                                                                                          08/14/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       Assigned on Briefs July 25, 2017 Session

            STATE OF TENNESSEE v. LUCAS HUBERT POTTER

                  Appeal from the Circuit Court for Blount County
                    No. C24205 Tammy M. Harrington, Judge
                     ___________________________________

                           No. E2016-02268-CCA-R3-CD
                       ___________________________________


The defendant, Lucas Potter, pled guilty to attempted aggravated robbery, attempted
robbery, and theft of property under $500. Tenn. Code Ann. §§ 39-13-401, -402, 39-14-
103. After a sentencing hearing, the trial court denied the defendant’s request for judicial
diversion and imposed an effective five-year sentence of split confinement with
community corrections after 270 days of service. On appeal, the defendant argues the
trial court failed to properly consider his request for judicial diversion and erred in
allowing the State to present rebuttal proof at the sentencing hearing. Following our
review of the briefs, the record, and the applicable law, we affirm the judgments of the
trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT H. MONTGOMERY, JR., JJ., joined.

Michael R. Tabler, Knoxville, Tennessee, for the appellant, Lucas Hubert Potter.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Assistant
Attorney General; Mike L. Flynn, District Attorney General; and Matthew Dunn,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                                         FACTS

       On March 24, 2016, the defendant, armed with a BB gun, stole gas and attempted
to rob two convenience stores in Blount County, Tennessee. Upon arrest, the defendant
confessed to the crimes and ultimately pled guilty to attempted aggravated robbery,
attempted robbery, and theft of property less than $500.00. Tenn. Code Ann. §§ 39-13-
401, -402, 39-14-103. As a condition of the guilty pleas, the defendant agreed to allow
the trial court to determine the manner and method of service of the defendant’s
sentences. Accordingly, the trial court conducted a bifurcated sentencing hearing on
August 11, 2016 and September 22, 2016. At the first hearing, the State offered the pre-
sentence report as its proof, and then rested. The defendant then testified.

        The defendant, who was thirty-four years old at the time of the hearing, explained
he was diagnosed with manic depressive and bipolar disorders during adolescence. The
defendant openly discussed the alienation he felt from others, especially his family, upon
his realization that he was gay, noting he relied primarily on his older sister for support.
His mental health issues led to multiple suicide attempts, the first occurring at age fifteen.
Though the defendant sought treatment for his mental health issues, he was unable to
maintain consistent treatment due to lapses in insurance coverage. As a result, the
defendant learned to mask his depression with work, holding three jobs at one point in
order to stay busy. The defendant also admitted to self-medicating through the use of
illegal drugs.

       The defendant provided a detailed explanation of his foray into drug use and
dependency. Over ten years ago, the defendant met his current life partner who, at the
time they began their relationship, was concealing a methadone addiction. His partner’s
addiction opened the door to the defendant’s own six-year addiction to pain medication
which he ultimately began satisfying intravenously. The defendant’s addiction, fueled by
his mental health issues, also led to an eight-month methamphetamine binge which
coincided with the death of his sister on January 20, 2016. Subsequent to her death, the
defendant found himself unemployed and at the height of his drug usage.

       On the night of March 24, 2016, the defendant was out of money and in need of
drugs. He stated the idea to rob the first convenience store “was spur of the moment,”
and it “just popped into [his] head.” Upon entering the first convenience store, the
defendant kept his BB gun concealed but presented the clerk with a note demanding
money. According to the defendant, “I handed [the clerk] a note and she read it over,
started laughing, started shaking her head, crumpled it up and threw it back at me and
told me to get out of there. So, I did.” However, he soon passed another convenience
store and attempted a second robbery. This time, the defendant flashed the BB gun at his
victim. The defendant stated he “verbally asked for the money this time,” but, “[i]t was
the same reaction . . . and [he] left.” The defendant then pulled into his third convenience
store of the night. After filling his car with gas, the defendant attempted to pay for the
gas with a check tied to an empty bank account. The clerk refused the check and called
the police. The defendant “just drove away” knowing he was stealing gas. When the
                                            -2-
police pulled the defendant over later in the evening, the defendant admitted to the
crimes, and he was arrested.

       The defendant explained that he has been incarcerated since his arrest on March
24, 2016, originally being housed in “D-pod” within the jail. However, after
“disrespect[ing] a Vice Lord gang,” the defendant was moved to protective custody
within the jail. The defendant also spent time in the medical division of the jail after
contracting shingles and making three different suicide threats and/or attempts. The first
suicide threat occurred upon his initial incarceration and resulted in the defendant being
placed on suicide watch for a week. The defendant later made a serious suicide attempt
when he used a razor to “slice[] [his] arms open.” Subsequently, the defendant began
taking Celexa which, according to the defendant, has “helped tremendously.”

       Despite his improved condition on Celexa, the defendant again threatened to
commit suicide on August 8, 2016, just three days prior to the sentencing hearing. The
suicide threat came after the defendant believed he would be moved back to “D-pod”
upon his release from the medical division.1 The defendant explained the “threat” as
follows:
              It was not really that I was wanting to commit suicide. Last week, I
       was diagnosed with shingles and I was taken out of the cell that I was in
       and put in [m]edical until I got cleared of it. Whenever they took me back
       to [m]edical, they were trying to take me back to D-pod where I had threats
       against my life. And I told them if I was going to be housed in D-pod I was
       going to kill myself. Because I wouldn’t want to get beat again.

As of the sentencing hearing, however, the defendant had not been moved to “D-pod.”

       At the conclusion of his testimony, the defendant expressed interest in a future
career in law enforcement. He also stated: “. . . one of the reasons I wanted diversion is
because I know you can’t go into law enforcement if you have felonies on your record.
And since being in the jail I have a new respect for officers and what they have to deal
with . . . on a daily basis and what they have to put up with from inmates, gives you a
new respect for people that do that line of work.” During cross examination, the State
explored the defendant’s statement about his “new respect for officers” further.

       Specifically, and in direct response to the defendant’s comment, the State
questioned the defendant about his “verbally abusive” and threatening behavior towards
officers on August 8, 2016. The State asserted the defendant’s behavior led to a loss of

        1
            At the time, the defendant was housed in the medical division of the jail due to contracting
shingles.
                                                   -3-
privileges. The defendant admitted to losing privileges as a result of his behavior on
August 8, 2016; however, he explained the loss of privileges resulted “from banging on
the door. It wasn’t from threatening anyone.” The defendant also asserted, “I have never
threatened anyone physically.” During re-direct examination, the defendant clarified he
was upset on August 8, 2016, because he feared he was being placed back in “D-pod”
after his release from the medical division of the jail. At the time, he “flipped out” and
“started hitting the door.” The defendant testified that he was scared of “D-pod,”
explaining “why would I want to go back somewhere where I’m already in protective
custody from being there?”

        Subsequent to the defendant’s proof, the State offered two witnesses in rebuttal.
The defendant objected, asserting the State sought to attack his credibility, which he
claimed was a collateral issue that could not be proved through extrinsic evidence. The
trial court disagreed, and the State proceeded.

       First, the State called Officer Jonathan Buchanan of the Blount County Sheriff’s
Office. Officer Buchanan stated he responded to an urgent “callout” involving the
defendant in the medical division of the jail on August 8, 2016. When he arrived, the
defendant “was pretty irate” with another officer upon learning he could not go to the “C-
7” area of the jail because he had shingles. The defendant told the officer who refused to
let him leave the medical division that “he was going to kick [the officer’s] ass.” Officer
Buchanan described the defendant’s actions as follows: “No physical actions as far as
like him placing hands on [the officer], but [the defendant] was just really irate and just
being very loud, being very disrespectful.” Officer Buchanan filed a disciplinary report
regarding the incident. In the report, he described the allegations against the defendant as
follows: “Interfering with an officer, threats to an officer, disorderly, and refusing an
officer’s command, lying and deceit.”

      The defendant waived a hearing on the incident and was again placed on suicide
watch. According to Officer Buchanan:

              [The defendant] decided that he wanted to go on suicide watch, sir.
       This has been a -- the thing that you’ve got to understand, [the defendant’s]
       been doing this for [a] while, sir. And at that point in time when he -- when
       you physically tell somebody that you want to go on suicide watch, I have
       to take that seriously, as if he’s going to hurt himself. And with that said,
       he was then taken out of his stripes and put in a suicide gown, sir.

Despite the defendant’s fear of being placed in “D-pod,” Officer Buchanan was unaware
of plans to transfer the defendant to “D pod” on August 8, 2016.

                                           -4-
       The State next called Lieutenant Keith Gregory of the Blount County Sheriff’s
Office. Lieutenant Gregory explained that since incarceration, the defendant has required
a housing unit where he can be “more closely monitored” as a result of an altercation
with another inmate and his suicidal behavior. Lieutenant Gregory recalled the August 8,
2016 “verbal altercation” between the defendant and an officer, though he was unaware
of issues between the defendant and the Vice Lords. The State then rested.

      The defendant sought judicial diversion from the trial court. The trial court
suspended the sentencing hearing until September 22, 2016 in order to monitor the
defendant’s behavior while incarcerated. The trial court explained:

               But it is often as people apply for release or alternative programs or
       to be in that type of a program, if there are incidents or if there is discipline
       or if there’s other issues going on in the jail, for me to be able to consider
       favorable release, I have to have a period of time where there has not been
       any issues in custody. Because if I’m expected to release someone in the
       community, then I have to have a period of time where they’ve been able to
       follow the rules in custody or there’s not been issues.

       During the September 22, 2016 hearing, the trial court noted the defendant, a
Range I, standard offender, was eligible for judicial diversion. The trial court, however,
refused to grant judicial diversion to the defendant. Instead, the trial court ordered split
confinement of 270 days, including time served, with the remainder of the defendant’s
sentences to be served on community corrections. Specifically, the trial court imposed a
five-year sentence for the attempted aggravated robbery conviction, a four-year sentence
for the attempted robbery conviction, and a 270-day sentence for the theft of property
under $500.00 conviction.2 Additionally, prior to the defendant’s release, the trial court
ordered a community corrections officer to establish a treatment plan tailored to the
defendant, including: mental health treatment, drug and alcohol treatment, and GPS
monitoring for sixty days. The trial court also ordered the defendant “to provide a
housing plan to Community Corrections that they are to approve” and to remain gainfully
employed. The defendant timely appealed.

                                            ANALYSIS

       On appeal, the defendant argues the trial court failed to properly consider the
necessary Parker and Electroplating factors before denying his request for judicial
diversion. State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996); State v.

       2
          Though not reflected on the judgment forms, at the September 22, 2016 sentencing hearing, the
trial court stated the sentences were to be served concurrently.
                                                 -5-
Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998). As a result, the
defendant asks this Court to conduct a de novo review of his request. The State asserts
the trial court’s denial of judicial diversion was presumptively reasonable and supported
by appropriate consideration of the applicable factors. Additionally, the defendant argues
the trial court erred in allowing the State to present rebuttal evidence at the sentencing
hearing regarding the defendant’s behavior while incarcerated. The State asserts the trial
court properly sentenced the defendant and did not err in allowing rebuttal proof. Upon
our review of both issues, we find no error.3

        Judicial diversion is a statutorily prescribed alternative to sentencing available to
certain criminal defendants “who have entered a guilty or nolo contendere plea or have
been found guilty of an offense without the entry of a judgment of guilt.” State v. King,
432 S.W.3d 316, 323 (Tenn. 2014). To be eligible for judicial diversion, a defendant
cannot have been previously convicted of a felony or Class A misdemeanor, and the
defendant’s crimes cannot involve a sexual offense or a Class A or Class B felony. See
Tenn. Code Ann. § 40-35-313(a)(1)(A), (a)(1)(B)(i)(c), (d) (2013). “Eligibility under the
statute does not, however, constitute entitlement to judicial diversion; instead, the
decision of whether to grant or deny judicial diversion is entrusted to the discretion of the
trial court.” King, 432 S.W.3d at 323; see Tenn. Code Ann. § 40-35-313(a)(1)(A); State
v. Turner, No. M2013-00827-CCA-R3-CD, 2014 WL 310388, at *4-5 (Tenn. Crim. App.
Jan. 29, 2014).

      Upon finding a defendant is eligible for judicial diversion, a trial court must then
consider:

               (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, and (f) the deterrence
        value to the accused as well as others. The trial court should also consider
        whether judicial diversion will serve the ends of justice - the interests of the
        public as well as the accused.

King, 432 S.W.3d at 326 (quoting Parker, 932 S.W.2d at 958); Electroplating, Inc., 990
S.W.2d at 229. The trial court must balance the Parker and Electroplating factors against

        3
          “When a record does not include a transcript of the hearing on a guilty plea, [this Court] should
determine on a case-by-case basis whether the record is sufficient for a meaningful review under the
standard adopted in Bise.” State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012). If this Court determines
that the record is sufficient for meaningful review, this Court “may review the merits of the sentencing
decision with a presumption that the missing transcript would support the ruling of the trial court.” Id.


                                                   -6-
one another and explain its ruling on the record. King, 432 S.W.3d at 326. “The trial
court need not provide a recitation of all the applicable ‘factors when justifying its
decision on the record in order to obtain the presumption of reasonableness,’ but ‘the
record should reflect that the trial court considered the Parker and Electroplating factors
in rendering its decision and that it identified the specific factors applicable to the case
before it.’” State v. Lacy, No. W2016-00837-CCA-R3-CD, 2017 WL 1969764, at *3-4
(Tenn. Crim. App. May 12, 2017) (citing King, 432 S.W.3d at 327); see also State v.
Bise, 380 S.W.3d 682, 707 (Tenn. 2012). If the factors are properly weighed by the trial
court, this Court reviews the trial court’s grant or denial of judicial diversion under an
abuse of discretion standard with a presumption of reasonableness. Id. (citing Bise, 380
S.W. 3d at 707).

        When the trial court fails to properly weigh the Parker and Electroplating factors,
“the presumption of reasonableness does not apply and the abuse of discretion standard . .
. is not appropriate.” King, 432 S.W.3d at 327. Upon such a determination, an appellate
court “may either conduct a de novo review or, if more appropriate under the
circumstances, remand the issue for reconsideration. The determination as to whether the
appellate court should conduct a de novo review or remand for reconsideration is within
the discretion of the reviewing court.” Id. at 328. This Court will “uphold the grant or
denial so long as there is any substantial evidence to support the trial court’s decision.”
Id. at 327.

       Here, we first note, the defendant’s request for de novo review of the trial court’s
denial of judicial diversion is inappropriate as the record shows the trial court properly
considered the Parker and Electroplating factors before making its decision. King, 432
S.W.3d at 326; Parker, 932 S.W.2d at 958; Electroplating, Inc., 990 S.W.2d at 229. As
such, we will address the defendant’s issue regarding the denial of his bid for judicial
diversion under an abuse of discretion standard, applying a presumption of
reasonableness to the trial court’s findings. King, 432 S.W.3d at 326.

       In this case, the defendant was convicted of attempted aggravated robbery, a Class
C felony, attempted robbery, a Class D felony, and theft of property under $500.00, a
Class A misdemeanor. The defendant was sentenced as a Range I, standard offender. As
a standard offender with no prior criminal history, the defendant is a qualified candidate
for judicial diversion. See Tenn. Code Ann. § 40-35-313. The trial court noted this
finding on the record.

       Upon finding the defendant qualified for diversion, the record shows the trial court
balanced the Parker and Electroplating factors against the evidence before it. In doing
so, the trial court reviewed the pre-sentence report and considered the sentencing
memorandum, the evidence presented during the sentencing hearing, and the appropriate
                                           -7-
sentencing guidelines. The record makes clear that the trial court then thoroughly
discussed its reasons for denying the defendant’s request for judicial diversion.

        At the outset, the trial court noted the defendant’s request for judicial diversion
was “extraordinary” within the context of the crimes for which he was convicted. The
trial court noted the defendant’s lack of a criminal record clearly weighed in favor of a
grant of judicial diversion. However, the trial court placed great emphasis on the
defendant’s admission that he suffers from severe mental health issues, including manic
depressive and bipolar disorders, and from years-long drug abuse. Notably, the trial court
acknowledged the defendant’s criminal conduct was fueled by his need for money and
drugs. In weighing the defendant’s social history and mental health status against his
request for diversion, the trial court explained:

             I must look to the [d]efendant’s physical and mental condition and
      social history. And I have to look to that as part of the reason why I’m
      even having this sentencing hearing. It’s complicated. He’s had a long
      history of work and different issues that are favorable, but then we also
      have a history of some alcohol and drug use, as well as some periods of
      mental instability that, on one hand, are argued as part of the basis for
      committing the offense, but then on the other hand are argued that that’s the
      very heart of what makes him dangerous. And so, those are complicated.
      And, like I said, I assume that that’s why I’m having this sentencing
      hearing because those issues go both ways.

             In one way, it forces the [c]ourt to look at whether or not he can be
      rehabilitated, but on the other hand it forces the [c]ourt to look at whether
      or not he’s a danger to the community because of those very issues. So,
      once again, that’s a very hard balancing act. Looking at the facts and
      circumstances surrounding the offense and the nature of the circumstances
      of the criminal conduct involved, once again that goes hand in hand with
      the alcohol issues, the drug issues . . . as well as the mental health issues.

Accordingly, the record shows the trial court properly weighed the defendant’s criminal
conduct, social history, and mental health in reviewing the defendant’s request for
judicial diversion and found each of these factors weighed against granting diversion.

        The trial court also addressed the defendant’s “amenability to correction,” again
stating the defendant’s case was “very complicated.” The trial court balanced its concern
“about the [d]efendant’s actions while incarcerated” against the defendant’s potential for
rehabilitation. The trial court provided a thorough explanation of its balancing process,
as follows:
                                           -8-
              And what the [c]ourt has before it is a Class C felony, attempted
       aggravated robbery, a Class D felony[,] attempted robbery, and a Class A
       misdemeanor, theft under $500. There is a weapon involved, there is the
       threat of a weapon involved, there is not one offense, there [are] multiple
       offenses. There is a period of trouble even after incarceration which is –
       I’m not going to put a great significance on that but it was significant
       enough that I reset [the sentencing hearing] to look at whether or not there
       was any issues. There’s no issues before the court. So, I can assume that
       we’ve made it through that period of time that I’ve asked him to make it
       through.

Though the defendant behaved appropriately in jail after the first sentencing hearing, the
trial court acknowledged its inability to predict how the defendant would behave on
probation. The trial court again noted it had no prior history to rely on to determine the
defendant’s future behavior. As such, the record indicates the trial court conducted an
appropriate review of the “amenability to correction” factor.

        Similarly, the trial court considered whether judicial diversion would “serve the
ends of justice” by weighing “the deterrence value to the accused as well as others”
against the defendant’s request for diversion. The trial court noted it had not heard
specific proof on whether confinement was necessary to provide an effective deterrence
to others. However, in the defendant’s case, the trial court noted full probation was not
an option as the defendant has been incarcerated since his arrest on March 24, 2016. The
trial court stated, “So that, either way, I don’t really have to necessarily even apply that
factor because he’s not going to get full probation.”

     Ultimately, after reviewing the Parker and Electroplating factors, the trial court
summarized its reasoning for denying judicial diversion, as follows:

               What this really boils down to, without significant intervention and
       without him accepting the significant intervention, [the defendant is]
       dangerous. That’s the bottom line. And so the [c]ourt has to fashion
       something in which to be able to balance trying to rehabilitate the
       [d]efendant. Because that’s what the law says that we are supposed to do –
       that’s what we’re supposed to look at first -- with also protecting society.
       And so, the court is going to deny the request for diversion based upon --
       well, the reasons I have stated.

      Accordingly, the record makes clear that the trial court thoroughly discussed its
reasons for denying the defendant’s request for judicial diversion after applying the
Parker and Electroplating factors to the defendant’s request.         The trial court
                                           -9-
appropriately discussed the factors on the record and thoughtfully considered the
defendant’s request for judicial diversion, ultimately finding diversion to be unacceptable
due the defendant’s criminal activity and his long history of social and mental instability.
See State v. Brooks, No. W2015-00833-CCA-R3-CD, 2017 WL 758519, at *8 (Tenn.
Crim. App. Feb. 27, 2017) (citing King, 432 S.W.3d 316, 327 & n.8) (“The trial court is
not required to ‘recite’ all of the factors or use ‘magic words’ when explaining its
decision regarding diversion.”). The trial court did not abuse its discretion when denying
the defendant’s request for judicial diversion. Accordingly, we affirm the sentence
imposed by the trial court.

       Next, the defendant asserts the trial court erred in allowing the State to present the
rebuttal evidence from Officer Buchanan and Lieutenant Gregory at the sentencing
hearing. “Rebuttal evidence is ‘any competent evidence which explains or is in direct
reply to or a contradiction of material evidence introduced by the accused.’” State v.
Thompson, 43 S.W.3d 516, 524 (Tenn. Crim. App. 2000) (quoting Nease v. State, 592
S.W.2d 327, 331 (Tenn. Crim. App. 1979)). “The state is given the right of rebuttal
because it ‘does not and cannot know what evidence the defense will use until it is
presented at trial.’” Id. (citing State v. Cyrus Deville Wilson, No. 01C01-9408-CR-
00266, 1995 WL 676398, at *4 (Tenn. Crim. App. Nov. 15, 1995)). The admission of
rebuttal evidence lies within the sound discretion of the trial court, and this Court will not
overturn the trial court’s decision absent an abuse of discretion. Id.

       In the present case, the defendant testified at the sentencing hearing regarding his
“new respect for officers.” The State sought to explore the defendant’s statement further
on cross-examination by asking him about an incident between the defendant and an
officer within the jail just three days prior to the sentencing hearing. The defendant
acknowledged he was involved in an incident on August 8, 2016, which resulted in his
loss of privileges. The defendant provided an explanation for the incident, stating he was
upset because he thought he was going to be placed in “D-pod” upon his release from the
medical division of the jail. According to the defendant, he was previously threatened by
other inmates also housed in “D-pod.” When asked if he was verbally abusive and
threatening towards officers, the defendant explained he was merely banging on the door
during the incident.

       In response, the State sought to rebut the defendant’s testimony with proof from
Officer Buchanan, who responded to the incident on August 8, 2016, and Lieutenant
Gregory, who provided facts regarding where the defendant was housed within the jail.
Officer Buchanan’s testimony provided a different picture of the incident, describing the
defendant as “irate” and “disrespectful.” Lieutenant Gregory noted the incident consisted
of a “verbal altercation” between the defendant and an officer. Additionally, both
rebuttal witnesses discounted the defendant’s explanation for the incident by noting the
                                            - 10 -
defendant was not being placed back in “D-pod” at the time. Rather, Officer Buchanan
explained the defendant was upset because he could not shower in “C-7” because he had
shingles.

        At the hearing, the trial court found the State’s rebuttal evidence addressed the
defendant’s credibility, and noted, “credibility is always an issue when a witness
testifies.” We agree. In addition, our review of the record shows the State’s rebuttal
evidence was in “direct reply” to the defendant’s explanation of the August 8, 2016
incident and was entirely appropriate as a result. Thompson, 43 S.W.3d at 524 (quoting
Nease, 592 S.W.2d at 331). The trial court did not abuse its discretion in allowing the
State to present rebuttal evidence in response to the defendant’s statements regarding his
“new respect for officers” and the August 8, 2016 incident as the evidence falls squarely
into that permitted on rebuttal. The defendant is not entitled to relief.

                                    CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court.


                                            ____________________________________
                                            J. ROSS DYER, JUDGE




                                          - 11 -
