            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                   February 29, 2012 Session

                       STATE OF TENNESSEE v. ALLAN POPE

                   Appeal from the Criminal Court for Sullivan County
                      Nos. S58286, S58287    R. Jerry Beck, Judge


                No. E2011-01410-CCA-R3-CD-FILED-OCTOBER 5, 2012


In presentments by a Sullivan County Grand Jury, appellant, Allan Pope, was charged with
four counts of theft of services more than $1,000 but less than $10,000; one count of official
misconduct; one count of using public equipment for private purposes; and one count of theft
of services more than $10,000 but less than $60,000. A jury found appellant not guilty of all
counts of theft of services more than $1,000 but less than $10,000. He was found guilty of
the remaining counts. The trial court imposed a one-year suspended sentence for official
misconduct and a three-year suspended sentence for theft of services more than $10,000 but
less than $60,000 and placed appellant on probation for six years.1 On appeal, appellant
raises the following issues: (1) whether the trial court erred in denying appellant’s motion for
judgment of acquittal or motion for new trial; (2) whether the evidence was sufficient to
sustain a conviction for official misconduct; (3) whether the evidence was sufficient to
sustain a conviction for private use of county equipment; (4) whether the evidence was
sufficient to sustain a conviction for theft of services more than $10,000 but less than
$60,000, and; (5) whether the trial court erred in ordering restitution. Upon review of the
record, we agree with appellant and conclude that the evidence was insufficient to sustain the
convictions for official misconduct and private use of public property, therefore we reverse
the judgments of conviction and dismiss those counts of the indictment. We affirm the
judgment of the trial court on theft of services more than $10,000 but less than $60,000 and
remand the matter for entry of judgments consistent with this opinion.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
               in Part; Reversed and Dismissed in Part; Remanded

R OGER A. P AGE, J., delivered the opinion of the court, in which J ERRY L. S MITH and T HOMAS
T. W OODALL, JJ., joined.


        1
          The judgment form pertaining to the charge of private use of county equipment does not indicate
the length, manner, or percentage to be served of the sentence.
Dan R. Smith, Johnson City, Tennessee (on appeal); Ricky A. W. Curtis and Teresa Murray
Smith, Blountville, Tennessee (at trial) for the appellant, Allan Pope.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and Barry P. Staubus, Assistant
District Attorney General, for the appellee, State of Tennessee.




                                          OPINION

                                           I. Facts

       This case involves the alleged misconduct of Appellant Allan Pope, the elected
highway commissioner of Sullivan County, with respect to projects under his supervision.
The State presented the facts of this case to the jury according to allegations pertaining to a
particular piece of property. For ease of reference, this court will recount the facts and group
them accordingly. Some testimony is more general in nature, and thus is set forth first.

                                 A. General Trial Testimony

        Special Agent Brian Pritchard with the Tennessee Bureau of Investigation (“TBI”)
testified first for the State. He stated that the District Attorney General for Sullivan County
contacted him in March of 2010 and requested that he initiate an investigation into various
activities of the Sullivan County Highway Department. The district attorney specifically
requested an investigation into the digging of a ditch on Graybeal Road in the Bluff City area
of Sullivan County. Agent Pritchard also investigated work that the highway department
performed on Hawley Road, on two areas of Rice Cross Road, and on Muddy Creek Road,
all in Sullivan County.

        During the course of his investigation, Agent Pritchard spoke with “dozens” of
individuals. He also fielded various anonymous complaints against the highway department.
He reviewed financial disclosure forms and learned that none of the property owners
involved had donated money to appellant’s campaign. However, Agent Pritchard believed
that information to be “outside the scope” of and not pertinent to his investigation. Although
Agent Pritchard reviewed the records at the election commission office, he did not ask the
property owners if they had contributed less than $100 to appellant’s campaign fund, which
would not require reporting.



                                              -2-
       On cross-examination, Agent Pritchard admitted that he did not personally view any
of the properties in question before any work began. He relied on the “before” and “after”
pictures provided to him by James “Jim” Montgomery at the highway department. He
acknowledged that variations in the camera angle could cause pictures to appear different
even though they are the same image.

       As part of his investigation, Agent Pritchard formulated estimates of the work
performed at each location. According to Agent Pritchard, the highway department kept
limited files pertaining to projects. To gather the information necessary to assemble an
estimate, he interviewed people who actually worked on the jobs, along with their
supervisors.

      Michael Joe Cunningham testified that he was a salesman at Stowers Equipment
Rentals. Stowers had previously provided rental equipment for the county highway
department at a negotiable rate. The State introduced a list of rental rates for 2007-2008
through Mr. Cunningham.

        The State tendered Larry Bailey, the Director of Accounts and Budgets for Sullivan
County, as an expert in state and county auditing procedures and the trial court allowed him
to testify in that regard. He testified that the Tennessee County Uniform Highway Law was
enacted by the legislature in an attempt to regulate the duties, responsibilities, procedures,
and salary range for county highway department personnel. The statute refers to the “chief
administrative officer” of the department, the title held by appellant. The highway
commissioner does not have the authority to perform work on private property except for bus
or postal route turn-arounds. The commissioner can perform work for other jurisdictions,
but the work is subject to county commission approval and reimbursement by the recipient
city or county. The Sullivan County Commission never approved a resolution for the
Sullivan County Highway Department to perform work for Bluff City.

        Mr. Bailey’s department was also responsible for payroll for county government
employees and for paying bills incurred by the county. His office paid a bill in the amount
of $3,525 to Stowers Equipment Rental and Supply for rental of a bulldozer in November
2006. The bill was incurred during the project at Muddy Creek Road. Mr. Bailey stated that
when an auditor reviewed county records, the auditor would ensure that the bills or invoices
were signed by the proper individuals and that the paperwork was in order. Unless someone
reported that a particular item was used in an improper fashion, auditors would not have the
“field” experience to notice an improper purchase or allocation. The auditors only confirmed
that the office implemented proper controls. If an auditor found an impropriety in the records
of a county department, the auditor completed an audit report and directed it to the district



                                             -3-
attorney general of the county. In conducting the Sullivan County audit in 2007, Mr. Bailey
found no improprieties.

       Mr. Bailey confirmed that appellant had the authority to act upon Sullivan County
property or property over which the county exercised a right-of-way. Appellant also had the
authority to remove obstructions along the rights-of-way. Mr. Bailey was not certain about
the highway supervisor’s discretion to remove obstructions on private property outside of the
exceptions he noted. He testified that the statutory provision that addresses misuse of
property or funds provides that the supervisor should be immediately discharged in the event
of proof of improprieties.

       Gary Wayne Medlin, a lieutenant with the Sullivan County Sheriff’s Office, reviewed
dispatch records from the sheriff’s department from January 1, 2003, through December 31,
2007, at the State’s request. He specifically focused on five locations: from 1000 to 1100
Hawley Road; 964 Rice Cross Road; 1200 Rice Cross Road; the intersection of Muddy Creek
Road and Hawley Road; and the intersection of Muddy Creek Road and Brown Circle. The
only incidents he located were at the two intersections joining Muddy Creek Road. He
reported five dispatches to the Muddy Creek Road/Hawley Road intersection and six
dispatches to the Muddy Creek Road/Brown Circle intersection. None of the traffic
accidents were attributed to sight distance problems, with the exception of one. One incident
at Muddy Creek Road and Brown Circle was reportedly caused by the sun setting in the
driver’s eyes. The records reflected a single-car accident resulting in a roll-over prior to the
date the work was completed on the slope, but no single-car accidents had been reported after
the work was finished. Lieutenant Medlin’s information did not contain details of how many
“close calls” may have occurred at the locations or how many complaints the department may
have received about the lack of safety at the locations.

       Jim Montgomery testified that he had been employed by the Sullivan County Highway
Department for thirty-one years. He was the surveyor for the highway department and
assisted with the department’s budget and finances. He had an assistant named Mike Betley.
Before appellant began his tenure as highway commissioner, David Campbell was a roller
operator on the county’s paving crew. Appellant promoted Mr. Campbell to section foreman.
The county was divided into four sections with a section foreman assigned to each one.
Mickey Nottingham was a construction foreman. He would perform certain jobs at the
request of section foremen or the county road supervisor. After appellant took office, Mr.
Montgomery started keeping duplicate copies of certain files in his office.

       When a project involved operating beyond the county’s right-of-way, the highway
department would obtain an easement from the property owner. Mr. Montgomery prepared
the easements prior to appellant’s taking office. The department secretary, Peggy Campbell,

                                              -4-
wife of David Campbell, wrote most of the easements from that point forward. She was not
employed by the highway department until appellant began his tenure.

        Appellant testified at trial. He became the highway commissioner in 2006. Pursuant
to the Tennessee County Uniform Highway law, highway commissioners must be qualified
before they can run for the office. His background included construction, civil engineering,
and construction engineering. Appellant thought that he would be working in the field,
surveying land and designing. He did not realize that the position would entail more
management than anything else.

       The highway department had 141 employees when appellant took office. The county
was subdivided into four sections, with a foreman assigned to each section. The foremen
assigned by appellant were John Salyers, David Campbell, Scotty Murray, and Terry
Schaffer. The highway department was responsible for all county roads, bridges, rights-of-
way, and utility rights-of-way. The department was also responsible for safety, which
entailed maintaining traffic signals, mowing, ditching, and shouldering (to prevent
hydroplaning). It paved roads and installed road signs, as well.

      When appellant took office, he immediately demoted all of the previous foremen and
promoted his own men, including David Campbell, to the positions. He also hired Peggy
Campbell, Mr. Campbell’s wife, as the department secretary.

       In deciding whether to correct the various sight distance problems, appellant did not
contact the sheriff’s office to ascertain whether their records reflected complaints or traffic
accidents. As chief administrative officer of the highway department, appellant felt that it
was within his discretion to perform the work. He stated that if he, in his judgment, thought
it was necessary, then it was necessary.

       J. Rodney Carmical was the executive director of the Tennessee Highway Officials
Association. In that capacity, he worked for the elected and appointed road superintendents.
He provided technical assistance and training opportunities; monitored pertinent state and
federal legislation; attended meetings; circulated a newsletter; and monitored the General
Assembly.

       Mr. Carmical was familiar with the highway department laws. The procurement of
easements over private property is covered by the Tennessee statutes. The reasons for
obtaining an easement are: (1) to gain control over the subject property; (2) to work on
“county” rather than “private” property; and (3) and to insulate the department from liability.
Because the highway department cannot perform work on private property, it is allowed to
obtain easements so that it can make problems on private property safe for citizens. Further,

                                              -5-
the highway department has total control over line of sight problems, including sloping banks
and cutting brush to enable better sight clearance.

                                      B. Graybeal Road

        Agent Pritchard testified first regarding the ditch on Graybeal Road that appellant
authorized his crew to dig. Graybeal Road is a cul-de-sac with three houses located at the
end of it. Those houses are serviced by a private water line that runs to the main line
supplied by Bluff City. Agent Pritchard photographed the ditch while it was in the process
of being dug and after it had been filled in and graded. He did not notice any indication of
an eighteen-inch drainage ditch being created along the road. The ditch he witnessed
appeared to be much deeper than that. Agent Pritchard photographed a pick-up truck, owned
by Joe Wilkinson, with PVC pipe on a trailer behind it. Agent Pritchard prepared his own
cost estimate of the work performed on Graybeal Road, factoring in the salary rates of county
employees, the hours spent on the job, and the cost of the equipment. He estimated that the
project cost Sullivan County $4,550.54.

        Joe Wilkinson, a grading contractor from Bluff City, testified that someone contacted
him on behalf of Reed Booher and requested that he bid on a project to install a water line
off of Graybeal Road where Mr. Booher was developing land. Mr. Wilkinson believed the
person who contacted him was Bud Davies, the surveyor. Mr. Wilkinson submitted a bid for
the water line from the start of Graybeal Road to the back of it around October or November
of 2009. The proposal of $2 per foot of water line involved Mr. Booher purchasing all of the
parts and Mr. Wilkinson digging and installing the line. Mr. Wilkinson went to the area in
February or March of 2010 because Bluff City was installing a line under the road to a main
line. At that time, he noticed a couple of county trucks, an excavator, and a road grader. He
saw an open ditch of approximately 1,000 feet long, as well. Mr. Wilkinson and Mr. Booher
reached an agreement around the first of March, 2010, for Mr. Wilkinson to proceed with
installing the two-inch water line. Mr. Booher paid for the pipe, and Mr. Wilkinson picked
it up in Blountville. He traveled to the location with the pipe on a Friday morning. When
he arrived, the ditch had been completely covered and graded back as though it had never
existed. Mr. Wilkinson had to re-dig the trench so he could install the water line. He
installed six-inch pipe instead of two-inch pipe, which raised the price from $2 to $3 per foot.
He installed close to 2,000 feet of water line. During this time, Mr. Wilkinson never had a
conversation with anyone from the city of Bluff City.

       Anthony Todd Malone was the mayor of Bluff City in March 2010. He also
performed the duties of city manager for a period of time. As city manager, he directed the
daily activities of the city government, including supervision of personnel. As mayor, he
attended meetings with the aldermen to discuss city resolutions and ordinances. Bud Davies,

                                              -6-
a surveyor, approached Mr. Malone, in his capacity as mayor, in October or November, 2008,
with a request that Bluff City install a water line and supply water to a planned housing
development for approximately sixteen houses on Graybeal Road. Mr. Davies made the
request on behalf of the property owner, Reed Booher. Mr. Davies stated that if Bluff City
would supply the pipe, install the pipe, and supply the water, the Sullivan County Highway
Department would open and close the ditch. In March of 2010, the city board decided that
Bluff City would supply the water after the developer installed the water lines. Mr. Malone
never had direct contact with anyone from the Sullivan County Highway Department.

       Mayor Malone testified that on any occasion Bluff City and Sullivan County
collaborated on a project in Bluff City, the two entities entered into an agreement. He spoke
with appellant once during a previous transaction but not during the proposed digging of the
ditch on Graybeal Road.

        William John McKamey testified that he was a Sullivan County commissioner in
January of 2010. That month, he, Don Weaver, appellant, and David Campbell met over
lunch. Don Weaver was the city manager of Bluff City. David Campbell was the section
foreman for the Bluff City area. The purpose of the meeting was to negotiate the sale of road
salt to Bluff City by Sullivan County. Bluff City ran out of salt that winter due to large
amounts of snow. They did not discuss the water line project on Graybeal Road.

       Frederick “Don” Weaver was the city manager for Bluff City at the time of appellant’s
trial. He began his employment in December 2009. In his capacity as city manager, Mr.
Weaver attended the January 2010 lunch meeting regarding the purchase of road salt from
Sullivan County. He never had a conversation with anyone from Sullivan County about
digging the ditch on Graybeal Road.

       James Allen Carr was employed by the Sullivan County Highway Department. He
was a track hoe operator. Appellant and David Campbell instructed him to go to the
Graybeal Road area and dig a ditch. The purpose of the ditch was for a water line. Aside
from the Graybeal Road project, Mr. Carr had never been asked to dig a water line ditch
during his thirty-six years of employment with the highway department. He had, however,
dug several drainage ditches. The request caused him some concern. Mr. Carr explained to
appellant and Mr. Campbell that he did not think they should dig the water line ditch until
Sullivan County obtained more information about the project. Appellant told Mr. Carr that
Bluff City was going to install the water line. Mr. Carr dug the ditch as instructed, but no
one installed the water pipe. The ditch was three feet wide, three feet deep, and three to four
hundred feet long. Mr. Carr believed that it would serve the dual purpose of containing water
pipe and providing drainage. The Friday morning after Mr. Carr completed digging, Mr.
Campbell instructed him to fill the ditch at appellant’s request because the water line was not

                                              -7-
going to be installed. Eddy Murray was present during the filling of the ditch to flag vehicles
for safety; however, Mr. Murray was not present during the digging of the ditch. No one
watched Mr. Carr dig the ditch, but several people watched him cover it back up.

        Agent Pritchard testified that he arrested appellant on July 21, 2010. After Agent
Pritchard informed him of his Miranda rights, appellant agreed to speak with him. Appellant
gave a statement in which he told Agent Pritchard that during the process of widening
Graybeal Road, he was “pretty sure” that Reed Booher talked to David Campbell. Mr.
Campbell indicated to appellant that he knew Mr. Booher. Appellant, Mr. Campbell, and Mr.
Booher met to discuss widening the entrance of Graybeal Road. Appellant advised Mr.
Booher that the county could perform the work if it had the right-of-way. Appellant and Jim
Montgomery checked the file on Graybeal Road and confirmed that the county had a fifty-
foot right-of-way. Mr. Montgomery marked the right-of-way with stakes and they began the
process of widening the road.

       In his statement, appellant further said that on another occasion, he met Mr. Booher
on Graybeal Road and asked if Mr. Booher had contacted Bluff City; Mr. Booher responded
in the affirmative. Believing that Bluff City would want to install a new water line at
approximately the same time Sullivan County finished paving the road, appellant suggested
that Mr. Booher communicate to Bluff City that Sullivan County would dig the ditch for the
water line if Bluff City would provide the labor and materials for the line. At that time,
appellant asked Mr. Booher for a right-of-way for a cul-de-sac at the end of the road, to
which Mr. Booher agreed.

        Appellant further stated to Agent Pritchard that he heard nothing more of the project
until January 2010, when Commissioner John McKamey called David Campbell and asked
to have lunch with Mr. Campbell and appellant. Don Weaver from Bluff City was also to
attend. During the lunch at the Ridgewood restaurant, appellant told Don Weaver about
possibly digging the water line ditch on Graybeal Road in the near future. Appellant told Mr.
Weaver that it would save Bluff City a great deal of money. Mr. Weaver stated that Bluff
City appreciated all of the support that it received from the Sullivan County Highway
Department. Appellant believed that at the time of the lunch meeting, Bluff City had already
decided to forgo the project on Graybeal Road and that the meeting would have been the
appropriate time for Mr. Weaver to inform him accordingly. In March, 2010, after digging
a portion of the water line ditch, Sullivan County Highway Department learned that Bluff
City was not going to participate in the project. Mr. Booher was going to hire a private
contractor to install the water line. Appellant advised Mr. Campbell to fill in the ditch.
Leaving an open ditch over a weekend violated the Occupational Health and Safety Act
(OSHA) standards.



                                              -8-
        Mr. Montgomery testified with regard to the work the highway department performed
on Graybeal Road. He stated that the Graybeal Road project was divided into two segments.
The first segment involved widening the road and creating a cul-de-sac at the end of the road.
The second part of the project involved digging the water line ditch. Mr. Montgomery was
familiar with the first segment of the project but was out of town when workers were digging
the ditch. He was familiar with the proposal regarding the water line ditch because he was
present when Bud Davies, a private surveyor working with Reed Booher, came into the
highway department office and asked if Sullivan County would dig the water line ditch if
Bluff City agreed to install the water line.

        Mr. Montgomery and appellant were in Murfreesboro, Tennessee, for a conference
when appellant received a telephone call from David Campbell about the water line.
Appellant advised Mr. Campbell to proceed with the project. Later, Mr. Montgomery
learned that the property owner was going to hire a private contractor to install the water line.
Mr. Montgomery’s only involvement in digging the water line ditch was advising appellant
that he should obtain approval by the Sullivan County Commission before entering into an
agreement with another governmental entity. According to Mr. Montgomery, appellant did
not treat the Graybeal Road project any differently than he had any other project. Appellant
did not attempt to or request Mr. Montgomery to hide the specific costs of the project and did
not advise Mr. Montgomery to keep the details of the project quiet.

        Appellant testified at trial that in 2010 he authorized the project at Graybeal Road.
The county had a right-of-way, and the road was very narrow. Beside the road, three water
lines ran at a depth of approximately one foot. The county workers kept breaking the lines
with the lawn mowers and having to patch them. Appellant was on site inspecting the
shallow water lines. He later spoke with Reed Booher about widening the road. Appellant
said that the county would widen the road if it had a right-of-way. Jim Montgomery
confirmed that the county had a right-of-way at that location, so the county widened the road.

        While the crew was widening Graybeal Road, appellant saw Reed Booher on site.
Seeing Mr. Booher led appellant to think that Bluff City would likely be installing new water
lines the area. He had worked with Bluff City two times previously. Bluff City visited the
area to perform a water tap. Appellant expected that the water lines would be installed next.
Based on his experience with Bluff City, appellant authorized his department to dig the water
line ditch.

       Appellant testified that he was in Murfreesboro when he learned that Bluff City would
not be installing the water line. He instructed Mr. Campbell to close the ditch. The
Occupational Health and Safety Administration (OHSA) prohibited a open ditch from being
left unattended over a weekend. In offering to dig the water line ditch, appellant did not

                                               -9-
receive any favors or benefit from Mr. Booher. He did not know Mr. Booher prior to this
project.

        Appellant further testified that he did not think that he needed county commission
permission to dig a utility ditch for another municipality if it was located on the county’s
right-of-way. He felt that he, as commissioner, exercised absolute authority over the rights-
of-way. In fact, utilities would have to seek his permission before the company could do
work on the county right-of-way. During the pendency of the project, no one from Bluff City
ever told him that it would not install the water lines. Appellant further believed that the
statute authorizing the department to perform work for another municipality did not specify
whether the county commission must give prior approval or whether subsequent approval
was sufficient.

                                       C. Hawley Road

       Because appellant was acquitted of the charge associated with the project on this
property, we will briefly recite the facts associated with the transaction for the record.

        Agent Pritchard presented photographs he obtained from the county highway office
of the property on Hawley Road belonging to the Garst family. The “before” photographs
depicted different camera angles of a curve in the road and a slight grade in the land adjacent
to the road. One picture showed a “sharp curve” sign on the road. The “after” photographs
showed how the grade had been minimized into a gentle slope, seeded, and covered with
straw. Agent Pritchard testified that he did not see a significant difference in the slope
between the “before” pictures and the “after” pictures.

        Julia Garst testified that she lived with her parents, Wilber and Christina Garst, on her
family’s farm located at 1007 Hawley Road. She testified that a highway department
representative informed her that the department wanted to grade a slope on their property
located within a curve in the road. Her ninety-seven-year-old father continued to drive his
tractor, and she would have worried about him driving on Hawley Road prior to the bank
being graded. The Garst family did not pay appellant for the work, and Ms. Garst could not
think of any benefit that appellant would have received as a result of the project.

                                  D. 1200 Rice Cross Road

       Because appellant was acquitted of the charge associated with the project on this
property, we will briefly recite the facts associated with the transaction for the record.




                                              -10-
       Agent Pritchard visited property located at 1200 Rice Cross Road, owned by Jeff
Boling. He identified a series of pictures designated as “before” pictures and “after”
pictures. The “before” pictures indicated heavy brush on Mr. Boling’s property. The “after”
pictures showed that the brush had been cleared and the slope had been graded. The grading
went past the county’s right-of-way. Agent Pritchard did not believe that the bushes in their
previous condition posed a visibility issue with respect to oncoming traffic and believed the
work to be cosmetic in nature.

       Jeff and Tracey Boling owned the property on Rice Cross Road. Mr. Boling testified
that he had a steep slope on his property along the road that was difficult to cut with his
weed-eater. On advice of a friend, he called Mr. Campbell at the highway department and
learned that the county would perform work on their right-of-way, which extended thirty feet
from the center of the road. Mr. Boling marked the thirty-foot distance on his property. Mr.
Boling testified that his neighbor walked over to see what work was being done. The
neighbor had bushes on his steep slope; he planted them because weed-eating became
tiresome. Mr. Boling’s neighbor told him that as long as the slope was on the county right-
of-way, he should ask the track hoe operator to grade the slope on his property as well and
remove the bushes. The track hoe operator also cleared the bank of Mr. Boling’s other
neighbor without a request.

                                 E. 964 Rice Cross Road

       Because appellant was acquitted of the charge associated with the project on this
property, we will briefly recite the facts associated with the transaction for the record.

       The next pictures identified by Agent Pritchard involved property owned by W.A.
Cross located at 964 Rice Cross Road. The county cleared a wooded section on Mr. Cross’s
property. Agent Pritchard did not think that the woods posed a visibility problem to drivers
on the road. Although there was a curve in the road, he noted that a driver could see
adequately. He also did not see a noticeable difference between the “before” pictures and
the “after” pictures.

        William Anderson Cross testified that he resided at 964 Rice Cross Road. In October
2007, at his request, the county performed some work on adjacent property. Mr. Campbell
fixed the property to Mr. Cross’s liking. The work performed by the county was on the right-
of-way.




                                            -11-
                                   F. Muddy Creek Road

         The final piece of property Agent Pritchard investigated was on Muddy Creek Road
and owned by William and Mary Louise Cartwright. The property was close to the
intersection of Hawley Road and Muddy Creek Road. A portion of the property in question
was sold to James Paul Darnell. The “before” pictures showed a bank on the side of Muddy
Creek Road as the road began an uphill grade. Agent Pritchard testified that if a driver were
at the stop sign on Hawley Road, pulling onto Muddy Creek Road, he could easily see to the
left, to the top of the hill, as well as to the right.

       The work extended around the property to the side adjacent to Hawley Road. The
highway department graded the slope, seeded it, and covered it with straw. Agent Pritchard
did not believe that a driver could see any farther after the work was done than before. Agent
Pritchard obtained a copy of an easement relating to the property owned by the Cartwrights,
as well as a real estate contract and a warranty deed to James Paul Darnell.

       As part of his investigation, Agent Pritchard collated the information he gathered from
interviewing the property owners, then visited various private construction companies to
obtain an estimate of the number of hours and equipment needed to perform the work. For
the project on Muddy Creek Road, he received the following estimates: $129,008 from
Riggs Brothers Construction Company and $155,760 from Vic Davis Construction Company.
Agent Pritchard’s own estimate was $20,963.20 for the project.

        Mary Louise Cartwright testified that she and her brothers inherited the farm located
on Muddy Creek Road following the death of her mother in 2002. She moved to Knoxville
to attend college and did not return to the home on Muddy Creek Road. Her brother Bill
lived in Arizona, and her brother Dick still lived in the area. In 2006, the siblings reached
an agreement dividing the farm among themselves. Dick Cartwright received a parcel of
land on one side of Muddy Creek Road, while Bill Cartwright and Mary Louise Cartwright
received two parcels on the opposite side of the road. The same year, Paul Darnell contacted
Ms. Cartwright about purchasing her parcel, but as the conversation continued, he became
interested in both her parcel and the parcel owned by Bill Cartwright. Mr. Darnell owned
a development, Barefoot Landing, that abutted her parcel. Ms. Cartwright quoted Mr.
Darnell a price of $790,000 for both parcels of land. They reached an agreement on
November 22, 2006.

        While they were in negotiations, Ms. Cartwright received a telephone call from
someone with the highway department about the property where Brown Circle joined Muddy
Creek Road. The individual explained that the department was concerned about the safety
of the curve. Because they were actively involved in negotiations, Ms. Cartwright called Mr.

                                             -12-
Darnell to obtain his approval. He agreed that the intersection was unsafe, so Ms. Cartwright
signed the easement form provided to her by the highway department. She was not present
during any of the land improvements performed by the highway department. The parties
closed the real estate transaction on January 31, 2007.

        Ms. Cartwright further testified that Jack Lawson from the economic development
board wrote a letter to her expressing an interest in purchasing a portion of the land. Ms.
Cartwright did not believe it was in her best interest to divide the property for sale. She
spoke with Mr. Lawson in September 2006. During the conversation, Mr. Lawson again
indicated a desire to purchase a portion of her property and also stated a concern about the
line of sight distances at Hawley Road and Muddy Creek Road.

       James Paul Darnell, who purchased the land from Bill and Mary Cartwright, testified
that he was a developer in Sullivan County. He developed a subdivision called Barefoot
Landing located along Brown Circle. Appellant performed the survey work for Mr. Darnell
with respect to the development. He knew appellant and considered him a friend. Mr.
Darnell also felt that appellant had always treated him fairly. Mr. Darnell had no reservations
about the highway department working on the part of the Cartwrights’ property that he
wanted to purchase. He believed that it was a dangerous area because of overgrowth of plant
life.

        Mr. Darnell further testified that during the course of the project, the highway
department removed dirt from the work site and delivered it to Mr. Darnell’s development
at Barefoot Landing. He agreed that the work that the county performed increased the value
of his land because Mr. Darnell did not have to bear the responsibility of grading two clay
banks on either side of the entrance to his subdivision. However, he believed that the work
also improved the safety of the intersection. Mr. Darnell subsequently divided the property
he purchased from the Cartwrights and sold a lot to another individual for $33,500. He did
not think he would have gotten that price had the work not been completed by the highway
department. Contractors built forty homes in Barefoot Landing. The only egress point from
the subdivision was via Brown Circle to Muddy Creek Road. Mr. Darnell stated that the
intersection was quite congested. Mr. Darnell never told appellant that he was interested in
purchasing the property from the Cartwrights. He never asked appellant to perform the work
on the property.

       James “Mickey” Nottingham offered testimony with regard to the highway
department’s project on Muddy Creek Road. He served as foreman at the site. The project
lasted approximately six weeks, from November through December 2006; the county
completed additional work in March of 2007. Johnny Crain, Donny Faulk, Anthony
Holoman, Joseph Hughes, Bryant Noe, Ronnie Richards, Gary Wilson, and James Carr also

                                             -13-
worked on the project. The crew utilized two county bulldozers and rented one additional
bulldozer. The project also required two trackhoes, a rubber-tired backhoe, a road grader,
and four dump trucks. Mr. Nottingham recounted that the crew sloped the banks and
installed a shoulder on the road and performed the work pursuant to David Campbell’s
instructions as section foreman. Mr. Nottingham was told that they were improving the road
because of sight distance problems. Before the crew began work, Jim Montgomery marked
the right-of-way with stakes. Mr. Nottingham was under the impression that the crew would
be working only in the marked area. However, the grading of the slope extended beyond the
right-of-way. Appellant visited the site every few days or once a week. Mr. Campbell was
present nearly every day. Paul Darnell visited once a week, as well. Mr. Nottingham did not
think that Mr. Darnell’s presence was unusual because he heard that Mr. Darnell was
interested in purchasing the land.

        The crew removed dirt during the grading process and delivered it to the development
at Barefoot Landing. Mr. Nottingham was not aware that Mr. Darnell owned the
development. He testified that when the highway department has excess dirt from a project,
they try to dispose of it at the closest possible location to minimize fuel costs. When the crew
returned to sow and seed the banks in March 2007, Mr. Darnell was present on the land with
logging equipment. The Environmental Protection Agency (EPA) required that the highway
department sow and seed banks on the sides of roads to prevent run-off and soil erosion. The
highway department was responsible for cleaning up any mudslides or erosion onto the road
way.

       Johnny Lee Crain was an employee of the Sullivan County Highway Department. His
foreman was Mickey Nottingham. Mr. Crain’s responsibilities included operating a
bulldozer, a backhoe, a trackhoe, and other heavy equipment. He was involved in the project
at Muddy Creek Road, operating the bulldozer to strip, stock-pile, and haul off the top soil.
During the project, one of the highway department’s bulldozers broke down, so they had to
rent the equipment to complete the job.

        While on the job site, Mr. Crain saw Paul Darnell four or five times. David Campbell
was also present occasionally. Appellant visited the project location on the day that Stowers
Equipment Rentals delivered the rental bulldozer. As he was working, Mr. Crain thought
that the crew could have done less work to accomplish the end result; however, the majority
of the work was necessary. In his experience, Mr. Crain had never worked on a piece of
property that was going to be developed for residential lots. In his thirty-eight years with the
highway department, he never dug a water line for a private developer.

       Sherry Lynn Tipton was the office manager at Riggs Brothers Construction. Part of
her responsibilities included preparing estimates for grading, excavating, and preparing sites

                                              -14-
for construction. Agent Pritchard requested Ms. Tipton to prepare an estimate for the cutting
and grading of an embankment that would take approximately four weeks. Using specific
information provided by Agent Pritchard, Ms. Tipton estimated the project would cost
$129,008.

        Appellant told Agent Pritchard that David Campbell first spoke with him about the
Muddy Creek Road project. Together they visited the intersection of Hawley Road and
Muddy Creek Road. Appellant determined that there was “definitely” a sight distance
problem at the intersection. He advised Mr. Campbell to find out who owned the property
and ask if they would sign a temporary construction easement to grade the bank. Mr.
Campbell then showed appellant the area of Brown Circle and Muddy Creek Road.
Appellant agreed with Mr. Campbell that the area posed a sight distance problem, in light of
the heavy traffic in the area. Mr. Campbell reached Mary Cartwright, who agreed to sign the
construction easement. Appellant dispatched Mickey Nottingham’s construction crew to
grade the banks. The highway department received several positive comments from people
in the community regarding the project. He never spoke with Paul Darnell and did not know
if Mr. Campbell had. To the best of his knowledge, Mr. Campbell did not know that Ms.
Cartwright’s land was for sale when he spoke with her. Appellant advised Mr. Campbell to
begin work on the project. However, appellant and Mr. Nottingham spoke about the job and
agreed that they needed to blend the two projects or the land would look strange.

       In the fall of 2006, Mickey Nottingham requested Jim Montgomery to mark the
easement of Brown Circle with stakes so the highway department could correct a sight
distance problem at the intersection of Muddy Creek Road. Mr. Montgomery noted that one
could not see around the curve on Muddy Creek Road when stopped at the stop sign at the
end of Brown Circle. He marked a 350 to 400 foot strip of the easement. He confirmed with
Mr. Nottingham that the project would not extend past that point. He was aware of the
complaints about sight distance problems that had been lodged over the years, though prior
commissioners chose not to act on the complaints.

        As the project was underway, Mr. Montgomery made a site visit and approached the
area from Hawley Road. He could see a member the highway department crew operating a
track hoe beyond the boundary he had marked. He took photographs of the sight clearance
at the intersection of Hawley Road and Muddy Creek Road, as well as photographs of the
track hoe’s location. While he felt that the original area he marked should be graded, Mr.
Montgomery did not believe that there was a reason to extend the work past the original
boundary. Someone working on the project extended the boundary to 2300 to 2400 feet. Mr.
Montgomery listed the different ways in which the work could have increased the property
values of the residential lots. Mr. Montgomery had repeatedly warned appellant to be
careful about working on an easement on private property, because all of the department’s

                                            -15-
work should benefit the county roads and the department. He maintained that simply because
the depart-ment has an easement over private property does not mean that work has to be
done.

       Steve Michael Godsey, the mayor of Sullivan County, testified on behalf of appellant.
Mayor Godsey recalled that around 2006, his office received two or three telephone calls
regarding the Barefoot Landing area. The exit from the subdivision had a serious sight
distance problem. Mayor Godsey drove to the area to verify the condition. Upon seeing the
problem for himself, he asked his secretary to contact the highway department to correct the
problem. Barefoot Landing was an expensive neighborhood with many exclusive homes.
The subdivision had several residents with boats. Many children also lived in the area.
Mayor Godsey did not view the improvement on Muddy Creek Road but noticed the
improvements made by the county at Barefoot Landing/Brown Circle.

       Appellant acknowledged that he and Paul Darnell were friends; however, he was not
aware that Mr. Darnell was considering purchasing the land. Appellant first visited the
property at the request of the mayor’s office. Appellant drove by the property after the crew
seeded it in 2007 to be sure that grass was growing. He noticed logging equipment along the
wood line and assumed that someone had purchased it. Before the project began, appellant
met David Campbell on site to instruct him regarding grading the banks. He left the
remainder of the project to Mickey Nottingham’s judgment.

        Appellant stated that the pitch of a slope grade was determined by the topography of
the land. The county must blend the grade into the existing landscape. The crew could not
stop its work, leaving a vertical cut, just because the right-of-way ended. The grade would
naturally reshape itself over time and cause erosion issues. The EPA required that highway
departments preserve the land by seeding and/or laying straw along projects. For that reason,
temporary construction easements usually last from ninety to 120 days. The highway
department experienced a delay in seeding the Muddy Creek project because of the weather.
Appellant received no favors or benefits from Paul Darnell for the county’s work.

                                         II. Analysis

                              A. Sufficiency of the Evidence

       While appellant couches his arguments in terms of the trial court’s error in denying
his motions for judgment of acquittal and for a new trial on the counts of official misconduct,
private use of county equipment, and theft of services more than $10,000, the crux of the
issues concerns the sufficiency of the convicting evidence on the charges.



                                             -16-
        The standard for appellate review of a claim by an appellant challenging the
sufficiency of the State’s evidence 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Tenn. R. App. P. 13(e); see State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain
relief on a claim of insufficient evidence, appellant must demonstrate that no reasonable trier
of fact could have found the essential elements of the offense beyond a reasonable doubt. See
Jackson, 443 U.S. at 319. This standard of review is identical whether the conviction is
predicated on direct or circumstantial evidence, or a combination of both. State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011); State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

        A criminal offense may be proven by circumstantial evidence alone. State v.
Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). However, for a conviction based
upon circumstantial evidence to stand, the facts and circumstances “must be so strong and
cogent as to exclude every other reasonable hypothesis save the guilt of the defendant.” Id.
at 779-80 (quoting State v. Crawford, 470 S.W.2d 610, 612 (1971)). In other words, “[a]
web of guilt must be woven around the defendant from which he cannot escape and from
which facts and circumstances the jury could draw no other reasonable inference save the
guilt of the defendant beyond a reasonable doubt.” Id. at 780 (quoting Crawford, 70 S.W.2d
at 613).

        On appellate review, “we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn therefrom.”
Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010));
State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d 832,
835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and the
weight and value to be given the evidence, as well as all factual disputes raised by the
evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659
(Tenn.1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that
the jury has afforded the State all reasonable inferences from the evidence and resolved all
conflicts in the testimony in favor of the State; as such, we will not substitute our own
inferences drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-
evaluate the evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State
v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the pre-
sumption of innocence that appellant enjoyed at trial and replaces it with one of guilt at the
appellate level, the burden of proof shifts from the State to the convicted appellant, who must
demonstrate to this court that the evidence is insufficient to support the jury’s findings.
Davis, 354 S.W.3d at 729; State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011) (quoting State v.
Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).



                                              -17-
                                   1. Official Misconduct

       The Sullivan County Highway Department’s project at Graybeal Road formed the
basis for appellant’s indictments for theft of services more than $1,000, official misconduct,
and private use of county property. The jury found appellant not guilty of theft of services
more than $1,000 and guilty of the remaining two counts of the indictment. Appellant
contends that the State’s evidence was insufficient to establish that he acted outside of his
authority or with the intent to confer a benefit to another.

        While the theft of services statute prohibits one who has control over the disposition
of services to others from knowingly diverting those services “to the person’s own benefit
or to the benefit of another not entitled thereto,” Tenn. Code Ann. § 39-14-104 (2010), the
official misconduct statute, however, criminalizes a public servant’s “intent to obtain a
benefit . . . to . . . another,” either intentionally or knowingly, while “[c]ommit[ting] an act
relating to the servant’s office or employment that constitutes an unauthorized exercise of
official power[.]” Tenn. Code Ann. § 39-16-402 (2010) (emphasis added). Evidence must
establish that the public servant acted intentionally or knowingly; the offense may not be
completed by reckless or negligent conduct. Tenn. Code Ann. § 39-16-402 (2010), Advisory
Comm’n Cmts. To sustain a conviction for official misconduct, a jury must not necessarily
find that another actually received the benefit, only that the public servant intended another
to receive a benefit. See Tenn. Code Ann. § 39-16-402 (2010).

        In viewing the evidence in the light most favorable to the State, we are constrained
to find that the convicting evidence was insufficient to establish appellant’s requisite intent
with respect to the conviction for official misconduct. Testimony at trial established that
appellant did not know Reed Booher prior to the Graybeal Road transaction. Jim
Montgomery testified that Bud Davies, a private surveyor working with Reed Booher,
approached the Sullivan County Highway Department about digging the water line ditch on
Graybeal Road if Bluff City agreed to install the water line for a new development. Witnesses
testified that appellant had previously engaged in business transactions with Bluff City for
which Sullivan County was reimbursed and could have reasonably relied on those
transactions when he expected that Sullivan County would be reimbursed for the work on
Graybeal Road.

       According to testimony developed at trial, the Sullivan County Highway Department
was in the process of re-paving a section of Graybeal Road. The evidence established that
during the course of the re-paving project, appellant saw Reed Booher on site, which could
have led him to believe, pursuant to the information garnered from Bud Davies, that Mr.
Booher was moving forward with developing the area on Graybeal Road and that Bluff City
had agreed to install the water line for the development. Bluff City employees visited the

                                              -18-
area to perform a water tap, which preceded installation of water lines. The State presented
no witnesses to prove that anyone from Bluff City advised appellant that it would not install
the water lines. Taking all of the information together, appellant authorized the highway
department to dig the water line ditch. Trial testimony established that upon learning that
Mr. Booher elected to hire a private contractor to install the water lines, appellant ordered
the highway department to refill the ditch pursuant to OSHA regulations.

       The State charged, in the presentment, that appellant intended to confer a benefit on
Reed Booher by authorizing the digging of the water line ditch for Mr. Booher’s
development. Mr. Montgomery testified that Bud Davies’s request involved a collaboration
with Bluff City, not with Reed Booher. Despite conflicting evidence regarding conversations
between appellant and Bluff City officials, the State presented no evidence that appellant
intended to confer a benefit on Reed Booher. The jury had no evidence from which it could
have inferred that appellant intended to confer a benefit on Mr. Booher. Accordingly, we
reverse appellant’s conviction for official misconduct and dismiss said count of the
presentment.

                              2. Private Use of Public Property

        The subsection of the statute under which appellant was indicted, tried, and convicted
reads, in pertinent part:

       (d)    Neither the chief administrative officer nor any other official or
              employee of the county may use any county vehicle, equipment,
              supplies or road materials for other than official county road purposes;
              however, the county governing body has the authority to authorize the
              county road department to perform work for other governmental
              entities; provided, that the cost of the projects so authorized is to be
              reimbursed to the county road department.

Tenn. Code Ann. § 54-7-202 (2008), amended by 2012 Tenn. Pub. Acts Ch. 689. While
appellant points out that “[t]he evidence is uncontroverted that the water line ditch that was
dug was entirely on county road right-of-way,” our review does not end there; the work must
also be performed for “official county road purposes.”

       While the Graybeal Road water line ditch was not dug for Sullivan County road
purposes, the evidence at trial established the county had a history of collaborating with Bluff
City on various projects. Bud Davies’s request involved Sullivan County’s collaborating
with Bluff City. The statute in question granted appellant authority to authorize the highway
department to perform the work for Bluff City, provided the Sullivan County Commission

                                             -19-
authorized the work and the cost of the project was reimbursed to the county road
department. The evidence established that appellant did not have the approval of the
Sullivan County Commission prior to authorizing the digging of the water line ditch on
Graybeal Road. However, the statute does not require that the approval pre-date the project.
Appellant had experienced the workings of the county government in performing work for
Bluff City previously and was justified in relying on the same procedure being utilized during
this transaction. The State’s evidence is insufficient to sustain a conviction for public use
of county equipment, thus we reverse the judgment of conviction and dismiss this count of
the presentment.

             3. Theft of Property More Than $10,000 but Less Than $60,000

        Appellant challenges the convicting evidence underlying his conviction for theft of
property more than $10,000 but less than $60,000. “A person commits theft of services
who[,] [h]aving control over the disposition of services to others, knowingly diverts those
services to the person’s own benefit or to the benefit of another not entitled thereto.” Tenn.
Code Ann. § 39-14-104(3) (2010). Viewing the evidence in the light most favorable to the
State, any rational trier of fact could have found appellant guilty of this offense.

       The evidence at trial was largely circumstantial and established that the Muddy Creek
project began nearly simultaneously with Mr. James Paul Darnell’s agreement with Ms.
Cartwright to purchase the parcels of land. Mr. Darnell and appellant were friends, attended
church together, and had known each other for a very long time. Ms. Cartwright received
a request for permission to begin the project from the Sullivan County Highway Department
before the real estate transaction with Mr. Darnell was completed. Because she had an
agreement for the sale of the land with Mr. Darnell, she contacted him to obtain his consent,
which he gave. Highway department crew members testified that Mr. Darnell was often
present at the location, even though he did not yet own the property.

       Jim Montgomery testified that he agreed that a sight distance problem existed at the
intersection of Muddy Creek Road and Brown Circle. He marked a 350 to 400 foot strip of
easement and confirmed with Mickey Nottingham that the grading project would not extend
any farther. During a future site visit, Mr. Montgomery noted that the project had been
extended to approximately 2300 to 2400 feet, which he did not believe was necessary. Mr.
Nottingham confirmed that the highway department crew’s grading of the slope extended
well beyond the county’s right-of-way. The crew graded the slopes and installed a shoulder
on the side of the road. Mr. Montgomery had repeatedly advised appellant to be cautious in
working on an easement and on private property.




                                             -20-
       Mr. Darnell testified that the work done by the highway department increased the
value of his property. He sold a lot in the subdivision for $33,500 and did not think he could
have obtained that price had the highway department not performed the work it did. He also
did not have to bear the responsibility of grading both clay banks on either side of the
entrance to his development. The highway department delivered two loads of dirt from the
grading project to Mr. Darnell’s development at Barefoot Landing.

      The six-week project involved several crew members from the Sullivan County
Highway Department, use of county property, and rental of private construction equipment.
The cost estimates ranged from $20,963.20 to $155,760.2 Based on the foregoing, the jury
had before it sufficient evidence by which to find appellant guilty of theft of services over
$10,000 but less than $60,000. He is not entitled to relief on this issue.

      B. Propriety of Appellant’s Conviction for Official Misconduct Based on the
             Applicability of Tennessee Code Annotated Section 54-7-109

        In addition to challenging his conviction for official misconduct based on insufficient
evidence, appellant also questions the applicability of Tennessee Code Annotated section 54-
7-109 to his case, which he claims the State relied upon in securing his conviction. Because
we have reversed and dismissed appellant’s conviction for official misconduct, review of this
issue is moot.

                                           C. Restitution

        Appellant argues that the trial court erred as a matter of law by failing to consider his
ability to pay when it ordered restitution. As an element of sentencing, this court conducts
a de novo review, with a presumption of correctness, of a trial court’s order of restitution.
State v. Johnson, 968 S.W.2d 883, 884 (Tenn. Crim. App.1997). However, we are unable
to review this issue because appellant failed to include a copy of the transcript of the
restitution hearing.

               It is well-settled that the duty to prepare a record which ‘conveys a fair,
       accurate, and complete account of what transpired with respect to those issues
       that are the bases of the appeal’ rests on the appellant. What is in the record
       sets the boundaries for what the appellate courts may review, and thus only
       evidence contained therein can be considered.


       2
          The State presented cost estimates from two local construction companies. TBI Agent Pritchard
also estimated the cost of the project. While a large discrepancy exists among estimates, each estimate
provided proof that the value of the services diverted was more than $10,000.

                                                 -21-
State v. Bobadilla, 181 S.W.3d 641, 643 (Tenn. 2005) (internal citations omitted); Tenn. R.
App. P. 24(b). Operating within said boundaries, we hold that appellant has waived this
issue for appellate review.

                                      CONCLUSION

        We have thoroughly reviewed the record, the parties’ briefs, and the applicable case
law. We reverse and dismiss appellant’s convictions for official misconduct and private use
of public property; we affirm appellant’s conviction for theft of property over $10,000 but
less than $60,000; and we remand the case to the trial court for entry of judgments consistent
with this opinion.

                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




                                             -22-
