                                                                                          08/18/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 June 27, 2017 Session

      STATE OF TENNESSEE v. WILLIAM HAROLD SMITH, ALIAS

                  Appeal from the Criminal Court for Knox County
                     No. 106360 Steven Wayne Sword, Judge
                     ___________________________________

                           No. E2016-02137-CCA-R3-CD
                       ___________________________________


William Harold Smith, alias (“the Defendant”), was convicted of failure to appear after a
jury trial. The trial court sentenced him to serve three years with a thirty-five percent
release eligibility in the Tennessee Department of Correction. On appeal, the Defendant
argues that the evidence introduced at trial was insufficient to support his conviction.
After a thorough review of the record and applicable law, we reverse the Defendant’s
conviction and dismiss the charge.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Keith Lowe, Knoxville, Tennessee, for the appellant, William Harold Smith, alias.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Charme P. Allen, District Attorney General; and Philip Morton, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                        I. Factual and Procedural Background

       The Defendant was arrested in Knox County on June 12, 2015, and charged with
theft of property valued between $1,000 and $10,000, which is a Class D felony, driving
on a revoked license, violation of safety belt law, failure to provide evidence of financial
responsibility, and violation of the motor vehicle light law. After posting bond, based on
handwritten notes on the warrant, the Defendant was initially scheduled to appear in
general sessions court on June 23, 2015, for a preliminary hearing. Although the reasons
are not clear from the record, the preliminary hearing was rescheduled to July 29, 2015.
On that date, the general sessions court issued an “Attachment Upon Forfeiture” for the
Defendant, charging him with failure to appear and revoking his bond. On September 15,
2015, a grand jury issued a presentment, charging the Defendant with theft of property,
the four traffic violations, and failure to appear. The State proceeded to trial on the theft
of property and failure to appear charges and dismissed the remaining traffic related
charges.

        For purposes of conciseness, this opinion will limit the summary of trial testimony
to that which is relevant to the Defendant’s failure to appear charge.

        At trial, James Greer, the victim of the theft, testified that in June of 2015 his Jeep
Cherokee was stolen. Mr. Greer received notice that the vehicle had been recovered and
had been impounded by the Knoxville Police Department. After showing proof of
ownership and paying an impoundment fee, he was able to retrieve the vehicle. He was
notified to appear in the Knox County General Sessions Court regarding the theft of the
vehicle. Mr. Greer said that he appeared in court as requested, but he was unable to
testify as to the date he appeared, and that, after waiting half of the day for the case
involving the vehicle to be called, he was informed that the case would not be heard that
day, and he left.

        Stephanie Ogle, a deputy clerk employed by the Knox County Criminal Court
Clerk, testified that she was the keeper of the records for the purposes of the Defendant’s
trial. She explained how “a criminal charge is initially lodged at the general sessions
court level.” She stated that after an officer fills out a complaint, it is presented to a
magistrate who signs the warrant and sets the bond. She testified that according to the
warrant issued on June 13, 2015, the Defendant was charged with theft of property valued
between $1,000 and $10,000. Ms. Ogle stated that in the blanks under “Case Setting” on
the warrant was a handwritten list of court dates. The first date listed was June 23, 2015,
and the notation “F/PH” after the date showed that the case was set for preliminary
hearing in a felony case. The second date was July 29, 2015, and the notations showed
that the case was again set for preliminary hearing. Ms. Ogle explained that, in general
sessions court, both a defendant and the State are required to attend preliminary hearings.
Ms. Ogle testified that the notation “FORF” beneath the July 29 date indicated that a
forfeiture of bond was ordered because the Defendant did not appear in court that day.
Ms. Ogle testified that the details of the incident that led to the Defendant’s arrest and
potential witnesses who were to be summoned to give testimony, Officer Coy Tucker and
Mr. Greer, were listed on the back of the warrant.



                                             -2-
       Ms. Ogle explained that the Defendant was released on a $5,000 bond prior to the
June 23, 2015 general sessions court date and that defendants are obligated to appear at
and keep track of each subsequent court date as a condition of his or her bond. A
“Forfeiture of Bond and Conditional Judgment” signed by the general sessions judge on
July 29, 2015, and entered as exhibit 5 to Ms. Ogle’s testimony, provides:

      Bond in the above-styled action having been executed and filed therein, and
      the defendant, being called, failing to appear for hearing on the date set, it is
      therefore adjudged and declared to be hereby forfeited, and, a conditional
      judgment is rendered in favor of the State of Tennessee against the
      defendant and his sureties on the bond for the sum of $5,000.00 and the
      costs of the action.

      Ms. Ogle testified that on July 29, 2015, an attachment was issued by the Criminal
Court Clerk, commanding the sheriff to arrest the Defendant for “the offense of failure to
appear.” The “Attachment upon Forfeiture” for the Defendant was entered as exhibit 4 to
Ms. Ogle’s testimony.

       On cross-examination, Ms. Ogle, when questioned about whether a judge could
issue an attachment for reasons other than failure to appear, responded: “I have no
experience on the sessions level. . . . I really am not comfortable answering that
question.” Thereafter the following exchange took place:

             [DEFENSE COUNSEL]: Okay. In your experience, are there ever
      miscommunications about that? Is there ever a dispute from one side and
      the other whether or not someone’s presence has been waived?

             [MS. OGLE]: I haven’t seen that happen very often, but, you know,
      I just—

             [DEFENSE COUNSEL]: And I just—

             [MS. OGLE]: I can see where it could happen, but I’ve--I don’t see
      it happen that often, no.

             [DEFENSE COUNSEL]: And I guess maybe--maybe I’m asking
      you the wrong question, ‘cause I think you said earlier you don’t really
      have a lot of experience at the sessions court level, correct?

             [MS. OGLE]: I do not.

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             [DEFENSE COUNSEL]: Okay. So those are two different things.
       You did testify that the sessions court level has generally more cases going
       on every day, correct?

              [MS. OGLE]: Yes.

               [DEFENSE COUNSEL]: Okay. And that’s--and you did testify
       earlier that that’s not really where you’ve spent your time, correct?

              [MS. OGLE]: I’ve spent no time in sessions.

             [DEFENSE COUNSEL]: Okay. And so then you don’t necessarily
       know how often a dispute like that might come up? Is that fair to say?

              [MS. OGLE]: Not in the sessions level, no.

              [DEFENSE COUNSEL]: Okay. And so for this particular
       defendant, you do not necessarily know that he was explicitly told to appear
       on July the 29th, do you?

              [MS. OGLE]: I was not in court on any of his appearances, no.

       On redirect examination, Ms. Ogle testified that, based on her experience in
criminal court, if a defendant was excused by the court from appearing, a notation would
be made in the defendant’s file. She was unable to testify as to whether this practice also
took place in general sessions court.

       At the conclusion of trial, the jury found the Defendant guilty of failing to appear
but acquitted the Defendant of theft of property valued between $1,000 and $10,000. The
Defendant was sentenced to three years in the Department of Correction with a thirty-five
percent release eligibility. The Defendant’s timely appeal followed.

                                       II. Analysis

        On appeal, the Defendant argues that the evidence introduced at trial was
insufficient for a rational trier of fact to find him guilty of failure to appear beyond a
reasonable doubt. More specifically, the Defendant argues that the State failed to
establish beyond a reasonable doubt that the Defendant knowingly failed to appear for his
July 29, 2015 court date. The State argues that the evidence presented at trial was
sufficient for a rational trier of fact to find the Defendant guilty. We agree with the
Defendant.
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        Our standard of review for a sufficiency of the evidence challenge 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) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).

       A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).

       As relevant here, a defendant commits the offense of failure to appear when they
“knowingly fail to appear as directed by a lawful authority if the person[] . . . [h]as been
lawfully released from custody, with or without bail, on condition of subsequent
appearance at an official proceeding or penal institution at a specified time or place . . . .”
Tenn. Code Ann. § 39-16-609(a)(4) (2016). “[A] defendant ‘knowingly’ fails to appear
in court within the meaning of section 39-16-609, when he or she fails to appear after
having been informed of his or her duty to appear in court on the date at issue.” State v.
Jimmy Sprague, No. E2010-00288-CCA-R3-CD, 2011 WL 3329814, at *4 (Tenn. Crim.
App. Aug. 3, 2011), no perm. app. filed. A person may defend against the charge of
failure to appear by showing that “[t]he person had a reasonable excuse for failure to
appear at the specified time and place.” Tenn. Code Ann. § 39-16-609(b)(2). “If the
occasion for which the defendant’s appearance is required is a Class A misdemeanor or a
felony, failure to appear is a Class E felony.”1 Tenn. Code Ann. § 39-16-609(e).

      In State v. Eddie Joe Whitaker, No. E2014-01066-CCA-R3-CD, 2015 WL
1454544, at *1 (Tenn. Crim. App. Mar. 27, 2015), no perm. app. filed, this court reversed
and dismissed the defendant’s failure to appear conviction because the State did not
provide sufficient evidence that the defendant knowingly failed to appear. The State

       1
         At the time of the offense, theft of property valued between $1,000 and $10,000 was a Class D
felony. See Tenn. Code Ann. § 39-14-105(a)(3) (2015).
                                                -5-
elicited testimony from a general sessions court clerk who normally appeared in the trial
judge’s courtroom. Id. at *3. The general sessions court clerk testified that the defendant
failed to appear for his court date because she prepared the warrant for his arrest, which
stated that the defendant failed to appear for court. Id. However, this court ruled that the
clerk’s testimony that she prepared the warrant for the defendant’s arrest was not
sufficient to show that the defendant knew he should have been in court and thus
knowingly failed to appear. Id. at *6. Although the State produced a form that showed
the defendant had a preliminary hearing set for a specific date, the form lacked evidence
that the defendant signed or acknowledged the form or otherwise had knowledge of his
court date. Id.

       In State v. Timothy Aaron Baxter, No. W2012-02555-CCA-R3-CD, 2014 WL
29102, at *3 (Tenn. Crim. App. Jan. 3, 2014), perm. app. denied (Tenn. May 29, 2014),
this court affirmed the defendant’s failure to appear conviction, ruling that the evidence
presented at the defendant’s trial was sufficient to establish that the defendant knowingly
failed to appear. The State elicited testimony from the administrative assistant of the
judge who heard the defendant’s case, the judge’s court reporter, and an assistant district
attorney, all of whom were present in the courtroom on the day of the defendant’s
arraignment and were also present in the courtroom on the day the defendant failed to
appear. Id. at *1. All three witnesses were able to testify that the judge instructed the
defendant to appear in court for his next court date and that the defendant subsequently
failed to appear for that court date. Id. The State also produced evidence of the
transcripts for the defendant’s arraignment, which showed that the judge instructed him
to appear for a later court date, and the transcript of the date when the defendant did not
appear, which showed that the defendant did in fact fail to appear. Id. at *1-2. This court
held that the jury was presented with sufficient evidence to infer that the defendant
knowingly failed to appear. Id. at *3.

       In both State v. Gregory Dunnorm, No. E2006-00366-CCA-R3-CD, 2007 WL
152542, at *1 (Tenn. Crim. App. Jan. 22, 2007), no perm. app. filed, and State v. Don
Wayne Williams, No. W2009-00024-CCA-R3-CD, 2009 WL 3103824, at *1 (Tenn.
Crim. App. Sept. 28, 2009) no perm. app. filed, this court held that a trial judge’s or a
court official’s testimony as to the procedures regularly used in court to inform a
defendant of his court date was sufficient evidence for a rational trier of fact to find a
defendant guilty beyond reasonable doubt. However, in both Gregory Dunnorm and Don
Wayne Williams, the trial judge and the court officials who testified about the procedures
used in court were familiar with the procedures because they worked in the court in
question and engaged in the procedures themselves. Gregory Dunnorm, 2007 WL
152542, at *1; Don Wayne Williams, 2009 WL 3103824, at *1. While the Gregory
Dunnorm and Don Wayne Williams witnesses were unable to recall if the defendants
were explicitly told their court dates, the witnesses did testify that they remembered the
                                           -6-
defendants appearing in court and that a proper procedure would have been followed to
inform the defendants of their court dates. Gregory Dunnorm, 2007 WL 152542, at *1;
Don Wayne Williams, 2009 WL 3103824, at *1.

       In the case sub judice, Ms. Ogle was unable to testify at trial whether the
Defendant had been explicitly told to appear in court on July 29, and the State did not
produce any other witnesses who could testify that the Defendant was told to appear in
court on July 29. Ms. Ogle testified regarding the Defendant’s warrant, the forfeiture
order, and the attachment based on her experience as a criminal court clerk; however,
none of these documents show that the Defendant was informed of his duty to appear in
court on July 29, 2015. Ms. Ogle was unable to testify as to the typical procedure for
informing defendants of their court dates in general sessions court. Without such
evidence, the “Case Setting” is insufficient to show that the Defendant knew about his
July 29 court date. See Eddie Joe Whitaker, 2015 WL 1454544, at *6. The evidence is
not sufficient to show that the Defendant knowingly missed his court date, even in the
light most favorable to the State.

        Ms. Ogle also testified that a forfeiture order and an attachment were issued on
July 29, 2015, alleging that the Defendant failed to appear in court on that day. The
attachment upon forfeiture and the forfeiture order only charged the Defendant with the
crime of failure to appear and ordered the Knox County Sheriff to arrest the Defendant.
Neither the attachment nor the forfeiture order establishes that the Defendant knowingly
missed his court date, and no rational trier of fact could have found the Defendant guilty
beyond a reasonable doubt based on the information contained in the forfeiture order or
the attachment.

                                    III. Conclusion

      Because the evidence presented at trial was insufficient to show that the Defendant
knowingly failed to appear for his July 29, 2015 court date, even in the light most
favorable to the State, the judgment of the trial court is reversed, and the Defendant’s
conviction is dismissed.


                                            ____________________________________
                                            ROBERT L. HOLLOWAY, JR., JUDGE




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