Disbelief Alone Cannot Prove Lack of Authorization in Tennessee Forgery Sufficiency Review

1. Introduction

This dissent addresses a recurring sufficiency-of-the-evidence problem: whether a conviction may be sustained when the prosecution offers no affirmative proof of a required element and instead relies on the fact-finder’s disbelief of the defendant’s account. The underlying prosecution involved alleged forgery based on five checks negotiated by Ginny Elizabeth Parker, purportedly drawn with the authorization of her grandmother, Rose Gordon, who died before charges were brought.

The central factual dispute was narrow and binary: did Rose Gordon authorize Parker to pass the five checks? The dissent frames the majority’s affirmance as resting “solely on her lack of credibility,” and argues that credibility deficits—without evidence of the element itself—cannot substitute for proof beyond a reasonable doubt.

The legal element at issue is the “lack of authorization” component of forgery under Tenn. Code Ann. § 39-14-114(b)(1)(A)(i) (2018).

2. Summary of the Opinion (Dissent)

Justice Tarwater would reverse because the State failed to prove the only contested element: that Parker lacked Rose Gordon’s authorization to pass the checks. In the dissent’s view:

• Direct evidence of authorization exists (Parker’s statement that her grandmother authorized the checks).
• Direct evidence of lack of authorization is absent (the grandmother is deceased; the grandfather testified only that he did not authorize the checks and did not know what his wife was doing).
• Although circumstantial evidence can prove authorization (or lack thereof), there must be some actual circumstantial evidence tied to the element; disbelief of Parker’s account cannot be the sole “evidence” of non-authorization.
• The majority’s cited circumstances—confusion about a purported $4,000 deposit and the checks being in round amounts—go to credibility, not to authorization.
• Additional topics floated in the case (drug use, PayPal activity, checks to Brandon Clark) are characterized as propensity evidence irrelevant to authorization and inappropriate in sufficiency analysis.

3. Analysis

3.1. Precedents Cited

Limits on “no-evidence” reasoning and the role of disbelief

• Napolitano v. Bd. of Prof. Resp., 535 S.W.3d 481, 501, 505-07 (Tenn. 2017)
  The dissent relies on the proposition quoted by the majority: while a fact-finder may disbelieve testimony, “it may not construct a theory based on no evidence at all.” Tarwater, J., uses Napolitano to draw a boundary between permissible credibility assessments and impermissible substitution of disbelief for proof of an element.

Definition and function of circumstantial evidence

• State v. Phillips, 138 S.W.3d 224, 231 (Tenn. Ct. App. 2003)
  Cited for the definition of circumstantial evidence as “evidence of collateral facts and circumstances” from which a fact may be inferred. The dissent uses Phillips to emphasize that the “collateral” circumstance must logically relate to the specific fact in issue (here, authorization), not merely to general credibility.
• Bishop v. State, 287 S.W.2d 49, 50 (Tenn. 1956) and Johnson v. Ely, 205 S.W.2d 759, 762 (Tenn. Ct. App. 1947)
  Both cases appear through Phillips as foundational authority for Tennessee’s articulation of circumstantial evidence. Their role here is structural: they support the dissent’s insistence on a logical inference chain from collateral facts to the contested element.
• 7 Tenn. Pattern Jury Instr. T.P.I.—Crim. 42.03 Evidence: Direct and circumstantial (2025 ed.)
  Invoked to reinforce that circumstantial evidence requires proof of collateral facts from which the fact in issue may be “logically inferred.” Tarwater’s key move is to treat “logical inference” as an element-specific requirement, not a generalized permission to infer guilt from character or credibility concerns.

Deference to credibility determinations and the importance of demeanor

• State v. Ellis, 453 S.W.3d 889, 899-907 (Tenn. 2015) and State v. Moats, 906 S.W.2d 431, 433, 435 (Tenn. 1995)
  Cited for the importance of observing demeanor when making credibility/weight determinations. The dissent uses these cases to underscore a practical concern: Parker did not testify at trial, and the “interview” evidence was audio-only, limiting any credibility-based inference and making a sufficiency affirmance based on “lack of credibility” especially precarious.
• Overton v. Lowe, No. E2007-00843-COA-R3-CV, 2009 WL 1871946, at *7 (Tenn. Ct. App. June 30, 2009)
  Cited for the idea that a judge who does not “see and hear” witnesses is at a “significant disadvantage” on credibility. The dissent uses this to diminish the legitimacy of treating the audio interview as a strong credibility anchor for proving an element.

Motive, Rule 404(b), and propensity evidence

• State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996)
  Cited for the observation that “motive” is not universally at issue and, within Rule 404(b) analysis, may be tied to “identity” as an “other purpose.” The dissent uses McCary to argue drug-use evidence offered as motive did not meaningfully bear on the specific contested element (authorization).
• United States v. Sutton, 41 F.3d 1257, 1259 (8th Cir. 1994)
  Cited for the proposition that drug-use evidence can be improper to prove motive when motive is not at issue. Tarwater employs Sutton to characterize the “drug motive” theory as a generalized propensity inference rather than element-relevant proof.
• United States v. Jones, 455 F.3d 800, 812 (7th Cir. 2006) (Easterbrook J., concurring)
  Cited to warn that admitting drug evidence without relevance to a concrete dispute risks conviction on forbidden propensity. The dissent parallels that risk here: the dispute is authorization, not whether Parker is a “bad actor.”
• State v. Mazowski, 766 A.2d 1176, 1180 (N.J. Super. Ct. App. Div. 2001)
  Cited for the characterization of drug-use “motive to steal” as an “undifferentiated” motive and thus inadmissible. The dissent uses it to argue drug-use evidence is not a logically targeted inference toward lack of authorization.
• State v. Rodriguez, 254 S.W.3d 361, 377 (Tenn. 2008) (quoting Staton v. Commonwealth, No. 1362-01-4, 2002 WL 1792094, at *4 (Va. Ct. App. Aug. 6, 2002))
  Used to support the principle that other-bad-acts evidence can convert the trial into a character inquiry. The dissent cites this line to argue PayPal transactions and checks to Brandon Clark do not prove authorization and instead invite character-based reasoning.
• State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985) and Harris v. State, 227 S.W.2d 8, 9-10 (Tenn. 1950)
  Cited for the longstanding Tennessee rule that other offenses are inadmissible to show propensity. Tarwater’s point is twofold: (1) those subjects should not have been treated as probative of guilt; (2) even if present in the record, they should not be allowed to do the work of proving a missing element in a sufficiency review.

3.2. Legal Reasoning

(a) Element-specific sufficiency: authorization is the only question

The dissent narrows the appellate task to a single statutory element: “lack of authorization” under Tenn. Code Ann. § 39-14-114(b)(1)(A)(i). It treats this as an element that must be proven by evidence (direct or circumstantial) and not by “negative proof” consisting of disbelief alone.

(b) Disbelief vs. inference: a missing link cannot be supplied by character

Tarwater, J., accepts that a fact-finder may disbelieve Parker’s statement but insists that disbelief only affects the weight of her claim—it does not itself create affirmative proof of the opposite proposition (non-authorization) unless accompanied by other element-linked circumstances. The dissent’s illustrative “red light” hypothetical distinguishes:

• circumstantial evidence that rebuts a collateral claim (e.g., it was raining), from
• circumstantial evidence that proves the actual charged fact (e.g., the light was red).

Applied here: even if some evidence casts doubt on Parker’s veracity about money matters, that does not logically prove Rose Gordon did not authorize the checks.

(c) The dissent’s critique of the majority’s two circumstances

• The “$4,000 deposit” topic: The dissent stresses ambiguity in the recorded interview and the detective’s uncertainty. Even taking the State’s view, the absence of a $4,000 deposit in the grandparents’ account shows at most that Parker “misspoke or possibly lied,” which “goes to credibility alone and not to the main issue—whether Parker had her grandmother’s authorization.”
• Round-number checks payable to Parker: The dissent argues this was consistent with the grandparents’ pattern of writing round-amount checks to family members. If the pattern is normalized in the household’s financial behavior, it cannot logically support an inference of non-authorization; the dissent suggests it is “if anything” consistent with authorization.

(d) Excluding propensity-driven “motive” narratives from element proof

The dissent takes pains to separate (i) evidence that Parker may have behaved badly, from (ii) evidence that Rose Gordon did not authorize these checks. It argues drugs/PayPal/Clark evidence functions only as forbidden propensity reasoning and is irrelevant to the element of authorization—making it improper to use such material to rescue a thin evidentiary record during sufficiency review.

(e) Contextual inference the dissent finds more plausible

Tarwater, J., emphasizes facts that (in his view) cut against the State’s theory: Rose Gordon managed finances, had a pattern of aiding family, did not report the checks during her lifetime, and the charges were driven by individuals less involved in the couple’s finances after Rose Gordon’s death. The dissent does not claim these facts prove authorization; rather, it uses them to show the State’s proof of non-authorization was not just weak but missing.

3.3. Impact

• Sufficiency doctrine in element-missing cases: The dissent articulates a disciplined framework: a conviction cannot be affirmed when the record contains no affirmative proof (direct or circumstantial) of a contested element, even if the defendant’s explanation appears untrustworthy.
• Forgery prosecutions involving deceased or unavailable authorizers: If adopted in later cases, this approach would push the State to develop concrete circumstantial indicators of non-authorization (e.g., evidence of incapacity, consistent denial during life, contemporaneous complaints, bank fraud alerts, handwriting/forensic evidence, access/opportunity facts tied to specific instruments), rather than relying on generalized suspicion.
• Constraining “motive by bad acts” reasoning: The dissent’s Rule 404(b)/propensity discussion signals a stricter line between background character narratives and proof of the particular element at issue—especially where motive is not genuinely disputed.
• Appellate review sensitivity to “demeanor-free” credibility judgments: The emphasis on audio-only statements and non-testifying defendants highlights a practical appellate caution: credibility-based affirmances are less defensible when neither trial nor appellate courts can evaluate demeanor and when credibility does not logically supply the missing element.

4. Complex Concepts Simplified

• “Element of the offense”: A fact the State must prove beyond a reasonable doubt for a conviction. Here, the disputed element is “lack of authorization.”
• Direct vs. circumstantial evidence: Direct evidence proves a fact immediately (e.g., “She told me I could sign it”). Circumstantial evidence proves collateral facts from which the disputed fact may be inferred logically (e.g., patterns, contemporaneous conduct, objective records), but the inference must connect to the specific element.
• Sufficiency of the evidence: Whether the proof, if believed, permits any rational fact-finder to find each element beyond a reasonable doubt. The dissent’s core claim is that you cannot “fill” a missing element with disbelief alone.
• Propensity evidence (Rule 404(b)-type concern): Evidence offered to suggest “she did bad things before, so she likely did this bad thing too.” The dissent argues drug use/PayPal/other checks risk convicting based on character rather than authorization.
• Credibility: Whether a witness is believable. The dissent treats credibility as important, but not a substitute for affirmative proof of a missing statutory element.

5. Conclusion

Justice Tarwater’s dissent advances a clear sufficiency principle: a fact-finder’s disbelief of a defendant’s statement cannot, by itself, establish a required element—here, the “lack of authorization” needed to prove forgery under Tenn. Code Ann. § 39-14-114(b)(1)(A)(i). The dissent reads the record as containing, at most, credibility impeachment and propensity-laden suspicion, but no affirmative element-linked evidence from which non-authorization may be logically inferred.

In broader legal context, the dissent is a caution against character-driven convictions and against appellate affirmances that conflate “the defendant seems untrustworthy” with “the State proved the element.” If its reasoning gains traction in later cases, it would tighten the evidentiary demands for forgery (and similar) prosecutions where the key authorizing witness is unavailable and the temptation to rely on credibility substitution is strongest.