         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     March 20, 2001 Session

              STATE OF TENNESSEE v. MARSHA L. McCLELLAN

                  Direct Appeal from the Criminal Court for Sullivan County
                           No. S43, 507   Phyllis H. Miller, Judge



                                   No. E2000-02373-CCA-R3-CD
                                          April 19, 2001

The defendant pled guilty to one count of theft of property over $1,000, and one count of conspiracy
to commit theft of property over $1,000. The trial court sentenced her to concurrent sentences of two
years on each conviction, suspended, with the defendant placed on four years of probation, and
ordered to pay $10,000 restitution at $225 per month for the duration of her probationary period.
In this appeal as of right, the defendant argues that the trial court abused its discretion in denying her
request for judicial diversion. Based upon our review, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JERRY L. SMITH and JOE G. RILEY,
JJ., joined.

Richard A. Spivey, Kingsport, Tennessee, for the appellant, Marshal L. McClellan.

Paul G. Summers, Attorney General and Reporter; Glen C. Watson, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; and Barry P. Staubus, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

        The defendant, Marsha L. McClellan, a former cashier at a home improvement store who
allowed family members to pass through her checkout line without paying for merchandise, pled
guilty in the Criminal Court of Sullivan County to one count of theft of property over $1,000, a Class
D felony, and one count of conspiracy to commit theft over $1,000, a Class E felony. Denying her
request for judicial diversion, the trial court imposed concurrent two-year sentences for each
conviction, suspended, with the defendant placed on four years of probation. In addition, she was
ordered to pay $10,000 restitution to her former employer, at $225 per month for the period of her
probation. In a timely appeal to this court, the defendant argues that the trial court abused its
discretion in denying her judicial diversion, asserting that the court erred in its application of
enhancement and mitigating factors.
       After a thorough review, we conclude that the trial court’s denial of judicial diversion is
supported by substantial evidence in the record. Accordingly, we affirm the judgment of the trial
court.

                                                FACTS

        The facts in this case are undisputed. During July and August 1999, while employed as a
cashier at a Home Depot Store in Kingsport, Tennessee, the thirty-three-year-old defendant allowed
family members to take merchandise from the store without paying for it. The total value of the
stolen merchandise, which was apparently used to remodel and refurbish both the defendant’s home
and the home of a family member, was estimated by the defendant and by Home Depot’s loss
prevention manager as somewhere between $15,000 and $20,000. Some of the stolen items,
including two ladders, two storm doors, a garage door opener, two ceiling fans, an oriental rug, sheet
rock compound, a wooden frame door, and several tools, totaling $2,037 in value, were recovered
from the defendant’s family members.

         The defendant was subsequently indicted by the Sullivan County Grand Jury on one count
of theft of property having a value of more than $1,000 but less than $10,000, a Class D felony, and
one count of conspiracy to commit theft of property having a value of more than $1,000 but less than
$10,000, a Class E felony. On July 20, 2000, following the district attorney general’s denial of her
request for pretrial diversion, the defendant entered a plea of guilty to both counts of the indictment.
Included within the defendant’s request for acceptance of her plea of guilty was a statement that she
was applying for judicial diversion, and that the State was not opposed.

        On September 15, 2000, the trial court held a hearing to consider the defendant’s request for
judicial diversion, and to set sentencing. In applying Tennessee Code Annotated Section 40-35-114,
and determining that the defendant should be granted probation rather than judicial diversion, the
trial court made extensive findings of fact and conclusions of law:

                    Alright. Now, you’re not ---- you may be eligible for deferral of
                judgement [sic]. You’re not ---- it’s not alternative sentencing.
                You’re not automatically entitled to it. The Court looks at your social
                history, educational history, work history, any prior drug use, any
                criminal history. I look at the nature and circumstances of the
                offense, your involvement in it, okay.

                    So looking at enhancing and mitigating factors you have one
                speeding ticket. As far as convictions go that’s practically nothing.
                You’ve also, you know, committed two (2) other offenses for which
                you weren’t charged which was smoking pot and drinking. Just one
                time each, but it’s there. It’s an indication of your regard for the laws.
                Number two (2), I find that you were a leader in the commission of
                an offense involving two (2) or more criminal actors. I give that a lot


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               of weight. Three (3) doesn’t apply. Four (4) doesn’t. Five (5)
               doesn’t. Six (6), for what it was, I find that over that period of time
               that the property taken from the victim was particularly great. This
               wasn’t just one major item. It was a lot of major items. And this is
               all we know about. Seven (7) doesn’t apply. Eight (8) doesn’t. Nine
               (9), ten (10), eleven (11), twelve (12), thirteen (13), none of those
               apply. Fourteen (14) doesn’t. Fifteen (15) applies. I give it great
               weight. The defendant abused a position of private trust. Okay. You
               were an employee of Home Depot. They trusted you there with their
               money, and what you did was you and your cohorts got involved in
               a scheme to steal from your employer while they’re paying, what,
               your salary or your hourly pay. While they’re giving you all the other
               benefits you’re standing there just down right stealing from them.
               You might as well have just pulled your truck up there, piled their
               goods in it and hauled it away. Now, I know it’s a business, but it’s
               that business’ property. So I give that great weight. None of the rest
               of these apply. She’s not paid the court costs, right? Right? Has she
               paid any court costs?

        Thus, the trial court found four enhancement factors applicable: (1) the defendant’s previous
history of criminal convictions and criminal behavior in addition to those necessary to establish the
appropriate range; (2) the defendant’s role as a leader in the commission of an offense involving two
or more criminal actors; (6) the amount of property taken from the victim was particularly great; and
(15) the defendant’s abuse of a position of private trust in the commission of the crime. See Tenn.
Code Ann. § 40-35-114(1), (2), (6), & (15) (1997). The trial court placed great emphasis on
enhancement factors (2) and (15), and very little weight on factor (1), which was based on a single
speeding ticket and the defendant’s admission that she had once drunk alcohol while underage and
had smoked marijuana on one occasion.

        Relevant mitigating factors found by the trial court included that the defendant’s criminal
conduct neither caused nor threatened bodily injury, a factor to which the trial court gave very little
weight; and that the defendant had assisted authorities in locating or recovering property or persons
involved in the crime. See Tenn. Code Ann. § 40-35-113(1) & (10) (1997). With regard to
mitigating factors, the trial court stated:

               It’s in the presentence report. Now, mitigating factors, number one
               (1) applies to every thief that comes through this Court, that you
               neither caused nor threatened serious bodily injury. The legislature
               has decided to build that in to every crime involving the theft of
               property, so every thief gets that benefit. For that reason I give it
               about as little weight as I can possibly give it. Number two (2) does
               not apply. You didn’t act under strong provocation. Three (3)
               doesn’t apply. Substantial grounds do not exist tending to excuse or


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               justify your criminal conduct. Four (4) doesn’t apply. You played a
               major role. I mean if it hadn’t been for you they couldn’t have done
               it, and they were doing it partially to benefit you. So that doesn’t
               apply. Five (5) doesn’t apply. Your conscience didn’t start bothering
               you and you try to compensate the victim or anything like that before
               detection. Six (6) doesn’t apply. You’re thirty-three (33) years old.
               Seven (7), you were not motivated by a desire to provide necessities
               for yourself or your family. Eight (8) doesn’t apply. You weren’t
               suffering from a mental or a physical condition that significantly
               reduced culpability for the offense. Nine (9) may apply to some
               extent. Apparently when they caught you, you told them where to go
               to find some of the property. It appears to be right. I think you’re the
               one that ---- let’s see. Okay, I’ll give you some credit for that. Not
               very much. Well, that’s ten (10), actually, the one that applies.
               Locating or recovering any property or person involved in the crime.
               Eleven (11), I find you had a sustained intent to violate the law. It
               continued over weeks. It was not just a one time or two (2) time
               impulsive act. It was something that was planned out so you could
               benefit and your family members could benefit. Twelve (12), you
               didn’t act under duress or domination of another person.

        Non-statutory factors acknowledged by the trial court were the defendant’s work history,
which the court characterized as “good”; the defendant’s remorse; and the fact that the defendant had
voluntarily confessed her guilt. The court ruled that lack of a criminal record could not apply as a
mitigating factor, due to the defendant’s misdemeanor offense of speeding:

                  Non-statutory mitigating factors, lack of criminal record, that
               doesn’t apply.

               ....

                   It doesn’t mean I have an insignificant criminal record, it means
               I have a lack of a criminal record. Now, I’m sorry, I didn’t ---- I don’t
               do the appellate decisions and if you have one that says different, well
               more power to you. Genuine sincere remorse, her statement was, “I
               cooperated fully with the Kingsport Police Department.” Excellent
               work history, she has a good work history. She’s worked several
               different places. She’s working now. I wouldn’t call it an excellent
               work history. Self-rehabilitative efforts, no. Voluntary confession of
               guilt, yes.

        At the conclusion of the hearing, the trial court denied the defendant’s request for judicial
diversion. In denying judicial diversion, the court stressed the severity of the offenses, noting that


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the thefts had occurred over a period of time; that the stolen items constituted a substantial amount
of property; that the items taken were not necessities, but instead were used by the defendant and her
family members to refurbish and renovate their homes; that the defendant had involved two other
persons in the crime; and that the thefts had been made possible by the defendant’s abuse of her
position of private trust as a store cashier:

               So considering all of that, considering the fact that you stole over a
               period of time from your employer ---- it was not for necessities. It
               was for, you know, to add onto your own home. It was to
               accommodate your relatives in obtaining ceiling fans, oriental rug,
               building materials. You involved two (2) other persons in your crime
               and if it hadn’t have been for you they couldn’t have, they couldn’t
               have benefited [sic] from this because you were the one. You were
               the one with the access to the property. So deferral of judgment is
               denied. You’re sentenced to two (2) years. Count I, theft of property
               over a thousand dollars ($1,000.00), I’ve already found you guilty of
               that offense. You’re sentenced to two (2) years as a Range I standard
               offender. Count II, conspiracy to commit theft over a thousand
               dollars ($1,000.00), you’re sentenced to two (2) years as a Range I
               standard offender concurrent with Count I. Now, do you want to
               argue whether or not she should receive alternative sentencing?

Further, the court stated:

               Okay. I’ve gone through enhancing and mitigating factors. It is a
               theft crime. It is not a shoplifting crime. It’s theft by an employee of
               a substantial amount of property. I’m going to place you on ---- does
               she have any time in jail? None. No jail time. I’m not going to put
               you in jail but I can tell you one thing, if you violate probation and
               it’s proved by a preponderance of the evidence you will go to jail,
               okay? Alright, you will be on ---- and let me see. Let me look over
               here. You’re ordered to make restitution in the amount of ten
               thousand dollars ($10,000.00). That will be paid, that will be
               monitored by the Probation Department. You’re placed on probation
               for a period of four (4) years.

        The court sentenced the defendant to concurrent two-year sentences on each conviction, but
suspended the sentences, ordering that the defendant be placed on four years’ probation and required
to pay $10,000 restitution, at the rate of $225 per month, under the supervision of the department of
probation. The defendant filed a timely appeal to this court.




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                                             ANALYSIS

        The defendant contends that the trial court abused its discretion in denying her request for
judicial diversion, arguing that the record fails to show any substantial evidence in support of the
trial court’s decision. The defendant asserts that the trial court erred in its application of
enhancement and mitigating factors, and in failing to properly balance any relevant enhancement
factors with relevant mitigating factors. The State disagrees, arguing that the trial court’s application
and weighing of enhancement and mitigating factors was proper, and that substantial evidence exists
in support of its decision to deny judicial diversion.

        When an accused challenges the length and manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record with a presumption that “the determinations
made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d).
This presumption is “conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991); State v. Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim. App. 1993).
The weight to be afforded an enhancement or mitigating factor is left to the trial court’s discretion
as long as the trial court complies with the purposes and principles of the 1989 Sentencing Act, and
its findings are adequately supported by the record. Tenn. Code Ann. § 40-35-210 (1997),
Sentencing Commission Cmts.; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986). The party
challenging the sentences imposed by the trial court has the burden of establishing that the sentences
are erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.; Ashby, 823 S.W.2d
at 169.

        In this case, the defendant challenges the trial court’s denial of her 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) (Supp. 2000). A qualified defendant is one who pleads guilty or is found guilty of a
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 or a Class A or B felony. Tenn.
Code Ann. § 40-35-313(a)(1)(B) (Supp. 2000).

       The decision to grant or deny a qualified defendant judicial diversion, however, 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). 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).




                                                  -6-
         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. Id. The defendant contends that
the trial court, in denying her request for judicial diversion, erroneously applied enhancement factors
(1), (10), and (15), and erroneously failed to apply as a mitigating factor her lack of a prior criminal
record. We disagree.

        Regarding the defendant’s prior criminal history, the record clearly reflects that she had one
misdemeanor conviction for speeding, and that she admitted to an episode of underage drinking and
of having tried marijuana once. The trial court recognized, with respect to the speeding ticket, that
“[a]s far as convictions go that’s practically nothing.” The trial court also acknowledged that the
underage drinking and marijuana use had occurred only once and had not resulted in charges.
Consequently, although the trial court found enhancement factor (1) applicable, noting that the
defendant’s behavior was “an indication of [her] regard for the laws,” it assigned the factor very little
weight. The record supports the trial court’s application of this factor, and the slight weight which
it assigned to it.

         The record also supports the trial court’s application of enhancement factors (2), the
defendant was a leader in the commission of an offense involving two or more actors, and (15), the
defendant abused a position of private trust in the commission of the crime. As to factor (2), the
evidence showed that the thefts occurred when the defendant, acting as store cashier, allowed her
relatives to pass through her checkout line without paying for merchandise. For this enhancement
factor to be applicable, it is merely necessary that the defendant be a leader, not the sole leader, in
the offense. See State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim. App. 1993). From the facts of
this case, it is clear that the defendant, by virtue of the role she played in the thefts, was a leader.
Factor (15) is applicable when the trial court finds that the defendant occupied a position of public
or private trust, and that he or she abused that position of trust in a manner that significantly
facilitated the commission of the offense. See State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996).
Here, the trial court based the applicability of this factor on the defendant’s use of her position as
cashier, a position in which her employer had “trusted [her] there with their money” to facilitate the
crimes.

        The defendant contends that enhancement factors (2) and (15) were both essential elements
of her offense of conspiracy to commit theft because the indictment charging that offense alleged
that, conspiring and acting in concert with others, she had utilized her position as an employee of
Home Depot to allow her coconspirators to take merchandise from the store without payment. Again,
we disagree. Tennessee Code Annotated Section 40-35-114 provides that “essential elements of the
offense as charged in the indictment” cannot be used to enhance a defendant’s sentence. However,
contrary to the defendant’s assertion, neither her role as a leader in the commission of the offense,


                                                  -7-
nor her abuse of a position of private trust, as store cashier, were essential elements of the offense
as charged in the indictment. Thus, the trial court’s application of enhancement factors (2) and (15)
was not error.

        Finally, there was no error in the trial court’s refusal to apply as a mitigating factor that the
defendant lacked a criminal record, based on her misdemeanor conviction for speeding. See State
v. John D. Joslin, No. 03C01-9510-CR-00299, 1997 WL 583071, at *60 (Tenn. Crim. App. Sept.
22, 1997), perm. to appeal denied (Tenn. Nov. 9, 1998) (“Given the Defendant’s prior misdemeanor
convictions, however, we do not find [lack of prior criminal history] to be applicable in his case.”).
Even without the speeding ticket on her record, the trial court would not have been required to
consider the defendant’s lack of a criminal record as a mitigating factor. See State v. Williams, 920
S.W.2d 247, 261 (Tenn. Crim. App. 1995) (“Although absence of a prior criminal record may be
considered under the catch-all provision of Tennessee Code Annotated section 40-35-113 (13), this
court is not required to consider this as a mitigating factor[.]”) (citations omitted).

         The transcript of the hearing in this case shows that, in considering the request for judicial
diversion, the court recognized several factors in the defendant’s favor, including that she was
married and the mother of two children, that she had admitted her guilt and assisted law enforcement
officers in their recovery of some of the merchandise, that her work history was good, and that her
previous criminal record consisted only of a misdemeanor speeding offense. Ultimately, however,
the court determined that these factors were outweighed by other considerations, including the fact
that the thefts occurred over a period of time; that the defendant had played a major role, abusing her
position of trust with her employer by allowing relatives to take merchandise from the store for the
refurbishing of her home; and that the amount of merchandise stolen from the store was substantial.
Our review of the record reveals that the trial court considered and balanced the appropriate factors
in its determination, and that its denial of diversion was based on substantial evidence.

                                           CONCLUSION

         After a thorough review of the record, we conclude that the trial court’s application of
enhancement and mitigating factors was proper, and that substantial evidence exists in support of
its denial of the defendant’s request for judicial diversion. Accordingly, we affirm the judgment of
the trial court.



                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




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