        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs March 3, 2009

                   STATE OF TENNESSEE v. TRAVIS KNOTTS

                 Direct Appeal from the Circuit Court for Madison County
                          No. 08-235    Donald H. Allen, Judge



                    No. W2008-01948-CCA-R3-CD - Filed April 24, 2009


The defendant, Travis Knotts, pled guilty to theft of property over $10,000, a Class C felony, and
was sentenced to six years on probation. On appeal, he argues that the trial court erred in denying
his request for judicial diversion. After review, we affirm the judgment of the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
CAMILLE R. MCMULLEN , JJ., joined.

Gregory D. Gookin, Assistant Public Defender, for the appellant, Travis Knotts.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;
James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                           OPINION

                                             FACTS

       The factual basis for the defendant’s guilty plea was as follows:

       [B]etween July and December of 2007, [the defendant] along with the codefendant,
       Mr. McKinney, did knowingly obtain or exercise control over property being
       electronics and miscellaneous merchandise over the value of $10,000 without the
       effective consent of the owner being Wal-Mart with the intent to deprive the owner
       of the property. The total amount of merchandise was $26,412.56.
                What was occurring . . . was that [the defendant] along with Mr. McKinney
        were working in the receiving department at Wal-Mart and they were taking items
        that were coming in on the tractor trailer trucks into Wal-Mart. It was items such as
        IPOD’s, MP3 players, memory cards, Play Station games, DVD’s, digital cameras
        and those type things and this was recorded on video and they would conceal it in
        their clothes and then leave the store with them in their clothes. They were
        confronted about this and [the defendant] did admit that he did this and that he took
        these items over this period of time and that he would sell the things that he would
        receive. He named some names including Mr. McKinney, the codefendant in this
        matter, as also being involved. Mr. McKinney was also caught on video tape doing
        this. Mr. McKinney also has admitted to doing this. This occurred during about this
        six month time period for various electronic items they were taking in in the
        receiving department against Wal-Mart’s will and permission. . . .

                ....

                . . . [T]hey would destroy the boxes, put them in the shredder or what have
        you, the boxes that they came in, and put the items in his clothes and I believe [the
        defendant] said he watched the DVD’s and threw them away and I believe he had
        sold a lot of the other electronic items. He admits to about 70 IPOD’s, 65 MP3
        players, 100 DVD’s, five or six Play Station games and a couple of memory cards
        and a digital camera. Clearly there was a lot more merchandise that was taken.
        Between the two of them it totaled about $26,000.

         The trial court accepted the defendant’s guilty plea and set a hearing to determine whether
to grant judicial diversion. At the diversion hearing, the twenty-year-old defendant testified that he
was married and said that he and his wife had lived with his mother-in-law for approximately three
years. The defendant was currently working at Pizza Hut and presented a letter from his manager
that listed when he started working, how many hours he worked per week, and his pay rate. The
defendant stated that he had previously worked in the receiving department at Wal-Mart until he was
arrested on December 26, 2007. The defendant said that he admitted his wrongdoing when
confronted by store management with evidence of his thefts and had also admitted his participation
to the judge at his guilty plea hearing. The defendant stated that he sold the majority of the stolen
items and used the proceeds to pay bills, “buy different stuff for the house,” and travel to Memphis
to see his infant son who was in the hospital but eventually passed away.

         The defendant testified that he quit school after the ninth grade but said he was willing to get
his GED if required by the court. The defendant denied the use of any drugs. He said he was willing
to get a second job in order to pay restitution to Wal-Mart. The defendant had been released on his
own recognizance and had been reporting to a community corrections officer for two months without
any problems. He expressed a desire to obtain his GED and a degree in computer technology in the
future.



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        Weston Watkins, the defendant’s community corrections case officer, testified that the
defendant reported twice a week and had not missed any of his appointments. The defendant was
drug-tested regularly and had never tested positive. Watkins said the defendant kept him informed
of his work schedule and whereabouts.

        After a recess to allow the court to review the exhibits, the court presented its findings. The
court found that the defendant’s lack of a criminal record reflected favorably on his amenability to
correction and weighed in favor of diversion. The court determined that the circumstances of the
offense weighed against diversion because the thefts occurred many times over a six-month period,
involved a large amount of merchandise, and involved a violation of his employer’s trust. The court
stated that it was concerned about the defendant’s social history because he had been fired from jobs,
dropped out of school in the ninth grade, and had previously made no efforts to complete high school
or obtain his GED. The court noted that the defendant reported no mental or physical disabilities,
no drug or alcohol use, and had passed random drug tests, which the court weighed in the
defendant’s favor.

         As to deterrence, the court said it “is not willing to send a message to employees that you can
go out and steal over $10,000 worth of property and get placed on diversion, especially when you
committed thefts on numerous occasions.” The court observed that the defendant had six months
in which he could have admitted the thefts to his employer, but the defendant “never once felt any
remorse as best I can tell.” The court considered the defendant’s statement in which he said that after
he had been working at Wal-Mart for two months, he and his codefendant “started taking items off
of the trucks and taking them out of the store and s[elling] the stuff that I stole.” The court noted that
the defendant had to know people in the community who were willing to buy stolen merchandise,
and the court weighed against diversion that the defendant “stole so he could get money.”

        The court questioned the defendant’s sincerity when he said he used the money for cigarettes
and gas and “most of it was going to see [his] son who was in the hospital in Memphis.” The court
noted that even with high gas prices, it did not think the defendant spent “twenty something thousand
dollars on gas going back and forth to Memphis.” The court believed that much of the money was
used for things other than gas and cigarettes and, because it found that the defendant was not “very
truthful and honest about what he used the money for,” weighed the factor against diversion. The
court concluded that diversion would not serve the ends of justice because it would send the wrong
message. Accordingly, the trial court denied the defendant’s request for diversion but found that he
was a good candidate for probation.

                                              ANALYSIS

        The defendant argues that the trial court erred in denying his request for judicial diversion.
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


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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).

        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); State v. Bonestel, 871
S.W.2d 163, 168 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29
S.W.3d 1, 9 (Tenn. 2000). 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 denying diversion, the court weighed in the defendant’s favor that he had no criminal
history and its reflection on his amenability to correction. The court also weighed his physical and
mental health, and lack of drug or alcohol use favorably to the defendant. However, the court
determined that the circumstances of the offense weighed against diversion because the thefts
amounted to “a large, very serious amount,” involved stealing from his employer, and were “many,
many times” more than a one-time isolated theft. The court also determined that the defendant’s
poor educational background and work history of getting fired from jobs weighed against diversion.
The court did not find the defendant “very truthful and honest about what he used the money for,”
thus weighing against diversion. The court found that deterrence was a major factor against
diversion because it was “not willing to send a message to employees that you can go out and steal
over $10,000 worth of property and get placed on diversion, especially when you committed thefts
on numerous occasions.” The court noted that it would have weighed it favorably for diversion if
the defendant had “stole[n] once or twice and realized what he was doing was wrong and went to
his employers [to] . . . tell [them] what [was] going on in the shipping and receiving department.”
The court observed that the defendant, instead, continued to steal over a period of six months with
“[p]erhaps as many as 15 other people according to the codefendant’s statement.” The record shows
that the defendant did not admit his wrongdoing until confronted by store management with


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videotaped evidence of such. The court ultimately concluded that diversion would not serve the ends
of justice. In sum, we note that the defendant presents some factors favorable to diversion; however,
the record shows that the trial court considered and weighed the relevant factors in reaching its
decision and substantial evidence in the record supports the court’s conclusion.

                                         CONCLUSION

        Based on the aforementioned authorities and reasoning, we affirm the trial court’s denial of
judicial diversion.

                                                      ___________________________________
                                                      ALAN E. GLENN, JUDGE




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