State of Tennessee v. Ginny Elizabeth Parker

02/07/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
October 10, 2023 Session

STATE OF TENNESSEE v. GINNY ELIZABETH PARKER

Appeal from the Circuit Court for Williamson County
No. B-CR210047 Michael W. Binkley, Judge

No. M2022-00955-CCA-R3-CD

The Defendant, Ginny Elizabeth Parker, was convicted following a bench trial of five
counts of forgery, for which she received an effective six-year sentence to serve. On
appeal, the Defendant argues that: (1) the evidence is insufficient to support her forgery
convictions, specifically regarding whether she acted without authorization; (2) the trial
court shifted the burden of service of medical records pursuant to Tennessee Code
Annotated section 24-7-122(c) from the State to the Defendant; (3) the trial court
erroneously admitted proof of a PayPal account that was linked to the victims’ bank
account; (4) she is entitled to relief based on cumulative error; and (5) her sentence is
grossly disproportionate to her offenses, in violation of the Eighth Amendment to the
United States Constitution and article I, section 16 of the Tennessee Constitution.
Following our review, we affirm the judgments of the trial court.

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

KYLE A. HIXSON, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER
and JOHN W. CAMPBELL, SR., JJ., joined.

E. Kendall White, IV, Nashville, Tennessee, for the appellant, Ginny Elizabeth Parker.

Jonathan Skrmetti, Attorney General and Reporter; Richard D. Douglas, Senior Assistant
Attorney General; Kim R. Helper, District Attorney General; and Tammy Rettig and
Hunter C. Knight, Assistant District Attorneys General, for the appellee, State of
Tennessee.

OPINION

I. FACTUAL AND PROCEDURAL HISTORY
 This case involves five checks that were drawn on the joint bank account of Lloyd
and Rose Gordon, the Defendant’s grandparents. The checks at issue are: (1) No. 4023 for
$200, dated October 19, 2019, and cashed October 22, 2019; (2) No. 4027 for $200, dated
October 22, 2019, and cashed November 12, 2019; (3) No. 4028 for $300, dated October
24, 2019, and cashed October 25, 2019; (4) No. 4029 for $300, dated October 24, 2019,
and cashed November 5, 2019; and (5) No. 4055 for $230, dated February 7, 2020, and
cashed February 10, 2020. The total value of the checks amounted to $1,230. Each was
written to the Defendant, endorsed by the Defendant, cashed at First Federal Bank, and
purportedly signed by Ms. Gordon, who passed away on April 11, 2020, and did not testify
at trial.

A month after Ms. Gordon’s death, Mr. Gordon reported the checks as stolen. An
investigation ensued, and a Williamson County grand jury indicted the Defendant and
charged her with five counts of forgery, a Class E felony. Tenn. Code Ann. § 39-14-114.
The Defendant proceeded to a bench trial on September 27, 2021.

Prior to trial, the Defendant filed a motion in limine requesting the admission of the
bank records from the Estate of Shirley Montgomery, the Defendant’s deceased mother.
The record does not contain a transcript of the hearing on this motion. The record does
contain, however, a post-trial order from October 7, 2021, indicating that the trial court
heard this September 24, 2021 motion, and at that time, denied the motion. The trial court
found that the bank records were not admissible pursuant to the business records hearsay
exception of Tennessee Rule of Evidence 803(6). It found that the Defendant did not
qualify as a custodian of the records and could not establish the elements of the exception
to the hearsay rule. Additionally, the trial court ruled “that the request made by [the]
Defendant was made too late for the State to respond and that the proposed manner of
introduction by [the] Defendant did not qualify as a business [record].”

Immediately preceding trial, a hearing was held regarding another of the
Defendant’s motions in limine, wherein the Defendant argued that the State had failed to
serve her with Ms. Gordon’s medical records sixty days prior to trial as required by
Tennessee Code Annotated section 24-7-122(a) and (c). The State responded that it
intended to use the medical records solely to show the dates Ms. Gordon was hospitalized
and not for purposes relating to treatment. It argued that hospitalization dates did not fall
within the purview of the Code section, that it gave proper notice to use the records under
Tennessee Rule of Criminal Procedure 902(11), and that the Defendant had notice of the
existence of the records from the State’s discovery disclosure. Defense counsel admitted
that he failed to see the State’s notation in its discovery response that the records were too
voluminous to include on its discovery disclosure CD-ROM but were available for in-

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person review. Defense counsel, nonetheless, argued that the medical records should be
excluded as it was the State’s duty to timely serve them. The trial court denied the
Defendant’s motion, agreeing with the State that Code section -122 did not apply to show
hospitalization dates and that “the burden of obtaining and then reviewing the records
should not be placed on the State . . . when notice had been given of their existence” in
their initial discovery response.1 Defense counsel offered to stipulate to Ms. Gordon’s
hospitalization dates, but the trial court ruled that it would allow the State to present the
records at trial.

During trial, Detective Joseph Cox of the Fairview Police Department testified that
in May 2020 following Ms. Gordon’s death, her husband, Mr. Lloyd Gordon, reported the
five checks at issue as stolen. Mr. Gordon also made a report to First Federal Bank. He
identified the Defendant and the Defendant’s boyfriend, Mr. Brandon Clark, as the
individuals he believed were responsible. Detective Cox obtained photographs of the
individual cashing the checks at First Federal Bank and recognized the individual as the
Defendant. Detective Cox went to speak with the Defendant at her house and was informed
by Mr. Clark that the Defendant was not present. Mr. Clark called the Defendant in
Detective Cox’s presence and said that he and the Defendant would come to the police
station to discuss the matter. The Defendant never came to the police station nor returned
Detective Cox’s messages. The Defendant was subsequently arrested and interviewed by
Detective Cox. A recording of this interview was entered into evidence.

During the interview, the Defendant denied stealing money from her grandparents
and said that she had permission from Ms. Gordon to write the checks. These checks
helped the Defendant pay for her doctor appointments and prescriptions, as she had no job
or insurance. The Defendant explained that Ms. Gordon would give her two or three checks
at a time, and the Defendant would fill them out, cash them, and then report the amount
she cashed them for to Ms. Gordon. According to the Defendant, Ms. Gordon would also
write checks to Mr. Clark when the Defendant needed money and was unavailable to cash
a check.

The Defendant stated Ms. Gordon used to write checks to the Defendant’s mother,
Ms. Montgomery, to cash and give to the Defendant. Later, however, the Defendant
described that Ms. Gordon would give the checks to the Defendant to cash to give to Ms.
Montgomery. The Defendant stated that when Ms. Montgomery died in September 2019,
the Defendant repaid Mr. and Ms. Gordon $1,000 and gave Ms. Gordon $4,000 of the
Defendant’s money to deposit in Ms. Gordon’s account; the Defendant explained that the

1
The trial court entered a written order post-trial explaining its ruling.

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checks at issue were drawn from this commingled money. The Defendant claimed to still
have $2,300 or $2,600 of her own funds remaining in the account.

The Defendant accused her aunt and uncle, “Tonya” and “Floyd,” of convincing
Mr. Gordon that she and Mr. Clark took the money. She stated that Tonya and Floyd had
“no means” but recently bought a new boat, truck, and jet ski. She then stated that Mr.
Gordon had memory, vision, and hearing issues and that Ms. Gordon did not tell Mr.
Gordon “everything.”

When asked about PayPal transactions reflected in the Gordons’ bank statements,
the Defendant admitted to opening a PayPal account and, with Ms. Gordon’s permission,
linking it to the Gordons’ bank account. She reported conducting only three or four
transactions through the PayPal account.

During Detective Cox’s investigation, he accessed the Gordons’ bank records from
December 2018 to October 2020. The account had three consistent deposits: two payments
from social security and one from the Tennessee Consolidated Retirement System. The
Gordons generally kept a $5,000 balance until the first check was written to the Defendant
in October 2019. The checks at issue were made out to the Defendant personally and not
to a doctor or pharmacy. Detective Cox noted that the checks were for round numbers and
that such was not typical for commercial transactions. He was unable to locate a deposit
from the Defendant other than a December 19, 2019 check for $1,000 that stated on the
memo line “for loan repayment.” The account reflected that Mr. Gordon had written a
check to the Defendant for $1,000 dated October 30, 2019.

Detective Cox stated he believed the Defendant was not being truthful about the
PayPal transactions because twenty-one PayPal transactions totaling $3,070.29 were
processed through the Gordons’ account prior to Mr. Gordon’s closing it. Defense counsel
objected to the relevance of the PayPal transactions, and the trial court ruled it was relevant
because the Defendant had “testified”2 to linking the Gordons’ account to a PayPal account.
According to Detective Cox, the PayPal account was created four days after the first
October 2019 check was written to the Defendant. Several of these PayPal transactions
were for online purchases from “URIBEMARKET” and “Love Jesus” and not for cash
withdrawals. The PayPal transactions dated April 14 and 16, 2020, occurred after Ms.
Gordon’s death. Detective Cox explained that he did not obtain the records to verify the
receiving account because the PayPal offices were outside of his jurisdiction.

2
The trial court appears to be referencing the Defendant’s interview with Detective Cox as the
Defendant did not testify at trial.

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 The State introduced six checks written to Mr. Clark. The checks, signed by Ms.
Gordon, endorsed by Mr. Clark, and cashed at Food Saver were: (1) No. 4057 for $300,
dated February 16, 2020, and cashed February 18, 2020; (2) No. 4058 for $200, dated
February 17, 2020, and cashed February 18, 2020, with a memo line reading “gutters”; (3)
No. 4069 for $350, dated March 16, 2020, and cashed March 18, 2020; (4) No. 4071 for
$250, dated March 17, 2020, and cashed March 19, 2020; (5) No. 4072 for $250, dated
March 19, 2020, and cashed March 23, 2020; and (6) No. 4078 for $350, dated March 11,
2020, and cashed April 13, 2020. These checks totaled $2,050.

The State moved to enter Ms. Gordon’s medical records to show her hospitalization
dates. Despite its previous ruling that the medical records would be admissible at trial, the
trial court asked if a stipulation to the dates could be entered in lieu of the records. The
State agreed and stated it had a condensed summary showing only Ms. Gordon’s
hospitalization dates. Defense counsel responded, “I believe this to be an accurate
representation. No objection to this.” The State’s summary was entered into evidence. 3
The summary showed the following dates of hospitalization for Ms. Gordon: (1) October
24, 2018, to October 26, 2018; (2) January 12, 2020, to January 16, 2020; (3) February 27,
2020, to March 2, 2020; and (4) March 9, 2020, to March 13, 2020.

Detective Cox testified that check No. 4078 to Mr. Clark was dated March 11, 2020,
when Ms. Gordon was hospitalized, and cashed April 13, 2020, after Ms. Gordon was
deceased. He further affirmed that PayPal transactions occurring on January 16, 2020,
March 2, 2020, and March 9, 2020, happened when Ms. Gordon was either in the hospital,
being admitted, or being discharged from the hospital.

Check and PayPal transactions continued to occur after Ms. Gordon’s death until
the Gordons’ account was depleted and closed by Mr. Gordon. Detective Cox stated Ms.
Gordon could not give permission for her account to be used after her death and that the
checks to the Defendant and Mr. Clark and the PayPal transactions “wiped out” the
Gordons’ bank account. He stated if those transactions were rescinded, the account would
still have a positive balance and be in “good order.”

Detective Cox acknowledged that several checks were written to other family
members during this timeframe, generally for round number amounts, and some with blank
memo lines. Fourteen checks were written to Maggie Gordon totaling $2,395. Six checks
were written to Shirley Montgomery totaling $1,375. Six checks were written to Mary

3
The transcript notes “Exhibit #6-Certified Copies of Medical Records was marked and entered
into evidence.” However, the record contains no certified medical records, and the parties’ discussions in
the transcript indicate that the medical records were not admitted.

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Thomas totaling $1,205. Four checks were written to Tonya Gordon totaling $832.33.
Detective Cox acknowledged that Tonya Gordon was the aunt the Defendant mentioned
during her interview as having recently purchased a truck, jet ski, and boat. Detective Cox
opined that $832.33 was an insufficient amount to purchase these items. The checks
written to these other family members totaled $5,807.33. As no reports were made against
other individuals, no other family members were investigated. Detective Cox stated he had
no banking information for the Defendant in order to subpoena her bank records for the
investigation.

During the cross-examination of Detective Cox, defense counsel attempted to enter
a copy of bank records from Ms. Montgomery’s Estate. The State objected, arguing the
trial court had previously ruled that the Defendant was not the custodian of these records
and that Detective Cox likewise could not authenticate them. The trial court excluded the
records.

Mr. Gordon testified that he and Ms. Gordon were married for sixty years. Ms.
Gordon was in charge of their finances. While he stated he did not know anything about
the finances, he recalled Ms. Gordon’s only ever writing the Defendant two checks: one
for $15 and the other for $30. Mr. Gordon did not know Mr. Clark and said that neither he
nor Ms. Gordon would have paid Mr. Clark’s bills. Prior to these events, he could not
recall the account’s ever being overdrawn. When asked if he or Ms. Gordon ever paid the
bills for anyone but themselves, Mr. Gordon replied, “No ma’am. No ma’am. No.”

The Defendant elected not to testify or put on proof. The trial court took the matter
under advisement and requested that the parties prepare a brief related to whether
circumstantial evidence, primarily reflecting on the Defendant’s credibility, could be used
to establish the authorization element in forgery. Both parties submitted memoranda
addressing this issue.

On November 12, 2021, the trial court orally found the Defendant guilty. It
determined that its experience as a trial lawyer, its experience with people and events, “the
collateral facts in this case[,]” and “the circumstances, including the issues of credibility of
[the Defendant],” allowed it to make a logical inference that the Defendant acted without
authorization.

On November 19, 2021, before judgments of guilt were entered, the parties again
appeared before the trial court. The trial court again addressed the issue of whether it could
draw inferences from the Defendant’s credibility that a forgery occurred and stated this
was an “academic discussion more than anything.” The State again argued that the trial

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court was permitted to use its experience and draw inferences from the circumstantial
evidence. The Defendant argued the trial court could not rely on circumstantial evidence
or “suspicious evidence.” Defense counsel inquired, “The fact that we are still here, still
tortured over this issue . . . would that not be reasonable doubt?” The trial court responded,

Well, that’s kind of what I just said. I think that is a good point. I just need
to think about it. It’s just, I mean, it’s a serious issue and I have got to look
at the proof and decide whether or not I can make that inference from the, to
me, obvious issues of credibility with the [D]efendant.

The trial court asked the parties to prepare memoranda on the issue with competing
proposed orders. While selecting the Defendant’s next court date, defense counsel stated
that he believed the presentence report could be prepared by mid-January. The trial court
asked the parties to coordinate their schedules with the timing of the presentence report so
an order could be entered that day.

On March 4, 2022, the trial court entered its findings of guilt. In its findings, the
trial court discussed State v. Dorantes, 331 S.W.3d 370, (Tenn. 2011), and the Tennessee
Pattern Jury Instructions concerning the reasonable doubt standard and the use of direct
and circumstantial evidence. It reasoned that it could consider collateral facts and
circumstances which did not directly prove the fact at issue but from which facts could be
logically inferred. It further stated that our supreme court in Dorantes directed the trier of
fact to use its experience with people and events. See 331 S.W.3d at 370. It noted facts
from the case, including: (1) the Defendant lied about making deposits, including the
$4,000 deposit, into the Gordons’ account; (2) the Defendant claimed that some of the
money in the account was hers, but the $1,000 loan and repayment would not have been
necessary if that were true; (3) the Defendant laid blame on others by pointing out her aunt
and uncle had gotten a new truck, boat, and jet ski, however, these relatives only received
$832.33, which Detective Cox opined was not enough to purchase these items; (4) the
Defendant admitted responsibility for the PayPal account, and five of these PayPal
transactions occurred while Ms. Gordon was either hospitalized, being admitted or
discharged, or deceased; (5) the Defendant lied about the number of PayPal transactions;
(6) the Defendant claimed that the checks were for doctor’s appointments and
prescriptions, but all the checks were cashed at a bank; (7) every check was for a round
number which is not typical for a commercial transaction; (8) the Gordons’ bank account
was overdrawn and to believe these acts were authorized would require the belief that Mr.
Gordon consented to having all his money spent; and (9) the checks had widely varying
dates as to when they were dated and when they were cashed, including check Nos. 4028
and 4029, which were both written on October 24, 2019, and cashed eleven days apart.

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The trial court found that these collateral facts and circumstances, when viewed with the
trial court’s experience with people and events as a trial lawyer for thirty-five years and
time as a judge, proved the Defendant acted without authorization.

On March 18, 2022, a sentencing hearing was held. Defense counsel requested split
confinement and stated the Defendant wanted assistance with her drug problem. Defense
counsel also acknowledged that the Defendant had committed a theft while awaiting the
resolution of her trial for her forgery charges. Counsel stated that the Defendant had been
released on bond since May 2021, had passed all her drug screens, and had no violent
history. The trial court requested that defense counsel prepare a treatment plan for the
Defendant that the trial court could review when considering an alternative sentence.

When the sentencing hearing resumed on April 8, 2022, the State introduced the
presentence report and certified copies of the Defendant’s prior convictions for six felonies
and six misdemeanors. The State further submitted proof of two probation revocation
orders that the Defendant received for her sentence on a sale of schedule II drugs
conviction. The defense conceded that the Defendant was a Range II, multiple offender.
Amy Hill with Probation Services testified that she had issued ten drug tests to the
Defendant while the Defendant was on bond and that all tests were negative. During the
Defendant’s allocution, she stated that her drug issues began after having surgery for a
brain tumor and being treated with steroids post-surgery. Defense counsel entered
evidence of the Defendant’s acceptance to Centerstone, a substance rehabilitation program.

The trial court considered the presentence report, the principles and purposes of
sentencing, the Defendant’s education and prior convictions, and the enhancing and
mitigating factors. It stated that neither the evidence submitted nor the Defendant’s
allocution indicated that the Defendant suffered from a current drug problem or a mental
health issue that suggested she would benefit from a treatment program. It noted that the
Defendant had not taken her prior probation seriously and that she had a lengthy history of
criminal conduct. It considered the Defendant’s prior convictions as evidence contrary to
the Defendant’s being a favorable candidate for an alternative sentence. See Tenn. Code
Ann. § 40-35-102(6)(A). It found confinement necessary to protect society from the
Defendant and to avoid depreciating the seriousness of the offense and that measures less
restrictive than confinement had been applied to the Defendant unsuccessfully. Id. at § 40-
35-103(1)(A)-(C).

Addressing the enhancement factors, the trial court found that the Defendant had a
previous history of criminal convictions and criminal behavior in addition to those
necessary to establish the appropriate range. Tenn. Code Ann. § 40-35-114(1). The court

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found that the offense involved more than one victim and that the victims were particularly
vulnerable due to age and their “pitiful” condition. Id. at § 40-35-114(3), (4). The court
found that the Defendant failed to comply with conditions of a sentence involving release
into the community, noting the Defendant’s arrest after trial. Id. at § 40-35-114(8). It
found the Defendant abused a position of private trust in a manner that significantly
facilitated the offense by taking advantage of the sickness, infirmity, and age of her
grandparents. Id. at § 40-35-114(14). The trial court then imposed consecutive sentencing
based on the Defendant’s having an extensive record of criminal activity. Id. at § 40-35-
115(b)(2). The trial court sentenced the Defendant as a Range II, multiple offender to four
years’ incarceration in count one and imposed a two-year sentence for counts two through
five to run concurrently to each other and consecutively to count one, for an effective six-
year sentence. The judgments were filed on April 28, 2022.

On May 9, 2022, the Defendant filed a motion for new trial and on June 8, 2022, an
amended motion for new trial. In her motion, the Defendant alleged that: (1) the
Defendant’s due process rights were violated by use of improper inferences to convict the
Defendant of forgery; (2) the evidence is insufficient to support a conviction of forgery;
(3) reasonable doubt existed because the State presented no evidence of forgery and
because the trier of fact’s withdrawal of its guilty verdict showed that it had doubts as to
the Defendant’s guilt; and (4) new evidence should be admitted and considered by the trier
of fact, specifically, judgments of nolle prosequi on Mr. Clark’s forgery charges and bank
records tending to support the Defendant’s statement regarding depositing $4,000 into the
victims’ bank account.

The trial court denied the motion for new trial. This timely appeal followed.

II. ANALYSIS

A. Sufficiency

The Defendant makes several arguments as to why the evidence is insufficient to
support her convictions for forgery, specifically as it relates to whether she had
authorization to pass the checks. First, she argues that no testimony or evidence was
presented purporting that the checks were forged. To this point, she argues that Mr. Gordon
was not a reliable witness, that the trial court relied on a mischaracterization of the
Defendant’s statements in its verdict, that similar transactions existed with other family
members, that the trial court failed to consider transactions it had notice of that tended to
support the Defendant’s statements, and that the trial court “solely” relied on its history as
a trial lawyer and experience with people to render a guilty verdict.

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 Second, she contends that the trial court admitted reasonable doubt existed when it
withdrew its initial oral finding of guilt and that its delay to render a final guilty verdict
showed reasonable doubt existed. Lastly, the Defendant argues that the trial court
erroneously relied on State v. Dorantes, 331 S.W.3d 370 (Tenn. 2011), arguing Dorantes
failed to differentiate between “irrelevant and obscure circumstantial evidence” and direct
evidence and only equated “evidentiary circumstantial evidence and direct evidence.”

The State responds that sufficient circumstantial evidence exists to support the
Defendant’s convictions and that our supreme court has made no distinction between the
types of circumstantial evidence that the trier of fact may consider. It further contends that
the trial court’s actions did not show that reasonable doubt existed.

The United States Constitution prohibits the states from depriving “any person of
life, liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, § 1. A
state shall not deprive a criminal defendant of his liberty “except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which he is charged.”
In re Winship, 397 U.S. 358, 364 (1970). In determining whether a state has met this
burden following a finding of guilt, “the relevant question 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). Because a guilty verdict removes the presumption of innocence
and replaces it with a presumption of guilt, the defendant has the burden on appeal of
illustrating why the evidence is insufficient to support the jury’s verdict. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982). If a convicted defendant makes this showing, the
finding of guilt shall be set aside. Tenn. R. App. P. 13(e).

“Questions concerning the credibility of witnesses, the weight and value to be given
the evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Appellate courts do not “reweigh
or reevaluate the evidence.” Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978)). “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. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The law provides this deference to the
jury’s verdict because

[t]he jury and the [t]rial [j]udge saw the witnesses face to face, heard them
testify, and observed their demeanor on the stand, and were in much better
position than we are, to determine the weight to be given their testimony.

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 The human atmosphere of the trial and the totality of the evidence before the
court below cannot be reproduced in an appellate court, which sees only the
written record.

Carroll v. State, 370 S.W.2d 523, 527 (Tenn. 1963) (internal quotations and citations
omitted). Therefore, on appellate review, “the State is entitled to the strongest legitimate
view of the evidence and to all reasonable and legitimate inferences that may be drawn
therefrom.” Cabbage, 571 S.W.2d at 835. “In a bench trial, the verdict of the trial judge
is entitled to the same weight on appeal as a jury verdict.” State v. Holder, 15 S.W.3d 905,
911 (Tenn. Crim. App. 1999) (citing State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978)).

Pursuant to Tennessee Code Annotated section 39-14-114(a), “[a] person commits
an offense who forges a writing with intent to defraud or harm another.” As relevant to
this appeal, “forge” means to “[i]ssue, transfer, register the transfer of, pass, publish, or
otherwise utter a writing that is forged within the meaning of subdivision (b)(1)(A).” Tenn.
Code Ann. § 39-14-114(b)(1)(C). Subdivision (b)(1)(A)(i) further defines “forge” as 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 that act[.]”

Here, there is no dispute that the Defendant endorsed and cashed the checks at issue.
Further, it is clear that Mr. Gordon did not authorize the transactions. Thus, the question
is whether there was sufficient evidence in the record to find that Ms. Gordon did not
authorize the transactions.

Viewed in the light most favorable to the State, the evidence shows that Mr. Gordon
reported these five checks as stolen to both law enforcement and First Federal Bank.
During questioning, the Defendant made conflicting statements, stating first that Ms.
Gordon gave the Defendant these checks because the Defendant had no job or insurance
and needed to borrow money for medical bills. She then claimed to have commingled her
own funds into the account and drew these checks from her own money, but the Gordons’
bank records indicate that $4,000 of the Defendant’s money was never deposited into their
account, as the Defendant claimed. The Defendant then stated that she repaid the Gordons
for these checks with a $1,000 check dated December 19, 2019, with funds that she
obtained from Ms. Montgomery’s Estate. However, the evidence reflects that this
transaction was actually a repayment from a separate $1,000 loan from the Gordons’
account. Additionally, the $1,000 was deposited prior to check No. 4055, purportedly
written to the Defendant on February 7, 2020, and cashed February 10, 2020, and therefore
could not have been a repayment for all the checks at issue. The Defendant further
contradicted herself by describing an arrangement where Ms. Gordon would give Ms.

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Montgomery checks to cash and give to the Defendant and then stated that she would cash
checks from Ms. Gordon and give the money to Ms. Montgomery. Moreover, Mr. Gordon
claimed that he and Ms. Gordon were not in the habit of helping others with their bills. See
Tenn. R. Evid. 406 (providing that evidence of the habit of a person “is relevant to prove
that the conduct of the person . . . was in conformity with the habit”). He claimed to only
recall Ms. Gordon writing two checks to the Defendant for $15 and $30. While the
Defendant challenges the reliability of Mr. Gordon’s testimony, the trial court was able to
personally observe Mr. Gordon while he testified, and this court does not reweigh or
reassess the credibility of witnesses. See Bland, 958 S.W.2d at 659 (citing Cabbage, 571
S.W.2d at 835); Carroll, 370 S.W.2d at 527.

While the Defendant claimed these checks were for medical bills, all five checks
were cashed at a bank, were for round numbers, and had greatly varying dates between the
date each check was written and when it was cashed, including check Nos. 4028 and 4029,
which were both written on October 24, 2019, but cashed eleven days apart. Furthermore,
the Defendant admitted to opening a PayPal account linked to the victims’ bank account
and to having Ms. Gordon write checks to Mr. Clark, all allegedly for medical purposes.
While the Defendant only reported conducting three or four PayPal transactions, the
evidence shows that twenty-one transactions occurred before the Gordons’ bank account
was depleted and closed. Several of these transactions were for online purchases and not
for cash withdrawals. Also, several transactions involving both the PayPal account and
checks written to the Defendant and Mr. Clark occurred while Ms. Gordon was either
hospitalized, being admitted or discharged from the hospital, or deceased.

While the Defendant contends that other family members had checks written to
them in similar amounts, Mr. Gordon did not report these checks as stolen. During her
interview, the Defendant attempted to shift blame to an aunt and uncle, stating they recently
bought a new boat, truck, and jet ski. The record reflects, however, that these relatives
only received $832.33, which Detective Cox opined was insufficient to purchase these
items. Further, the evidence shows that the checks written to the Defendant, the PayPal
transactions, and the checks written to Mr. Clark, totaled $6,350.29, more than went to the
other family members combined. As such, a trier of fact could infer from the circumstantial
evidence and its experience that the checks written to the Defendant were for personal use
and not authorized by Ms. Gordon. See Dorantes, 331 S.W.3d at 385 (citing Holland v.
United States, 348 U.S.121, 140 (1954) (stating a jury may use its experience with people
and events when weighing the probability of a defendant’s guilt based on the circumstantial
evidence presented)); see also State v. Compton, No. 249, 1986 WL 575, at *1-2 (Tenn.
Crim. App. May 7, 1986) (holding the evidence sufficient to support a forgery conviction
where witness credibility and circumstantial evidence demonstrated that a defendant’s

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grandmother did not authorize the checks at issue). Moreover, the trial court credited the
testimony of Mr. Gordon and Detective Cox and not the statements made by the Defendant
to police, as was its province. Bland, 958 S.W.2d at 659.

The Defendant next argues that the trial court erred by not considering the bank
records of Shirley Montgomery. The Defendant argued that these records showed a
transaction of $4,000, which was the amount the Defendant reported depositing into the
victims’ account. Regardless of whether the Defendant received this money from her
mother’s estate, the Gordons’ bank records, as we have noted, indicate that this sum was
never commingled into their account. In any event, the trial court excluded the records
from Ms. Montgomery’s estate. A trial court may only consider evidence admitted at trial
when rendering a verdict. See State v. Stephens, 521 S.W.3d 718, 724 (Tenn. 2017).
Therefore, the trial court did not err by failing to consider these records during its
deliberations, nor may these records factor into our sufficiency analysis.

The circumstantial evidence presented allowed a logical inference that the
Defendant acted without authorization to pass the checks. While the Defendant argues that
the trier of fact cannot rely on “obscure” and “irrelevant” circumstantial evidence, our
supreme court has made no such distinction between types of circumstantial evidence and
we decline to make such a distinction now. The weight and value—both for direct and
circumstantial evidence—is resolved by the trier of fact, and we do not reweigh this
evidence. Dorantes, 331 S.W.3d at 379. Furthermore, all evidence admitted at the trial,
even if erroneously admitted, can be considered when addressing a defendant’s challenge
to the sufficiency of the evidence to sustain the conviction. See, e.g., State v. Watkins, 648
S.W.3d 235, 256 (Tenn. Crim. App. 2021) (citing State v. Longstreet, 619 S.W.2d 97, 100-
01 (Tenn. 1981)). The evidence, therefore, is sufficient to support the Defendant’s
convictions for forgery.

Relative to the Defendant’s contention that the trial court’s post-trial actions
demonstrated reasonable doubt on its part, we note that the trial court made an initial oral
finding of guilt at the November 12, 2021 hearing but did not enter a written verdict at that
time. Instead, the trial court held a hearing seven days later and stated that it wanted to
further consider a legal question. The trial court rendered a final written guilty verdict four
months later and acknowledged that this was a difficult matter to decide. However, the
length of a trier of fact’s deliberation does not call into question the validity of the verdict.
State v. Gray, 960 S.W.2d 598, 605 (Tenn. Crim. App. 1997). The Defendant, therefore,
is not entitled to relief.

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 B. Tennessee Code Annotated section 24-7-122

The Defendant argues that the trial court erred by shifting the burden of service of
Ms. Gordon’s medical records pursuant to Tennessee Code Annotated section 24-7-122(c)
from the State to the Defendant. The State responds that the Defendant failed to show that
hospitalization dates fell within the reach of the Code section, that the Defendant had notice
of the existence of the records and an opportunity to view them five months prior to trial,
and that the Defendant failed to establish exclusion of the records was warranted.

Tennessee Code Annotated section 24-7-122(a) defines “medical records” as “all
clinical information that relates to the treatment of individuals, when the information is
kept in an institution.” Code subsection -122(c) states that the “party desiring to use the
records . . . shall serve the opposing party with a copy of the records . . . no later than sixty
(60) days before the trial, with notice that the records . . . may be offered in evidence[.]”

The Defendant’s argument is moot because the medical records were never entered
into evidence. See State ex rel. Lewis v. State, 347 S.W.2d 47, 48 (Tenn. 1961) (explaining
that a genuine and existing controversy must be presented for adjudication as a court has
no right to enter an advisory opinion). During the hearing on the Defendant’s motion in
limine to exclude these records, defense counsel offered to stipulate to the dates of Ms.
Gordon’s hospitalization. During trial, the Defendant ultimately reviewed and approved
that stipulation, and the medical records were never admitted. The Defendant cannot now
challenge the admission of a stipulation that she agreed to at trial. See Tenn. R. App. P.
36(a). Further, any such challenge would be waived due to the Defendant’s failure to
include it in her motion for new trial. Tenn. R. App. P. 3(e), 36(a); State v. Harbison, 539
S.W.3d 149, 164 (Tenn. 2018) (“Grounds not raised in a motion for new trial are waived
for purposes of appeal.”) (citations omitted).

C. Admission of the PayPal Transactions

The Defendant next argues that the admission of irrelevant PayPal transactions
denied her right to a fair trial. To this point, she contends that the trial court erred by failing
to hold a Tennessee Rule of Evidence 404(b) hearing to determine their admissibility, that
the trial court erroneously admitted the evidence based on the Defendant’s opening the
door, and that the trial court erred by excluding Ms. Montgomery’s bank records to counter
the State’s advantage on this point. The State responds that the Defendant has waived this
issue by failing to object to the PayPal transactions on these grounds at trial. We agree
with the State and hold that the issue is also waived for an additional reason not raised by
the State.

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 The Defendant’s statement to police, wherein she described linking a PayPal
account to her grandparents’ bank account and conducting only three or four transactions
between those accounts, was admitted into evidence without objection by the Defendant.
When Detective Cox later testified that, in fact, twenty-one transactions had been made
between these accounts, the Defendant did not object on constitutional fair trial grounds
but only on relevance grounds. In her motion for new trial pleadings, she excluded any
mention of the PayPal evidence. To the extent that she argued in these pleadings that her
verdict was based upon general “improper influences,” she framed this as a due process
violation and not a relevance issue or a fair trial violation. Now, for the first time on appeal,
she raises a fair trial claim related to the admission of the PayPal evidence.

“An appellate court’s authority ‘generally will extend only to those issues presented
for review.’” State v. Bristol, 654 S.W.3d 917, 923 (Tenn. 2022) (quoting Tenn. R. App.
P. 13(b)). Further, the appellate rules do not require relief to be granted “to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of the error.” Tenn. R. App. P. 36(a). Appellate
jurisdiction “extends to those issues that ‘ha[ve] been formulated and passed upon in some
inferior tribunal.’” Bristol, 654 S.W.3d at 925 (alteration in original) (quoting Fine v.
Lawless, 205 S.W. 124, 124 (Tenn. 1918)). The party who wishes to raise an issue on
appeal first has an obligation to preserve that issue by raising a contemporaneous objection
in the trial court. See State v. Vance, 596 S.W.3d 229, 253 (Tenn. 2020). An objection
must state “the specific ground of objection if the specific ground was not apparent from
the context[.]” Tenn. R. Evid. 103(a)(1). Further, in order to preserve an issue for appeal,
it is sufficient for the objecting party to inform the trial court of “(1) the action that the
party desires the court to take; or (2) the party’s objection to the action of the court and the
grounds for the objection.” Tenn. R. Crim. P. 51(b). If such an objection is made, the party
must also include the issue in a motion for new trial in order to avoid appellate waiver. See
Tenn. R. App. P. 3(e), 36(a); Harbison, 539 S.W.3d at 164.

Appellants cannot raise an issue for the first time on appeal nor can they change
their arguments on appeal. See Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983);
see also Tenn. R. App. P. 36(a). In other words, “a party may not take one position
regarding an issue in the trial court, change his strategy or position in mid-stream, and
advocate a different ground or reason” on appeal. State v. Dobbins, 754 S.W.2d 637, 641
(Tenn. Crim. App. 1988).

Appellate courts have the discretion to consider an issue under plain error review
even when a defendant has failed to properly preserve that issue for appeal. State v.

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Bledsoe, 226 S.W.3d 349, 353 (Tenn. 2007); see Tenn. R. App. P. 13(b). “When 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.” Tenn. R. App. P. 36(b). Our supreme court
has advised appellate courts to exercise plain error review sparingly. Bledsoe, 226 S.W.3d
at 354. As such, it is a defendant’s burden to show that the issue is entitled to plain error
relief. Id. at 355.

First, we agree with the State that the Defendant has waived this claim because no
contemporaneous objection was lodged at trial on the bases that the Defendant now seeks
to raise on appeal. Tenn. R. App. P. 36(a); Vance, 596 S.W.3d at 253. The Defendant
objected to the PayPal transactions solely on relevance grounds and may not now abandon
this ground for relief in favor of asserting a new ground based on a constitutional fair trial
claim. Dobbins, 754 S.W.2d at 641. We additionally conclude that the Defendant’s failure
to include the PayPal transactions or a fair trial claim in her motion for new trial also
constitutes waiver of the issue. See Tenn. R. App. P. 3(e), 36(a); Harbison, 539 S.W.3d at
164. Further, despite the State’s having argued for waiver in its principal brief, the
Defendant has failed to request plain error review. Without a request, we decline to
conduct such a review. See Bledsoe, 226 S.W.3d at 353-54; State v. Thompson, No.
W2022-01535-CCA-R3-CD, 2023 WL 4552193, at *5 (Tenn. Crim. App. July 14, 2023)
(declining to conduct plain error review absent the defendant’s request and explaining
“where a defendant fails to respond to a waiver argument, only particularly compelling or
egregious circumstances could typically justify our sua sponte consideration of plain
error”).

D. Cumulative Error

The Defendant argues that she is entitled to relief due to the cumulative effect of the
errors of the trial court. Along with the Defendant’s contentions addressed above, the
Defendant also argues that the trial court erred by considering the actions of Mr. Clark, by
assessing the Defendant for sentencing prior to entering a final verdict, and, as a general
contention, that the trial was “too short.”

The cumulative doctrine is a “judicial recognition that there may be multiple errors
committed in trial proceedings, each of which in isolation constitutes mere harmless error,
but which when aggregated, have a cumulative effect on the proceedings so great as to
require reversal in order to preserve a defendant’s right to a fair trial.” State v. Hester, 324
S.W.3d 1, 76 (Tenn. 2010). To warrant review under the cumulative error doctrine, more
than one actual error must have occurred in the trial proceedings. Id. at 77.

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 Because we have rejected each of the Defendant’s above allegations of error related
to the trial proceedings, her argument that she is entitled to relief based on the cumulative
error doctrine fails. See id. at 76-77. While the Defendant attempts to raise independent
claims of error as part of her cumulative error claim, she fails to cite to any authority related
to these issues in her brief. See Tenn. R. App. P. 27(a)(7). As such, these specific
contentions are waived. Tenn. Ct. Crim. App. R. 10(b).

E. Sentencing

The Defendant argues that her effective sentence of six years’ incarceration is
disproportional to her five convictions for forgery in violation of the Cruel and Unusual
Punishment Clause of the Eighth Amendment and article I, section 16 of the Tennessee
Constitution.4 Specifically, she contends that forgery is a nonviolent crime and generally
does not garner a sentence to serve. The State responds that the Defendant’s sentence is
not grossly disproportional to her offenses. We agree with the State.

The Eighth Amendment to the United States Constitution and article I, section 16
of the Tennessee Constitution prohibit “cruel and unusual punishments.” In order to
comport with these constitutional provisions, a sentence may not be “grossly
disproportionate” to the crime committed. See State v. Harris, 844 S.W.2d 601, 603 n.3
(Tenn. 1992) (citing State v. Black, 815 S.W.2d 166, 189 (Tenn. 1991)). The Harris court
adopted the methodology espoused in Justice Kennedy’s concurrence in Hamerlin v.
Michigan to determine whether a defendant’s sentence is proportionate. See id. at 603
(citing Hamerlin, 501 U.S. 957, 996-1009 (1991) (Kennedy, J., concurring in part and
concurring in the judgment)). Under this analysis, the sentence imposed is initially
compared with the crime committed. Id. Unless this threshold comparison leads to an
inference of gross disproportionality, the inquiry ends, and the sentence is constitutional.
Id. “In those rare cases where this inference does arise, the analysis proceeds by comparing
(1) the sentences imposed on other criminals in the same jurisdiction, and (2) the sentences
imposed for commission of the same crime in other jurisdictions.” Id.

“Determining whether a penalty for a particular offense raises an inference of gross
disproportionality entails a comparison between the gravity of the offense and the

4
The Defendant briefly argues that the trial court did not afford her a presumption of alternative
sentencing. She cites no authority for this argument, and it is therefore waived. See Tenn. R. App. P.
27(a)(7); Tenn. Ct. Crim. App. R. 10(b). In any event, the Defendant is a multiple offender and is therefore
not eligible to “be considered as a favorable candidate for alternative sentencing options[.]” See Tenn.
Code Ann. § 40-35-102(6)(A).

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harshness of the penalty.” State v. Smith, 48 S.W.3d 159, 171 (Tenn. Crim. App. 2000)
(citing Solem v. Helm, 463 U.S. 277, 290-91 (1983)). Relevant factors for this comparison
include

(1) the nature of the crime, including whether society views the crime as
serious or relatively minor and whether the crime is violent or non-violent;
(2) the circumstances of the crime, including the culpability of the offender,
as reflected by his intent and motive, and the magnitude of the crime; and (3)
the existence and nature of any prior felonies if used to enhance the
defendant’s penalty.

Id. “Factors relevant to the harshness of a penalty include the type of penalty imposed and,
if a term of imprisonment, the length of the term and the availability of parole or other
forms of early release.” Id. “[B]ecause reviewing courts should grant substantial deference
to the broad authority legislatures possess in determining punishments for particular
crimes, ‘[o]utside the context of capital punishment, successful challenges to the
proportionality of particular sentences [will be] exceedingly rare.’” Harris, 844 S.W.2d at
602 (quoting Solem, 463 U.S. at 289-90) (alterations and emphasis in original).

Here, the proof at sentencing showed the Defendant had an extensive history of
theft-related convictions and had committed theft while awaiting a verdict for her present
forgery offenses. The trial court found the following enhancement factors applicable: (1)
the Defendant had a previous history of criminal convictions and criminal behavior in
addition to those necessary to establish the appropriate range; (2) the offense involved more
than one victim; (3) the victims were particularly vulnerable due to age; (4) the Defendant
had failed to comply with conditions of a sentence involving release into the community;
and (5) the Defendant abused a position of private trust in a manner that significantly
facilitated the offense. See Tenn. Code Ann. § 40-35-114. Although these offenses were
nonviolent in nature, the offenses led to the complete depletion of the victims’ only bank
account. The record demonstrates that the Defendant had six felony convictions prior to
the forgeries in this case. The Defendant’s effective sentence of six years for the
commission of five Class E forgery offenses is within the allowable range of punishment
for a single commission of this offense under state law. See id. § 40-35-111(b)(5). Also,
the Defendant, a Range II offender, will be eligible for parole after service of thirty-five
percent of her sentences. See id. § 40-35-501(d). Furthermore, this court has upheld
lengthy sentences for nonviolent offenses against proportionality challenges. See State v.
Sweet, No. E2010-00728-CCA-R3-CD, 2011 WL 6318506, at *54-55 (Tenn. Crim. App.
Dec. 16, 2011) (holding that a sixteen-year sentence for the defendant’s two convictions
for forgery and two convictions for criminal stimulation was not grossly disproportional);

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Galbreath v. State, No. M2003-02807-CCA-R3-PC, 2005 WL 119534, at *23-25 (Tenn.
Crim. App. Jan. 19, 2005) (upholding a thirty-six year sentence for fraudulently obtaining
prescription drugs on twelve occasions as not grossly disproportional).

For these reasons, we conclude no inference of gross disproportionality arises in this
case. The Defendant’s effective sentence of six-years’ incarceration is therefore
constitutional, and there is no need to compare her sentence with sentences imposed for
similar offenses in this or other jurisdictions. See Harris, 844 S.W.2d at 603. The
Defendant is not entitled to relief.

III. CONCLUSION

In consideration of the foregoing and the record as a whole, we affirm the judgments
of the trial court.

______________________________
KYLE A. HIXSON, JUDGE

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