TOMLIN, P.J., W.S.
This is a malicious prosecution suit. Joyce Fisher ("plaintiff") filed suit in the Circuit Court of Robertson County against William Thompson, Mike Wilhoit, and Danny Johnson ("defendants") seeking damages stemming from her arrest and indictment for aiding and abetting professional gambling. Defendants Wilhoit and Johnson were voluntarily dismissed from the suit and defendant Thompson was granted summary judgment in his favor. Plaintiff presents one issue for review on appeal: whether the trial court erred in granting summary judgment for defendant. For the reasons hereafter stated, we hold that he did err and we reverse and remand the case.
Mike Wilhoit was assistant chief and Danny Johnson was a detective for the Springfield, Tennessee Police Department at all times relevant to this suit.
In ruling on a motion for summary judgment, both the trial court and this court must consider the matter in the same manner as a motion for directed verdict made at the close of plaintiff's proof; i.e., we must view all affidavits and depositions in the light most favorable to the opponent of the motion and draw all legitimate conclusions of fact therefrom in favor of the opponent. Stone v. Hinds, 541 S.W.2d 598, 600 (Tenn.App. 1976). In accordance with this legal principle, we will now consider the facts developed in this case by the depositions of the parties.
Plaintiff, her husband, Fred Fisher, and their son, Neal Fisher, opened a pawn shop, Springfield Coin and Jewelry, in Springfield in October 1987. It was operated chiefly by Fred and Neal Fisher. At the time of the incident leading to this litigation, plaintiff worked full time as head teller for Volunteer State Bank in Springfield. She had worked for Volunteer and its predecessor since 1964. Approximately four days per week, at the end of her work day at the bank, plaintiff would first go home and then to the pawn shop to do the bookkeeping for that business. On a typical day she arrived at the pawn shop between 5:30 and 7:00 p.m. and would do the bookkeeping, write checks, or watch TV.
In July 1988, Thompson was an agent in the Special Investigations unit of the Tennessee Bureau of Investigation ("TBI"). He was assigned to investigate a possible gambling operation being conducted out of the pawn shop. The TBI investigation ultimately uncovered at least two different games being played, a numbers game based on the Dow Jones average in which the winner was selected at noon, and the Illinois lottery, in which the winner was selected at 7:00 p.m. On July 18, 1988, Thompson set up video cameras to record the traffic entering and leaving the pawn shop and its parking lot. In addition, he and other officers also conducted on-street surveillance through and including July 20th. On July 21st, a search warrant was issued authorizing a search of the premises of the Springfield Coin and Jewelry and the search and seizure of Fred and Neal Fisher. No mention was made of Joyce Fisher in this search warrant.
Fred Fisher was subsequently convicted of conducting a professional gambling operation and Neal pleaded guilty to similar charges.
On the date the search warrant was executed, officers found Fred, Neal, the Fishers' daughter Jill, and a suspected numbers runner in the store. Jill was seven months pregnant at the time of the raid and went into labor while the officers were in the pawn shop. She called plaintiff, and without telling her about the raid, asked her to come to the pawn shop because she thought she was in labor. Plaintiff first learned of the raid when she arrived at the pawn shop to check on her daughter.
During the search, Thompson removed $6,000 in cash from a safe. Before plaintiff arrived, Fred Fisher told Thompson that the $6,000 was not gambling proceeds, but was part of $10,000 either loaned or given to Fred by his mother for the pawn business. When plaintiff arrived, she told Thompson that some of the $6,000 was hers because it was money she inherited from her aunt. After hearing two different stories in a short period from Fred Fisher and plaintiff, Thompson became angry with the Fishers because he thought they were lying. Thompson, however, in his deposition, denies being angry and denies remembering any conversations concerning the $6,000, other than it was said to be a loan from Fred's mother.
Following the arrest, Thompson conducted detailed interviews with five suspected numbers runners who worked for Fred Fisher. On October 19, 1988, Thompson swore out three warrants for the arrest of plaintiff (one for alleged activities occurring on each of the three days the shop was under surveillance). Plaintiff was arrested that day. The following month, plaintiff was fired from her job at the bank. When fired, her supervisor told her specifically that the basis for her termination was her arrest in connection with the gambling activities at her husband's pawn shop.
Except for the date on which the offense was alleged to have occurred, the warrants for each of the three days are identical. Each charges plaintiff with "Aiding and Abetting Professional Gambling," and each reads as follows:
That Joyce Fisher did receive money proceeds from numerous individuals who were wagering bets placed upon an illegal game of chance to-wit: wagers on bets upon the daily Illinois Lottery number. This learned by affiant from (1) those individuals delivering said money and wagers to Joyce Fisher, (2) those individuals placing wagers and (3) affiants' surveilance [sic] of the Springfield Coin and Jewelry Store, 502 1/2 Court Square, Springfield, Robertson County, Tennessee.
Each warrant was sworn to and signed by defendant Thompson. At the time of plaintiff's arrest, aider and abettors to any criminal offense were deemed principal offenders and punishable as such. T.C.A. § 39-1-303 (1982) (repealed 1989); State v. Rodriguez, 752 S.W.2d 108, 111 (Tenn.Crim.App. 1988). The common law at that time defined an aider and abettor as "one who advises, counsels, procures or encourages another to commit a crime." Flippin v. State, 365 S.W.2d 895, 899 (Tenn. 1963). To be punished as an aider and abettor under the statute, one first had to be present at the commission of the crime. T.C.A. § 39-1-303. However, mere presence at the scene of a crime was not sufficient to make one a principal under this statute. Anglin v. State, 553 S.W.2d 616, 619 (Tenn.Crim.App. 1977); see Essary v. State, 357 S.W.2d 342, 347 (Tenn. 1962).
In 1989, the conduct formerly known as "aiding and abetting" was codified at T.C.A. § 39-11-402 (1991):
Criminal responsibility for conduct of another. — A person is criminally responsible for an offense committed by the conduct of another if:
To be an aider or abettor, the person must first know that an offense is being committed and also must be either aiding and abetting the criminal offense, or ready, willing, and able to aid and abet the commission of the crime. State v. Gray, 628 S.W.2d 746, 748 (Tenn.Crim.App. 1981); Anglin, 553 S.W.2d at 619.
In this malicious prosecution action, we are concerned with the issue of whether defendant had probable cause to institute criminal proceedings against plaintiff. In Roberts v. Federal Express Corp., 842 S.W.2d 246, 248 (Tenn. 1992) the supreme court defined "probable cause" as "the existence of such facts and circumstances sufficient to excite any reasonable mind to believe that the accused is guilty of the crime charged . . . probable cause is to be determined solely from an objective examination of the surrounding facts and circumstances." Id. In Roberts, the supreme court reversed prior cases to the contrary and held that the determination of the reasonableness of a defendant's conduct should be made by a jury. As to the issue of probable cause, we are of the opinion that the trial court erred in holding that there was no genuine dispute of any material fact. Furthermore, from reading the trial court's order it appears that the court tried the issue of probable cause instead of deciding the case in the light of summary judgment principles.
The trial court's responsibility, and our responsibility, is to look at the facts and circumstances that existed at the time Thompson swore out the warrants for plaintiff's arrest. His oath to these warrants states that the allegation that plaintiff received money proceeds from individuals wagering bets on the daily Illinois lottery number was learned from individuals delivering money and wagers to and individuals placing wagers with, Joyce Fisher, along with his personal surveillance of the premises in which this was allegedly done.
As of the date Thompson swore out the warrants against plaintiff, he possessed the following personal knowledge and/or information. Prior to the beginning of the surveillance, plaintiff had not been identified as a participant in the gambling operation. During the three days of the surveillance, of which defendant was a participant, plaintiff arrived at the pawn shop late in the day, entered the building, flipped the reversible sign in the front door from "open" to closed," but did not lock the door. The runners for the games based upon the 7:00 p.m. lottery arrived at and entered the pawn shop while plaintiff was in the building. Thompson had no personal knowledge as to the plaintiff's whereabouts inside the building once she entered it nor what, if anything, she did during that period.
The original arrest and search warrant issued on July 21 did not name plaintiff. As a result of the execution of that warrant by the officers, Thompson learned that there were four rooms located off of the main room of the pawn shop, and that during the raid, the officers found Fred Fisher, Neal Fisher, a numbers runner, and another gentleman in one of the offices. Plaintiff was not on the premises at the time the raid was carried out.
Prior to October 19, 1988, defendant conducted extensive interviews from which he obtained sworn statements from five individuals who were either runners who delivered money and wagers to the pawn shop or wagerers themselves. Copies of these statements are in the record as exhibits to defendant's deposition. Etha P. Yates, a runner, testified that when she delivered lotto to the pawn shop, she always gave it to Fred Fisher, and while plaintiff was present at times, she never gave her any money or tickets. She stated further that they were always in another part of the building when she gave money and tickets to Fred Fisher.
Joe W. Farmer, a jewelry repairman at the pawn shop, picked up and delivered bets for others as well as betting himself. He always delivered his bets to Fred Fisher, and occasionally to Neal. Alan W. Darden, a runner or wager, observed plaintiff's presence when he gave money to Fred, but he never had a conversation with plaintiff regarding gambling. Jerry L. Durrett, an apparent runner, stated that he always gave his numbers to Fred, and while he observed plaintiff in the building he never discussed gambling with any of the people there other than Fred. Lastly, Willie D. Jones stated that he delivered the lotto to Fred Fisher and no one else, and while he observed plaintiff on occasion "behind the counter on the right," he never saw her in any of the offices in the back.
In addition to the above, both plaintiff and her husband, Fred Fisher, testified that while she was aware that he was operating a numbers business, she in no way participated in it.
Based upon the above, this court is of the opinion that there is a genuine dispute as to material facts relevant to the issue of whether defendant had probable cause to issue the arrest warrants against plaintiff. In accordance with the holding of the supreme court in Roberts v. Federal Express Corp, supra, the issue of probable cause as defined in Roberts should be submitted to the jury.
The order granting summary judgment for defendant and dismissing plaintiff's case is reversed. This cause is remanded to the Circuit Court for Robertson County for further proceedings not inconsistent with this opinion and judgment. Costs in this cause on appeal are taxed to defendant, for which execution may issue if necessary.
_____________________________________ TOMLIN, P.J., W.S.
_____________________________________ CRAWFORD, J. (CONCURS)
_____________________________________ CANTRELL, J. (CONCURS)
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