        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  May 15, 2012 Session

                  STATE OF TENNESSEE v. ANDREW CROSS

                     Appeal from the Circuit Court for Polk County
                         No. 10132     Amy F. Reedy, Judge




                   No. E2011-02106-CCA-R3-CD December 28, 2012




J OSEPH M. T IPTON, P.J., dissenting

        I respectfully dissent. I believe that the record shows that the Defendant deserves
judicial diversion and that substantial evidence does not exist to justify the trial court’s
denying diversion. The majority opinion accurately describes the many positive factors that
support diversion and succinctly states that the trial court denied it because of the
Defendant’s “lack of amenability to correction based upon not being credible in his testimony
and a lack of honesty with his employer.” I do not see this lack of amenability in the record.

      The purpose of diversion is to give certain offenders a second chance to become
productive, valued members of society. In this vein, the expunction of the record after
completion of a term of diversion greatly aids in the Defendant’s becoming a successful
member of society unencumbered by the stigma associated with the past problem. As our
supreme court has stated, the focus for granting diversion should be on the Defendant’s
amenability to correction. State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983).

       As the evidence noted in the majority opinion shows regarding his military service,
schooling, work history, and intended career in physical therapy, the Defendant is well on
his way to being a productive individual and intends to be one in the future. The offenses
were not aggravated, and nothing in the record suggests that the Defendant will reoffend.

       The trial court said that the Defendant was dishonest with his employer by not
disclosing to Target that he had been charged in the present case. I disagree. He did not lie
or mislead his employer, who never asked about a criminal record. It is ironic that the trial
court cast a pall of dishonesty upon the Defendant’s nondisclosure when the main reason for
expunging a record after diversion is to prevent its use against a defendant who is trying to
become a good citizen. I cannot see how this nondisclosure renders the otherwise qualified
Defendant less amenable to rehabilitation.

        As for the trial court’s finding that the Defendant was not credible at the hearing, I
cannot see anything in the record that would give the trial court reason to question his
truthfulness as to any relevant question or issue. Upon questioning, he acknowledged he had
some family issues, and he acknowledged that he entered the victim’s summer home and
stole the items.

        As the majority opinion states, we are bound by a trial court’s credibility finding, but
there is nothing in the record that indicates the Defendant was not telling the truth. The trial
court stated it considered him dishonest, noting that his offenses involved dishonesty.
However, I do not believe the inherent “dishonest” quality of the Defendant’s offenses that
allow for diversion should be significant when considering whether the Defendant is
amenable to correction. Also, the trial court stated that the Defendant was being “dishonest,
by not being open and forthright.” However, the court did not specify what was dishonest
about his testimony or demeanor. Apparently, it held against the Defendant what he did not
say, but it did not specify what the problem was.

       The Defendant’s work, schooling, social history, and plans for the future show
considerable rehabilitation had occurred by the time of the hearing. Branding him with a
felony conviction, which would essentially thwart his goal of being a physical therapist
professional, would be an injustice to him and society under the record before us.




                                                   ___________________________________
                                                   JOSEPH M. TIPTON, PRESIDING JUDGE




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