           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                         March 5, 2013 Session

                STATE OF TENNESSEE v. ROBERT JOSEPH HARR

                       Appeal from the Circuit Court for Carroll County
                          No. 10CR159      Donald E. Parish, Judge


                 No. W2011-02735-CCA-R3-CD - Filed September 27, 2013


A Carroll County jury convicted appellant, Robert Joseph Harr, of attempted sexual battery.
The trial court sentenced him to eleven months, twenty-nine days in the county jail and
ordered him to serve forty-five days in confinement with the balance of his sentence to be
served on probation. On appeal, appellant challenges the sufficiency of the evidence to
sustain his conviction, the trial court’s denial of full probation, the trial court’s discovery
rulings under Tennessee Rule of Criminal Procedure 16, and the State’s denial of his
application for pretrial diversion. Discerning no error, we affirm the judgment of the trial
court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which J ERRY L. S MITH, J., joined.
J OSEPH M. T IPTON, P.J., filed a separate concurring and dissenting opinion.

Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, Robert Joseph Harr.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Hansel Jay McCadams, District Attorney General; and R. Adam Jowers, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                                 OPINION

                                     I. Procedural History and Facts

       This case concerns allegations by the victim, B.L.,1 that appellant touched or tried to
touch his genital area on May 31, 2010. The Carroll County grand jury indicted appellant

       1
           It is the policy of this court to protect the identity of victims of sex crimes.
for sexual battery, and the trial court held a jury trial on August 17 and 18, 2011.

        At trial, Carroll County Sheriff’s Deputy Tommy Decanter testified that he was
dispatched to Ephesus Church Road on May 31, 2010, because a male had advised the 9-1-1
operator that he had been sexually assaulted and was being followed by the person who
assaulted him. Deputy Decanter found B.L. walking down Ephesus Church Road toward
Highway 77. He stopped and asked B.L. if he was the person who had called 9-1-1, and B.L.
responded affirmatively. B.L. was on his cellular telephone with the 9-1-1 operator at the
time. Deputy Decanter testified that B.L. told him that appellant “had sexually assaulted him,
tried to touch his private parts.” He further testified that B.L. appeared to be upset.

        Deputy Mike Taylor arrived shortly after Deputy Decanter. The deputies testified that
they observed a white Nissan Pathfinder driving towards them, and B.L. informed them that
appellant was driving the vehicle. The Pathfinder stopped in a driveway, and Deputy Taylor
left to intercept appellant. Deputy Taylor used his patrol car to prevent appellant from
driving away.

       Deputy Decanter stayed with B.L. He asked B.L. to make a written statement, but
B.L. replied that he could not read or write very well. Instead, B.L. gave Deputy Decanter
an oral statement that the deputy reduced to writing. B.L.’s family members came to the
location to pick him up. They advised Deputy Decanter that B.L. had called them to tell
them that appellant had touched his private parts and that he had run away and needed a ride.
B.L. then left with his family.

        Deputy Decanter met Deputy Taylor where he had stopped appellant. Both deputies
and appellant went to appellant’s trailer. Deputy Decanter explained that appellant had a
trailer on his land where he let people stay rent-free, which was where the encounter with
B.L. occurred. Deputy Decanter told appellant about the accusations against him. Appellant
signed a waiver of rights form and gave a statement to Deputy Decanter. Appellant said that
he had known B.L. for approximately three weeks and had helped him obtain a job in Martin,
Tennessee. On the day in question, he asked B.L. to help him work on the washing machine
at his trailer. He drove to Paris to pick up B.L. and bring him back. They started working
on the machine. B.L. told appellant that he did not like “gays,” and appellant “told him to
leave.” Appellant denied trying to have sex with B.L. or “touch[ing] him in anyway [sic].”
Deputy Decanter testified that he did not go into the trailer because he did not believe there
would be any evidence of a struggle based on what B.L. told him and his observation of
B.L.’s appearance. He transported appellant to the jail, where appellant gave a handwritten
statement. In his second statement, appellant added that he met B.L. through B.L.’s
probation officer.



                                             -2-
       On cross-examination, Deputy Decanter affirmed that he did not see any injuries or
signs of a struggle on B.L. or appellant. He agreed that he had previously testified that B.L.
had informed him that appellant “walked up behind him, rubbed him down, undone [sic] his
pants[,] . . . turned him around[,] and pulled out his private parts.”

        B.L.’s mother, L.K., testified that B.L. had difficulty keeping a job and was disabled
due to hearing loss, a learning disability, and psychological issues. He graduated from high
school with a special education diploma. She testified that B.L. had been on probation for
a criminal trespassing conviction during the year prior to the trial. B.L.’s probation officer
recommended that he ask appellant to help him find a job. Appellant helped B.L. find a job
and helped arrange transportation for him because he did not have a license. Appellant also
helped B.L.’s sister find a job. L.K. recalled getting a text message from B.L. on May 31,
2010, that read, “[C]ome and get me now.” B.L. also called their house and spoke with his
sister. L.K. talked to him, also, and he told her where he was located. L.K. and her husband
drove twenty minutes to B.L.’s location. She described B.L. as being “really nervous.”
According to L.K., B.L. had difficulty articulating what happened, so Deputy Decanter
“filled [them] in on what was going on.” L.K. testified that since the incident, B.L. had
become “a little bit more hateful, a little bit [more] short-tempered than normal,” and he had
difficulty sleeping.

        Michelle Taylor testified that she had been B.L.’s probation officer. He was convicted
of aggravated criminal trespassing, a misdemeanor offense, and placed on probation in June
2009. B.L.’s father warned her that B.L. would have difficulty paying his fines, and she said
that proved to be the case. Ms. Taylor referred B.L. to appellant because appellant was
interested in helping young men between eighteen and twenty-four years old obtain jobs.
Appellant had previously found employment for some of Ms. Taylor’s probationers. She
stopped referring people to appellant after learning about B.L.’s allegations. Ms. Taylor
testified that B.L. was able to pay his fines after obtaining a job, and he successfully
completed probation. On cross-examination, Ms. Taylor testified that appellant told her that
he wanted to help probationers because his son had been incarcerated at one time and could
not find a job after he was released.

        B.L. testified that he was convicted of trespassing because he had left his keys in a
neighbor’s apartment and broke into the apartment to retrieve them. He said that he called
appellant because he was having trouble finding work. Appellant drove B.L. and several
others to Hamilton Ryker, where they filled out job applications. Through Hamilton Ryker,
B.L. obtained a job at “MTD.” Appellant called B.L. to ask how the job was going and then
called again a few days later to ask B.L. to help him work on his washer and dryer. B.L.
agreed to help him, and appellant picked him up the next day to go to appellant’s trailer. At
the trailer, B.L. waited in the living room while appellant looked for the belt to go on the

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washing machine. Appellant told B.L. “to go in the back bedroom to lay [sic] down and
relax.” B.L. told him that he did not “want to go back there.” B.L. testified that appellant
pulled B.L.’s pants down once, then he shut the front door. B.L. pulled his pants up,2 but
appellant pulled his pants down again, and he touched B.L.’s penis. B.L. told appellant,
“[N]o,” and he pushed appellant’s hand away from him. B.L. testified that he had to pull his
pants up as he opened the front door to leave.

        B.L. said that as he was walking away from the trailer, he called his parents’ house
and spoke with his sister. B.L. said that he was scared when he talked to her and just asked
her to come and pick him up. He called 9-1-1 immediately after speaking with his sister, and
he stayed on the line with the operator. The State introduced a recording of B.L.’s 9-1-1 call
into evidence. During the call, B.L. told the operator that appellant had pulled down his
pants and “tried to play with [his] s**t.” B.L. testified that appellant followed him in his
white Nissan Pathfinder. Appellant asked him to get into the vehicle and offered to take him
home “because [he felt] bad for what [he] did.” Eventually, law enforcement officers
arrived. B.L. said that he pointed out appellant’s vehicle to the officers. Appellant had
parked in a driveway farther down the road. B.L. stated that he left the scene with his parents
after they arrived. He did not seek medical attention afterwards, but he said that he
experienced loss of sleep and depression.

       On cross-examination, B.L. testified that he might have told Deputy Decanter that
appellant tried to put his private parts in his mouth, but he “was not thinking then.” B.L. said
that appellant was kneeling when B.L. pushed his hand away and left the trailer.

        Appellant testified on his own behalf. He said that he helped B.L. find a job at MTD.
Appellant knew that B.L. was knowledgeable about car mechanics, so he called B.L. in late
May 2010 to ask B.L. to help him with his car and a washing machine. He offered to pay
B.L. $20. On May 31, 2010, he drove to Paris to pick up B.L., and they returned to
appellant’s trailer. Appellant said that during the drive, B.L. played with his cellular
telephone and asked personal questions about some of the people with whom appellant had
worked. When they arrived at the trailer, B.L. continued playing with his telephone and
asking personal questions. He would not help appellant. Appellant said that he “lost [his]
cool” and told B.L. “to get out.” He also said that he was going to take B.L. home and tell
his step-father that B.L. was lazy. Appellant testified that B.L. “was mad.” B.L. left, and
appellant followed him in his vehicle. He offered to give B.L. a ride, but B.L. declined.
Appellant said that he returned to the trailer to lock it, and when he drove back down the road
to find B.L., B.L. was standing next to a car.


       2
           B.L.’s testimony during direct examination appeared to be that appellant was the person who
pulled his pants up, but during cross-examination, B.L. clarified that he pulled his pants up himself.

                                                 -4-
       Appellant also testified about his background and health. He was in the Air Force and
served in Vietnam. He worked for Standard Oil/Chevron and for Consolidated Aluminum.
He became interested in helping people find jobs when his son could not find a job after
being incarcerated. Appellant had fostered thirty to forty children. He also worked at a
homeless shelter. At the time of trial, appellant was suffering from “white cancer” and Level
IV kidney failure.

        At appellant’s September 12, 2011 sentencing hearing, the trial court stated that it had
considered the contents of the presentence report, appellant’s physical and mental health, his
social history, the facts and circumstances of the offense, appellant’s criminal history, and
his previous actions and character. The court noted that appellant’s physical health was poor
and that his social history was good. As for the facts and circumstances of the offense, the
trial court acknowledged that B.L. had “borderline impairments” but “was alert and well[-
]oriented” at trial. Appellant did not have any criminal history, and “[t]he previous actions
and character of [appellant] [had] been good based upon all information available.” The trial
court gave little weight to the enhancement factor that the offense “was committed to gratify
the defendant’s desire for pleasure or excitement.” See Tenn. Code Ann. § 40-35-114(7)
(Supp. 2012). As a mitigating factor, the trial court considered that appellant’s “criminal
conduct neither caused nor threatened serious bodily injury” but determined that the factor
was “essentially cancel[led] . . . out” by the fact that he was “not charged with having caused
serious bodily injury.” Regarding alternative sentencing, the trial court determined that
appellant had “a good potential for rehabilitation” but further determined that “there is some
need for the protection of the interests of society for future criminal conduct.” The trial court
stated that a sentence including “some confinement” would “provide an effective deterrent
to others,” while full probation would “depreciate the seriousness of the offense.” The trial
court sentenced appellant to eleven months, twenty-nine days in the county jail and ordered
him to serve forty-five days in confinement with the balance of his sentence to be served on
probation.

                                          II. Analysis

                               A. Sufficiency of the Evidence

      Appellant challenges the sufficiency of the evidence supporting his conviction for
attempted sexual battery by arguing that the only evidence presented was evidence of a
completed crime.

      The standard for appellate review of a claim challenging the sufficiency of the State’s
evidence 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

                                               -5-
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing Johnson
v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354
S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant
must demonstrate that no reasonable trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of
review is identical whether the conviction is predicated on direct or circumstantial evidence,
or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

        On appellate review, “‘we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.
2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and
the weight and value to be given the evidence, as well as all factual disputes raised by the
evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury
has afforded the State all reasonable inferences from the evidence and resolved all conflicts
in the testimony in favor of the State; as such, we will not substitute our own inferences
drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the
evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of
innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate
level, the burden of proof shifts from the State to the convicted appellant, who must
demonstrate to this court that the evidence is insufficient to support the jury’s findings.
Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

       To prove that appellant committed attempted sexual battery as a lesser-included
offense of the charge of sexual battery, the State had to show that appellant attempted to have
unlawful sexual contact with the victim when the victim did not consent and that appellant
knew or had reason to know that the victim did not consent to the sexual contact. See Tenn.
Code Ann. § 39-13-505(a)(2) (2010). Tennessee Code Annotated section 39-13-501(6)
defines “sexual contact”:

       “Sexual contact” includes the intentional touching of the victim’s, the
       defendant’s, or any other person’s intimate parts, or the intentional touching
       of the clothing covering the immediate area of the victim’s, the defendant’s,
       or any other person’s intimate parts, if that intentional touching can be
       reasonably construed as being for the purpose of sexual arousal or
       gratification[.]

                                              -6-
The term “‘[i]ntimate parts’ includes the primary genital area, groin, inner thigh, buttock or
breast of a human being[.]” Tenn. Code. Ann. § 39-13-501(2) (2010).

       In this case, B.L. testified that appellant touched his penis, and B.L. told him “no,”
pushed his hand away, and left the trailer. While B.L.’s testimony indicated a completed
crime, the 9-1-1 recording evinced that B.L. told the operator almost immediately after the
incident that appellant “tried to play” with him, and Deputy Decanter testified that B.L. told
him that appellant “tried to touch” him. As always, it is the province of the jury to resolve
any disputes in the facts and any credibility issues. Here, the jury resolved the conflicts in
favor of the State, and the record supports its verdict.

       Appellant’s analogy to State v. Kevin Fritz Edwards, No. E2010-01731-CCA-R3-CD,
2012 WL 1799025, at *1 (Tenn. Crim. App. May 18, 2012), is inapposite. In that case, this
court ruled that the evidence did not support the defendant’s attempted aggravated sexual
battery conviction and that the trial court should not have charged the jury on the lesser-
included offense because there was no evidence in the record that the defendant tried and
failed to complete his course of action. Id. In the instant case, there is testimony that
appellant “tried” to touch B.L. Therefore, appellant’s argument based on Edwards is without
merit.

                                       B. Sentencing

        Appellant contends that the trial court erred by imposing a sentence involving
confinement. The State responds that appellant waived the argument by failing to cite to any
legal authority. See Tenn. R. Crim. App. 10(b). Appellant argued in his brief with respect
to alternative sentencing that, “the Court denied full probation and imposed jail solely upon
public opinion.” He also summarily stated that, “the Court failed to properly credit
Defendant’s mitigating factors.” After considering the parties’ contentions, we have elected
to address the merits.

       Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-
302, which provides that the trial court shall impose a specific sentence consistent with the
purposes and principles of the sentencing statutes. See State v. Palmer, 902 S.W.2d 391, 394
(Tenn. 1995). While a separate sentencing hearing is not mandatory for misdemeanor
sentencing, the trial court is required to provide the defendant with a reasonable opportunity
to be heard as to the length and manner of the sentence. Tenn. Code Ann. § 40-35-302(a).
The trial court must sentence the misdemeanor offender to a determinate number of hours,
days, or months, and fix a percentage of that sentence for the offender to serve, after which
the offender becomes eligible for rehabilitative programs. Tenn. Code Ann. § 40-35-302(d).
In determining the percentage of the sentence, the trial court must consider enhancement and

                                             -7-
mitigating factors as well as the legislative purposes and principles related to sentencing. Id.
The misdemeanor sentencing statute grants the trial court the authority to place the defendant
on probation either immediately or after a time of periodic or continuous confinement. Tenn.
Code Ann. § 40-35-302(e).

       When an accused challenges the length and manner of service of a sentence, this court
reviews the trial court’s sentencing determination under an abuse of discretion standard
accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn.
2012). This standard of review also applies to “the questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). This
court will uphold the trial court’s sentencing decision “so long as it is within the appropriate
range and the record demonstrates that the sentence is otherwise in compliance with the
purposes and principles listed by statute.” Id. at 709-10. Moreover, under such
circumstances, appellate courts may not disturb the sentence even if we had preferred a
different result. See Carter, 254 S.W.3d at 346. 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 (2010), Sentencing Comm’n Cmts.; State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). While the Tennessee Supreme Court has not addressed whether the Bise and
Caudle standard of review apply to misdemeanor sentencing, this court has applied the abuse
of discretion with a presumption of reasonableness standard of review in misdemeanor
sentencing cases. See, e.g., State v. Michael Glen Walsh, No. E2012-00805-CCA-R3-CD,
2013 WL 1636661, at *4 (Tenn. Crim. App. Apr. 17, 2013), no perm. app. filed; State v. Sue
Ann Christopher, No. E2012-01090-CCA-R3-CD, 2013 WL 1088341, at *7 (Tenn. Crim.
App. Mar. 14, 2013), perm. app. denied (Tenn. June 18, 2013). Therefore, we will apply that
standard of review in this case. We note that the supreme court has previously held that the
sentencing court is entitled to considerable latitude in misdemeanor sentencing. State v.
Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1998) (citing State v. Troutman, 979
S.W.2d 271, 273 (Tenn.1998)).

        In determining an appropriate sentence, a trial court must consider the following
factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence
and information offered by the parties on mitigating and enhancement factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement the defendant makes on his
own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. Code Ann. §§ 40-
35-103(5), -113, -114, -210(b) (2010). In addition, “[t]he sentence imposed should be the
least severe measure necessary to achieve the purposes for which the sentence is imposed.”
Tenn. Code Ann. § 40-35-103(4) (2010). In determining whether to grant or deny probation,

                                              -8-
a trial court should consider the circumstances of 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. Grear, 568 S.W.2d 285, 286 (Tenn.
1978). A trial court should base its decision regarding any sentence involving confinement
on the following considerations:

       (A)    Confinement is necessary to protect society by restraining a defendant
              who has a long history of criminal conduct;

       (B)    Confinement is necessary to avoid depreciating the seriousness of the
              offense or confinement is particularly suited to provide an effective
              deterrence to others likely to commit similar offenses;

       (C)    Measures less restrictive than confinement have frequently or recently
              been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1) (2010). Furthermore, the trial court should examine the
defendant’s potential for rehabilitation or lack thereof when determining whether an
alternative sentence is appropriate. Id. § 40-35-103(5).

        The trial court properly denied full probation in this case. The trial court determined
that a sentence involving confinement was appropriate to avoid depreciating the seriousness
of the offense and as a deterrent to others. See Tenn. Code Ann. § 40-35-103(1)(B) (2010).
Appellant complains that the trial court did not consider his medical history as a mitigating
factor; however, the trial court clearly took appellant’s poor physical health into
consideration during sentencing despite not articulating that as a mitigating factor. “[T]he
record demonstrates that the sentence is . . . in compliance with the purposes and principles
listed by statute.” Bise, 380 S.W.3d at 709-10. The trial court carefully followed the proper
procedure when imposing appellant’s sentence. Appellant received only forty-five days to
serve for a sexual offense in which he was convicted of attempting to touch another person’s
intimate parts. Thus, we will not disturb appellant’s sentences. Appellant is not entitled to
relief.

                                        C. Discovery

       Appellant argues that the trial court erred by excluding his proffered evidence,
specifically photographs of the interior of his trailer. The State responds that the trial court
did not abuse its discretion in fashioning a remedy for appellant’s failure to comply with
Tennessee Rule of Criminal Procedure 16(b).



                                              -9-
       Tennessee Rule of Criminal Procedure 16(a) provides the procedure for the State to
disclose evidence to a defendant upon the defendant’s request. Rule 16(b), the reciprocal
discovery rule, provides the procedure for a defendant to disclose evidence to the State:

       If a defendant requests disclosure under subdivision (a)(1)(F) or (G) of this
       rule and the state complies, then the defendant shall permit the state, on
       request, to inspect and copy or photograph books, papers, documents,
       photographs, tangible objects, or copies or portions of these items if:

              (i) the item is within the defendant’s possession, custody, or
              control; and

              (ii) the defendant intends to introduce the item as evidence in the
              defendant’s case-in-chief at trial.

Tenn. R. Crim. P. 16. Rule 16(d) states that in the event a party fails to comply with Rule
16, a trial court may

       (A) order that party to permit the discovery or inspection; specify its time,
       place, and manner; and prescribe other just terms or conditions;

       (B) grant a continuance;

       (C) prohibit the party from introducing the undisclosed evidence; or

       (D) enter such other order as it deems just under the circumstances.

“A trial court has wide discretion in fashioning a remedy for non-compliance with a
discovery order, and the sanction should fit the circumstances of the case.” State v. Downey,
259 S.W.3d 723, 737 (Tenn. 2008).

       In this case, the State failed to disclose certain evidence prior to trial. Upon
appellant’s objection, the trial court excluded the evidence. When appellant attempted to
introduce photographs of the trailer’s interior, the State objected, and the trial court excluded
them. The record reveals that the State had requested to see the photographs prior to
appellant’s testimony during the trial, but appellant’s counsel refused to let the State see
them. Subsequently, appellant verbally described the interior rather than using photographs.

      On appeal, appellant argues that he was not required to disclose the photographs
because the State had not completed its discovery. Under Rule 16, both parties have a

                                              -10-
continuing duty to disclose evidence; therefore, appellant’s obligation to reciprocate
discovery began after the State’s initial disclosure in response to his discovery request. We
conclude that appellant’s argument that reciprocal discovery had not been triggered is
without merit. Appellant also argues that the photographs were rebuttal evidence not subject
to disclosure. However, he attempted to introduce the photographs during his case-in-chief.
Hence, they are not rebuttal evidence. The trial court did not abuse its discretion. Appellant
is not entitled to relief as to this issue.

                   D. State’s Denial of Application for Pretrial Diversion

        Appellant’s final issue is his contention that the State erred by denying his application
for pretrial diversion. The record reveals that appellant petitioned the trial court for a writ
of certiorari for the court to review the State’s decision in denying pretrial diversion, but
appellant withdrew the petition as part of a plea bargain involving a charge in another county.
Thus, the trial court never reviewed the State’s decision, and there is nothing in the record
to allow this court to review that decision now. As this court has previously stated,

       It is elementary that an appellate court may only review what is contained in
       the record - not what might have been or should have been included in the
       record. The allegations contained in an application for pretrial diversion are
       not evidence and cannot replace the necessity of a hearing and the
       memorializing of the hearing by a transcript of the hearing.

State v. Vanderford, 980 S.W.2d 390, 406 (Tenn. Crim. App. 1997) (internal citations
omitted). Therefore, this issue is without merit.

                                       CONCLUSION

       Based upon our review of the record, the parties’ arguments, and the applicable law,
we affirm the judgment of the trial court.




                                                     _________________________________
                                                     ROGER A. PAGE, JUDGE




                                              -11-
