        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                June 28, 2016 Session

               STATE OF TENNESSEE v. MOHNIKA M. KING

                 Appeal from the Criminal Court for Knox County
                    No. 104085 Steven Wayne Sword, Judge
                    ___________________________________

               No. E2015-01802-CCA-R3-CD – Filed August 16, 2016
                     ___________________________________


Mohnika M. King (“the Defendant”) pleaded guilty to one count of theft of property
valued at $10,000 or more but less than $60,000 and one count of forgery. During the
sentencing hearing, the trial court denied the Defendant‟s request that she be placed on
judicial diversion. On appeal, the Defendant contends that the trial court abused its
discretion when it denied judicial diversion. Discerning no error, we affirm the
judgments of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT H. MONTGOMERY, JR., JJ., joined.

Ursula Bailey, Knoxville, Tennessee, for the appellant, Mohnika King.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin Ball, Senior Counsel;
Charme Allen, District Attorney General; and William Bright, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                       OPINION

                        I. Factual and Procedural Background

       The Defendant was indicted with two counts of theft of property valued at $10,000
or more but less than $60,000, and two counts of forgery. The Defendant pleaded guilty
to one count of theft of property valued at $10,000 or more but less than $60,000 and one
count of forgery. The parties agreed to a four-year sentence as a Range I offender with
the manner of service to be determined by the trial court. The remaining counts of the
indictment were dismissed.
        At the sentencing hearing, Amy Williams testified that she was the branch
operations manager at Home Federal Bank. The Defendant worked at Home Federal
Bank‟s Cedar Bluff location as a customer service representative (“CSR”). Ms. Williams
stated that customer service was a high priority at Home Federal Bank, and in order to
provide quality customer service, CSRs are given more access to accounts and customer
information than bank tellers. Ms. Williams noted that William Webb and Mary Lou
Parks were siblings and customers of Home Federal Bank. At the time of the offenses,
Mr. Webb was eighty-three years old, and Ms. Parks was seventy-eight. Mr. Webb and
Ms. Parks questioned some transactions on their statement and brought it to the bank‟s
attention. Ms. Williams reviewed the bank‟s account records, and her investigation
revealed that the Defendant made twenty-eight separate withdrawals, ranging from $100
to $2,000, from Mr. Webb‟s and Ms. Parks‟s bank accounts between October 23, 2012,
and October 15, 2013. In total, the Defendant withdrew $16,254 from the accounts. Ms.
Williams reported that the Defendant paid extra attention to and befriended Mr. Webb
and Ms. Parks. Ms. Williams said the victims described themselves as “devastated”; Ms.
Parks particularly “had difficulty understanding how something like this could happen
with someone that she trusted.”

      Ms. Williams stated that the Defendant worked at Home Federal Bank for seven
years before she resigned. At the time of her resignation, she had been placed on
administrative leave for violating a bank policy by cashing third-party checks. After her
employment was terminated, the Defendant received a check from her 401(k) and
pension in the amount of $19,313.33. Home Federal Bank reimbursed Mr. Webb and
Ms. Parks for the money taken from their accounts. However, the Defendant had not
made any restitution payments to the bank at the time of the sentencing hearing.

      The Defendant provided the following statement for her presentence report:

      My offense is theft/forgery of a customer at Home Federal Bank. When I
      was approached by my HR manager (Evelyn Faller) about deposits that
      were being made by a customer (Service Master) by an individual (Elena)
      initially that was all she questioned me about. By this time I had already
      resigned as CSRII. Maybe a week went by [and] she asked if I could come
      in because she had more questions about Service[ ]Master. I came back in
      (on my own terms even though I had no more ties to Home Federal Bank).
      That is when the questions about the withdrawals from Mr. William
      Webb‟s account came up. She asked me did I have any knowledge of
      them. I told her I had to look at what was in question and then I could talk
      to her more in detail. It took about [two] more days for her to call me back.
      I came back in, she gave me a total[,] and I told her I was aware of those
      withdrawals. After a week[‟]s worth of discussion I told her that I found a
      job and I would pay back the funds. Her [sic] and I agreed on a payment
                                           -2-
       arrangement but I lost my job due to it being [through] a staffing agency. It
       was only contracted for [six] months. I tried finding a job and when I
       found one, it was too late, [Home Federal] had me arrested. After my
       arrest, I made bond and tried finding a job anywhere that would hire me.
       Thank the Lord I found Ra[n]dstad. They found me placement here at
       Braxton-Bragg. I enjoy my job. It is what I needed to get back on my feet.
       I have no other bills besides my phone bill. This job will help me pay off
       Home Federal Bank as I promised I would do from the beginning. Again I
       have [first] asked for forgiveness from the Lord, secondly I asked for
       forgiveness from Home Federal. I just want to continue to work and pay
       off my mistake. I take full responsibility for my actions.

      The presentence report also noted that the victims were particularly affected by the
Defendant‟s actions, stating:

       [Ms. Parks], normally outgoing and happy, has become very distrusting and
       distressed. She is in constant fear that someone will take her money. She
       even fears that the courts will take the funds reimbursed from this
       embezzlement. She will not use those funds. She continues to question the
       reason this occurred and will only allow one employee to take care of her
       banking needs.

       According to the presentence report, the Defendant had no criminal history. She
reported good mental and physical health, but she noted that she had been diagnosed with
clinical depression after the death of her mother in 2008. She also stated that “she suffers
from anxiety and sleep deprivation, which stemmed from „[four] tragedies in my family
as well as this situation with my previous employer, Home Federal Bank.‟” The
Defendant provided a pharmacy printout stating she took alprazolam, zolpidem tartrate,
and oxycodone-acetaminophen. The presentence report noted that the only physical
problem the Defendant reported was asthma, for which she used an inhaler. The
Defendant did not report any health conditions for which oxycodone-acetaminophen was
prescribed. The Defendant denied using any illegal or non-prescribed drugs.

       The Defendant also addressed the court directly and said:

       I just want to say that I—that I am remorseful, and I didn‟t have a chance to
       speak to the customers individually, but I did—I am—I am remorseful. I
       worked for Home Federal for a long time. I admit it. I made a mistake, and
       I—I want to pay the money back and, you know, do what‟s right.

        The trial court noted that the Defendant was eligible for judicial diversion. The
trial court acknowledged the Defendant‟s statement in court expressing remorse for her
                                           -3-
actions. However, the trial court also stated that the Defendant‟s statement in her
presentence report “ma[de] it sound like that . . . she‟s doing Home Federal a favor by
coming in to speak with them. To me, that evinces a poor attitude.” The trial court also
referenced the Defendant‟s statement that she would have to look at the accounts in
question in order to answer Home Federal Bank‟s questions, stating, “[S]he knew what
she was talking about. If [the Defendant] was really remorseful for what she had done
and wanted to make—make right on this stuff, she wouldn‟t have made them jump
through all these hoops[.]” The trial court also questioned why the Defendant did not
reimburse the bank from the $19,313.33 check she received from her 401(k) and pension
if she truly was remorseful. The trial court also stated that the Defendant‟s comment that
she was trying to find a job before “Home Federal had [her] arrested” made it appear as if
the Defendant blamed Home Federal for her own failure to pay restitution. Overall, the
trial court found that the Defendant was not remorseful and was not amenable to
correction.

       As to the circumstances of the offense, the trial court stated that the fact this was a
property crime weighed in favor of the Defendant. However, the trial court stated that
the Defendant was in a position of professional trust and that the offense was not “a one-
time slip up[.]” Instead, she specifically targeted two elderly individuals. The trial court
held that the abuse of a position of trust weighed against granting diversion.

       The trial court concluded that the Defendant‟s lack of criminal history and good
social history weighed in favor of granting diversion. The trial court also stated that it
did not see anything in the Defendant‟s medical history that would indicate she could not
complete diversion.

        The trial court found that deterrence value to the Defendant and others weighed
against granting judicial diversion because granting judicial diversion would send a
signal that people could steal and the only consequence would be that they would have to
repay the money. The trial court also held that granting judicial diversion would not
serve the interest of justice for the public, Home Federal Bank, or the Defendant. The
trial court denied the Defendant‟s request for judicial diversion. The trial court imposed
the agreed-to four-year sentence and suspended the sentence to six years‟ probation, with
fifteen days to be served in confinement. The trial court also ordered the Defendant to
pay $250 per month toward her restitution.

                                        II. Analysis

       On appeal, the Defendant argues that the trial court abused its discretion in
denying judicial diversion. Specifically, the Defendant complains that, although the trial
court addressed all the relevant factors, it “did not explain the weight [it] gave to certain
factors.” The Defendant contends that the trial court placed too much weight on the
                                            -4-
Defendant‟s lack of remorse and “only gave cursory consideration to the factors that
weighed in favor of [the Defendant].” The State argues that the trial court did not abuse
its discretion in denying judicial diversion. We agree with the State.

        As a preliminary matter, we note that the transcript of the Defendant‟s guilty plea
is not included in the record on appeal. However, because the transcript of the sentencing
hearing contains the facts of the case and the trial court appears to have based its decision
regarding diversion solely on the evidence presented during the sentencing hearing, the
record is sufficient for this court to conduct a meaningful review. See State v. Caudle,
388 S.W.3d 273, 279 (Tenn. 2012). We presume “that the missing transcript would
support the ruling of the trial court.” Id.

        Tennessee Code Annotated section 40-35-313 governs judicial diversion. Upon a
finding of guilt, the trial court may defer further proceedings and place a qualified
defendant on probation without entering a judgment of conviction. Tenn. Code Ann. §
40-35-313(a)(1)(A) (Supp. 2015). Once the defendant successfully completes probation,
the charge will be dismissed. Tenn. Code Ann. § 40-35-313(a)(2) (Supp. 2015). The
statute defines a “qualified defendant” as a defendant who:

       (a) Is found guilty of or pleads guilty or nolo contendere to the offense for
       which deferral of further proceedings is sought;

       (b) Is not seeking deferral of further proceedings for any offense committed
       by any elected or appointed person in the executive, legislative or judicial
       branch of the state or any political subdivision of the state, which offense
       was committed in the person‟s official capacity or involved in the duties of
       the person‟s office;

       (c) Is not seeking deferral of further proceedings for a sexual offense, a
       violation of § 71-6-117 or § 71-6-119, driving under the influence of an
       intoxicant as prohibited by § 55-10-401, or a Class A or B felony;

       (d) Has not previously been convicted of a felony or a Class A
       misdemeanor for which a sentence of confinement is served; and

       (e) Has not previously been granted judicial diversion under this chapter or
       pretrial diversion.

Tenn. Code Ann. § 40-35-313(a)(1)(B)(i) (Supp. 2015).

        However, eligibility under the statute does not entitle a defendant to judicial
diversion; instead, the decision whether to grant judicial diversion is left to the trial
court‟s discretion. State v. King, 432 S.W.3d 316, 323 (Tenn. 2014). The defendant
                                          -5-
bears the burden of proving that he or she is a suitable candidate for judicial diversion.
State v. Faith Renea Irwin Gibson, No. E2007-01990-CCA-R3-CD, 2009 WL 1034770,
at *4 (Tenn. Crim. App. Apr. 17, 2009) (citing State v. Curry, 988 S.W.2d 153, 157
(Tenn. 1999); State v. Baxter, 868 S.W.2d 679, 681 (Tenn. Crim. App. 1993)).

        When determining whether to grant judicial diversion to a qualified defendant, the
trial court must consider the following factors:

       (a) the accused‟s amenability to correction; (b) the circumstances of the
       offense; (c) the accused‟s criminal record; (d) the accused‟s social history;
       (e) the accused‟s physical and mental health; (f) the deterrence value to the
       accused as well as others; and (g) whether judicial diversion will serve the
       interests of the public as well as the accused.

State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998); State v.
Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). In addition to the Parker and
Electroplating factors, the trial court may consider the following factors in making its
decision: “[the defendant‟s] attitude, behavior since arrest, prior record, home
environment, current drug usage, emotional stability, past employment, general
reputation, marital stability, family responsibility[,] and attitude of law enforcement.”
State v. Anthony Adinolfi, No. E2013-01286-CCA-R3-CD, 2014 WL 2532335, at *2
(Tenn. Crim. App. June 2, 2014) (quoting State v. Washington, 866 S.W.2d 950, 951
(Tenn. 1993)) (internal quotation marks omitted). The record must reflect that the trial
court weighed all the Parker and Electroplating factors against each other, and the trial
court must give an explanation of its ruling on the record. King, 432 S.W.3d at 326;
Electroplating, 990 S.W.2d at 229.

       We review a trial court‟s decision regarding judicial diversion under the same
standard set forth in State v. Bise, 380 S.W.3d 682 (Tenn. 2012). King, 432 S.W.3d at
324. Applying the Bise standard to judicial diversion decisions, if the trial court
considers the Parker and Electroplating factors, specifically identifies the relevant factors,
and places on the record its reasoning for granting or denying judicial diversion, then “the
appellate court must apply a presumption of reasonableness and uphold the grant or
denial so long as there is any substantial evidence to support the trial court‟s decision.”
Id. at 327. The trial court need not recite all of the Parker and Electroplating factors
when justifying its decision on the record in order to be granted a presumption of
reasonableness. Id. However, the record should reflect that the trial court considered the
factors when rendering its decision and that it identified the relevant factors applicable to
the case. Id. Once the trial court identifies the relevant factors, it may proceed solely on
those. Id.


                                            -6-
        In this case, the record shows that the trial court considered and weighed all the
Parker and Electroplating factors. The Defendant appears to assert in her brief that the
sole consideration weighing against granting judicial diversion was the Defendant‟s
failure to express remorse. However, the record clearly reflects that the trial court found
that the Defendant‟s amenability to correction, the circumstances of the offense, and the
deterrent value to the Defendant and others weighed against granting judicial diversion.
The Defendant‟s statement in the presentence report demonstrated that she was not
entirely forthcoming with Home Federal Bank once the withdrawals from Mr. Webb‟s
and Ms. Parks‟s accounts were discovered; instead, she waited until she was specifically
asked about the withdrawals and confronted with the evidence before she admitted to her
wrongdoing. Further, the Defendant had not made any payment toward restitution at the
time of the sentencing hearing. Lack of candor or remorse and failure to pay restitution is
evidence of a defendant‟s lack of amenability to correction. See State v. Timothy C.
Hutson, No. M1999-00329-CCA-R3-CD, 2000 WL 1246429, at *8 (Tenn. Crim. App.
Aug. 18, 2000) (examining factors considered in prosecutor‟s denial of pretrial
diversion). Finally, the circumstances of the offense show that the Defendant abused the
trust of two elderly bank customers with whom she had formed a close relationship and
even befriended. There is substantial evidence in the record to support the trial court‟s
denial of judicial diversion.

       In her brief, the Defendant cites to webpages of three articles from the local
Knoxville news media, featuring stories of public officials who were granted judicial
diversion. The Defendant argues that her abuse of trust was no more egregious than that
of the public officials who were granted diversion, and she appears to assert that her race
and gender were part of the reason that she was treated more harshly than those officials.
However, those news articles were not presented to the trial court and are not included in
the record on appeal. Therefore, we will not consider them on appeal. Tenn. R. App. P.
13(c). To the extent that the Defendant argues that her race or gender influenced her
sentence, that argument was not presented to the trial court, and there is absolutely no
indication in the record that the trial court considered the Defendant‟s race or gender at
any point during the proceedings.

                                      III. Conclusion

        The Defendant has failed to establish that the trial court abused its discretion when
it denied her request for judicial diversion. The judgments of the trial court are affirmed.


                                              ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE


                                            -7-
