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Date: 03-21-2021
Case Style:
State of Tennessee v. Jennifer Murray Jewell
Case Number: M2019-02160-CCA-R3-CD
Judge: Robert W. Wedemeyer
Court: IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Plaintiff's Attorney: Herbert H. Slatery III, Attorney General and Reporter; Benjamin Ball, Assistant Attorney General; Kim R. Helper, District Attorney General; and Tammy J. Rettig, Assistant District Attorney General
Defendant's Attorney:
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Description:
Nashville, TN - Criminal defense attorney represented Jennifer Murray Jewell with arguing that the trial court abused its discretion when it found that the evidence was sufficient to support her probation revocation and when it ordered her to serve her original sentence in confinement without making “explicit findings about the efficacy of a probationary term with modified conditions.”.
This case arises from the Defendant’s 2015 conviction for theft of property over
$60,000. The trial court determined that the victim, Wilson and Associates Engineering
and Surveying, P.C., suffered a loss of $341,122.65. The Defendant, while working as a
03/11/2021- 2 -
bookkeeper for Wilson and Associates (“Wilson”), stole money through payroll, and she
made fraudulent credit card charges on Wilson’s company credit card. The Defendant also
made fraudulent purchases through Wilson’s company checking account for repairs to her
home. Pursuant to a plea agreement, the Defendant was sentenced to ten years as a Range
I offender, suspended to supervised probation. She was also ordered to pay restitution of
$47,000, to be paid in monthly installments of $500. State v. Jennifer Murray Jewell, No.
M2015-02141-CCA-R3-CD, 2017 WL 65242 (Tenn. Crim. App., at Nashville, Jan. 6,
2017) no perm. app. filed; State v. Jennifer Murray Jewell, No. M2017-01931-CCA-R3-
CD, 2019 WL 2004369 (Tenn. Crim. App., at Nashville, May 7, 2019) no perm. app. filed.
On June 8, 2017, the trial court issued a probation violation warrant based on Defendant’s
arrest in Maury County on a new charge of theft of property valued at more than $1,000
but less than $10,000.
At the hearing on the probation violation, Iris Reed testified that she owned Reed
Landscaping in Spring Hill. She said that she hired the Defendant in April 2016 as a
bookkeeper for Reed Landscaping, and the Defendant was responsible for accounts
payable and receivable, reconciling bank statements, and payroll. The Defendant did not
have the authority to sign checks. Ms. Reed testified that she was unaware of the
Defendant’s criminal record at the time that she hired the Defendant. “Someone” later told
her about it. Ms. Reed testified that she requested a formal background check on the
Defendant but did not inform the Defendant of the request.
Ms. Reed testified that Reed Landscaping used QuickBooks software for general
bookkeeping and payroll accounting and Intuit, the QuickBooks payroll service, to process
their payroll. Most employees received their pay through direct deposit, and Intuit debited
the company’s bank account every week to cover the payroll amount. Reed Landscaping
retained pay notices or check stubs as reported by Intuit for each employee’s weekly
deposit. The Defendant was responsible for processing the payroll while she was employed
by Reed Landscaping. Ms. Reed testified that there was a problem with Intuit in August
and September 2016, and payroll could not be processed for a total of three pay periods in
August. She said that paper checks had to be written out to the employees during that time
rather than direct deposit. Ms. Reed agreed that she signed some of the checks, and the
office manager, Letitia Schmidt, also signed some of them.
Ms. Reed testified that the Defendant’s employee file showed she signed two W-4s:
the first one in April 2016 claimed ten withholding allowances, while a second W-4 in
early November 2016 claimed one allowance. Ms. Reed testified that the Defendant
received a loan of $900 from Reed Landscaping on August 1, 2016, which was documented
in the Defendant’s personnel file. Ms. Reed explained that the loan was to be repaid at
$100 per week, beginning on August 5, 2016. The payment was supposed to be deducted
from the Defendant’s wages through the payroll system. The Defendant eventually left
employment with Reed Landscaping due to a dispute with her hours and pay. - 3 -
Ms. Reed testified that in January 2017 she hired a new bookkeeper, Beth
Pennington, who alerted Ms. Reed to an issue she found in the payroll account. Ms.
Pennington determined that the Defendant had changed her own deductions for three pay
periods when the direct deposit system was down that resulted in a $1,200 loss to the
company. The Defendant was arrested on May 23, 2017, on a warrant charging her with
theft over $1,000.
Ms. Reed denied reporting the theft to police in retaliation for accusations the
Defendant had made against her and Reed Landscaping when the Defendant filed for
unemployment compensation after she left the company. The Defendant made numerous
allegations that Reed Landscaping engaged in fraudulent business practices, such as telling
her not to submit legally-required contracts and employment documents, and that the owner
created a hostile work environment. Ms. Reed acknowledged that Defendant was initially
denied unemployment benefits, but had appealed to the Appeals Tribunal of the Tennessee
Department of Labor and Workforce Development. The Defendant was awarded benefits
on April 5, 2017. Ms. Reed could not recall but did not dispute that she made the initial
complaint to the Spring Hill Police Department on April 7, 2017. Ms. Reed then sought
an appeal before the Office of Administrative Review of the award of the Defendant’s
unemployment benefits. The decision of the tribunal was reversed and the Defendant was
ultimately denied unemployment benefits.
Beth Pennington testified that she had between twenty-five and thirty years of
bookkeeping experience, and she was “QuickBooks trained and certified.” She was asked
to review Reed Landscaping’s records when she began working there in January 2017. Ms.
Pennington testified that she needed to reconcile approximately two months of bank
statements but she was unable to find any prior bank statements for the company, which
she found to be “disconcerting.” Ms. Pennington then asked Ms. Reed to obtain Reed
Landscaping’s bank statements from 2016, and Ms. Pennington testified that they
reconciled perfectly until August 2016. Ms. Pennington explained:
When a bank statement doesn’t reconcile, there’s a problem somewhere.
It could have been in QuickBooks, that QuickBooks had done something
incorrectly or there were checks missing or something hadn’t been entered
correctly. It was just a problem and it needed to be investigated further.
Ms. Pennington testified that she checked each employee’s W-4, including the
Defendant’s. She said that the Defendant’s W-4 dated April 18, 2016, had ten allowances
which caused her federal income tax withholding to be zero. Ms. Pennington noted that
this was not an uncommon practice. She testified that on November 4, 2016, the Defendant
changed her W-4 to one allowance which put the Defendant in a “very high withholding
tax bracket.” Ms. Pennington felt that the sudden change in the Defendant’s W-4 status
was unusual, so she reviewed the Defendant’s pay stubs. She found that there was federal
income tax withholding of $200 entered for each of the pay periods ending August 16, - 4 -
August 23, and August 30, 2016, when the Defendant’s W-4 reflected that the withholding
should have been zero.
Ms. Pennington explained that as the bookkeeper, the Defendant was responsible
for entering payroll numbers into QuickBooks, which then calculated each employee’s net
pay. She agreed that Letitia Schmidt also had access to Reed Landscaping’s QuickBooks
system. The payroll data was then transmitted to Intuit, which processed the payroll and
generated automatic drafts for the employees who had signed up for direct deposit.
However, for three pay periods in August 2016, QuickBooks was not operating correctly
and could not “sync” with Intuit. During that time, the employees had to be issued paper
checks. Ms. Pennington explained that the Defendant’s pay stubs for the pay periods
ending August 16, August 23, and August 30, 2016, while the Intuit payroll system was
down, showed that the Defendant’s net pay was $345.90 for two of the pay periods and
$345.91 for one of the periods. However, the paper checks for those pay periods, which
were issued on August 18, August 25, and September 1, 2016, that the Defendant either
cashed or deposited were each in the amount of $745.91. When asked how the amount on
the pay stubs differed from the paper checks, Ms. Pennington testified that the checks were
altered to an amount different than the pay stub. She noted that it would be harder to alter
the pay stub since it was generated through QuickBooks. Ms. Pennington also discovered
that “[t]here were amounts entered into the [check] register which would have equaled the
differences from the pay stubs and the checks.” Ms. Pennington testified that the pay stubs
for the three pay periods in question were printed sometime after the connection to
QuickBooks was re-established.
Ms. Pennington testified that a total of $600 was remitted to the Internal Revenue
Service (“IRS”) from Reed Landscaping’s account on the Defendant’s behalf. However,
the money was not actually held out of the Defendant’s net pay. For the same three pay
periods, the pay stubs also showed an adjustment of $200 to the Defendant’s net pay for
repayment of her employee loan, for a total of $600. While Reed Landscaping’s records
showed that this debit had been applied to the Defendant’s loan balance, Ms. Pennington
found that no actual payment had been made by the Defendant. She also discovered two
false entries in the QuickBooks check register for payments to vendors for equipment
repairs. These two entries made the bank statements for August and September 2016
appear to balance but there was no paperwork to detail that the equipment repairs took
place.
The State introduced evidence that the Defendant was convicted in 1991 of one
count of theft less than $500, three counts of theft more than $500 but less than $1,000,
and one count of theft more than $1,000 but less than $10,000. The victim in that case was
Franklin Mechanical Contractors, and the Defendant was ordered to pay restitution in the
amount of $5,957.52.- 5 -
The trial court summarized the evidence presented at the probation revocation
hearing and found that the State had carried its burden of proving the Defendant’s probation
violation by a preponderance of the evidence. The trial court further found:
The Defendant is a skilled and experienced bookkeeper with an extensive
work history as a bookkeeper for small businesses. She has a prior
conviction for theft accomplished in part through the creation of a bogus
credit balance for Federal Income Tax withholding when in fact no
[re]mittance has been made. The conduct constituting the probation
violation involves theft from an employer who hired [the] Defendant into
a position of trust. The offense for which she was convicted and sentenced
to probation also was committed against an employer who had hired [the]
Defendant into a position of trust. [The] Defendant has a history of prior
convictions in 1991 for both felony and misdemeanor theft offenses
occurring in 1989 and 1990. The circumstances of the violation, which
involve deceit and prior planning, and elaborate efforts to avoid detection.
The similarity between the conduct constituting the violation and the
offense of which she was convicted and placed on probation, as well as
[the] Defendant’s criminal history demonstrates [the] Defendant is a poor
candidate for rehabilitation through further probation or alternative
sentencing. To return the Defendant to supervised probation even with a
split sentence would not serve the interest of either general or specific
deterrence and would depreciate the serious nature of the offenses for
which [the] Defendant was originally convicted.
The trial court also noted that it had “considered all the facts and circumstances
presented, exhibits, arguments of counsel for the parties and the Tennessee Criminal
Sentencing statutes.” The trial court revoked the Defendant’s probation and ordered her to
serve the original ten-year sentence in confinement. It is from this judgment that the
Defendant now appeals.
II. Analysis
On appeal, the Defendant contends that the trial court erred when it found that the
evidence was sufficient to support her probation revocation. She further contends that “[a]
separate abuse of discretion analysis is required when addressing the trial court’s
sentencing disposition” and that the trial court erred when it ordered her to serve her
sentence without making “explicit findings about the efficacy of a probationary term with
modified conditions.” The State counters that the preponderance of the evidence supported
the probation violation and that the trial court did not abuse its discretion when it ordered
a sentence of full confinement. We agree with the State. - 6 -
A trial court’s authority to revoke a suspended sentence is derived from Tennessee
Code Annotated section 40-35-310 (2019), which provides that the trial court possesses
the power “at any time within the maximum time which was directed and ordered by the
court for such suspension, . . . to revoke . . . such suspension” and cause the original
judgment to be put into effect. A trial court may revoke probation upon its finding by a
preponderance of the evidence that a violation of the conditions of probation has occurred.
T.C.A. § 40-35-311(e) (2019). “In probation revocation hearings, the credibility of
witnesses is to be determined by the trial judge.” State v. Mitchell, 810 S.W.2d 733, 735
(Tenn. Crim. App. 1991). If a trial court revokes a defendant’s probation, options include
ordering confinement, ordering the sentence into execution as originally entered, returning
the defendant to probation on modified conditions as appropriate, or extending the
defendant’s period of probation by up to two years. T.C.A. §§ 40-35-308(a), (c), - 310
(2019); see State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999).
The judgment of the trial court in a revocation proceeding will not be disturbed on
appeal unless there has been an abuse of discretion. See State v. Shaffer, 45 S.W.3d 553,
554 (Tenn. 2001); State v. Smith, 909 S.W.2d 471, 473 (Tenn. Crim. App. 1995). In order
for this court to find an abuse of discretion, “there must be no substantial evidence to
support the conclusion of the trial court that a violation of the conditions of probation has
occurred.” Shaffer, 45 S.W.3d at 554. Further, a finding of abuse of discretion “‘reflects
that the trial court’s logic and reasoning was improper when viewed in light of the factual
circumstances and relevant legal principles involved in a particular case.’” Id. at 555
(quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).
The record in this case provided substantial evidence to support the trial court’s
revocation of probation. The proof showed that on three occasions while the company’s
payroll system was down, the Defendant altered her paystubs to create federal income tax
withholdings that the company forwarded to the IRS on her behalf. This reduced her net
pay as shown on her pay stub by $200 for each of the three weeks. The Defendant also
awarded herself a $200 credit each pay period to repay a personal loan made to her by the
company. We note that the Defendant’s fraudulent payments to her loan resulted in a theft
and not a civil matter as argued by the Defendant in her brief. “A person commits theft of
property if, with intent to deprive the owner of property, the person knowingly obtains or
exercises control over the property without the owner’s effective consent.” T.C.A. § 39-
14-103(a) (2018). The Defendant received three paychecks issued at her normal net pay
without any of the deductions listed on her paystub being taken out of that amount. This
resulted in a $1,200 loss to the company. To conceal her theft, the Defendant made
fictional entries in the company’s checking account records in QuickBooks for equipment
repair to ensure that the bank statements for August and September 2016 reconciled,
despite her theft.
The Defendant asserts that the trial court failed to consider evidence that Ms. Reed
contacted the police with allegations of theft in retaliation for the Defendant’s award of - 7 -
unemployment benefits and her claims of fraudulent business practices by the company.
The trial court, however, noted in its findings that it had considered all of the facts and
circumstances presented, exhibits, and the arguments of counsel. The proof adduced at the
revocation hearing established by a preponderance of the evidence that the Defendant
violated the terms of her probation. Accordingly, the trial court did not abuse its discretion
when it revoked the Defendant’s probation.
After finding that the Defendant had violated the terms of her probation, the trial
court retained discretionary authority pursuant to Tennessee Code Annotated section 40-
35-310(b), to order the Defendant to serve her sentence in confinement. The determination
of the proper consequence of a probation violation embodies a separate exercise of
discretion. Hunter, 1 S.W.3d at 67; State v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim.
App. 2007); see also State v. Ronald Davis, No. W2019-01315-CCA-R3-CD, 2020 WL
6127015, at *3 (Tenn. Crim. App., at Jackson, Oct. 16, 2020), no perm. app. filed; State v.
Michael Lee Hooper, No. E2016-02538-CCA-R3-CD, 2017 WL 6375955, at *3 (Tenn.
Crim. App., at Knoxville, Dec. 13, 2017), no. perm. app. filed. Case law establishes that
“an accused, already on probation, is not entitled to a second grant of probation or another
form of alternative sentencing.” State v. Jeffrey A. Warfield, No. 01C01-9711-CC-00504,
1999 WL 61065, at *2 (Tenn. Crim. App., at Nashville, Feb. 10, 1999) perm. app. denied
(Tenn. June 28, 1999); see also State v. Timothy A. Johnson, No. M2001-01362-CCA-R3-
CD, 2002 WL 242351, at *2 (Tenn. Crim. App. at Nashville, Feb. 11, 2002) no perm. app.
filed; State v. Makoyous Houston, No. E2018-01118-CCA-R3-CD, 2019 WL 4274147, at
*4 (Tenn. Crim. App. Sept. 10, 2019) perm. app. denied (Tenn. Jan. 16, 2020).
We conclude that the trial court did not abuse its discretion when it ordered the
Defendant to serve her original ten-year sentence. The proof at the probation revocation
hearing shows that the Defendant, while on probation, committed a second theft from her
employer which was almost identical to the one in this case. The Defendant also had one
misdemeanor conviction and four felony convictions from 1991 involving theft from
another business for which she received probation, clearly showing that measures less
restrictive than confinement have been applied unsuccessfully to the Defendant.
Accordingly, the trial court did not abuse its discretion when it determined the
consequences for the Defendant’s probation violation.
Although the Defendant argues that the trial court failed to make “explicit findings
about the efficacy of a probationary term with modified conditions,” this is not statutorily
mandated. Further, it is clear from the record that the trial court carefully and
conscientiously exercised its discretion in determining the proper consequence of the
Defendant’s probation violation. The Defendant is not entitled to relief.
Outcome: Based on the foregoing reasoning and authorities, we affirm the trial court’s judgment.
Plaintiff's Experts:
Defendant's Experts:
Comments: