         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs January 6, 2009

                   STATE OF TENNESSEE v. NEIL THOMPSON

                  Direct Appeal from the Criminal Court for Shelby County
                         No. 06-08055   James C. Beasley, Jr., Judge



                     No. W2008-00311-CCA-R3-CD - Filed April 17, 2009


The defendant, Neil Thompson, was convicted by a Shelby County Criminal Court jury of robbery
and sentenced to three years, suspended after service of six months, followed by three years of
probation. He appeals, arguing: (1) the trial court erred in failing to grant a mistrial due to a tainted
jury, (2) the trial court erred in admitting a copy of the victim’s telephone records into evidence, (3)
the evidence is insufficient to sustain his conviction, (4) the trial court imposed an excessive
sentence, and (5) he is entitled to relief due to cumulative error. After our review, we affirm the
judgment of the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which J.C. MCLIN and CAMILLE R.
MCMULLEN , JJ., joined.

Robert Jones, Shelby County Public Defender; Phyllis Aluko, Assistant Public Defender (on appeal);
and Timothy Albers, Assistant Public Defender (at trial), for the appellant, Neil Thompson.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Damon Griffin, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                              OPINION

                                                FACTS

        The defendant and a co-defendant, Tommie Simmons, were indicted for the May 2006
robbery of Angel Barrois. At the December 2007 trial, the victim testified that on May 20, 2006, she
and her husband drove to Memphis from their home in Hammond, Louisiana, to visit her in-laws
who had moved to Memphis the previous month. They arrived shortly after midnight and went to
a restaurant on Beale Street with her two brothers-in-law and sisters-in-law. Close to 2:00 a.m., the
victim and her sisters-in-law, Zoe and Nicole Barrois, left the restaurant to return to her in-laws’
apartment, which was “a couple of blocks” from the stadium. As they walked along, she noticed two
men walking, who kept crossing the street back and forth, “a few feet” ahead of them.

        When they were about a block from the apartment, one of the men, the defendant, turned
around and grabbed the strap of the victim’s purse “with his left arm, and he had his right hand under
his shirt, and he told [her] he wanted [her] purse.” The victim bent her arm and asked the defendant
if he was joking, to which he replied, “[Y]es, but he was F’ing serious and that he had a gun.” The
defendant pulled her purse harder, straining her arm, and her sisters-in-law screamed. The two men
then “took off running down the street” with her purse. She said that the co-defendant stood behind
and to the left of the defendant on the sidewalk during the altercation.

        After the incident, the victim and her sisters-in-law ran to the lobby of the apartment and
called the police. An officer came to the apartment and took her statement. The victim and her
husband stayed in Memphis one more night and then returned to Louisiana. Once she was home,
Sergeant Hopkins with the Memphis Police Department contacted her, and she reported some of the
items that were stolen along with her purse, including credit cards, her checkbook, driver’s license,
and cell phone. The victim related that the robbery had affected her because “[her] identity was
stolen,” and she still cannot write checks in many places “[b]ecause checks were written all over
Memphis.” However, none of her credit cards were used.

        The victim testified that she cancelled her cell phone later the morning of the incident before
returning to Louisiana, but her phone bill reflected twenty minutes worth of calls to an unfamiliar
Memphis number that were placed after her phone had been stolen but before she canceled her
phone. After she was issued a new phone with the same phone number, she received a call from a
Memphis number she did not recognize. She called the number back and the young-sounding male
who answered the phone hung up on her. She faxed Sergeant Hopkins a copy of her cell phone
records on May 30, 2006, and informed him of the call she received from an unfamiliar number, 901-
649-8618, and the unfamiliar number that appeared on her bill, 901-358-5760.

        The victim stated that she described the man who robbed her to Sergeant Hopkins as “young,
slim, medium complected, African American, dark eyes, dark hair, short.” Sergeant Hopkins
emailed her two photographic arrays, each with six photographs, and out of one lineup she identified
the defendant “[v]ery quickly” as the man who robbed her. She printed the line-up, circled the
defendant’s photograph, signed it, and faxed it to the officer. She also mailed him her original copy.
The victim was unable to identify anyone from the second array. She said that she did not discuss
anything relating to the photographic identifications with her sisters-in-law. The victim also
identified the defendant in a lineup for the preliminary hearing.

        Asked if she noticed any distinguishing features about the man who robbed her, the victim
said that in addition to his race, she noticed “his facial features, the fullness of his lips, that his ears
poked out a little bit, he had very short hair, his size, his build, his physical frame.” She
acknowledged that right after the robbery she gave “an average description” of the robber but



                                                    -2-
explained that she was not asked to give a specific description. The victim stated that she never told
Sergeant Hopkins that she was not going to be able to identify the robbers.

        Zoe Barrois, the victim’s sister-in-law, testified that she and her husband lived in Memphis
on May 19, 2006, having just moved there the previous month. On that date, her husband’s brother,
Donnie, and his wife, Nicole, arrived from Thibodaux, Louisiana, around 3:00 or 4:00 p.m. Her
husband’s other brother, Darren, and his wife, the victim, arrived around midnight. The family was
in town visiting for “the barbeque cook-off.” Around 1:00 a.m., everyone, except Donnie, walked
to the Blues City Café for dinner. After dinner, the three women decided to walk back to the
apartment; the victim was walking in the middle of the other two. As they walked along, Zoe1
noticed “two guys lingering, kind of crossing the street,” which she did not think odd at first. Zoe
recalled that Nicole indicated that they needed to slow down, but “by then it was too late. [The two
men] had stopped walking.”

        Zoe testified that one of the men, the defendant, said he had a gun and told the victim he
wanted her purse. The victim replied, “You’re kidding, right?” The defendant responded, “No, I’m
not kidding, I have a gun, give me your purse.” The victim tried to hold her arm, but the defendant
ripped her purse off her arm and took off running. The women ran back to the apartment courtyard
and called 911. The police arrived, and Zoe described the robber as having ears that poked out and
the other man as having hair in “little rows [with] . . . some little extra ponytail-like rows in the
back.” Zoe recalled that the defendant told them twice that he had a gun, and she saw “an image of
a weapon” under his shirt. The second man, the co-defendant, “kind of walked out to the middle of
the street” after the defendant demanded the victim’s purse. Zoe said she was sure the defendant was
the man who took the victim’s purse “[b]ecause we were face to face. And, from that day on, if I
close my eyes, I can re-live it minute by minute.”

        Zoe testified that about ten days after the incident, she went to the police department to view
photographic arrays. From the arrays, Zoe identified the defendant as the robber and the co-
defendant as the second man. She said she was “absolutely sure” of her identifications, and she did
not talk to or visit with the victim before making the identifications. Zoe also attended a preliminary
hearing sometime in 2006 at which she identified the individuals as well. She said that she and her
husband moved from Memphis approximately two months after the robbery because she “was afraid
to leave [her] apartment. [She] was afraid to walk on the street.”

        Sergeant Don Hopkins testified that he investigated the robbery in this case. Sergeant
Hopkins took a statement from the victim by telephone, and the victim also contacted him to inform
him that “her [cell] phone had been used by someone other than herself or called by people that she
did not know.” The victim faxed him a document on which she had circled Memphis telephone
numbers that she had no knowledge of calling, and he called the numbers and explained what had
taken place to the people who answered. In doing this, Sergeant Hopkins spoke to the co-
defendant’s mother and father. He asked them to bring the co-defendant to the police station because


       1
           To prevent confusion, we will refer to some witnesses by first name when necessary.

                                                        -3-
he matched the general description of one of the individuals involved in the robbery. One of the
numbers Sergeant Hopkins called, 901-358-5760, was the home phone of the co-defendant’s parents,
and the other number, 901-649-8618, was the co-defendant’s father’s cell phone.

        Sergeant Hopkins initially sent officers to the co-defendant’s parents’ home, and then later
the co-defendant’s father brought him to the police station. The co-defendant “did not talk in detail,”
but Sergeant Hopkins discovered that someone known as “Main Man” had been staying with the co-
defendant. Sergeant Hopkins called the co-defendant’s mother, and she identified “Main Man” as
the defendant. The co-defendant was arrested after the interview.

       Sergeant Hopkins created photographic arrays that included the defendant’s and co-
defendant’s pictures and emailed them to the victim in Louisiana. He spoke to the victim before
emailing the arrays and explained the identification process to her. The victim identified the
defendant from one of the arrays and faxed it back to him immediately. He also emailed the arrays
to the victim’s sister-in-law, Nicole, who was also in Louisiana, and she identified one of the
suspects.2 Sergeant Hopkins had Zoe Barrois view the arrays at the police station, and she identified
both the defendant and co-defendant.

        Sergeant Hopkins acknowledged that the supplemental offense report relayed that the victim
told him on May 29, 2006, that she would not be able to identify any suspects. Sergeant Hopkins
noted that his report indicated that Zoe was visiting the victim in Louisiana when he called her on
May 31, 2006. Sergeant Hopkins said that he questioned the defendant but did not take a formal
statement even though the defendant was willing to talk to him. He explained that was because the
police typically do not reduce it to writing when someone denies being a part of a crime.

        Testifying on behalf of the co-defendant, Natosha Ingram stated that she was dating the co-
defendant on May 20, 2006. Looking at the phone records for the co-defendant’s parents’ home,
Ingram acknowledged that her cell phone received a call from that number at 12:07 a.m. on May 20,
2006, and the call lasted 57 minutes and 22 seconds. Ingram initially said that she did not remember
talking to the co-defendant that day, then she said that she did remember talking to him but did not
see him. After the prosecutor played a recording of a conversation between Ingram and an
investigator, Ingram admitted that she told the investigator that the co-defendant was at her house
that night.

       Starkeasha Simmons, the co-defendant’s sister, testified that she was dating Terez Hawkins
in May 2006. She stated that the phone number 901-521-9946 was the number for Hawkins’ mother.

        Gwendolyn Hawkins, the co-defendant’s mother, testified that she learned her son was a
suspect in a robbery on May 31, 2006, when Sergeant Hopkins called her. The robbery allegedly
took place on May 20, 2006, but she said her son was not involved because he was home at the time.
She recalled that the co-defendant came home around 10:30 p.m. and was at the house when she


       2
           The record does not indicate which suspect she identified.

                                                         -4-
went to bed at 1:00 a.m. When she woke up at 2:09 a.m., the co-defendant’s shoes were at the house
and he was on the phone. He was at the house when she woke up later that morning at 6:30 a.m.

        Tommie Hawkins, Sr., the co-defendant’s father, testified that he learned his son was a
suspect in a robbery when two police cars arrived at the house looking for him. They asked to see
the co-defendant but did not tell him why at that time. The officers came back a second time and
asked that he call Sergeant Hopkins when the co-defendant returned. Mr. Hawkins called Sergeant
Hopkins and agreed to bring the co-defendant to the police station, which he did on May 31, 2006.
At the station, Sergeant Hopkins met with the co-defendant for approximately thirty minutes, and
the co-defendant was then placed under arrest for robbing three women. Mr. Hawkins said that his
son was at home at the time of the robbery. He acknowledged that one of the numbers on the
victim’s cell phone record, 901-358-5760, was his old home number and that 901-649-8618 was his
cell phone number. He stated that the defendant is his nephew.

        The co-defendant testified that his father took him to the police station on May 31, 2006, and
he told the officers that he was asleep at home on May 20, 2006, at 2:00 a.m. He recalled that he
talked to Natosha Ingram on the phone that night from around midnight until 1:00 a.m., then his
friend Erica Norman called at 1:30 a.m. and they talked until around 2:00 a.m. He said he was not
downtown that night and was at home the next morning. The co-defendant identified Ingram’s
phone number on his parents’ home phone records. He said his interview with the officers lasted
less than ten minutes.

       Tawana Thompson, the defendant’s mother, testified that the defendant was asleep in bed
at home at 6:00 a.m. on May 20, 2006. She saw the defendant the night before at 11:00 or 11:30
p.m. when he “went upstairs to his room.” She said that the defendant could not have left the house
because the door was locked and the keys were in her purse.

        The defendant testified that he was at home on May 19, 2006, from around 3:00 or 4:00 p.m.
until the next day. He said he did not go downtown that evening and denied any involvement in the
robbery.

        After the conclusion of the proof, the jury returned a verdict of guilty as to the defendant and
not guilty as to the co-defendant. The defendant appealed.

                                             ANALYSIS

                                            I. Jury Taint

        The defendant argues that the trial court erred in failing to grant a mistrial after a juror
reported feeling uneasy at seeing the defendant and co-defendant not in custody. The defendant
argues that the juror’s level of fear “demonstrates an undercutting of the presumption of innocence”
and that her fear was communicated to other jurors increases the level of harm to his right to trial by



                                                  -5-
an impartial jury. The State responds that the trial court did not abuse its discretion because no
manifest necessity existed for a mistrial. We agree with the State.

        Whether to declare a mistrial lies within the sound discretion of the trial court, and its
decision in this regard will not be overturned on appeal absent a showing of an abuse of discretion.
State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000). A mistrial should be declared in a
criminal case only when something has occurred that would prevent an impartial verdict, thereby
resulting in a miscarriage of justice if a mistrial is not declared. See id. (citing State v. McPherson,
882 S.W.2d 365, 370 (Tenn. Crim. App. 1994)); State v. Jones, 15 S.W.3d 880, 893 (Tenn. Crim.
App. 1999) (citing Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977)). “Generally a
mistrial will be declared in a criminal case only when there is a ‘manifest necessity’ requiring such
action by the trial judge.” State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991)
(quoting Arnold, 563 S.W.2d at 794). The burden to show the necessity for a mistrial falls upon the
party seeking the mistrial. Land, 34 S.W.3d at 527 (citing State v. Williams, 929 S.W.2d 385, 388
(Tenn. Crim. App. 1996)).

         The second day of trial, it was brought to the trial court’s attention that one juror had reported
feeling uncomfortable at seeing the defendant and/or co-defendant in the lobby “or standing around
somewhere.” The court questioned the juror, and she reported that neither of the individuals said
anything to her – it was “[j]ust that [she] felt uncomfortable.” She explained, “It’s just the fact that
it’s not comfortable knowing that you’re a juror on a trial, and just seeing them in your presence.”
Nevertheless, she maintained that her discomfort would not affect her ability to make a decision in
the case. She admitted that she told three other jurors of her discomfort. The court questioned those
jurors, and they confirmed that the first juror had reported feeling uncomfortable at seeing the
defendants out on bond. Each of the three jurors affirmed that the first juror’s feelings would not
affect their ability to decide the case. After the defendant and co-defendant moved for a mistrial, the
court decided to excuse the first juror out of “an abundance of precaution” but denied the motion for
mistrial. The court explained its reasoning as follows:

        Because she said something to the other three. My observations from those three
        who came in here, was, that she just expressed some concern about seeing the
        defendants out there and being uncomfortable.

               It did not seem that the other three were phased by that or expressed any
        concern or indicated any problems with that.

                And, I will bring the jury in and give them instructions, again, about the fact
        that the defendants are on bond, they’re allowed to be on bond, they’re not allowed
        to have any contact or communication with any of the jurors or jurors with them.

       There was no proof of any improper actions by the defendant or co-defendant that may have
caused the first juror to feel uncomfortable. The juror who expressed discomfort maintained that she
could still render an impartial verdict but was excused from the jury anyway “out of . . . an


                                                   -6-
abundance of precaution.” The trial court questioned the three jurors who had heard of the first
juror’s discomfort, and each acknowledged that the defendant and co-defendant had a right to be on
bond and verified that they could still render an impartial verdict. The trial court then gave a
thorough curative instruction to the remaining jurors, informing them that the defendant and co-
defendant were lawfully out on bond. We conclude that the trial court did not abuse its discretion
in determining that there was no manifest necessity for a mistrial.

                                       II. Telephone Records

        The defendant argues that the trial court erred in allowing the State to introduce a copy of the
victim’s telephone records into evidence. The State responds that the trial court did not abuse its
discretion.

        At trial, the State sought to introduce as exhibit one a copy of the victim’s cell phone records,
as well as the cover page, that she faxed to Sergeant Hopkins which showed calls that were made
and received from her cell phone between the time it was stolen and later deactivated. The victim
explained that the first page was the cover page in which she explained to Sergeant Hopkins what
she was sending, and the second page was “a printout from the cell phone company.” Defense
counsel objected on grounds that it was not the original copy of the bill, saying, “We don’t have any
way of knowing whether that’s a true and accurate copy of her bill.” The State explained that it was
admitting the original fax, which included the cover page containing notes and writing. The court
concluded that the fax was admissible because the victim identified it as the copy of the fax she sent
to Sergeant Hopkins.

          At the hearing on the motion for new trial, the defendant argued that the “[c]ourt erred in
allowing the [S]tate to introduce exhibit one which was a copy of a phone record, hindering our
ability to cross-examine the witness. We didn’t have the original, nor did we have the full record
. . . .” Thus, the defendant challenged the admission of the phone records on the ground argued at
trial – that it was not the original, and a new ground – that it was not the entire bill. The defendant
also alleges two new grounds on appeal: that the introduction of the phone records violated the rule
against hearsay and his right to confrontation.

        Our review is limited to the grounds asserted in the objection unless there is plain error. See
State v. Adkisson, 899 S.W.2d 626, 634-635 (Tenn. Crim. App. 1994) (“[A] party is bound by the
ground asserted when making an objection. The party cannot assert a new or different theory to
support the objection in the motion for a new trial or in the appellate court.”). “When necessary to
do substantial justice, an appellate court may consider an error that has affected the substantial rights
of an accused 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. Crim. P. 52(b). In State v. Smith, 24 S.W.3d 274 (Tenn.
2000), our supreme court adopted the test for plain error first announced by this court in Adkisson,
899 S.W.2d at 641-42. In order for us to find plain error, Adkisson requires that




                                                  -7-
        (a) the record must clearly establish what occurred in the trial court; (b) a clear and
        unequivocal rule of law must have been breached; (c) a substantial right of the
        accused must have been adversely affected; (d) the accused did not waive the issue
        for tactical reasons; and (e) consideration of the error is “necessary to do substantial
        justice.”

Smith, 24 S.W.3d at 282 (quoting Adkisson, 899 S.W.2d at 641-42).

         A court’s discretion to notice plain error is to be “sparingly exercised.” State v. Bledsoe, 226
S.W.3d 349, 354 (Tenn. 2007). To justify reversal, the magnitude of the error must be so significant
that it probably changed the outcome of the trial. Id. The accused has the burden of persuading an
appellate court that the trial court committed plain error. Id. at 355. Consideration of all five factors
is unnecessary when it is clear from the record that at least one of them cannot be satisfied. Id.

        We discern no plain error. With regard to his challenge to the “fullness” of the bill, we
simply fail to see what the victim’s full telephone bill would have revealed that would have been of
any relevance to this case. The portion of the bill entered into evidence begins with calls on May
9, 2006, ten days before the robbery, and continues through the end of that billing period, which was
approximately five days after the victim’s phone was deactivated. Any information pertinent to this
case would have been contained on the portion of the bill entered into evidence. With regard to the
defendant’s hearsay and confrontation challenges, the faxed phone record arguably was not admitted
to prove the truth of the matter asserted, that the calls were made, but instead to show how Sergeant
Hopkins came to develop the defendant as a suspect. As such, the defendant’s rights under the
confrontation clause are also not implicated as it primarily concerns only testimonial hearsay, see
Crawford v. Washington, 541 U.S. 36, 51-52 (2004), and the phone record is non-testimonial, non-
hearsay. See id. at 56. Accordingly, a “a clear and unequivocal rule of law” has not been breached,
so we will address the defendant’s argument only on the ground asserted at trial – that the bill was
not the original.

        The document admitted at trial was the original fax the victim sent to Sergeant Hopkins,
which included a cover page and the call record for her cell phone. The victim identified the
documents and said that the cover page was the document she prepared which outlined that she
received a call from an unfamiliar number and that an unfamiliar number appeared on her calling
record, and the call record was the item sent to her by her phone company. The defendant’s
contention that the phone record is not the original is without merit because the Tennessee Rules of
Evidence provide that “[a] duplicate is admissible to the same extent as an original unless a genuine
question is raised as to the authenticity of the original.” Tenn. R. Evid. 1003. As such, the trial court
did not abuse its discretion in admitting the faxed telephone records into evidence. Moreover, even
if the trial court erred, such error was harmless in light of the positive identifications by two
witnesses.




                                                  -8-
                                           III. Sufficiency

         The defendant argues that the evidence is insufficient to sustain his conviction. In
considering this issue, we apply the rule that where sufficiency of the convicting evidence is
challenged, the relevant question of the reviewing court 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, 99 S.
Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions
whether by the trial court or jury shall be set aside if the evidence is insufficient to support the
findings by the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185,
190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All
questions involving the credibility of witnesses, the weight and value to be given the evidence, and
all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn.
Crim. App. 1987). “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). Our supreme court stated the rationale for this rule:

               This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their demeanor
       on the stand. Thus the trial judge and jury are the primary instrumentality of justice
       to determine the weight and credibility to be given to the testimony of witnesses. In
       the trial forum alone is there human atmosphere and the totality of the evidence
       cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

         Robbery is defined as “the intentional or knowing theft of property from the person of
another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) (2006). Viewed
in a light most favorable to the State, the evidence shows that the defendant approached the victim
and her two sisters-in-law and demanded the victim’s purse. He grabbed the victim’s purse,
straining her arm, and, at least twice, told her he had a gun. He had his hand under his shirt, and it
appeared to the victim that he in fact had a gun. The defendant contends that the proof was
insufficient to establish his identity as the robber. In this regard, the victim and Zoe Barrios both
identified the defendant as the robber in pretrial photographic arrays, at a preliminary hearing, and
again at trial. The victim testified that the defendant “was very close to [her]” when he grabbed her
purse and said she “was sure” of her identification. Zoe Barrios testified that she was “absolutely
sure” the defendant was the person who stole the victim’s purse “[b]ecasue [they] were face to face.”
The area where the robbery occurred was described as “well-lit,” and the incident lasted “two, three
minutes.” It was the jury’s prerogative both to accredit the victim and Zoe Barrois’ identification
testimony and to reject the defendant’s alibi defense. See State v. Cate, 746 S.W.2d 727, 729 (Tenn.


                                                  -9-
Crim. App. 1987). We conclude that the evidence was sufficient for a rational jury to convict the
defendant of robbery.

        As part and parcel of this issue, the defendant additionally argues, for the first time in his
reply brief, that the photographic identification was conducted in an unduly and impermissibly
suggestive manner. We note that he did not file a pretrial motion to suppress the photographic
identification, make a contemporaneous objection at trial, raise the issue in his motion for new trial,
or mention it in his initial appellate brief. The defendant has waived review of this issue, and we
discern no plain error in the photographic identification procedure. See Tenn. R. Crim. P. 52(b).

                                                 IV. Sentencing

        The twenty-one-year-old defendant testified at the sentencing hearing that his mother
withdrew him from school in the eighth grade at the age of seventeen and that he had been
designated a slow learner since the second grade. He said that he can understand and remember
things quickly; his disability is with learning. The defendant said that he receives disability benefits,
and that although he is physically able to work, “[he] know[s] if [he] do[es] get a job, they [are]
going to cut disability off.” He gained employment through a temporary agency on approximately
four occasions but was fired “every time they [did a] background check.” He does miscellaneous
yard work at times. The defendant admitted that he started smoking marijuana at the age of twelve
and that he had smoked daily until his trial. He maintained that he was not involved in the robbery.

       At the conclusion of the hearing, the trial court sentenced the defendant to the minimum for
a Class C felony, three years, suspended after service of six months, followed by three years of
probation.3 The defendant argues that the trial court imposed an excessive sentence because he was
not granted full probation or diversion.

        When an accused challenges the length and manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record “with a presumption that the determinations
made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d)
(2006). This presumption is “conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal conclusions
reached by the trial court in sentencing the accused or to the determinations made by the trial court
which are predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim.
App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871
S.W.2d 163, 166 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29
S.W.3d 1, 9 (Tenn. 2000).




         3
           The defendant’s probation order erroneously states that his sentence and probationary term are four years,
respectively. However, it is clear from the transcript and the judgement that three years is the correct term for both.

                                                         -10-
        In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by
the accused in his own behalf, and (h) the accused’s potential or lack of potential for rehabilitation
or treatment. Tenn. Code Ann. §§ 40-35-103, -210 (2006); State v. Taylor, 63 S.W.3d 400, 411
(Tenn. Crim. App. 2001). The party challenging the sentence imposed by the trial court has the
burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401 (2006),
Sentencing Commission Cmts.; Ashby, 823 S.W.2d at 169.

        A defendant who receives a sentence of ten years or less is eligible for probation, subject to
certain exceptions. Tenn. Code Ann. § 40-35-303(a) (2006). Even if eligible, however, the
defendant is not automatically entitled to probation as a matter of law. See Tenn. Code Ann. §
40-35-303(b). The burden is on the defendant to show the denial of probation was improper. Id.;
see also State v. Summers, 159 S.W.3d 586, 599-600 (Tenn. Crim. App. 2004) (citing Ashby, 823
S.W.2d at 169); State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997) (stating that “[a]
criminal defendant seeking full probation bears the burden on appeal of showing the sentence
actually imposed is improper, and that full probation will be in both the best interest of the defendant
and the public”).

        There is no bright line rule for determining when a defendant should be granted probation.
State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), overruled on other grounds by
Hooper, 29 S.W.3d at 9-10. Every sentencing decision necessarily requires a case-by-case analysis.
Id. Factors to be considered include the circumstances surrounding the offense, the defendant’s
criminal record, the defendant’s social history and present condition, the need for deterrence, and
the best interest of the defendant and the public. State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim.
App. 1997). Another appropriate factor for a trial court to consider in determining whether to grant
probation is a defendant’s credibility or lack thereof, as this reflects on the defendant’s potential for
rehabilitation. Id. Also relevant is whether a sentence of probation would unduly depreciate the
seriousness of the offense. See State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997); Bingham, 910
S.W.2d at 456.

        Tennessee Code Annotated section 40-35-313 provides that, following a determination of
guilt by plea or by trial, a trial court may, in its discretion, defer further proceedings and place a
qualified defendant on probation without entering a judgment of guilt. Tenn. Code Ann. §
40-35-313(a)(1)(A) (2006). A qualified defendant is one who is found guilty or pleads guilty or nolo
contendere to a misdemeanor or Class C, D, or E felony; has not been previously convicted of a
felony or a Class A misdemeanor; and who is not seeking deferral for a sexual offense, a violation
of Tennessee Code Annotated sections 71-6-117 or 71-6-119, or a Class A or B felony. Id. §
40-35-313(a)(1)(B)(i). If the defendant successfully completes the period of probation, the trial court
is required to dismiss the proceedings against him, and the defendant may have the records of the
proceedings expunged. Id. § 40-35-313(a)(2), (b).



                                                  -11-
        The decision to grant or deny a qualified defendant judicial diversion lies within the sound
discretion of the trial court. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App.
1998); State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997); Bonestel, 871 S.W.2d at
168. As such, it will not be disturbed on appeal absent an abuse of discretion. Electroplating, 990
S.W.2d at 229; Cutshaw, 967 S.W.2d at 344; Bonestel, 871 S.W.2d at 168. To constitute an abuse
of discretion, the record must be devoid of any substantial evidence in support of the trial court’s
decision. Cutshaw, 967 S.W.2d at 344; Bonestel, 871 S.W.2d at 168; State v. Anderson, 857 S.W.2d
571, 572 (Tenn. Crim. App. 1992).

        In determining whether to grant diversion, the trial court considers (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. Electroplating, 990 S.W.2d at 229; Bonestel, 871 S.W.2d at 168. A
trial court should not deny judicial diversion without explaining the factors in support of its denial,
and how those factors outweigh other factors in favor of diversion. Electroplating, 990 S.W.2d at
229.

        In his brief, the defendant asserts that the trial court erred in denying him full probation or
diversion. He submits that the court did not properly assess his potential for rehabilitation, that the
evidence did not rebut his statutory favorable candidacy for an alternative sentence, and that the
sentence imposed was not the “least severe measure necessary to achieve the purpose for which the
sentence was imposed.” In his reply brief, the defendant elaborates with regard to full probation that
this offense was no more severe than “any other purse snatching” and there was insufficient proof
that a weapon was used. He asserts that the court should have taken into account that he had no prior
criminal convictions or failed past rehabilitation efforts. He elaborates with regard to diversion that
his lack of a prior record, mental slowness, and youth at the time of the offense make him a good
candidate for diversion and argues that the court failed to consider all relevant diversion factors.

       In sentencing the defendant, the trial court discussed the principles of sentencing and
sentencing considerations and then found, in detail, as follows:

               The defendant’s physical or mental condition and social history. The Court
       finds, although the defendant receives a check from the federal government for slow
       learning, does not appear that he is unable to work. He chooses not to work so he
       won’t lose his free check and his free money. He’s not in school. He doesn’t show
       a whole lot of socially redeeming values, so I don’t find that those are factors
       weighing in his favor for probation.

                The facts and circumstances surrounding this offense, and the nature and
       circumstances of the criminal conduct involved. This was an offense that involved
       at least the threat of a weapon, whether there was actually a weapon present or not,
       the victims were placed in great fear. They felt that there was a weapon. They were


                                                 -12-
terrorized by this defendant and an unknown co-defendant, and in this Court’s
opinion, preying on these three women, under the nature and circumstances under
which they were preyed upon, in the downtown streets of this community is a very
serious, serious offense, and weighs against [the defendant] being placed on
probation.

       He has no prior history of criminal convictions or criminal behavior.

        His actions and his character, again, I don’t find anything in the report that
indicates anything that is advantageous about [the defendant’s] character. To the
contrary, he smokes marijuana regularly and stopped most recently as soon as we
finished our trial. So he has been clean for a month now, but he admits smoking
marijuana and has up until the last thirty days. So I find those character flaws do not
weigh in favor or probation.

        Would he be reasonably expected to be rehabilitated, the potential for
rehabilitation. I’m not sure that I’m convinced that that is a factor that weighs in
favor of [the defendant] in light of his testimony today and the overwhelming proof,
in this Court’s opinion, of the positive identification of this defendant as one of the
robbers involved in this case. I’m not sure that [the defendant] has accepted his
responsibility at this point; therefore, I’m not sure that he has the potential for
rehabilitation.

        Whether or not it reasonably appears that the defendant will abide by the
terms of probation, I don’t have anything that indicates to me that he would not, other
than his need for smoking marijuana, but I don’t have anything that would indicate
that he couldn’t have followed the rules if I set them out for him.

        Whether or not the interest[s] of society are being protected from possible
future criminal conduct of the defendant, right now I don’t have anything in front of
me.

         Whether or not a sentence of full probation would unduly depreciate the
seriousness of the offense, in this Court’s opinion, it would. This is a very serious
crime. Robbery, street robbery. Again, whether or not a weapon was present or not,
the victims were led to believe a weapon was present, and they were placed in great
fear. It is a very serious problem that we have in this community of these kind of
street robberies, in this Court’s opinion, full probation would unduly depreciate the
seriousness of that offense.

       Whether or not confinement is particularly suited to provide an effective
deterrent to others likely to commit similar offenses. In this Court’s opinion,
confinement is particularly suited to provide an effective deterrent to others likely to


                                         -13-
        commit similar offenses. There’s somebody out there -- I suspect I know who that
        somebody is but the jury felt differently -- that committed this offense along with [the
        defendant]. To provide a deterrent to not only that individual but to the other
        individuals who know [the defendant] and to [the defendant], and to others who are
        familiar with the facts of this case, this Court is of the opinion that confinement is
        particularly suited to provide a deterrent. And that out and out probation, complete
        and full probation, would not be a deterrent to others likely to commit this offense.
        It would send absolutely the wrong message.

        In addition, when specifically addressing diversion, the trial court stated that it was “not
satisfied from the testimony today that [the defendant] has been truthful in all of this testimony.”
The court concluded that the defendant’s character called into question his suitability for diversion.
The court noted that this was a serious offense, involving out-of-town visitors “walking the streets
after visiting our city.” The court concluded that some relief was necessary, given the defendant’s
age and lack of a criminal record, and sentenced the defendant to three years, suspended after service
of six months, followed by three years of probation.

        The lengthy excerpt above clearly shows that the trial court examined all relevant factors and
sentencing considerations and, therefore, is entitled to a presumption of correctness. Even though
the defendant asserts that the trial court did not fully examine all of the factors relevant to diversion,
we note that judicial diversion is a form of probation, see Tenn. Code Ann. § 40-35-313(a)(1)(A);
thus, we read the trial court’s findings regarding the defendant’s suitability for full probation to apply
equally to its decision regarding the defendant’s suitability for judicial diversion. See State v. Vivian
Braxton, No. W2004-02506-CCA-R3-CD, 2005 WL 3059435, at *9 n.4 (Tenn. Crim. App. Nov. 10,
2005), perm. to appeal denied (Tenn. Mar. 20, 2006).

        The facts of the case were serious, given the proof likely would have sustained a conviction
for aggravated robbery. The defendant has a poor work and social history, including daily marijuana
use. The court did not find the defendant’s testimony truthful and questioned his potential for
rehabilitation based on his testimony and failure to accept responsibility. See State v. Zeolia, 928
S.W.2d 457, 463 (Tenn. Crim. App. 1996); Anderson, 857 S.W.2d at 574. The court noted that
confinement would be a deterrent to the defendant and others likely to commit this type of offense
and that full probation or diversion would “greatly undermine the serious nature of [the] offense and
would . . . send the wrong message to [the defendant] . . . [and] to many others.” In sum, the record
fully supports the trial court’s determinations, and we conclude that the defendant has failed to prove
that the denial of full probation was improper or that the trial court abused its discretion in denying
diversion.

                                        V. Cumulative Error

       The defendant argues that he is entitled to relief due to cumulative error at trial. Having
found no errors committed by the trial court, we respectfully disagree.



                                                  -14-
                                         CONCLUSION

         Based on the aforementioned authorities and reasoning, we affirm the judgment of the trial
court.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




                                                -15-
