           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON

                   STATE OF TENNESSEE v. SHANNON PRIER

               Direct Appeal from the Criminal Court for Lauderdale County
                          No. 6674 Joseph H. Walker, III, Judge



                    No. W1999-01436-CCA-R3-CD - Decided July 24, 2000


The defendant appeals her conviction for theft over $1,000 for which she received a two-year
suspended sentence. The defendant comes before this court raising the following issues: 1) whether
the evidence was sufficient to support her conviction; and 2) whether the trial court properly denied
her petition for judicial diversion. We affirm the judgment of the trial court.

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

RILEY, J., delivered the opinion of the court, in which TIPTON and GLENN, JJ., joined.

Gary F. Antrican, District Public Defender; and Julie K. Pillow, Assistant District Public Defender,
Somerville, Tennessee, for the appellant, Shannon Prier.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Tracey Brewer, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

                                              FACTS

        The defendant was a swing manager at the McDonald’s restaurant in Ripley. As a result of
financial problems, defendant planned a theft. On June 10 and 12, 1998, the defendant was
instructed by senior level management to take two separate deposits to the bank and deposit them
into the McDonald’s bank account. Instead of depositing all of the money, the defendant kept
$6,399.19 of the deposit.

        The theft was discovered when a juvenile accomplice of the defendant was stopped in
Memphis for running a red light. In a subsequent search of the vehicle, the police found $1,244 in
cash in the door of the car and under the driver’s seat. The cash that was found under the driver’s
seat was in a McDonald’s bag. In addition to the cash in the McDonald’s bag, police also found
checks made out to the McDonald’s restaurant in Ripley and deposit slips. The defendant’s wallet
was found on the backseat.

        Other testimony indicated that the defendant and the juvenile accomplice had swapped cars
on the date of the second deposit, and the defendant drove the accomplice’s car to make that deposit.
The accomplice testified that the defendant was his girlfriend, and that she told him that she falsified
the cash sheets in order to steal some of the money that was to be deposited.

        The defendant testified she deposited all funds she was told to deposit. The defendant stated
that she had no knowledge of the crime until she was arrested. She denied any involvement in the
crime.

        Based upon testimony given at trial, the defendant was convicted at a bench trial of theft over
$1,000, a Class D felony. The defendant was sentenced to two years as a standard offender; the
sentence was suspended; and she was placed on probation. Judicial diversion was requested, but the
trial court found that judicial diversion was inappropriate.

        This case now comes before this court on direct appeal. The defendant raises two issues: 1)
whether the evidence presented at trial was sufficient as a matter of law to sustain a conviction for
theft over $1,000; and 2) whether the trial court erred in refusing to grant judicial diversion. After
reviewing the record, we affirm the conviction and hold that the trial court’s denial of judicial
diversion was proper.


                              SUFFICIENCY OF THE EVIDENCE

       The defendant contends that the evidence is insufficient as a matter of law to sustain a
conviction for theft over $1,000. We disagree.

A.      Standard of Review

         In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the state is entitled to
the strongest legitimate view of the evidence and all legitimate or reasonable inferences which may
be drawn therefrom. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). This court will not disturb
a verdict of guilt due to the sufficiency of the evidence unless the defendant demonstrates that the
facts contained in the record and the inferences which may be drawn therefrom are insufficient, as
a matter of law, for a rational trier of fact to find the accused guilty beyond a reasonable doubt. State
v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly, it is the appellate court's duty
to affirm the conviction if the evidence, viewed under these standards, was sufficient for any rational
trier of fact to have found the essential elements of the offense beyond a reasonable doubt. Tenn. R.
App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560
(1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).


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B.      Analysis

         Testimony at trial established the defendant’s involvement in the crime. The accomplice
testified that the defendant informed him of her plan to steal money from her employer. He further
testified that the defendant told him that she planned to take one of the deposit bags and make it
appear that another employee had taken the money.

        The accomplice also testified that the defendant switched cars with him on the morning of
June 12. The witness testified that he and his aunt later returned to get his car, and his aunt found
money from the June 10 and 12 deposits in the glove compartment of the car. This was the same car
in which the police subsequently found the McDonald’s bag that contained: 1) $1,244 in cash; 2)
checks made out to McDonald’s that were from the deposits that were missing; and 3) deposit slips
from the June 10 and 12 deposits that were never deposited. Further, he testified that the defendant
told him that she did not believe she would get caught because the money that was missing would
not be discovered until the end of the year, and she was going to use the money to pay off her new
car.

        Testimony of the accomplice was corroborated by other witnesses. Their testimony
established: 1) the monies were given to the defendant to deposit; 2) over $6,000 was missing from
the monies that should have been deposited; and 3) the defendant had complained of financial
difficulties just prior to the theft.

        Although the defendant denied any involvement in the theft, the credibility of the witnesses
is a question for the trier of fact. The trial court, as the trier of fact in the bench trial, accredited the
testimony of the state’s witnesses and discredited the defendant’s testimony. This was the judge’s
prerogative.

       Viewing the evidence in a light most favorable to the state, as we must, a rational trier of fact
could conclude that the defendant was guilty of theft over $1,000.


                                       JUDICIAL DIVERSION

         When a defendant contends that the trial court committed error in refusing to impose a
sentence pursuant to Tenn. Code Ann. § 40-35-313, commonly referred to as “judicial diversion,”
this Court must determine whether the trial court abused its discretion in failing to sentence pursuant
to the statute. 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); State v. Bonestel, 871 S.W.2d 163, 167
(Tenn. Crim. App. 1993). Judicial diversion is similar to pretrial diversion; however, judicial
diversion follows a determination of guilt, and the decision to grant judicial diversion rests with the
trial court, not the prosecutor. State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992).
When a defendant challenges the trial court’s denial of judicial diversion, we may not revisit the
issue if the record contains any substantial evidence supporting the trial court’s decision. Cutshaw,


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967 S.W.2d at 344; State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). As this Court
said in Anderson:

                We conclude that judicial diversion is similar in purpose to pretrial diversion
        and is to be imposed within the discretion of the trial court subject only to the same
        constraints applicable to prosecutors in applying pretrial diversion under TENN.
        CODE ANN. § § 40-15-105. Therefore, upon review, if “any substantial evidence
        to support the refusal” exists in the record, we will give the trial court the benefit of
        its discretion. Only an abuse of that discretion will allow us to overturn the trial
        court.

857 S.W.2d at 572 (citation omitted).

        The criteria that must be considered in determining whether an eligible accused should be
granted judicial diversion include: (a) the defendant’s amenability to correction; (b) the
circumstances of the offense; (c) the defendant’s criminal record; (d) the defendant’s social history;
(e) the defendant’s physical and mental health; and (f) the deterrence value to the defendant and
others. Cutshaw, 967 S.W.2d at 343-44; Parker, 932 S.W.2d at 958. An additional consideration
is whether judicial diversion will serve the ends of justice, i.e., the interests of the public as well as
the defendant. Cutshaw, 967 S.W.2d at 344; Parker, 932 S.W.2d at 958.

       The trial court considered the evidence heard at trial and at the sentencing hearing, and
concluded “that judicial diversion was not appropriate due to the nature and circumstances of the
offense.” There are a number of factors that would support the granting of judicial diversion.
However, the defendant’s lack of candor and failure to accept responsibility for her criminal actions
negatively reflected upon her potential for rehabilitation. See Electroplating, Inc., 990 S.W.2d at
230; Anderson, 857 S.W.2d at 574. Considering the trial court’s concern with the nature and
circumstances of the offense and the defendant’s lack of candor, there is substantial evidence to
support the denial of judicial diversion. This issue has no merit.


                                           CONCLUSION

        Based upon our review of the trial record, sufficient evidence was presented at trial to find
the defendant guilty of theft in an amount over $1,000. Further, the trial court’s denial of judicial
diversion was proper. The judgment of the trial court is affirmed.




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