                                                                                          03/15/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                         Assigned on Briefs January 18, 2017

              STATE OF TENNESSEE v. JASON ERIK REDDEN

                   Appeal from the Circuit Court for Rhea County
                   No. 2014-CR-96 Thomas W. Graham, Judge


                             No. E2016-00998-CCA-R3-CD


The Defendant, Jason Erik Redden, pleaded guilty to two counts of official misconduct,
Class E felonies, in exchange for concurrent sentences of two years each. See T.C.A. §§
39-16-402 (2014). Pursuant to the plea agreement, the trial court was to determine the
manner of service and ordered him to serve his sentence in confinement. On appeal, the
Defendant contends that the court erred by denying (1) judicial diversion and (2)
alternative sentencing. We affirm the judgments of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and D. KELLY THOMAS, JR., JJ. joined.

Howard L. Upchurch, Pikeville, Tennessee, for the appellant, Jason Erik Redden.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
J. Michael Taylor, District Attorney General; and David Shinn, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

        This case arises from incidents in which money and vehicles seized by the
Graysville Police Department could not be accounted for or were improperly handled.
The Defendant, who was the Graysville Police Chief, pleaded guilty to two counts of
official misconduct with an agreed-upon effective sentence of two years, with the manner
of service to be determined by the trial court. The guilty plea transcript is not included in
the appellate record. The judgments reflect that the Defendant pleaded guilty to Counts 2
and 7 of the indictment, which describe incidents involving $3977 in seized money and
storage and towing fees for a 2009 Jeep Patriot, respectively.
       At the sentencing hearing, Tennessee Bureau of Investigation (TBI) Special Agent
Jason Legg testified that he investigated the Defendant’s case. Agent Legg said that the
Defendant and another police officer seized $3977 during a traffic stop. The money
could not be accounted for, and the TBI investigated the disposition of the money. Agent
Legg stated that he interviewed multiple individuals during the investigation and that he
listened to recordings of conversations in which the Defendant borrowed money from
Robert Baldwin. Agent Legg said that the Defendant’s borrowing money was related to
the $3977.

        Agent Legg testified that he interviewed the Defendant, that the Defendant told
him City Recorder Michelle Horton asked the Defendant for the money, that the money
was in a filing cabinet at the police department, and that the money had not been placed
in a safe or deposited in the police “drug fund.” The Defendant said he did not want Ms.
Horton to know about the money. The Defendant did not tell Agent Legg that he lost the
money or that he had sought to borrow money to replace it.

       Agent Legg testified that he recovered a 1990 Ford Thunderbird, which had been
seized and awarded to the City of Graysville, from Mr. Baldwin. Agent Legg stated that
no record reflected that the money Mr. Baldwin paid for the Thunderbird was “turned
into the city recorder, who would have deposited it into the drug fund.”

        Agent Legg testified that he found a 1997 Honda Civic, which had been seized
and awarded to the Graysville Police Department, at the Defendant’s house. Agent Legg
identified photographs of the Civic, which was “in a garage like area with a billy goat
tied to the bumper[.]” Agent Legg agreed that the hood was missing. The Defendant told
him that the windows leaked and that he moved the car in order to avoid its being
damaged in the city lot. The Defendant also told him that the Civic was not in the same
condition as when it was seized.

       On cross-examination, Agent Legg testified that his investigation involved
multiple vehicles. He said that the investigation began when the district attorney’s office
contacted him about missing money. Agent Legg agreed that the money the Defendant
borrowed from Mr. Baldwin was given to the city to replace the missing money. Agent
Legg said that the Defendant immediately repaid Mr. Baldwin.

        Robert Baldwin testified that he was introduced to the Defendant by a friend and
that they socialized. He said that in August 2013, the Defendant and another officer
came to Mr. Baldwin’s house, that the Defendant asked to borrow about $4000, and that
the Defendant told him money was missing. Mr. Baldwin stated that four or five hours
later, the Defendant returned the borrowed money. Mr. Baldwin said that six months
before he loaned the Defendant money, he purchased a Thunderbird from the Defendant
for $300 in cash and that the Defendant told him a loan company owned the car and did
not want to pay storage fees for it. Mr. Baldwin stated that he did not obtain a receipt and

                                            -2-
that he had possession of the Thunderbird at the time of the hearing. Mr. Baldwin said
that he did not drive the Thunderbird, that he did not have its title, and that the TBI told
him not to do anything with it.

      Mr. Baldwin testified that he previously bought two guns from the Defendant.
The Defendant told him that one gun belonged to the Defendant, that the other gun
belonged to the city, and that the city gave the Defendant permission to “get rid of” the
gun because it was not functional. Mr. Baldwin said he paid the Defendant $600 in cash
and did not obtain a receipt. Mr. Baldwin stated that the TBI later confiscated the gun
belonging to the Defendant and that he returned the other gun to the Graysville Police
Department. Mr. Baldwin said that he had not spoken to the Defendant since he
purchased the guns.

        On cross-examination, Mr. Baldwin testified that he considered the Defendant a
friend, that he trusted the Defendant, that he believed the Defendant to be a truthful
person, and that when the Defendant promised to do something, the Defendant did it
“[m]ost of the time.” Mr. Baldwin agreed that the Defendant came to his house with
another officer, that the Defendant was upset, and that the Defendant told Mr. Baldwin he
had misplaced some money. Mr. Baldwin agreed that the Defendant said he would give
collateral to secure a loan and that the Defendant intended to use the money to replace the
lost money. Mr. Baldwin said that when the Defendant returned the borrowed money,
the Defendant stated he had found the lost money. Mr. Baldwin agreed the Defendant
told him that the Thunderbird belonged to the police department and that the Defendant
was authorized to sell it. Mr. Baldwin said that he paid the Defendant in cash because he
had done so in other transactions and that he did not ask the Defendant for a receipt. Mr.
Baldwin did not know what the Defendant did with the money. Mr. Baldwin said that he
was aware the Defendant was “not on the best of terms” with Ms. Horton and other city
officials.

       Sequatchie County Sheriff’s Deputy Lee Spain testified that he previously worked
as a Graysville police officer and that in April 2014, he recovered a stolen pickup truck.
He said the truck, which was locked, was towed to a parking lot behind the police
department. Deputy Spain stated that he photographed the truck and that the truck’s keys
were recovered during the execution of a search warrant. Deputy Spain denied having
possession of the keys or entering the pickup truck. He said that a blue toolbox was
visible on the passenger side of the truck and that one or two days after the truck was
towed, the toolbox was missing. Deputy Spain stated that the Defendant took the keys to
the police department and that Brian Crowe and Detective Rick Anderson conducted an
inventory of the truck’s contents.

       Former Graysville police officer Brian Crowe testified that he was familiar with
the pickup truck Deputy Spain recovered and that the truck was locked when it arrived at
the police department. Mr. Crowe said that he gave the keys to the Defendant and that

                                            -3-
Mr. Crowe and Detective Anderson later inventoried the truck’s contents. Mr. Crowe
stated that a toolbox in photographs of the truck was not inside the truck when they
performed the inventory. Mr. Crowe said that the parking lot had a surveillance camera
and that in the video recording, the Defendant left the police department, walked across
the parking lot, opened the truck’s passenger side door, closed the door, walked to his
“take-home patrol car” carrying a toolbox, and placed the toolbox in his car. Mr. Crowe
said that the Defendant did not tell him about taking the toolbox and that Mr. Crowe
showed TBI agents the video recording. Mr. Crowe stated that the Defendant became
aware of the TBI investigation and that the toolbox “reappear[ed].”

        On cross-examination, Mr. Crowe testified that he was in charge of inventory at
the police station and that he frequented the evidence room. He said that several weeks
or months after the Defendant took the toolbox, Mr. Crowe noticed it in the evidence
room. Mr. Crowe said that he did not ask the Defendant about the toolbox. Mr. Crowe
stated that he did not know whether the toolbox had been kept in the Defendant’s police
cruiser and that the police cruiser was city property.

       Samantha Redden, the Defendant’s wife, testified that they had been married for
ten years and that their two children and that Ms. Redden’s son from a previous marriage
lived with them. She said that they moved out of Graysville a month before the hearing.
She stated that the Defendant did not drink alcohol or use drugs, that he had never needed
mental health counseling, that their marriage was “[t]he best,” and that the Defendant was
her best friend. She said that she was the Defendant’s “biggest champion” and that they
had never separated, although the investigation and the court proceedings had been
stressful. She stated that the Defendant’s health was good other than being “very
stressed.”

       Ms. Redden testified that their seven-year-old son had “very significant health
problems” since his birth. She said that her son used a feeding tube until age six, that he
had undergone three open-heart surgeries, several stomach surgeries, and other
emergency surgeries, and that she anticipated his needing more surgeries to survive. She
stated that the year before the hearing, her son underwent emergency surgery to repair a
torn leak in his heart. Ms. Redden stated that if her son were hospitalized, he would not
heal as quickly as a normal child due to inadequate blood flow. She said that her son’s
care was expensive.

       Ms. Redden testified that she did not work before the investigation, that she began
working part time before the Defendant’s termination from the Graysville Police
Department, and that she worked full time as an office manager at the time of the hearing.
She said that the Defendant cared for their son, which was “more than a full-time job,”
and that only a certified nurse could babysit. Ms. Redden stated that they could not
afford a nurse if the Defendant went to jail. She stated that neither she nor the Defendant
had family in Rhea County and that the Defendant cared for the children full time. She

                                            -4-
said that the Defendant took the children to school and their son’s numerous doctors’
appointments and that the Defendant provided excellent care. Copies of their son’s
medical records were received as an exhibit.

       Ms. Redden testified that the Defendant began working at Graysville Police
Department in late 2008 after their son’s birth and that the Defendant maintained his
position until his employment was terminated in March 2015. Ms. Redden said that the
Defendant “held police work and serving his community to the highest degree,” that the
Defendant spent more time helping the community and other officers than he did at
home, and that as a result of his termination, “it’s like a part of his soul is missing.” She
said,

       He was extremely saddened that this took an effect on the city and on the
       people that he tried so hard to help. He was sad that our family had to go
       through this . . . [and that] he can’t be there for [people who came to him
       for help] any more, and he just felt really sorry.

       Ms. Redden testified that the Defendant had attempted to find work and that the
pending charges prevented him from obtaining employment. She said that the Defendant
had been a full-time student pursuing an online bachelor’s degree in criminal justice and
that the Defendant would graduate within the next six months. Ms. Redden stated that
because they were a single income family living “paycheck to paycheck,” she would have
noticed any change in income or extra money and that she did not encounter any extra
money.

        Ms. Redden testified that she did not know of any circumstances which would
affect the Defendant’s ability to follow the rules of probation. She agreed that his daily
life was spent devoted to the children and to his education. Ms. Redden said that she had
been a Graysville city commissioner before the Defendant became police chief and
remained in that position until about a year after he became chief. She stated that she
abstained from the commission’s vote to hire the Defendant. She said that the Defendant
had never previously been the head of a city department, that the Defendant requested
more certification and continuing education classes, and that the city recorder told him
the city’s budget did not allow for additional classes.

       On cross-examination, Ms. Redden testified that she served on the Graysville city
commission from 2010 until 2012. She said that when the Defendant was indicted, the
city placed him on a leave of absence, that he returned to work after one or two weeks,
and that he was given back pay. Ms. Redden agreed that the commission and the mayor
voted to appoint police officers and that the mayor did not have the independent authority
to hire and fire. She said that in 2015, the city recorder and the mayor gave the
Defendant a letter of termination.


                                            -5-
       Ms. Redden testified that her son had heart issues from early 2013 until early
2014. She admitted she was not with the Defendant all day but said that she was attentive
to her bank account and that she did not see an influx of $2300 in March 2013. She
stated that she and the Defendant had a joint checking account, that she would have
noticed if $4000 had been removed from the account, and that no such withdrawal
occurred. She stated that she began working full time in July 2015.

        Ms. Redden testified that she did not know the details of the Defendant’s
resignation from the Chattanooga Police Department and that the Defendant told her he
“did not like some of the things that were happening within the department.” She said
that a person caring for her son would require “extensive training,” that she had an
associate’s degree in surgical technology, and that the Defendant had extensive CPR and
first responder training. She stated that she and the Defendant had custody of the
Defendant’s two daughters from a previous marriage and that one of them left the family
home when the daughter was age eighteen.

       On redirect examination, Ms. Redden testified that her father worked full time and
could not assist her with childcare. Ms. Redden said that the Civic had been stored by the
city before she was a commissioner, that it had been exposed to the elements and was
infested with rats, that it was not drivable, and that it was in the same condition when it
was towed to her house as it was in the photographs. Ms. Redden agreed that the
Defendant was Peace Officer Standards Training (POST) certified. She said that the
Defendant had received unemployment benefits for two months but no longer received
them.

       The Defendant testified that he did not work and that primarily, he cared for his
children. He said that he did not know how much longer his son would live. He said that
his daughters from his first marriage lived with him and Ms. Redden during the time he
was employed at the Graysville Police Department. He said that his first wife did not pay
child support and that he did not request child support. He stated that after he was
indicted, his seventeen-year-old daughter was threatened at school and that out of
concern for her safety, he allowed her to live with her mother. The Defendant said that
despite the change in custody, he and his first wife agreed he would not pay her child
support.

       The Defendant testified that he was a full-time student and expected to receive his
bachelor’s degree in criminal justice by the end of the summer. He said that he had
attempted to find work, that he needed to find work that allowed him and Ms. Redden to
work opposite schedules, that he did not know anyone who could assist them with their
son’s care, and that they could not afford to hire a caregiver.

       Upon examination by the trial court, the Defendant testified that he received
Social Security disability benefits for his son’s condition and that he did not receive other

                                            -6-
financial assistance. The Defendant stated that he previously worked as a building
maintenance supervisor and rehabilitation coordinator and that if he could find a position
with a sufficient salary, Ms. Redden would quit her job and stay home to care for their
son.

       The Defendant testified that he was placed on leave for one month after his
indictment and that he was reinstated with back pay before his eventual termination in
March 2015. The Defendant said that $3977 was seized during a drug arrest, that he kept
the money in a locker in his office, and that the money was misplaced. The Defendant
stated that he approached Mr. Baldwin for a loan when he discovered the money was
missing, that Mr. Baldwin loaned him $3977, and that he returned the borrowed money
because he located the missing money.

       Upon examination by the trial court, the Defendant testified that he found the
money in another folder in the locker. The Defendant agreed that “that’s terrible
financial management to stick money in just a box somewhere . . . that’s so nondescript
that you don’t know where it is.” The Defendant admitted that he could have deposited
the money into a city bank account. He said that the seizure happened late in the day and
that he forgot the money was in the locker. The Defendant stated that at the time he
borrowed money from Mr. Baldwin, he did not have the funds to repay him. The
Defendant said that he borrowed money because he felt responsible for solving the
problem. He stated that losing the money was the basis for his guilty pleas to official
misconduct. He said that his salary was $33,000 annually and agreed that $4,000 was a
significant sum to him. He stated that Ms. Horton asked him about the money two or
three weeks after he put it in the locker and that he searched for it before approaching Mr.
Baldwin.

       The Defendant testified relative to the Thunderbird that the lienholder did not want
to take possession of it, that the Defendant spoke to Ms. Horton, that she told him to
“have it scrapped or sell it or do whatever,” and that he was authorized to convey the
Thunderbird. The Defendant said he gave Ms. Horton the money that Mr. Baldwin paid
him. Relative to the toolbox, the Defendant stated that the tools were used during the
theft of the truck and that he took the toolbox in order to ask a suspect’s relative whether
the tools belonged to the suspect. The Defendant said that he placed the toolbox under
his desk at the police department.

       The Defendant testified that his relationship with his wife was good and that if he
were placed on probation, he would remain in the county and follow any rules imposed
by the trial court. He denied having alcohol or drug issues and receiving mental health
treatment. He said that he was in good physical health. When asked what effect the case
had on him, the Defendant said,



                                            -7-
      [T]he entire situation has been rough for me [because] . . . they put me in
      the position of chief of police, because . . . they felt that I would do the
      right thing and make the right decisions. I’ve, obviously, failed at that. My
      officers believed in me . . . , my community believed in me; my
      commission believed in me and I failed every one of them. It’s been a very
      hard thing for me to handle.

The Defendant said that he accepted responsibility and did not blame anyone else for his
mistakes.

       On cross-examination, the Defendant testified that he and Detective Shawn
Shelton seized $3977 during a pseudoephedrine arrest, that the arrest occurred around
3:00 p.m., that the Defendant took the money to the police department and obtained
seizure paperwork, and that he placed the money in the drawer of a locked cabinet. The
Defendant did not remember the mayor’s confronting him about the seized money two
days later but said he would not dispute the mayor’s recollection of events. He said that
he did not think about the money until Ms. Horton asked him about it.

       The Defendant testified that generally, seized money was given to Ms. Horton
within twenty-four to forty-eight hours and that either he or Ms. Horton took the money
to the bank, obtained a cashier’s check, and placed the check in Ms. Horton’s safe. The
Defendant denied that $3977 was the most he had seized during a drug arrest, although it
was the most he had seized as police chief. The Defendant agreed that on August 20, Ms.
Horton confronted him about the money. The Defendant denied telling Ms. Horton he
had not seized any money and “recreating” a seizure form showing no money was seized.
When asked whether he showed Ms. Horton a seizure form before shredding the form,
the Defendant responded that he showed Ms. Horton the form for which she asked, that
he did not shred a seizure form, and that he did not know why a form had been found by
the TBI in his shredder. When asked whether he believed someone planted the shredded
document, the Defendant said, “No, I’m not saying that, but I know I did not put it in
there.” When asked whether the mayor and Ms. Horton were lying when they said the
Defendant showed them a document reflecting no seizure of money, the Defendant said
that he did not remember showing them the document but that it could have happened.

     The Defendant testified that he did not tell Ms. Horton or Agent Legg he had
misplaced the money, that he did not want to talk to Ms. Horton about the money, and
that he told Agent Legg he did not think the money was “any of Ms. Horton’s business.”
The Defendant agreed that Agent Legg wrote the Defendant’s statement, which the
Defendant signed. The Defendant said that the statement recounted Ms. Horton’s calling
the Defendant into her office, telling him “that she had complaints on Detective Shelton,”
and asking him where the money was located. The Defendant said in the statement that
he denied knowing to what Ms. Horton referred, although he knew to what she referred,


                                           -8-
“but it was an open investigation and I did not feel she needed to know.” The Defendant
agreed that Ms. Horton approached him three weeks after the money was seized.

       The Defendant said in the statement that Ms. Horton approached him later in the
day and said she would call the TBI if the money were not recovered, that the Defendant
took Detective Shelton to a landfill looking for the money, and that when they arrived at
the landfill, “everything had already been covered up.”

      The Defendant testified that he thought he might have thrown the money away
when he cleaned his office two days previously. He agreed he lied to Ms. Horton and to
Agent Legg. He said that he lied to Agent Legg because he thought he would lose his
job. The Defendant agreed that although he lost his job, he was rehired with back pay.
The Defendant said that he visited Mr. Baldwin, borrowed money from him, and
subsequently found the missing money. The Defendant stated that he gave the money to
Ms. Horton the next day. The Defendant denied taking the money for his own benefit.

        Relative to a 2009 Jeep Patriot, the Defendant testified that it was seized and
awarded to the lienholder. He said that he told the lienholder the storage and towing fees
had to be paid in cash. The Defendant stated that the lienholder had a second-party check
and that he told the lienholder to bring a cashier’s check or cash because the city had
problems previously with checks returned for insufficient funds. The Defendant said that
Ms. Horton instructed him not to take second-party checks. The Defendant did not know
the city register reflected no insufficient-funds checks involving seizures. The Defendant
stated that he obtained $2325 from the lienholder, that he gave the lienholder a receipt,
and that he generally gave money from seized vehicles to Ms. Horton, although he did
not remember doing so in this instance. The Defendant said that when he submitted
money to Ms. Horton, he did not verify that Ms. Horton deposited the money. The trial
court questioned the Defendant about whether the Defendant remembered what he did
with the cash, and the Defendant responded that he did not remember because of the
passage of time.

       Relative to a 1994 Ford Mustang, the Defendant testified that the car was seized
from Alice Collins’s boyfriend, that Ms. Collins asked if the Defendant would return the
car because she “was in hard times,” and that the Defendant gave her the car. When
asked whether he followed proper procedure, the Defendant said that he did not
remember whether the car had been “awarded” at that time but that seizure paperwork
had been submitted to the Department of Safety and that to his knowledge, his actions did
not comply with procedure. The Defendant stated that a city commissioner, who was
also the Defendant’s landlord, asked him to return the car to Ms. Collins and agreed that
Ms. Collins’s boyfriend “did some work” for the commissioner. The Defendant said that
he did not remember returning a 1999 Isuzu Rodeo to a man in exchange for $600. The
Defendant stated that he returned vehicles to their owners if the vehicles had been seized
and awarded to the owners and that he would not have returned a vehicle to an owner to

                                           -9-
whom it had not been awarded. Relative to the Thunderbird, the Defendant said that it
had been awarded to the lienholder and that the lienholder was to convey the title to Mr.
Baldwin.

       The Defendant testified that he obtained custody of his daughters in 2010 and
2011 and that before this time, he paid child support to his first wife. He thought he was
current in his child support payments but was uncertain because his paycheck was
garnished. The Defendant stated that he did not know he was being prosecuted in
Hamilton County for being $21,000 in arrears on child support payments. He said that he
had never been to court in Hamilton County regarding a child support issue. The
Defendant agreed that in 2012, he entered into a parenting plan with his first wife.

       The prosecutor read from the parenting plan that the Defendant’s first wife had
been ordered to pay $475 per month child support, that the Defendant was in arrears on
his previous child support obligation, and that the Defendant’s first wife’s child support
payments were to be credited each month toward the Defendant’s arrearage until it was
paid in full. The Defendant did not remember any of these terms but identified his
signature on the document. The Defendant denied returning to court in 2014 and said
that he signed documents and that his first wife “took care of it.” He said that they
agreed not to pay one another child support and that he was not told about any remaining
arrearage. He agreed that he testified his first wife had never paid child support and that
she had never been obligated to pay him child support.

        The Defendant agreed that the presentence report detailed five incidents
investigated by internal affairs while he was a Chattanooga police officer. One of the
incidents, dated August 9, 2004, “alleged policy violations [and] untruthful[ness] in an
internal affairs investigation.” The Defendant said that the complaint was sustained and
that he was suspended for twenty-eight days and the charge of untruthfulness was
dismissed, although the presentence report reflected a fourteen-day suspension and a
sustained complaint for untruthfulness. The Defendant read from a September 30, 2004
letter that documented the outcome of a disciplinary hearing, which was consistent with
the contents of the presentence report. The Defendant said that he received another letter
imposing a twenty-eight-day suspension and that the untruthfulness charge was
dismissed. The Defendant agreed that he did not appeal the decision.

       When asked about the final incident in which he was found to be in violation of
the ride-along policy, the Defendant testified that he was questioned by an internal affairs
investigator about the conduct of a police sergeant, not about his own conduct. The
Defendant agreed that he responded to disorderly conduct call at a bar, that the bar’s
manager told him the sergeant had raped a woman who was an exotic dancer, and that the
Defendant previously had a relationship with the woman. The Defendant agreed that the
sergeant also responded to the call, that after the call had been handled, the Defendant
spoke to him about the allegation, and that the sergeant admitted having intercourse with

                                           -10-
the woman. The Defendant did not remember discussing with the investigator the
woman’s level of intoxication on previous occasions. The Defendant agreed that on one
or two occasions he had intercourse with the woman in his police cruiser while he was off
duty, which was the basis for the charge of conduct unbecoming a police officer. The
Defendant said that the woman rode in the Defendant’s and the sergeant’s police cruisers
and that this was the basis for the ride-along policy violation.

       The Defendant testified that he told his probation officer he resigned from the
Chattanooga Police Department “because [he] didn’t want to throw [his] sergeant under
the bus.” The Defendant said that if a police officer resigned during a police
investigation, the officer lost his post. The Defendant stated that he resigned in May
2005.

       The Defendant testified relative to a gun he sold to Mr. Baldwin that the city
commission or Ms. Horton gave him permission to sell it. The Defendant denied that he
received orders to destroy the gun. He said that the other gun did not belong to the city
and that he had owned the gun since he worked in Chattanooga. The Defendant stated
that he gave Mr. Baldwin a receipt after the sale. On redirect examination, the Defendant
said that the sentencing hearing was the first time his selling the two guns to Mr. Baldwin
had been mentioned as an issue.

       The presentence report was received as an exhibit and reflected that the
Defendant was age forty-two and was pursuing a college degree. The Defendant had no
criminal record. The Defendant reported having little contact with his first wife and their
two daughters. The Defendant reported that he worked for the Chattanooga Police
Department from 2002 until 2005, when he resigned because he was “unwilling to roll
over on his sergeant.”

       In the “employment information” section, the presentence report listed five
incidents investigated by the Chattanooga Police Department Internal Affairs Division.
Two of the incidents were declared unfounded, and the remaining three were as follows:

       On 8-9-2004, [the Defendant was] alleged to have policy violations and
       untruthful in an internal affairs investigation. On 9-15-2004, those charges
       were sustained and he was suspended for 14 days.

       ....

       The fourth was alleged on 9-2-2004 and he was said to be insubordinate
       and policy violation. On 1-18-2005, those were sustained and he was
       placed on probation.



                                           -11-
       The last one was dated 5-7-2005, and it was alleged that he had conduct
       unbecoming and violation of the ride along policy. These disciplinary
       actions were sustained on 6-1-2005. This is the same day he resigned and
       stated “dissatisfaction with job/working conditions.”

Graysville Mayor Ted Doss submitted a victim impact statement, which reflected the
following:

       [T]he actions of [the Defendant] have stunted the progress of our city. We
       have had loss of jobs such as: police officers, Judges, City Attorney and
       City Recorder. For the citizens of Graysville, it has caused fear and
       embarrassment. I have witnessed the City employees working under great
       stress, fear and embarrassment. My family and I have lived under stress
       and fear of being pulling over and wrongly accused or of leaving our home
       unattended for fear that someone would destroy something.

       Agent Legg submitted a statement summarizing that the Defendant borrowed
money from Mr. Baldwin to replace seized money “that had either been misplaced or
taken” and that the Defendant attempted to cover up the missing money by misleading
city officials and forging a Tennessee Department of Safety notice of seizure form.
Agent Legg also stated that the Defendant was not forthcoming with him and that the
amount of the missing money was $4128. Agent Legg listed three vehicles that were
“mishandled” by the Defendant and stated that the Defendant collected towing and
storage costs in cash from several individuals, that the money had never been deposited
with the city, and that the discovery of the money was more difficult. Finally, Agent
Legg stated that the Defendant attempted to obtain payment from another person for
towing and storage fees for a vehicle that had not been “adjudicated by the Tennessee
Department of Safety legal division.”

       After hearing argument from the parties relative to whether the Defendant
qualified for diversion, the trial court found that the Defendant was an appointed person
in the executive branch who used his official capacity to commit the offenses and that
under such circumstances, the Defendant was not eligible for diversion. The trial court
found that “[m]ost every chief of police I ever heard of was appointed.” The court noted
that even if the Defendant were eligible for diversion, the offenses involved a position “of
highest public trust, an officer of the law dealing in matters of property that has been
confiscated in matters involving the trust of that officer and the trust between him and his
other police officers.” The court did not believe the Defendant would satisfy the
requirements for diversion.

       The court found that the Defendant had no criminal record, had not committed
additional offenses, and had no drug dependency. Relative to the circumstances of the
offense, the court found that the offense was “shocking” and that the Defendant was the

                                           -12-
highest law enforcement officer in the community and held a higher position of trust than
a police officer. The court found that the Defendant was not credible, particularly
regarding the Defendant’s expressed lack of memory of events that should have been
memorable to him, and that the Defendant lacked candor and truthfulness. The court
noted relative to the automobile transactions and seized money, “Those are items that any
human being[,] unless they’re . . . suffering dementia or something, or on drugs, would
certainly have some memory of and . . . every time he got into a squeeze he came with ‘I
don’t recall[,]’ and it was too many times.”

         The trial court found that the Defendant’s record as a Chattanooga police officer
weighed against a good social history. The court found that the Defendant’s amenability
to correction was “in doubt, because of all the problems that he already has and because .
. . his responses here at this hearing today were bad.” The court denied diversion.

       Relative to alternative sentencing, the trial court found that the Defendant had
pleaded guilty to Class E felonies and was eligible for alternative sentencing. The court
found that “by agreeing to the top of the sentence he’s already agreed that there are more
enhancing factors than there are mitigating factors by the very nature of what’s pled to.”
The court found that the offenses involved multiple victims, that the offenses involved
money “accepted maybe for reasons that were not authorized in law,” that no attempt was
made to clear titles to the vehicles before selling them, and that the owners of the vehicles
may not have been required to pay the city. The court found that the Defendant abused a
position of public trust, although “to some extent” the factor was included in the elements
of the offense.

       Relative to mitigating factors, the trial court found the Defendant had not
presented evidence that he committed the offense out of concern for his family or that he
used the money to help his family. T.C.A. § 40-35-113(7) (2014). The court noted that
the Defendant’s conduct did not threaten or cause physical harm but that “this was a
different kind of a crime.” Id. § 40-35-113(1) (2014). The court found that the
Defendant did not help the authorities recover the property and that although the
Defendant attempted to repay the $3977, he did so when “he apparently felt threatened.”
Id. § 40-35-113(10) (2014). The court found that the Defendant’s truthfulness was
“woefully lacking” and that the Defendant generally did not admit to committing the
offenses to which he pleaded guilty. The court noted that the presentence report, the
Defendant’s physical and social history, the circumstances of the offense, and the
Defendant’s prior criminal history had already been stated on the record during its
findings regarding diversion. Relative to enhancing factors, the trial court found that the
Defendant abused a position of public trust, although “to some extent” the factor was
included in the offense. Id. § 40-35-114(14) (Supp. 2015) (amended 2016, 2017).

       The trial court found that the need to protect society from the Defendant was not a
strong factor weighing against him, that the Defendant had bad prior conduct and a lack

                                            -13-
of truthfulness, that the Defendant believed he could regain employment as a police
officer, and that the court did not “see any way that we could do anything that would
enhance his ability to put the uniform back on. He’s messed up bad, and it’s not going to
change.” The court found that confinement was necessary to avoid depreciating the
seriousness of the offense and to deter police corruption.

       The trial court noted its disagreement with regulations allowing release before a
sentence had been served, and the prosecutor noted that the Defendant would serve six-
tenths of one year before being released on probation. Defense counsel argued that any
confinement would be “devastating” for the Defendant’s family, given their son’s health
issues. The court found that the Defendant’s plea agreement provided for “a very lenient
sentence,” that the sentence should reflect the Defendant’s pleading guilty to two crimes,
that the behavior encompassed many episodes, and that confinement was “not too much
for what went on here[.]” The court noted that a shorter sentence would put the
Defendant in the county jail where other inmates “might not be his best friends,” and that
the court felt it better to send the Defendant to the Department of Correction. The court
found that given the seriousness of the offenses and the relatively short effective
sentence, confinement was appropriate. This appeal followed.

       As a preliminary matter, we note that although the guilty plea transcript is not
included in the appellate record, the record is sufficient for a meaningful review of the
issues presented. See Caudle, 388 S.W.3d at 279 (holding that when a guilty plea
transcript is not present in the appellate record, this court should “determine on a case-by-
case basis whether the record is sufficient for a meaningful review under the standard
adopted in [State v. Bise, 380 S.W.3d 682 (Tenn. 2012)]”).


                                              I

                                    Denial of Diversion

        The Defendant contends that the trial court erred in denying judicial diversion,
arguing that the Defendant is a qualified defendant as defined in Tennessee Code
Annotated section 40-35-313 because he was an at-will city employee, not an appointed
public official, and that the court did not articulate its reasoning for every required factor
before denying diversion. The State responds that Ms. Redden testified as a former city
commissioner that the commission “appointed” the police chief and that as a result, the
trial court did not abuse its discretion.

       A trial court may order judicial diversion for certain qualified defendants who are
found guilty of or plead guilty or nolo contendere to a Class C, D, or E felony or a lesser
crime; have not previously been convicted of a felony or a Class A misdemeanor; and are
not seeking deferral for a sexual offense. See T.C.A. § 40-35-313(a)(1)(B)(i) (Supp.

                                            -14-
2013) (amended 2014). The grant or denial of judicial diversion is within the discretion
of the trial court. State v. King, 432 S.W.3d 316, 323 (Tenn. 2014) (citing T.C.A. § 40-
35-313(a)(1)(A)). When considering whether to grant judicial diversion, a trial court
must consider (1) the defendant’s amenability to correction, (2) the circumstances of the
offense, (3) the defendant’s criminal record, (4) the defendant’s social history, (5) the
defendant’s physical and mental health, (6) the deterrence value to the defendant and
others, and (7) whether judicial diversion will serve the ends of justice. State v.
Electroplating, 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998); State v. Parker, 932
S.W.2d 945, 958 (Tenn. Crim. App. 1996); see King, 432 S.W.3d at 326 (stating that
recent case law affecting the standard of review for sentencing determinations “did not
abrogate the requirements set forth in Parker and Electroplating, which are essential
considerations for judicial diversion”). “The record must reflect that the court has
weighed all of the factors in reaching its determination.” Electroplating, 990 S.W.2d at
229. If a trial court refuses to grant judicial diversion, “[T]he court should clearly
articulate and place in the record the specific reasons for its determinations.” Parker, 932
S.W.2d at 958-59. “The truthfulness of a defendant, or lack thereof, is a permissible
factor for a trial judge to consider in ruling on a petition for suspended sentence.” State
v. Neeley, 678 S.W.2d 48, 49 (Tenn. 1984).

       On review of a decision to grant or deny judicial diversion, this court will apply a
presumption of reasonableness if the record reflects that the trial court considered the
Parker and Electroplating factors, specifically identified the relevant factors, and placed
on the record the reasons for granting or denying judicial diversion, provided any
substantial evidence exists to support the court’s decision. King, 432 S.W.3d at 327. If,
however, the trial court failed to weigh and consider the relevant factors, this court may
conduct a de novo review or remand the case for reconsideration. Id. at 328.

       A defendant is disqualified if the defendant is

        (b) . . . [S]eeking deferral of further proceedings for any offense committed
       by any elected or appointed person in the executive, legislative or judicial
       branch of the state or any political subdivision of the state, which offense
       was committed in the person’s official capacity or involved the duties of the
       person’s office;

T.C.A. § 40-35-313(a)(1)(B)(i)(b) (2014) (amended 2015). “Elected or appointed
person” is not further defined. We note that the definition of “public servant” in the
official misconduct statute encompasses a broader category than a qualified defendant in
Code section 40-35-313(a)(1)(B)(i)(b). See T.C.A. § 39-16-401(3)(A) (2014) (“‘Public
servant’ means a person elected, selected, appointed, employed, or otherwise designated




                                            -15-
as . . . [an] officer, employee, or agent of government[.]”).1 The determination of
whether the Defendant was an elected or appointed person is a mixed question of law and
fact, which we review de novo. The determination of whether the Defendant was
disqualified from receiving diversion as a result of being an elected or appointed person
is a question of law, which we also review de novo.

        This court has concluded that “a defendant who is seeking judicial diversion bears
the burden of showing the trial court that the defendant is in fact statutorily qualified for
judicial diversion.” State v. Jonathan Ray Sender, No. M2009-01713-CCA-R3-CD, 2010
WL 4398720, at *4 (Tenn. Crim. App. Nov. 8, 2010), no perm. app. filed. Because the
record reflects that the Defendant pleaded guilty to Class E felonies, provided a TBI
certificate of eligibility for diversion, and was not seeking deferral for a sex offense, the
State had the burden of proving the Defendant was statutorily disqualified by his position
as police chief.

      The record reflects that at the sentencing hearing, the following exchange occurred
between the prosecutor and Ms. Redden:

        Q . . . [T]he city council actually is the one that hires the police officers, is
        that right?

        A Yes.

        Q They’re the ones that appoint officers?

        A Uh-huh.

No additional evidence was presented regarding whether the police chief was an elected
or appointed person.

        Although Ms. Redden acknowledged that police officers were appointed or hired
by the city council, no evidence was presented showing that the Graysville Police Chief
was a position that would have rendered the Defendant disqualified for purposes of
diversion. Because Ms. Redden agreed with both parties’ characterizations of the nature
of the Defendant’s employment and no additional evidence was introduced relative to this
issue, the record does not contain substantial evidence to support a finding regarding the
Defendant’s status as an elected or appointed person. The evidence is, therefore, not
sufficient for the trial court to have rendered a conclusion that the Defendant was
disqualified from receiving diversion.

1
  See also The Scope of the Phrase “Elected or Appointed Person” in Tenn. Code Ann. § 40-15-
105(a)(1)(B)(iii)(h), Op. Tenn. Atty. Gen. No. 17-05 (Jan. 19, 2017) (‘“Elected or appointed person’ . . .
includes only public employees who have been elected or appointed to their respective positions[.]”) .

                                                  -16-
       We note that the court relied upon its experience that “[m]ost every chief of police
I ever heard of was appointed,” when making its determination. See State v. Nunley, 22
S.W.3d 282, 288 (Tenn. Crim. App. 1999) (concluding that a court may not rely on facts
not in evidence and not judicially noticed when making sentencing determinations). In
light of the contradictory evidence presented, the court’s reliance on general knowledge
not specific to the Graysville Police Department was not a proper use of judicial notice,
and the court abused its discretion in this regard. See Tenn. R. Evid. 201(b) (“A
judicially noticed fact must be one not subject to reasonable dispute.”).

        We conclude, however, that remanding the case for further proceedings is not
necessary because the trial court considered the Parker and Electroplating factors before
denying judicial diversion. The trial court found that even if the Defendant were eligible
for diversion, the offense involved a position “of highest public trust, an officer of the
law dealing in matters of property that has been confiscated in matters involving the trust
of that officer and the trust between him and his other police officers.” The trial court
found that the Defendant had no criminal record, had not committed additional offenses,
and had no drug dependency. Relative to the circumstances of the offense, the court
found that the offense was shocking and that the Defendant was the highest ranking law
enforcement officer in the community and held a higher position of trust than a police
officer. The court found that the Defendant’s record as a Chattanooga police officer
weighed against a finding of a good social history. The court found that the Defendant
was not a credible witness, particularly regarding his expressed lack of memory of events
that should have been memorable, and that the Defendant lacked candor and was
untruthful during his testimony. The court found that “the amenability to correction is in
doubt, because of all the problems that he already has and because of his responses here
at this hearing[.]” We note that a court’s finding a defendant was not truthful is, standing
alone, sufficient to support denying diversion. See State v. Dowdy, 894 S.W.2d 301, 307
(Tenn. Crim. App. 1994). The court noted relative to the automobile transactions and
seized money, “Those are items that any human being[,] unless they’re . . . suffering
dementia or something, or on drugs, would certainly have some memory of and . . . every
time he got into a squeeze he came with ‘I don’t recall[,]’and it was too many times.”
The court discussed the need for deterrence in its determination at the hearing. The
court’s discussion of the circumstances of the offense, specifically the Defendant’s
abusing the position of police chief, implicated whether granting diversion would serve
the ends of justice. Any error in considering the Defendant’s status as a qualified
defendant was harmless, and the trial court did not abuse its discretion by denying
diversion. The Defendant is not entitled to relief on this basis.




                                           -17-
                                            II

                            Denial of Alternative Sentencing

       The Defendant contends that the trial court erred by denying his request for
alternative sentencing, arguing that the sentence he received was contrary to the purposes
and principles of the Sentencing Act because the sentence of confinement was excessive,
because the court did not consider the appropriate factors before ordering confinement,
and because the court misapplied enhancement and mitigating factors. The State
responds that the court did not abuse its discretion.

       The standard of review for questions related to probation or any other alternative
sentence is an abuse of discretion with a presumption of reasonableness. State v. Caudle,
388 S.W.3d 273, 278-79 (Tenn. 2012). Generally, probation is available to a defendant
sentenced to ten years or less. T.C.A. § 40-35-303(a) (2014). The burden of establishing
suitability for probation rests with a defendant, who must demonstrate that probation will
“‘subserve the ends of justice and the best interest of both the public and the defendant.’”
State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002) (quoting State v. Dykes,
803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)); see T.C.A. § 40-35-303(b); State v.
Carter, 254 S.W.3d 335, 347 (Tenn. 2008).

       A sentence is based upon “the nature of the offense and the totality of the
circumstances,” including a defendant’s background. State v. Ashby, 823 S.W.2d 166,
168 (Tenn. 1991); see State v. Trotter, 201 S.W.3d 651, 653 (Tenn. 2006). A trial court
is permitted to sentence a defendant who otherwise qualifies for probation or alternative
sentencing to incarceration when:

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

       (B) [c]onfinement 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; or

       (C) [m]easures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]

T.C.A. § 40-35-103(1)(A)-(C) (2014); see Trotter, 201 S.W.3d at 654.

      The Defendant contends that the trial court’s ordering confinement rendered his
sentence “excessive under the sentencing considerations” articulated in Tennessee Code
Annotated Sections 40-35-210 and 40-35-103. We note, however, that the Defendant’s


                                           -18-
brief does not discuss the trial court’s application of Code section 40-35-210, but rather
sections 40-35-102 and 40-35-103, and we will confine our analysis to these sections.

        Relative to Code section 40-35-102, the Defendant contends that the trial court
improperly relied upon a need for general deterrence and the circumstances of the
offense. The trial court stated that confinement was required, “[o]therwise police
corruption would be given a wide open door to operate.” However, this statement
occurred in the court’s discussion of the seriousness of the offense, not as commentary on
a need for deterrence in the Graysville community. We note that one of the principles of
sentencing is “[p]roviding an effective general deterrent to those likely to violate the
criminal laws of the State.” T.C.A. § 40-35-102(3)(a). The record does not reflect that
the court relied upon an improper factor in making its determination, and the Defendant
is not entitled to relief on this basis.

       The Defendant’s argument that the trial court failed to consider the factors in Code
section 40-35-103 is not supported by the record. During the sentencing hearing, the
court stated,

              The next [factor] is confinement is necessary to avoid depreciating
       the seriousness of the offense, or as particularly suited to provide an effect
       deterrent to others likely to commit similar offenses.

              Certainly, this is a serious offense . . . . I know that a person in a
       position of power, when they abuse it, in that process they abuse a lot of
       people that are . . . under their power . . . . To not say that there is some
       punishment that . . . is above and beyond immediate probation ought to be
       applied in this case is one I just can’t take. I think that confinement . . . [is]
       required in this case. Otherwise police corruption would be given a wide
       open door to operate[.]

       The trial court found that confinement was necessary to avoid depreciating the
seriousness of the offense. Id. § 40-35-103(1)(B). The Defendant pleaded guilty to two
counts of official misconduct involving misappropriation of seized vehicles and money
that was not deposited into city accounts. The court characterized the offenses as
shocking and found that the Defendant, the highest ranking police officer in the
community, had abused a position of public trust. The court noted that the Defendant
pleaded guilty to two counts and that additional conduct was involved. The court found
that the Defendant’s testimony was not credible. We note that the court’s finding the
Defendant was not truthful was sufficient to deny alternative sentencing. See Dowdy,
894 S.W.2d at 306. We also note that the Defendant denied engaging in the behavior to
which he pleaded guilty, specifically that he took the money from the sale of the vehicles
and that he did so for his personal benefit. There is substantial evidence in the record
supporting the court’s determination that confinement was necessary to avoid

                                             -19-
depreciating the seriousness of the offense. The court did not abuse its discretion, and the
Defendant is not entitled to relief on this basis.

       The Defendant also contends that the trial court erred in its consideration of
enhancement and mitigating factors. Relative to mitigating factors, the Defendant argues
that the court should have applied factor (7). See T.C.A. § 40-35-113(7) (The Defendant
“was motivated by a desire to provide necessities for the defendant’s family.”) Although
Ms. Redden and the Defendant testified about their son’s substantial health issues and
having financial difficulty due to medical bills, the Defendant denied purposefully taking
any money or vehicles. The Defendant also never stated that he acted out of concern for
his family. The testimony about their son’s health was offered to establish that the
Defendant’s absence from the household would create a hardship on his family due to the
need for a specialized caretaker. The record does not establish that factor (7) was
applicable. The Defendant is not entitled to relief on this basis.

       Relative to enhancement factors, the Defendant argues that the trial court
erroneously applied factor (14). See id. § 40-35-114(14) (“The defendant abused a
position of public or private trust.”) The record reflects that the court discussed factor
(14) and determined that “to some extent” the factor was included in the nature of the
offense. Official misconduct occurs, in relevant part, when a public servant “with intent
to obtain a benefit . . . intentionally or knowingly . . . [c]ommits an act relating to the
public servant’s office or employment that constitutes an unauthorized exercise of official
power[.]” Id. § 39-16-402. This court has previously concluded that factor (14) cannot
be used to enhance a sentence for official misconduct. See State v. Lee Roy Gass, No.
E2000-00810-CCA-R3-CD, 2001 WL 767011, *15 (Tenn. Crim. App. Jul. 3, 2001).

        It is not clear from the record whether the court applied factor (14). Any
application of factor (14) was erroneous. However, the error was harmless because the
trial court articulated other, valid reasons for ordering confinement. The Defendant is not
entitled to relief on this basis.

        The Defendant also argues that the mitigating evidence he presented, particularly
his “dramatic improvement in life circumstance,” his role as primary caretaker of his
children, his “remorse,” and his attending college classes, outweighed any enhancement
factors. However, we will not disturb a trial court’s weighing of enhancement and
mitigating factors unless its determination “wholly departs” from the purposes and
principles of the Sentencing Act. See Bise, 380 S.W.3d at 706. In this case, because a
two-year sentence was part of the plea agreement, enhancement and mitigating factors
were only considered as part of the circumstances of the offense. The court found that
the offenses were shocking, that the Defendant did not admit to committing the offenses
to which he pleaded guilty, and that the Defendant lacked candor and was untruthful in
his testimony. The record does not preponderate against the court’s determination that
confinement was appropriate. The Defendant is not entitled to relief on this basis.

                                           -20-
      Relative to the Defendant’s argument that the trial court improperly considered the
Defendant’s release eligibility, the record reflects that the court commented,

       [Y]ou did your homework in working up your plea. Two years is not much
       under our system any more . . . . I don’t agree with that . . . . They like to
       pass laws with lots of years of crime, and then they turn around and allow
       administrative regulations to release people, because they won’t raise taxes
       to pay for the prisons. We’ve got a lot of folks getting released on serious
       stuff now because there’s no place to put them, and that’s what happens to
       these low sentences.

         We agree that beneficial plea negotiations and release eligibility are not factors to
be considered in making sentencing determinations and that any weight given by the
court to the Defendant’s status as a Range I, standard offender was improper. However,
the record does not reflect the court denied probation on the basis of the Defendant’s
release eligibility date. Rather, the record reflects the trial court relied upon proper
factors in reaching its decision. The record contains substantial evidence to support the
court’s determination, and the Defendant is not entitled to relief on this basis.

     In consideration of the foregoing and the record as a whole, we affirm the
judgments of the trial court.



                                           ____________________________________
                                           ROBERT H. MONTGOMERY, JR., JUDGE




                                            -21-
