        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  August 16, 2011 Session

               STATE OF TENNESSEE v. LARRY WAYNE WEBB

             Direct Appeal from the Criminal Court for Davidson County
                    No. 2009-A-938    J. Randall Wyatt, Jr., Judge




                  No. M2010-02547-CCA-R3-CD - Filed March 7, 2012


A Davidson County jury found the Defendant, Larry Wayne Webb, guilty of forgery in an
amount over one thousand dollars and identity theft, and the trial court sentenced him to an
effective sentence of twelve years in the Tennessee Department of Correction. On appeal,
the Defendant contends that: (1) the evidence is insufficient to support his convictions; (2)
the trial court improperly admitted a vehicle certificate of title into evidence at trial; and (3)
his convictions for forgery and identity theft should merge. After a thorough review of the
record and the applicable law, we affirm the trial court’s judgments.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and D ONALD P. H ARRIS, S R. J., joined.

James O. Martin, III, Nashville, Tennessee, for the appellant, Larry Wayne Webb.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; Stacy L. Smith, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                           OPINION
                                            I. Facts

       This case arises from the Defendant signing the victim’s signature on their jointly
owned Corvette’s title and selling the car without sharing the proceeds of the sale with the
victim. Based on this conduct, a Davidson County grand jury indicted the Defendant for
forgery in an amount over $1000 and identity theft. At the trial on the Defendant’s charges,
the parties presented the following evidence: Penny Holt, the victim, testified that the
Defendant had been her fiancé. The victim testified that, during their relationship, she and
the Defendant jointly owned a house and a 1977 Stingray Corvette, and they shared in the
expenses for the Corvette. Holt stated that she paid for the car insurance on the Corvette.
The victim said that she drove the Corvette “[a]l the time.” The victim identified the original
Tennessee certificate of title for the Corvette and her name on the title. The victim testified
that, since receiving the original Tennessee certificate of title, she had kept the title in a safe
deposit box.

       In June or July 2008, the victim and the Defendant broke off their engagement. Later
that year, in early December, the victim had work done to her Chevrolet Lumina automobile.
While her Lumina was in the repair shop, the victim went to retrieve the Corvette to drive
and found it missing. The Defendant told the victim that he was having the brakes on the
Corvette repaired in Goodlettsville. The victim testified that, because she and the Defendant
were on “good terms” despite the break-up, she had no reason to doubt his explanation as to
the location of the Corvette.

       The victim identified a copy of the Tennessee certificate of title for the Corvette,
which displayed her signature as “Penny Holt” transferring the title. The victim denied that
the signature was hers and explained that, because there is another person named Penny Holt
in Nashville, whenever the victim signs a document she signs her name “Penny H. Holt.”
The victim identified the signature as the Defendant’s handwriting. The victim testified that
she never gave anyone permission to sign the certificate of title on her behalf and that the
Defendant never requested her permission to sell the Corvette. The victim said that she did
not receive any money from the proceeds of this sale of the Corvette.

       On cross-examination, the victim testified that she was not present when the
Defendant purchased the Corvette, and that she did not contribute any money toward the
purchase of the Corvette. Originally, the Corvette certificate of title was registered in
Georgia. When the Defendant applied for a Tennessee certificate of title for the Corvette,
he added the victim’s name to the certificate of title. The victim identified her signature on
the back of the Georgia certificate of title for the Corvette and the Defendant’s handwriting
where he wrote her name as one of the owners.

        The victim agreed that she signed an affidavit when they registered the Corvette in
Tennessee verifying that she and the Defendant were married. The victim explained that,
even though they were not actually married yet, they were engaged, living together, and
planned to be married soon, so she signed the affidavit in order to obtain the vehicle license
tag for the Corvette.

       The victim testified that, when she learned the Defendant had “given a car to the

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attorney,” she sought an arrest warrant for the Defendant based upon forgery. The victim
agreed that she had not seen the copy of the Tennessee certificate of title the Defendant used
to transfer the vehicle at that time, but she knew that she possessed the original title and had
not signed any document to transfer or sell the Corvette. The victim agreed that the
Defendant asked her for the Tennessee certificate of title “ a couple of times” but that she
never gave it to him. The victim agreed that, after she had sought a criminal warrant, the
Corvette was sold, and the victim received “some” of the proceeds from that second sale.

       The victim identified documents containing the Defendant’s handwriting and
signature and documents containing the victim’s handwriting and signature.

        Jeremy Gourley testified that he was an attorney and that the Defendant was a former
client. Gourley said that the retainer fee for him to represent the Defendant was $4000, and
the Defendant paid this sum by transferring title of a 1977 Corvette to Gourley. Gourley
recalled that the certificate of title the Defendant gave him had two signatures transferring
the title. Gourley identified the copy of the certificate of title and said that the signatures
were on the Tennessee certificate of title when he received it, so he did not witness anyone
signing the certificate of title. Gourley explained the fee arrangement as follows:

       We had a retainer agreement where [the Defendant] was to pay me cash
       money. Instead of paying me cash money, he brought the car for me to hold
       for a period of days until he could come up with cash money and after a period
       of days the cash money did not appear. It wasn’t paid on cash money. I was
       just given the car and the car title.

       Gourley testified that the Defendant gave him the Tennessee certificate of title early
in December 2008. Gourley said that, pursuant to an agreement with the victim, he sold the
Corvette in July 2009 for $5500. Gourley split the proceeds of the sale, after any expenses
he incurred, with the victim.

       On cross-examination, Gourley agreed that, at the point he received the Corvette, he
anticipated he would be paid in cash and that he would not keep the Corvette.

       Ann Watkins, a Department of Revenue Supervisor, testified that the Department of
Revenue is responsible for all duties related to vehicle title and registration. Watkins said
that on December 5, 2008, the Defendant requested a duplicate certificate of title for the
Corvette and provided “the original was lost” as the reason for his request. Watkins
explained that when a duplicate certificate of title is issued, the word “duplicate” is printed
on the certificate of title and the date of issuance reflects the date the duplicate was issued.
Watkins identified the duplicate certificate of title issued to the Defendant on December 5,

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2008.

        Based upon this evidence, the jury convicted the Defendant of forgery in an amount
over $1000 and identity theft. The trial court sentenced him as a career offender to
concurrent terms of twelve years for each conviction, for a total effective sentence of twelve
years in the Tennessee Department of Correction. It is from this judgment that the Defendant
now appeals.

                                          II. Analysis

       On appeal, the Defendant contends that: (1) the evidence is insufficient to support his
convictions; (2) the trial court erred in allowing the certificate of title for the Corvette to be
admitted into evidence; and (3) his convictions for forgery and identity theft should merge.

                               A. Sufficiency of the Evidence

       The Defendant argues that the evidence is insufficient as to both of his convictions
because the victim had no legal interest in the Corvette. The State responds that sufficient
proof was presented that the Defendant intended to harm or defraud the victim by forging her
signature on the duplicate title, and that he knowingly used the victim’s personal identifying
information without her consent. We agree with the State.

        When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,
“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); see Tenn. R. App. P.
13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State
v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In determining the
sufficiency of the evidence, this Court should not re-weigh or re-evaluate the evidence. State
v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this Court substitute
its inferences for those drawn by the trier of fact from the evidence. State v. Buggs, 995
S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956).
“Questions concerning the credibility of the witnesses, the weight and value of the evidence,
as well as all factual issues raised by the evidence are resolved by the trier of fact.” State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997); See also Liakas, 286 S.W.2d at 859. “A guilty
verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for
the State and resolves all conflicts in favor of the theory of the State.” State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978) (quoting State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)).


                                               -4-
The Tennessee Supreme Court stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the jury
       see the witnesses face to face, hear their testimony and observe their demeanor
       on the stand. Thus the trial judge and jury are the primary instrumentality of
       justice to determine the weight and credibility to be given to the testimony of
       witnesses. In the trial forum alone is there human atmosphere and the totality
       of the evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view
of the evidence contained in the record, as well as all reasonable inferences which may be
drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant
bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

                                     1. Forgery over $1000

       Tennessee Code Annotated section 39-14-114(a) provides that “[a] person commits
an offense who forges a writing with intent to defraud or harm another.” Section 39-14-
114(b) further provides:

       (b) As used in this part, unless the context otherwise requires: (1) “Forge”
       means to:
         (A) Alter, make, complete, execute or authenticate any writing so that it
         purports to:
           (I) Be the act of another who did not authorize the act;

T.C.A. § 39-14-114(b)(2010).

        In this case, the count of the indictment charging forgery alleged that the Defendant
altered the certificate of title to reflect that the victim authorized the transfer of the Corvette.
The evidence showed that the Defendant presented Gourley with the certificate of title for
the Corvette with the victim’s signature. The victim denied that the signature on the
certificate of title was hers, and the jury compared documents containing her signature with
her alleged signature on the certificate of title. The victim identified the handwriting
purporting to be her signature as the Defendant’s handwriting. The evidence further showed
that the Defendant negotiated a fee agreement with Gourley to transfer ownership of the


                                                -5-
Corvette to Gourley if the Defendant did not provide the retainer amount in cash. The
Defendant did not provide cash payment to Gourley, thereby transferring ownership of the
Corvette to Gourley in payment for legal services. The Corvette was later sold for $5500.
By presenting the altered certificate of title, the Defendant paid his legal fees and defrauded
the victim of her ownership interest in the Corvette. Accordingly, we conclude that the
evidence is sufficient to support the Defendant’s conviction for forgery over $1000.

                                        2. Identity Theft

       The identity theft statute provides:
       A person commits the offense of identity theft who knowingly obtains,
       possesses, buys or uses, the personal identifying information of another:

       (1) With the intent to commit any unlawful act including, but not limited to,
       obtaining or attempting to obtain credit, goods, services or medical
       information in the name of such other person; and

       (2) (A) Without the consent of such other person; or

         (B) Without the lawful authority to obtain, possess, buy or use that
         identifying information.

T.C.A. § 39-14-150(b)(2010).

        The evidence showed that the Defendant asked the victim more than once for the
original certificate of title for the Corvette, and she refused. Without the victim’s knowledge,
the Defendant falsely claimed that the original certificate of title was lost to obtain a
duplicate copy of the certificate of title. The Defendant signed the victim’s name on the
certificate of title, and the victim denied that the signature on the duplicate certificate of title
was hers. The jury compared documents containing the victim’s signature with her alleged
signature on the duplicate certificate of title. The victim identified the handwriting for the
signature bearing her name on the duplicate certificate of title as the Defendant’s
handwriting. The evidence further showed that the Defendant negotiated a fee agreement
with Gourley which would transfer ownership of the Corvette to Gourley if the Defendant
did not provide the retainer amount in cash. The Defendant did not provide cash payment
to Gourley, thereby, transferring ownership of the Corvette to Gourley in payment for legal
services. By presenting the altered certificate of title, the Defendant used the victim’s
signature without her consent to obtain legal services paid for with the Corvette.
Accordingly, we conclude that the evidence is sufficient to support the Defendant's
conviction for identity theft. The Defendant is not entitled to relief as to this issue.


                                                -6-
        The Defendant specifically argues that because the victim lied about the couple’s
marital status on the affidavit used to obtain the Tennessee title, she has no legal interest in
the Corvette. The Defendant then argues that, because the victim has no legal interest in the
Corvette, the Defendant cannot be guilty of forgery over $1000 or identity theft. We find this
argument unconvincing. The Defendant wrote his name and the victim’s name as the owners
of the Corvette on the Georgia certificate of title and the victim signed the bottom of the
document. The proof supports that the Defendant intended to share ownership of the
Corvette with the victim. The effect of her misrepresentation of the couple’s marital status
to a state employee in order to get the vehicle tags does not change that fact. The Defendant
lied to obtain a duplicate copy of the certificate of title, forged the victim’s signature in order
to convey the Corvette to a third party in payment for services, without the victim’s
knowledge or consent. Furthermore, as the trial court correctly noted, lawful ownership “is
not an essential element in either the offense of forgery or identity theft.” The Defendant is
not entitled to relief as to this issue.

                    B. Admission of the Tennessee Certificate of Title

        The Defendant next argues that the trial court erred when it admitted the Tennessee
certificate of title reflecting the victim as one of the owners of the Corvette. The Defendant
contends that, once the victim admitted that she submitted a false affidavit in order to obtain
the Corvette’s Tennessee title, the trial court should have removed the title from evidence and
instructed the jury to disregard it. The Defendant concedes that an objection was not made
at trial, so he requests this Court conduct a plain error review of this issue. The State
responds that the Defendant has waived our review of this issue but that, regardless, the
certificate of title was relevant evidence that the jury was properly permitted to consider.


        The State is correct that, by failing to contemporaneously object, the Defendant has
waived review of this issue. Tenn. R. App. P. 36(a) (stating appellate relief is generally not
available when a party is “responsible for an error” or has “failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of any error”); see State v.
Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App.1988) (waiver applies when the defendant
fails to make a contemporaneous objection).

       We may, however, as the Defendant herein requests, consider errors affecting the
substantial rights of the Defendant if review is necessary to do substantial justice. Because,
according to Tennessee Rule of Appellate Procedure 13(b), “[r]eview generally will extend
only to those issues presented for review,” we must review the issue presented by the
Defendant herein pursuant to Tennessee Rule of Appellate Procedure 36(b), which states that


                                                -7-
“[w]hen necessary to do substantial justice, an appellate court may consider an error that has
affected the substantial rights of a party at any time, even though the error was not raised in
the motion for a new trial or assigned as error on appeal.” A court will grant relief for plain
error pursuant to Rule 36(b) only when: “(1) the record clearly establishes what occurred in
the trial court; (2) the error breached a clear and unequivocal rule of law; (3) the error
adversely affected a substantial right of the complaining party; (4) the error was not waived
for tactical purposes; and (5) substantial justice is at stake.” State v. Hatcher, 310 S.W.3d
788, 808 (Tenn. 2010) (citing State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000)). If any
of these five criteria are not met, we will not grant relief, and complete consideration of all
five factors is not necessary when it is clear from the record that at least one of the factors
cannot be established. Id. The party claiming plain error has the burden of persuading the
appellate court. State v. Banks, 271 S.W.3d 90, 119 (Tenn. 2008).

        Both parties agree that the record clearly establishes what occurred at the trial court
so the first criteria required is met. Next, the Defendant contends that the admission of the
Tennessee certificate of title, bearing the victim and the Defendant’s names as owners,
breached a clear and unequivocal rule of law. He relies upon Tennessee Rule of Evidence
403 and Rule 901 for his argument.

       Rule 403 of the Tennessee Rules of Evidence provides:

       Although relevant, evidence may be excluded if its probative value is
       substantially outweighed by the danger of unfair prejudice, confusion of the
       issues, or misleading the jury, or by considerations of undue delay, waste of
       time, or needless presentation of cumulative evidence.

The Defendant argues that after the victim’s “fraud” came to light, the Tennessee certificate
of title “was of no probative value whatsoever.” We do not agree. The Tennessee certificate
of title identifying the Defendant and the victim as co-owners of the Corvette is relevant to
this case. Our inquiry, however, is not whether it is relevant but whether “its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.” The victim claimed an ownership interest in the car. The original
Tennessee certificate of title, without the forged signature, and the “duplicate” Tennessee
certificate of title with the forged signature go directly to the claim that the Defendant forged
the victim’s signature on the document.

         We would also note that, even had the trial court excluded the Tennessee certificates
of title, the Georgia certificate of title bore, in the Defendant’s handwriting, the Defendant’s
name and the victim’s name as the owners of the Corvette. The Georgia title was admitted
into evidence prior to the admission of the Tennessee title.


                                               -8-
       Rule 901 of the Tennessee Rules of Evidence provides:

       The requirement of authentication or identification as a condition precedent to
       admissibility is satisfied by evidence sufficient to the court to support a finding
       by the trier fo fact that the matter in question is what its proponent claims.

       The victim identified the original Tennessee certificate of title as the document she
kept in her safe deposit box since her receipt of the document. She further identified her
signature on the document. As to the duplicate Tennessee certificate of title, Watkins, as a
keeper of the records for the Tennessee Department of Revenue, identified the duplicate
Tennessee certificate of title issued to the Defendant. Thus, both the original and duplicate
Tennessee certificates of title were properly authenticated prior to admission at trial.

        The Defendant appears to argue that because the victim misrepresented the couple’s
marital status, the certificate of title was not properly authenticated. These are two separate
issues. The document, as we have above discussed, was properly authenticated by both the
victim and Watkins. The victim identified the original Tennessee certificate of title as the
document she received and kept in a safe deposit box since the time of receipt. Her
identification of a document she received and kept in a safe deposit box is sufficient to
support a finding that the original certificate of title is the certificate of title she received
when she and the Defendant registered the Corvette in the State of Tennessee. The victim’s
misrepresentation on an affidavit in order to get the vehicle license tags goes to the victim’s
credibility as a witness and not identification of the document.                    The victim’s
misrepresentation to a government employee was brought out on cross-examination for jury
consideration of the victim’s credibility.

       Because there is not a breach of a clear and unequivocal rule of law, the Defendant
has failed to show that the trial court committed plain error when it allowed the admission
of the Tennessee certificates of title. The Defendant is not entitled to relief as to this issue.

                                     C. Double Jeopardy

       The Defendant’s final argument is that because his convictions for forgery and
identity theft are based on the same course of conduct in violation of double jeopardy
protections, his convictions should be merged. The State responds that the trial court
correctly declined to merge the Defendant’s convictions for forgery and identity theft because
the evidence at trial weighed in favor of dual convictions. We agree with the State.

       Because the question of whether the Defendant’s prosecution in this case violated


                                               -9-
principles of double jeopardy is a question of law, our review is de novo with no presumption
of correctness afforded to the ruling of the trial court. See State v. Winningham, 958 S.W.2d
740, 742-43 (Tenn. 1997) (citing State v. Davis, 940 S.W.2d 558, 561 (Tenn. 1997)).

        Both the federal and state constitutions protect an accused from being “twice put in
jeopardy of life or limb” for “the same offence.” U.S. Const. Amend. V; Tenn. Const. art.
1, sec. 10. The United States Supreme Court has observed of the double jeopardy clause:

              Our cases have recognized that the Clause embodies two vitally
       important interests. The first is the ‘deeply ingrained’ principle that ‘the State
       with all its resources and power should not be allowed to make repeated
       attempts to convict an individual for an alleged offense, thereby subjecting him
       to embarrassment, expense and ordeal and compelling him to live in a
       continuing state of anxiety and insecurity, as well as enhancing the possibility
       that even though innocent he may be found guilty.’ The second interest is the
       preservation of ‘the finality of judgments.’

Yeager v. United States, 557 U.S. 110, 129 S.Ct. 2360, 2365-66 (2009) (citations omitted).
To these ends, our state Supreme Court has “noted many times, three fundamental principles
underlie double jeopardy: (1) protection against a second prosecution after an acquittal; (2)
protection against a second prosecution after conviction; and (3) protection against multiple
punishments for the same offense.” State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996)
(citing Whalen v. United States, 445 U.S. 684, 688 (1980); United States v. Wilson, 420 U.S.
332, 343 (1975); North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). In this case, the
Defendant contends that his punishments constitute “multiple punishments for the same
offense.” “The key issue in multiple punishments cases is legislative intent.” Denton, 938
S.W.2d at 379. “[W]hether the offenses are the ‘same’ for double jeopardy purposes depends
upon a ‘close and careful analysis of the offenses involved, the statutory definitions of the
crimes, the legislative intent and the particular facts and circumstances.” Denton, 938
S.W.2d at 379 (quoting State v. Black, 524 S.W.2d 913, 919 (Tenn. 1975)).

      Our Supreme Court has crafted the “analytical framework” for a considering a plea
of double jeopardy:

       The courts must consider 1) the statutory elements of the offenses, guided by
       the principles in Blockburger v. United States, 284 U.S. 299 (1932); 2) the
       evidence used to establish the offenses, guided by the principles in Duchac v.
       State, 505 S.W.2d 237 (Tenn. 1973); 3) whether the defendant’s conduct
       involved multiple victims or discrete acts; and 4) whether the purpose of the
       respective statutes at issue is the same or different.


                                              -10-
Cable v. Clemmons, 36 S.W.3d 39, 42 (Tenn. 2001) (citing Denton, 938 S.W.2d at 381).
“No single aspect of this analysis is given controlling weight; each factor must be weighed
and considered in relation to the others.” Id. (citing State v. Beauregard, 32 S.W.3d 681
(Tenn. 2000)).

                          1. Blockburger “Same-Elements” Test

       The first step in our analysis is examination of the two offenses under the
“same-elements” test established in Blockburger. “In both the multiple punishment and
multiple prosecution contexts, [the United States Supreme Court] has concluded that where
the two offenses for which the defendant is punished or tried cannot survive the
‘same-elements’ test, the double jeopardy bar applies.” Dixon, 509 U.S. at 696 (citing Brown
v. Ohio, 432 U.S. 161, 168-69 (1977); Blockburger, 284 U.S. at 304; Gavieres v. United
States, 220 U.S. 338, 342 (1911)). “The applicable rule is that where the same act or
transaction constitutes a violation of two distinct statutory provisions, the test to be applied
to determine whether there are two offenses or only one, is whether each provision requires
proof of a fact which the other does not.” Blockburger, 284 U.S. at 304. Thus, “separate
statutory crimes need not be identical–either in constituent elements or in actual proof–in
order to be the same within the meaning of the constitutional prohibition [against double
jeopardy].” Brown, 432 U.S. at 164 (citations omitted). Simply stated, unless each offense
contains an element the other does not, “double jeopardy bars additional punishment and
successive prosecution.” Dixon, 509 U.S. at 696.

       “A person commits an offense who forges a writing with intent to defraud or harm
another.” T.C.A. § 39-14-114(a). “‘Forge’ means to . . . [a]lter, make, complete, execute or
authenticate any writing so that it purports to . . . [b]e the act of another who did not
authorize the act . . . .” T.C.A. § 39-14-114(b)(1)(A)(I).

      In contrast, “[a] person commits the offense of identity theft who knowingly obtains,
possesses, buys, or uses, the personal identifying information of another . . . [w]ithout the
consent of such other person.” T.C.A. § 39-14-150(b)(1)(B)(I).

        As the trial court correctly noted at the motion for new trial hearing, “the key
distinctions between the two statutes are the requirements of a writing for a Forgery
conviction and the use of personal information of another for an Identity Theft conviction.”
By virtue of these differences, the two statutes pass Blockburger same-elements test, and, as
a result, prosecution of the defendant for violation of forgery as well as identity theft did not
violate the Double Jeopardy Clause of the United States Constitution. Our holding comports
with the holdings of other states interpreting their state statutes. See e.g., Addison v. State,
791 N.W.2d 430, 2010 WL 4140439 , at *4 (Iowa App. 2010) (holding the offense of forgery


                                              -11-
is not a lesser-included offense of identity theft and the two convictions do not merge
because the two crimes have separate and distinct elements); Myers v. Commonwealth, No.
2008-SC-000548-MR, 2009 WL 3165545, at *4 (KY Oct. 1, 2009) (holding second-degree
forgery, theft of identity and false statement as to identity or financial condition are separate
offenses for which a defendant may be punished for committing).

                             2. Duchac “Same-Evidence” Test

        Next we must determine, using the principles of Duchac v. State, 505 S.W.2d 237
(Tenn. 1973), as a guide, whether the same evidence will be used to establish the offenses.
For the forgery charge, the State offered proof that the Defendant unlawfully signed the
victim’s name to the duplicate certificate of title without her consent. For the identity theft
charge, the State offered proof that the Defendant used the victim’s signature on the duplicate
certificate of title to transfer title to a third party without the victim’s consent. We conclude
that the proof submitted about the offenses was not the same.

                             3. Multiple Victims/Discrete Acts

       Next, we must examine whether the Defendant’s conduct involved multiple victims
or discrete acts. The State contends that there were multiple victims in this case, the State,
Ms. Holt, and Mr. Gourley. It concedes, however, that the indictment only listed Ms. Holt
as the victim, making Mr. Gourley as a victim irrelevant to the double jeopardy inquiry.
Although, “[i]n general terms, criminal conduct offends the State as the sovereign,”
Winningham, 958 S.W.2d at 746, categorization of the State as a “victim” as that term is used
in Denton is somewhat specious. Clearly, this portion of the Denton analysis is designed to
distinguish offenses. To rely on such a broad interpretation of the term “victim” would result
in every criminal offense involving the same victim. We conclude that there is but one
victim in this case for double jeopardy purposes, and this factor weighs in the Defendant’s
favor.

                                   4. Same-Purposes Test

        Our State Supreme Court has ruled that we must discern whether the purpose of the
respective statutes at issue is the same or different to determine whether dual prosecutions
will offend the double jeopardy clause of the state constitution. Denton, 938 S.W.2d at 378.
The forgery statute criminalizes the falsification of writing. T.C.A. § 39-14-114(a).
Whereas, the identity theft statute more broadly encompasses protection against the misuse
of the personal identifying information of another person. T.C.A. § 39-14-150(b)(1)(B)(I).
Thus, the purposes of the two statutes are different, and this factor weighs against the
Defendant.


                                              -12-
       Because three of the four Denton factors weigh in favor of a finding that the
Defendant’s prosecution for the offense of forgery and identity theft did not violate double
jeopardy principles, the judgment of the trial court allowing both convictions is affirmed.

                                     III. Conclusion

       After a thorough review, we affirm the judgments of the trial court.


                                                   _________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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