,212.00 for count one, $2,309.05 for count three, and $1,893.85 for count four
of the indictment.

       Ms. Russell appealed, and the Court of Criminal Appeals affirmed the trial court.
State v. Russell, No. M2010-00852-CCA-R3-CD, 2011WL 2671229, at *3-4 (Tenn. Crim.
App. July 7, 2011). We granted Ms. Russell permission to appeal.

                                         II. Analysis

        A witness may be impeached by evidence of a prior conviction of a crime if the crime
involves dishonesty or false statement or if the crime is punishable by death or by one year
or more in prison. Tenn. R. Evid. 609(a)(2). Ms. Russell’s convictions for passing worthless
checks were class A misdemeanors, punishable by less than one year in prison. See Tenn.
Code Ann. §§ 39-14-105(a)(1), 39-14-121(f), 40-35-111(e)(1). The State, however, asserts
that passing worthless checks is a crime of dishonesty or false statement and therefore
satisfies Tennessee Rule of Evidence 609(a)(2).

       We examine the elements of the crime rather than the circumstances surrounding the
commission of the crime to determine if the crime involves dishonesty or false statement.
See State v. Waller, 118 S.W.3d 368, 372 (Tenn. 2003). The construction of a statute is a
question of law, which we review de novo. State v. Gomez, 367 S.W.3d 237, 243 (Tenn.
2012).




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       The offense of passing worthless checks is committed when a person either

       with fraudulent intent or knowingly . . . passes a check . . . knowing at the time
       there are not sufficient funds . . . on deposit . . . for the payment in full of the
       check . . . or . . . [s]tops payment on a check . . . provided, that the . . . goods
       or services were as represented at the time of the issuance of the check . . . .

Tenn. Code Ann. § 39-14-121(a)(1).

        There are a number of ways to commit the offense of passing worthless checks. A
person who commits the offense of passing worthless checks with “fraudulent intent”
satisfies the “dishonesty” requirement of Tennessee Rule of Evidence 609(a)(2). Similarly,
a person who passes a check knowing that there are insufficient funds to pay the check has
made a misrepresentation to the payee and therefore meets the requirement of “dishonesty
or false statement.” Tenn. R. Evid. 609(a)(2). Finally, a person who cancels a check with
knowledge that the goods or services received were as represented at the time the check was
issued has knowingly failed to pay for those goods or services. Knowingly canceling
payment for goods or services received when those goods or services were as represented is
dishonest.

        Ms. Russell argues that a conviction for passing worthless checks could arise from an
honest mistake. We recognize that an individual may issue a check in good faith under the
mistaken belief that the funds on deposit are sufficient to cover the amount of the check.
Mistakenly issuing a check when the funds on deposit are insufficient, however, does not
violate Tennessee Code Annotated section 39-14-121. Section 39-14-121(a)(1)(A) requires
an individual to “know[] at the time there are not sufficient funds on deposit . . . for the
payment in full of the check . . . .” (emphasis added). Contrary to Ms. Russell’s assertion,
the statute setting forth the crime of passing worthless checks does not criminalize an honest
mistake. A prior conviction for passing worthless checks pursuant to section 39-14-121
therefore is probative of a witness’s honesty. See State v. Sims, 746 S.W.2d 191, 198 (Tenn.
1988) (stating that “[p]assing a bad check . . . reflects on one’s truthfulness”).

       Our opinion in State v. Goad, 707 S.W.2d 846, 851 (Tenn. 1986), does not compel a
contrary result. The trial court in Goad prohibited the impeachment of a witness’s testimony
with the witness’s alleged prior offenses of passing worthless checks. In Goad, the trial court
found that the proof of the alleged convictions was insufficient. Goad, 707 S.W.2d at 851.
We held that the trial court did not abuse its discretion in excluding the evidence. Goad, 707




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S.W.2d at 851. Unlike the offenses at issue in Goad, the existence of Ms. Russell’s
convictions is not in dispute.1

       If a prior conviction meets the requirements of Tennessee Rule of Evidence 609(a)(2),
the defendant may request the trial court to “determine that the conviction’s probative value
on credibility outweighs its unfair prejudicial effect on the substantive issues.” Tenn. R.
Evid. 609(a)(3). Ms. Russell argues that the prejudicial effect of the evidence of her prior
convictions for passing worthless checks outweighed its probative value.

        The balancing test in Tennessee Rule of Evidence 609(a)(3) requires a trial court to
first assess whether the offense is relevant to the credibility of the accused. State v. Mixon,
983 S.W.2d 661, 674 (Tenn. 1999). If the trial court concludes that the offense is relevant
to the credibility of the accused, it must also assess whether the crime underlying the
impeaching conviction is substantially similar to the charged offense. Waller, 118 S.W.3d
at 373; Mixon, 983 S.W.2d at 674 (quoting Neil P. Cohen et al., Tennessee Law of Evidence
§ 6.09.9, at 376 (3rd ed. 1995)). A trial court’s decision to admit evidence of prior
convictions pursuant to Tennessee Rule of Evidence 609 is reviewed under an abuse of
discretion standard. Waller, 118 S.W.3d at 371. A trial court abuses its discretion when it
applies an incorrect legal standard or reaches a decision that is against logic or reasoning that
causes an injustice to the party complaining. Gomez, 367 S.W.3d at 243.

       The trial court determined that Ms. Russell’s prior convictions for passing worthless
checks were relevant to her credibility. We agree that Ms. Russell’s prior convictions
involved a crime of dishonesty and are therefore probative of her truthfulness.

       As a general rule, evidence of convictions for the same type of crime should be
admitted sparingly because of the impression on jurors that if a person committed a crime in
the past, he committed the offense for which he is on trial. Long v. State, 607 S.W.2d 482,
486 (Tenn. Crim. App. 1980). The risk of a jury improperly considering the impeaching
conviction as evidence of the propensity of the defendant to commit the charged offense is


        1
          The Sixth Circuit Court of Appeals has stated that Tennessee Code Annotated section 39-14-121
does not require an element of dishonesty. See United States v. Barb, 20 F.3d 694, 696 (6th Cir. 1994). The
Sixth Circuit Court of Appeals relied on Barbee v. Dixon, 1992 WL 296739, at *1 (Tenn. Ct. App. Oct. 21,
1992), permission to appeal denied, concurring in results only. After the Sixth Circuit Court of Appeals
rendered its decision in Barb, however, we modified Tennessee Supreme Court Rule 4 to provide that
opinions designated “Denied, Concurring in Results Only” may not be cited and carry no precedential
weight. See Tenn. Sup. Ct. R. 4(E)(1)-(3). The Barb decision is therefore unsound because the precedent
on which it relies carries no weight. Moreover, decisions by federal courts interpreting Tennessee laws are
not binding on our state courts. See Bredesen v. Tenn. Judicial Selection Comm’n, 214 S.W.3d 419, 430 n.6
(Tenn. 2007) (citing Wilson v. Rubin, 104 S.W.3d 39, 48 n.6 (Tenn. Ct. App. 2002)).

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greatly increased if the impeaching conviction is substantially similar to the charged offense.
Waller, 118 S.W.3d at 373; Mixon, 983 S.W.2d at 674.

        Although the record does not include the factual circumstances surrounding her
previous convictions for passing worthless checks, the offenses to which Ms. Russell pleaded
guilty involved passing a check knowing that the check would not be paid. See Tenn. Code
Ann. § 39-14-121. The offense for which Ms. Russell was indicted in this case, however,
did not involve passing a check. Ms. Russell was charged with taking cash entrusted to her
instead of depositing the cash in the bank. The offense for which Ms. Russell was on trial
therefore is not substantially similar to the crimes for which she was previously convicted.
See Waller, 118 S.W.3d at 373; Mixon, 983 S.W.2d at 674.

        The probative value of Ms. Russell’s prior convictions is high, and her prior
convictions are not substantially similar to the offense for which she is on trial. We therefore
cannot conclude that the trial court abused its discretion by finding that the probative value
of Ms. Russell’s convictions for passing worthless checks outweighed the unfair prejudicial
effect on the substantive issues in her trial. If Ms. Russell had testified, her prior convictions
for passing worthless checks would have been admissible to impeach her credibility.

                                        III. Conclusion

       We hold that the offense of passing worthless checks involves an element of
dishonesty and that the trial court did not abuse its discretion in concluding that Ms. Russell’s
convictions for passing worthless checks could be used to impeach her credibility. We affirm
the judgment of the trial court. It appearing that Wanda F. Russell is indigent, costs of this
appeal are taxed to the State.




                                                     _________________________________
                                                     JANICE M. HOLDER, JUSTICE




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