        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   May 15, 2012 Session

                  STATE OF TENNESSEE v. ANDREW CROSS

                    Appeal from the Criminal Court for Polk County
                          No. 10132    Amy A. Reedy, Judge




                   No. E2011-02106-CCA-R3-CD December 28, 2012


Defendant, Andrew Cross, pled guilty in the Polk County Criminal Court, to one count of
aggravated burglary, a Class C felony, and one count of Class E felony theft. At the
sentencing hearing, the trial court imposed the minimum allowable sentences of three years
for aggravated burglary and one year for theft, and ordered the sentences to be served
concurrently. The trial court also ordered the effective sentence of three years suspended,
to be served on probation, but the trial court denied Defendant’s request to be granted judicial
diversion. In this appeal, Defendant argues that he should have been granted judicial
diversion. We disagree, and affirm the judgments of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE,
J., joined. J OSEPH M. T IPTON, P.J., filed a dissenting opinion.

John P. Fortuno, Cleveland, Tennessee, for the appellant Andrew Cross.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Robert Steven Bebb, District Attorney General, and Drew Robinson,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

Facts

      At the guilty plea hearing, the Assistant District Attorney General announced the facts
upon which the convictions were based:
        THE COURT:           General, what are the facts that we have here?

        [PROSECUTOR]: Yes, your Honor. On April 5th , 2010, the victim, [ ],
                      returned home to his summer home on Welcome
                      Valley Road, [ ] in Benton. He found that someone
                      had entered his summer home, Big Frog Rafting,
                      without his permission and taken a Vizio TV and
                      some loose [change]. Value, total value was about
                      $550.00. On July the 16th of that same year Officer
                      Hicks discovered the Vizio TV at the home of the
                      defendant Andrew Cross located just down the street
                      from the victim at [ ] Welcome Valley Road. He’s
                      pleading guilty to the burglary and theft. They
                      recovered the TV, your Honor, and other property that
                      they had. I think the $50.00 restitution which
                      constitutes the loose change that the victim said he
                      had in a bottle that was taken.

        The pre-sentence report was made an exhibit at the sentencing hearing. That
document reveals that Defendant was 23 years old at the time of the offenses. Defendant’s
only prior involvement with the criminal justice system was a dismissed charge of vandalism
in 2007. He graduated from high school in 2004 and was attending Cleveland State
Community College full time with an aspiration to become a physical therapist.
Documentation from the school showed that Defendant had a cumulative 3.24 GPA through
the spring 2011 semester. Defendant reported that he had never used any illegal substance,
that he had not drunk alcohol in a while, and when he did drink, it was only “3 to 4 beers
rarely.” Defendant’s family members consisted of his father and step-mother, two sisters
(Amanda and Jessica), one step-sister, one step-brother, and his mother and step-father.
Defendant wrote the following on the presentence questionnaire regarding his relationship
with his family members: “My dad, step-mom, and Jessica [one of his sisters] are the best.
I play XBOX Live with Tony. I don’t like the rest and don’t talk to them.”

       Defendant started employment at a Target store approximately four months prior to
the sentencing hearing held in September 2011. Prior to that, Defendant worked for about
five months in 2007-08 at a business called “For Your Entertainment.” He had done odd jobs
between that job and the Target store and had worked for approximately six months in 2007.
Defendant reported that he was in the Air Force from August 2004 (the year he graduated
from high school) to September 2006. Also made an exhibit at the sentencing hearing was
a detailed performance review by his employer, Target Stores, showing that in almost all
categories reviewed, Defendant received a rating of “Fully meets and sometimes exceeds

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position requirements. Demonstrates full understanding of all required functions.” In three
other categories, Defendant received a ranking that was one step higher than the ranking
quoted above.

       Defendant testified at the sentencing hearing. He reiterated the basic facts
summarized above from the presentence report and added the following information. At the
time of sentencing, Defendant was finishing up his second year at Cleveland State
Community College. He attended classes five days per week and also worked at the Target
Store on Mondays, Wednesdays, Fridays, Saturdays, and Sundays. Defendant planned to
attend the University of Tennessee at Chattanooga to obtain his Bachelor’s Degree upon his
graduation from Cleveland State Community College.

       Defendant testified that he was approached by a supervisor in the Assets Protection
and Security Division of the Target store to see if he was interested in applying to be
promoted to work in that division, “because I have a military background.” Defendant
applied for that position.

        Defendant formerly worked at Cleveland State in the Fitness Center pursuant to a
work study grant. The grant ended, but he continued to do work voluntarily there three days
per week. Defendant had accrued $12,000.00 to $13,000.00 in student loans. Defendant
resided at an apartment in Cleveland with “my girlfriend and my cousin and her baby.” He
testified that he received “a general discharge under honorable conditions” after a little over
two years in the Air Force.

       Defendant testified that he went to the house where he committed the offenses
because he “knew nobody was going to be there.” He testified that at the time, he was “low
on money and everything.” Defendant further testified on direct examination that he was
“close” with his family, specifically mentioning his father, step-mother, step-brother, and
his mother and step-father.

       On cross-examination by the prosecutor, Defendant said he had never contacted the
victim to apologize for the crimes because he did not “know any way to get in contact with”
the victim. Defendant acknowledged that in the vandalism charge against him, which was
dismissed, one of his sisters was the victim and the property involved was the hubcaps on her
vehicle. In his final question to Defendant, the prosecutor asked Defendant why the trial
court should grant Defendant judicial diversion. Defendant’s entire response was,

        Well, I think I’m doing well in life. I mean I’m in school, I’m after [sic] a
        really good career. I’m working, I have a good life and I have a good
        relationship with my family and everything.

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      The trial court asked Defendant several questions after defense counsel and the
prosecutor were finished examining Defendant. As pertinent to this appeal, the following
exchanges between the trial court and Defendant are relevant.

        THE COURT:          Well, I’m looking here at this investigative report and
                            when it talks about your family there’s a comment in
                            here from you, “I don’t like the rest and don’t talk to
                            them,” in relation to your mother and your sister and
                            your step-father and step-brother and step-sister.

        [DEFENDANT]:        Well, I do talk to my step-brother and my step-sister.
                            I mean we’ve talked. I mean after the statement and
                            everything, and everything is fine. I talked to my step-
                            mom, my mother and step-father some but it’s not a
                            lot. I mean they live here in Benton and I live in
                            Cleveland and I’m busy with school and everything.

        THE COURT:          So what does the statement mean, “I don’t like the rest
                            and don’t talk to them.” He asked you about that
                            vandalism. It was directed at your sister. What’s the
                            deal, what’s your issue?

        [DEFENDANT]:        Me and my sister didn’t get along at the time, and
                            after that happened, I mean we got a lot closer and
                            then I moved out and I moved in with my ex-
                            girlfriend, and she just, I had a car there and I
                            wouldn’t come move it and I guess, I mean I don’t
                            know what she was–it wasn’t so much my sister as her
                            fiancé as far as I know. I mean that’s what everybody
                            has told me. I haven’t talked to my sister about it
                            [too] much. I don’t want to, you know, start problems
                            or anything.

        THE COURT:          He asked you why you did this, and you really didn’t
                            explain that. I really don’t know why you did it,
                            where you went, why you went there, I really don’t
                            know why you did it. You have not explained that to
                            me at all.




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[DEFENDANT]:   When I said I knew there wouldn’t be anybody there
               and I just –

THE COURT:     How did you know that?

[DEFENDANT]:   It was April and in April they don’t have like anybody
               at the rafting company, like in April it’s [too] cold for
               rafting.

THE COURT:     How did you know that?

[DEFENDANT]:   I’ve lived here, I lived in Benton for a couple of years
               after I got out of the military and I just, I mean I could
               look down the road and see I mean nobody there.

THE COURT:     So was it near where you lived?

[DEFENDANT]:   Yes, ma’am.

THE COURT:     It was near where you lived?

[DEFENDANT]:   Yes, ma’am.

THE COURT:     And so were you down there on a regular basis?

[DEFENDANT]:   At the rafting company?

THE COURT:     Yes.

[DEFENDANT]:   No, ma’am.

THE COURT:     What caused you to be down there on this date?

[DEFENDANT]:   It was, really I don’t have much of an explanation. I
               just went down there because I knew nobody would
               be there and just to see what was there pretty much.

THE COURT:     Did you go there to break in?

[DEFENDANT]:   No, ma’am.

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THE COURT:     Were you working at the time?

[DEFENDANT]:   No, ma’am. Well, yes, ma’am, I was working in the
               Fitness Center. The hours there, I think I got like 10
               hours a week. It wasn’t much.

THE COURT:     How did you get in this building?

[DEFENDANT]:   I walked in –

THE COURT:     Or home?

[DEFENDANT]:   I guess it’s the front door. It was unlocked, it was just
               there. It was not locked and I just opened the door
               and went in.

THE COURT:     Do you know [the victim]?

[DEFENDANT]:   No, ma’am.

THE COURT:     Have you tried to contact him?

[DEFENDANT]:   No, ma’am. Like I said I don’t know how to get in
               contact with him. I don’t know if he’s still at the
               rafting company or anything.

THE COURT:     Have you been back there?

[DEFENDANT]:   No, ma’am.

THE COURT:     Does Target know that you have [pled] guilty to
               aggravated burglary?

[DEFENDANT]:   No, ma’am.

THE COURT:     Why don’t they know that?

[DEFENDANT]:   They’ve done a background check and they’ve never
               asked about it or anything and so I haven’t told them.



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        THE COURT:             Don’t you think it would be important to them to
                               know that if you are going to be security agent for
                               them that you are convicted of aggravated burglary?

        [DEFENDANT]:           Yes, ma’am. I’ve thought that over recently when
                               they asked me if I wanted to be in the security
                               program.

        At the request of the trial court judge, who wanted to hear law enforcement’s position
on sentencing, the State called Detective Joe Price to testify. When asked about his opinion
of Defendant receiving judicial diversion, Detective Price testified, “[m]y personal opinion
is no, but that’s, I’ve been in law enforcement for 20 years and this is the way I feel as far as
any kind of burglary.” Detective Price further testified that it was not uncommon for the
rafting companies in the area, such as the residential premises of the victim in this case, to
be victims of burglaries. Upon cross-examination Detective Price admitted he would never
“stand in the way” of someone such as Defendant “bettering” himself through judicial
diversion, but it was “just” his opinion that diversion should not be granted in burglary cases.

        In its ruling at the sentencing hearing, the trial court found that no statutory
enhancement factors and no mitigating factors were applicable. The trial court determined
that there was no proof in the record as described in Tennessee Code Annotated section 40-
35-103(1) “to say that alternative sentencing should not be applied” to Defendant. As to
whether Defendant should receive judicial diversion, the trial court came to the following
conclusions regarding the manner of service of the effective sentence of three years. The
lack of any criminal convictions, the particular circumstances of the offense, and Defendant’s
physical and mental health weighed in Defendant’s favor. Furthermore, Defendant’s social
history and the deterrence factor to Defendant and others were neither in Defendant’s favor
nor weighed against him. However, even though the trial court granted full probation, it
denied judicial diversion because of a lack of candor and honesty by Defendant, and because
of the “attitude of law enforcement.”

       The trial court specifically ruled as follows.

        . . .maybe [Defendant] is just very guarded, maybe and he just holds things
        back, but the Court finds that that is his [amenability] to correction, that is
        one of the factors that the Court is to consider, along with attitude of law
        enforcement, which weighs against him. And that [amenability] to
        correction, it bothers the Court because I don’t feel like you have gone out
        there and been honest about what - - you are convicted of aggravated
        burglary and theft. I don’t know if you even understand that, but you are

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         working somewhere and you have [pled] guilty to aggravated burglary and
         theft and I do not find you to be credible here today. And even though that
         shows me a lack of rehabilitation potential on your behalf I am going to
         grant probation, but I’m not going to grant Judicial Diversion because I do
         not feel like he’s honest with the Court here today and I believe that’s the
         [amenability] to correction and I think it weighs extremely heavy against
         him here today because of some of his testimony, some of the things that he
         has withheld from the Court and his employer and the offense itself, which
         is an offense of dishonesty, and when these kind of hearings happen those
         of us in the criminal justice system say to ourselves “I get why this is an
         offense of dishonesty.” You are showing me why it is because you are
         continuing to do things that are dishonest by not being open and forthright.
         I’m not going to sentence to any time in custody, and I am going to sentence
         him to the minimum amount that I can, which is three years on the
         aggravated burglary and one year on the theft, suspended immediately. No
         incarceration on either one of those, but I am not going to grant Judicial
         Diversion in this case because I do find again that the [amenability] to
         correction weighs very heavy against him and I think that his lack of
         credibility shows a lack of rehabilitation potential even though I’m willing
         to grant probation and straight supervised probation.

Analysis

       Following a determination of guilt by plea or by trial, the trial court, in its discretion,
may defer further proceedings and place a qualified defendant on probation without entering
a judgment of conviction. Tenn. Code Ann. § 40-35-313(a)(1)(A). A qualified defendant
is one who is found guilty of a misdemeanor or a Class C, D, or E felony who has not
previously been convicted of any felony or of a Class A misdemeanor, and is not seeking
deferral for a sexual offense. Tenn. Code Ann. § 40-35-313(a)(1)(B). Also, a qualified
defendant can be granted judicial diversion only once. Tenn. Code Ann. § 40-35-313 (a)(2);
State v. Schindler, 986 S.W.2d 209, 210 (Tenn. 1999).

        On appeal, the trial court’s decision to deny judicial diversion will not be disturbed
absent an abuse of discretion. This Court will give the trial court the benefit of its discretion
if “‘any substantial evidence to support the refusal’ exists in the record.” State v. Anderson,
857 S.W.2d 571, 572 (Tenn. Crim. App. 1992) (quoting State v. Hammersley, 650 S.W.2d
352, 356 (Tenn. 1983). The same factors used to grant pre-trial diversion are used in
determining whether judicial diversion should be granted. State v. Cutshaw, 967 S.W.2d
332, 344 (Tenn. 1997).



                                               -8-
       In determining whether to grant judicial diversion, the trial court is to consider:

         (a)    the accused’s amenability to correction;
         (b)    the circumstances of the offense;
         (c)    the accused’s criminal record;
         (d)    the accused’s social history;
         (e)    the accused’s physical and mental health;
         (f)    the deterrence value to the accused as well as others; and
         (g)    whether judicial diversion will serve the interest of the public as well
                as the accused.

State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998)(citations
omitted).

        Although factor (g) was not specifically articulated in those words by the trial court,
we deem the trial court’s reliance upon “law enforcement’s attitude” in light of Detective
Price’s testimony to pertain to factor (g). With absolutely no disrespect to Detective Price,
because he answered the questions presented to him with credibility as implicitly found by
the trial court, we must disregard his testimony. It is clear that his testimony was that in his
opinion, judicial diversion should never be granted in a burglary case, even though he
admitted he would never get “in the way of anybody trying to better” himself. Our General
Assembly has, for a long time, declared its clear intent that some offenders who commit
some burglaries are eligible for judicial diversion. To rely upon a law enforcement officer’s
personal opinion that no defendant guilty of any burglary could ever be granted judicial
diversion would be a usurpation of one co-equal branch of government (the Legislative
branch) by another co-equal branch of government (the Judicial branch). Accordingly, we
are unable to use the “attitude of law enforcement” to affirm the trial court’s decision.

        However, from the record, it is obvious that the trial court heavily relied upon
Defendant’s lack of candor as an indication of a strong lack of amenability to correction as
a basis to deny the extraordinary relief of judicial diversion. If successfully completed,
judicial diversion results in no conviction and an expungement of all public records relating
to the charges and the finding of guilt, whether by plea or by trial. Tenn. Code Ann. § 40-35-
313(b); Schindler, 986 S.W.2d at 211. The trial court found that the facts of the case justified
full probation with its resultant criminal record of two felonies. However, it also concluded
that Defendant’s lack of amenability to correction based upon not being credible in his
testimony and a lack of honesty with his employer justified the denial of judicial diversion.
Even if nondisclosure to the employer does not reflect dishonesty, lack of credibility in his
testimony is sufficient to justify the trial court’s conclusion. At a sentencing hearing, the trial
court, as the trier of fact, listens to the testimony and observes the demeanor of the witnesses.

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The appellate court gives great weight to the determinations made by the trial court
concerning the credibility of witnesses. This Court will not interfere with the trial court’s
findings unless the record preponderates against them. State v. Melvin, 913 S.W.2d 195, 202
(Tenn. Crim. App. 1995).

      Based upon our review of the record we are unable to conclude that the trial court
abused its discretion by denying Defendant judicial diversion.

                                     CONCLUSION

       For the reasons stated herein the judgments of the trial court are affirmed.


                                           _________________________________________
                                           THOMAS T. WOODALL, JUDGE




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