        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs December 18, 2013

              STATE OF TENNESSEE v. CHRISTOPER D. SEALS

             Direct Appeal from the Criminal Court for Hamblen County
                     No. 12CR031     John F. Dugger, Jr., Judge


                   No. E2013-00616-CCA-R3-CD - Filed May 9, 2014


The appellant, Christopher D. Seals, pled guilty to aggravated burglary, and the trial court
imposed a sentence of three years in the Tennessee Department of Correction. On appeal,
the appellant asserts that the trial court erred by denying judicial diversion and in determining
the amount of restitution. Upon review, we affirm the judgment of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and R OGER A. P AGE, J., joined.

Jonathan M. Holcomb, Morristown, Tennessee, for the appellant, Christopher D. Seals.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; C.
Berkeley Bell, District Attorney General; and Kim Morrison, Assistant District Attorney
General, for the appellee, the State of Tennessee.

                                          OPINION

                                   I. Factual Background

       The appellant and the State entered into a plea agreement, which provided that the
appellant would plead guilty to aggravated burglary, a Class C felony, in exchange for a
Range I sentence of three years and release eligibility after service of thirty percent of the
sentence. The plea agreement further provided that the trial court would determine whether
the application for judicial diversion should be granted and the amount of restitution.
      At the hearing on diversion and restitution,1 the State’s version of the events
underlying the guilty plea was as follows:

                [O]n 11/6/11 at 7:30[,] the [appellant and his co-defendant,
                Danny Carpenter,] went to the residence of Kenneth Hayes
                located at 625 Rosedale Avenue. Once there, [the appellant]
                made contact with the victim. The [co-]defendant, Danny
                Carpenter, waited in the vehicle. [The appellant] then got the
                victim to leave his residence and go to his workshop located
                behind his residence. At that time Danny Carpenter exited the
                truck and busted out the rear door glass at the residence and
                gained entry. Once inside the residence, he took the safe and –
                he being Mr. Carpenter – and its contents including
                miscellaneous paperwork, the vehicle titles and $30,000 in cash.
                He then went back to the truck and waited on [the appellant] to
                return to the truck and they then left and went to another
                location where they forced open the safe and got its contents.

The appellant agreed with the State’s version of events, disputing only the amount taken from
the victim.

       The thirty-one-year-old appellant testified that he had a high school diploma, that he
had graduated from “tech school” at Walters State Community College, and that he could
read and write without difficulty. He stated that he had no mental or physical impairments.
He further stated that he had not had any alcohol or drugs within the last twenty-four hours.
He had never been granted judicial diversion and had never been charged with an offense
that was classified as a Class A misdemeanor or higher.

       The appellant said that when the police questioned him about his involvement in the
crime, he confessed. At the time of his arrest, the appellant was working for the city of
Morristown; however, he was fired because of the instant charges. At the time of the
hearing, he was employed “at Team Tech,” and he was seeking employment at “Chain
Electric.” In order to be hired, the instant conviction would have to be expunged. He
attended Valley View Missionary Baptist Church.

        On cross-examination, the appellant said that he gave the police two statements. In
his first statement, he said that “the safe was open and [he] saw money and a lot of

        1
        The trial court held a joint hearing to determine the amount of restitution the appellant and a co-
defendant, Danny Carpenter, would pay.

                                                   -2-
paperwork and [he] received no money from the safe.” In his second statement, the appellant
said that he “took the safe and the papers and threw them off in the wood[s] towards the lake
at the sewer treatment plant.”

        The appellant said that on the day of the offense, the victim worked on two chainsaws
for the appellant. While the victim was in his workshop repairing the chainsaws, Carpenter
went into the victim’s house to get into the safe. The appellant said that Carpenter knew the
victim had a safe because the victim was Carpenter’s uncle.

       The appellant said that he was “high” on pills at the time of the offense, namely
Roxicodone and Xanax. He acknowledged that he did not “recall every single thing” that
was in the safe.

       When the court asked the appellant whether he was still using pills, the appellant
responded negatively. However, when the court asked the appellant whether he could pass
a drug test, the appellant admitted that he could not.

        The court asked the appellant how much money was in the victim’s safe. The
appellant responded that the safe contained no more than $12,000, that he and Carpenter
“split” the money, and that he received $4,500. The court stated, “You split it? Well, $4,500
twice is $9,000. You just said there was $12,000. So something is not matching up. I can
add a little bit. . . . His half was 4,500.” The appellant replied, “All right. We’ll say $6,000.
I know there was no more than $12,000 in the safe and we split the safe.” The court asked
if anything else was in the safe, such as jewelry, guns, or coins. The appellant said that the
safe contained only the money and some papers.

       Kenneth Clifford Hayes, the seventy-year-old victim, testified that his wife passed
away approximately five years before the offense. Inside the safe was money his wife had
obtained from her 401(k) and from a legal settlement. The victim said that he had not taken
money from the safe since his wife’s death and that he had never counted the money. He
recalled that his wife counted the money one or two years prior to her death, and it amounted
to $30,000. Additionally, the safe contained 254 two-dollar bills, some silver dollars, and
his wife’s “scholarship ring.” The victim was unable to estimate the value of the coins. The
victim said that after his wife passed away, he and the appellant were putting “insurance
papers” in the safe and that the appellant “stuck his hands on in there and said, I’ve never
seen this much money.” The victim quickly shut the safe.

      The victim said that he replaced the broken window himself and that the repairs cost
approximately $10.



                                              -3-
        On cross-examination, the victim acknowledged that he never counted the money and
that he was relying on his wife’s word about how much money was in the safe. The victim
stated, “I was with her 37 years. I should take her word.” He said that “she counted it just
before she died. I had set it on the table, on the big old table and she counted the money.”

       The trial court asked the victim if he ever counted the money in the safe. The victim
said no, again explaining that his wife said there was $30,000 or $35,000. Defense counsel
objected to that statement on hearsay grounds. The trial court responded, “Well, I’m going
to weigh it with what he [is] saying. But I’m trying to figure out how he knew how much –
what was in there.”

       The victim acknowledged that in the past four or five years, he had purchased a used
automobile for $14,000. He said that his godfather, Johnny Sexton, paid $10,000, and the
victim paid the remaining $4,000. The victim said that the $4,000 did not come from the
safe.

        At the conclusion of cross-examination, the victim asked the trial court why defense
counsel approached him outside the courtroom offering him money. Upon further
questioning, the victim said that defense counsel asked “how much [money] would I take to
drop the thing on [the appellant].” The victim said that defense counsel told him the
appellant was willing “to pay half of it back to get his freedom back.” Defense counsel
suggested the amount of $12,000, then asked, “How much will you take in a lump sum to
drop it?” The victim said that he did not understand that the appellant was offering to pay
restitution.

        The victim said that regardless of whether he received restitution, he wanted the
appellant to go to jail. He acknowledged that defense counsel asked whether “it would make
a difference if [the appellant] paid the restitution to you in a lump sum as to whether or not
he went to jail.”

       The victim stated that the theft “has about wrecked my life and my wife dying and
them stealing my safe and everything, it’s about ruined me.” He said that the offense “has
about wrecked my health.” The victim said:

              [M]y mind is about gone for the last – they have run me from
              Sneedville to Morristown to have the trial and everything.

                     ....

                     My nerves and everything. I can’t sleep at night. Every

                                             -4-
              time I shut my eyes, I see that boy’s eyes right there [indicating
              the appellant]. I looked down on him when he was – when I
              was working on one of his chainsaws. And they was not
              nothing wrong with the chainsaws when he got me away from
              my house. And he grabbed up the chainsaws and run. . . .

       The parties stipulated that the safe was worth approximately $150.

       Georgina Rines, Carpenter’s sister and the victim’s grandniece, testified that before
the offense, she helped the victim take care of his finances. The victim received a social
security payment of $901 per month. The victim had a safe in his house; the key to the safe
was kept on a ring that was hung on the wall behind the mantle. A couple of months after
the death of the victim’s wife, she and the victim put his wife’s credit cards and driver’s
license into the safe. She saw that there was a lot of money in the safe and that the victim’s
wife had “paper clips with little pieces of paper that had the amounts on it but what amounts
I didn’t look.”

        Rines said that the victim called her after he realized the safe was gone. He showed
her a paper reflecting that his wife had received $17,000 from a legal settlement. Rines said
that the victim had a checking account in which he kept around $1,000. She did not know
how the victim paid for his car.

       On cross-examination, Rines clarified that the victim’s wife obtained $17,000 from
the settlement but that she did not know how much money was in the wife’s retirement
account.

        Danny Wayne Carpenter testified that he gave a statement after he was arrested for
breaking into the victim’s house, acknowledging that he took $12,000 from the safe. He said
that he did not see any coins in the safe but that he did see a number of $2 bills. He and the
appellant evenly divided the money from the safe; Carpenter’s share was exactly $6,000.
They spent $2,500 of the money on drugs.

       On cross-examination, Carpenter said that after he took the safe, he and the appellant
drove to a boat ramp near a bridge in Grainger County, removed the safe from the car, and
“busted the safe” open.

       Martha L. Dalton, the victim’s sister, testified that she was with the victim when
defense counsel spoke with him outside the courtroom. Dalton said that defense counsel
“asked him how much he would take to drop it, I guess, and clear with the – so he wouldn’t
have that on his record.” Dalton said that defense counsel asked the victim if he would “take

                                             -5-
a lump sum and drop it.” Defense counsel did not mention the word “restitution.” Defense
counsel “asked for the – what was stolen and they [he] asked for a sum, would [the victim]
take a sum and drop the charge so the boy’s name would be cleared.”

        After the witnesses testified, the trial court noted that the appellant had requested
judicial diversion. Defense counsel argued that if the trial court were to grant judicial
diversion, the appellant would be able to get a better job and would thereby be able to pay
restitution to the victim. The court asked if the appellant could pay restitution on the day of
the hearing. Defense counsel said, “No, Your Honor. We tried to come up with it all today
and we can’t. We don’t – we don’t know what the amount will be.” The court observed that
the crime happened in 2011, which was almost two years earlier, and that the appellant had
only recently obtained employment.

       In examining the factors for granting judicial diversion, the court said:

              Is the accused[] amenab[le] to corrections? Possibly he could
              have been amenable to corrections but he testified here today
              that he couldn’t pass a drug test; he’s still on – still taking drugs
              recently. The purpose – and what drove this crime was drugs,
              pills, prescription drugs.

                     Circumstances of the offense: In this case the crime, that
              [the appellant] was very instrumental in causing this crime to
              have happened. He lured the elderly victim away from his home
              to a garage area and the guy is working on chainsaws, and this
              was a large theft, and Mr. Hayes said that this has affected his
              health and he lays in bed at night and still looks – can see the
              [appellant’s] eyes looking at him when he worked on that
              chainsaw. Circumstances aren’t good.

                     The accused’s criminal record: He doesn’t have a
              criminal record. His social history: He has education but he also
              has drug issues. Drugs caused this crime and he’s still taking
              drugs. So the social history is not good and mental health.

                     The status of the accused’s physical and mental health:
              There’s not been any evidence presented on his physical and
              mental health. Physical health appears to be good. Mental
              health, no evidence of that.



                                              -6-
                      Deterrence value to the accused as well as others: Well,
              other people need to be deterred. There are thousands of thefts
              in East Tennessee and people are preying on the elderly. I see
              it. Disposed of over 2,000 cases last year and I – the elderly,
              that’s – these prescription addicts are preying on the elderly to
              get money for their habit. And other people need to be deterred
              from going in an elderly person’s home because frequently that
              causes them, as Mr. Hayes says, great mental anguish to be a
              victim. So, other people need to be deterred. And that goes
              against a judicial diversion in the Court’s opinion.

                      Whether judicial diversion will serve the interest of the
              public as well as the accused: The [appellant] still has a drug
              issue, he would test positive. Couldn’t pass a drug test today he
              testified to. Public, I don’t think it will serve the interest of the
              public. These thefts and prescriptions is so great at this time, the
              problems, it’s unbelievable the amount of these cases that it’s
              happened. So, the Court finds that a judicial diversion will not
              serve the interest of the public. People that go into an elderly
              person’s house and commit a theft on them need to serve some
              time.

Accordingly, the court denied judicial diversion.

        Regarding restitution, the trial court said that the appellant’s account of the amount
of money in the safe was not credible. In support of its finding, the court noted that the
appellant initially stated that his half of the money was $4,500; thereafter, he said, “[L]et’s
say it’s 12.” Carpenter, who was in the courtroom at the time, heard the testimony and
asserted that the safe held exactly $12,000. The court further noted that the appellant and
Carpenter admitted taking drugs the day of the offense and could not recall what happened
to the coins, $2 bills, and the ring that were in the safe. The court accredited the victim’s
testimony regarding the amount of money in the safe, stating that the victim’s wife had
counted the money and said it totaled $30,000. Additionally, the victim’s niece saw the
“money in stacks with paper clips and amounts [on] it.” The court found, “[I]t’s more the
weight should to go what the victim says was in there.” The court stated that it was
“outrageous” that the appellant and Carpenter victimized an elderly man, who was
Carpenter’s “blood relative,” to obtain money for drugs. The court said:

              The plea paperwork for Mr. Carpenter had an amount on it that
              was agreed to by the State[, which was $15,250,] and that’s

                                              -7-
              going to be the – and that was signed – and that’s going to be the
              amount that they should pay. Because [the appellant], he was
              just like, Well, let’s just say it’s 12. That doesn’t sound like
              anybody that said we counted it and divided it and it was 12. Not
              to me. . . . Mr. Hayes is more – a lot more reliable than anything
              that’s come out of these two guys. And it’s affected him,
              clearly, by his testimony.

        The court determined that the appellant should pay $15,250 in restitution. However,
he cautioned the victim, “[D]on’t go spending that money and count on that. . . . There’s a
lot of people owe a lot of restitution and it’s like getting blood out of turnips.”

      On appeal, the appellant challenges the trial court’s denial of judicial diversion and
the amount of restitution imposed.

                                         II. Analysis

       The appellant maintains that the trial court did not fully consider the relevant factors
in determining whether the appellant should be granted judicial diversion. Additionally, the
appellant contends that the trial court erred in determining the amount of restitution,
specifically complaining that “the record is entirely void of admissible evidence dealing with
the amount of restitution.”

        A defendant is eligible for judicial diversion when he or she is found guilty of or
pleads guilty to a Class C, D, or E felony and has not previously been convicted of a felony
or a Class A misdemeanor. See Tenn. Code Ann. § 40-35-313(a)(1)(B). In determining
whether to grant a defendant judicial diversion, the trial court must consider all of the
following factors: (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 status
of the defendant’s physical and mental health, and (6) the deterrence value to the defendant
and others. State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997). “‘The trial court
should also consider whether judicial diversion will serve the ends of justice – the interests
of the public as well as the accused.’” Id. (quoting State v. Bonestel, 871 S.W.2d 163, 168
(Tenn. Crim. App. 1993)). The record must reflect that the trial court has taken all of the
factors into consideration. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim.
App. 1998). As a consequence, “we may not revisit the issue if the record contains any
substantial evidence supporting the trial court’s decision.” Id. Furthermore, “[t]he court
must explain on the record why the defendant does not qualify under its analysis, and if the
court has based its determination on only some of the factors, it must explain why these
factors outweigh the others.” Id. Recently, in State v. Kiara Tashawn King, __ S.W.3d __,

                                              -8-
No. M20012-00236-SC-R11-CD, slip op. at 12 (Tenn. at Nashville, Apr. 23, 2014), our
supreme court held that

               when the trial court considers the Parker and Electroplating
               factors, specifically identifies the relevant factors, and places on
               the record its reasons for granting or denying judicial diversion,
               the appellate court must apply a presumption of reasonableness
               and uphold the grant or denial so long as there is any substantial
               evidence to support the trial court’s decision.

In the event “the trial court fails to consider and weigh the applicable . . . factors,” this court
“may either conduct a de novo review or, if more appropriate under the circumstances,
remand the issue for reconsideration.” Id. We conclude that the trial court properly
considered the factors announced in Parker and Electroplating and that the trial court did not
err by denying judicial diversion.

       The appellant complains that the trial court attributed great weight to the victim’s
preference regarding whether to incarcerate the appellant, that the court focused on the effect
of the crime on the victim, that the court failed to note that the appellant had sought and
obtained employment since his arrest, that the court ignored the appellant’s adherence to the
conditions of his bond, and that the trial court failed to consider that the appellant had “not
gotten into any other trouble.”

        The trial court found that the appellant was not amenable to correction, noting that the
appellant committed the offense while he was on drugs and that, after repeated questioning,
the appellant eventually acknowledged that he could not pass a drug test on the day of the
hearing. The court found that the circumstances of the offense “aren’t good” and warranted
the denial of diversion. The court noted that the appellant lured the elderly victim away from
his home while his co-defendant, Carpenter, robbed the victim of a large amount of money.
The victim’s health declined after the offense, and he still suffered from psychological
trauma. The court observed that the appellant did not have a criminal record, that his
physical health was good, and that he was educated. However, the court further observed
that the appellant’s social history was poor in light of his continued drug use. The court
stated that similar crimes needed to be deterred, noting that the court had seen a number of
similar cases in which “prescription addicts [preyed] on the elderly to get money for their
habit.” The court found that the needs of the appellant and the public would not be served
by judicial diversion.

       In order to establish the need for deterrence, proof such as “testimony by someone
with special knowledge of the level of a particular crime” must be adduced at the hearing.

                                               -9-
State v. Hooper, 29 S.W.3d 1, 11 (Tenn. 2000). A court may not rely solely upon its “general
observation that a particular offense occurs frequently within the county.” State v. Cynthia
Denise Marshall, No. W2012-01011-CCA-R3-CD, 2013 WL 257050, at *3 (Tenn. Crim.
App. at Jackson, Jan. 23, 2013) (citing State v. Fields, 40 S.W.3d 435, 442 (Tenn. 2001));
see also State v. Deon Marquett Boykins, No. W2012-01012-CCA-R3-CD, 2013 WL
1229393, at *3 (Tenn. Crim. App. at Jackson, Mar. 27, 2013). Therefore, we conclude that
the trial court lacked sufficient evidence to deny the appellant’s request for judicial diversion
based upon the need to deter the appellant and others.

        Regardless, a defendant’s “current drug usage” is a relevant consideration in
determining whether judicial diversion is appropriate. Lewis, 978 S.W.2d at 566. Further,
we note that the trial court questioned the appellant’s credibility. Specifically, the court
observed that the appellant originally claimed that he received $4,500 from the offense;
however, upon further questioning by the court, the appellant said, “We’ll say $6,000 [was
his take].” Further, the appellant initially denied that he was still using drugs; however, when
the trial court questioned if he would pass a drug test, the appellant conceded that he would
not pass the test. The appellant’s lack of candor reflects poorly upon his amenability to
correction. State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999). Moreover, “[t]he
denial of judicial diversion may be based solely on the nature and circumstances of the
offense, so long as all of the other relevant factors have been considered, and this factor
outweighs all others that might favorably reflect on the [d]efendant’s eligibility.” State v.
George William King, No. M2001-02026-CCA-R3-CD, 2002 WL 31520648, at *4 (Tenn.
Crim. App. at Nashville, Nov. 13, 2002) (citing State v. Curry, 988 S.W.2d 153, 158 (Tenn.
1999)). Our review of the record reveals that the trial court considered and weighed all of
the necessary factors before denying diversion. The trial court stated its reasons for denying
diversion, especially noting why the circumstances of the offense, the appellant’s continued
drug use, and the appellant’s lack of candor outweighed the other factors. Accordingly, we
conclude that the trial court did not err in denying diversion.

       Generally, the amount of restitution that the defendant may be directed to pay is
limited to “the victim’s pecuniary loss.” See Tenn. Code Ann. § 40-35-304(b). Further, “[a]
victim seeking restitution must present sufficient evidence so the trial court can make a
reasonable determination as to the amount of the victim’s loss.” State v. Bottoms, 87 S.W.3d
95, 108 (Tenn. Crim. App. 2001). This court has held that “the appropriate standard of
review for restitution orders is the abuse of discretion standard with a presumption of
reasonableness.” State v. David Allan Bohanon, No. M2012-02366-CCA-R3-CD, 2013 WL
5777254, at *5 (Tenn. Crim. App. at Nashville, Oct. 25, 2013) (citing Bise, 380 S.W.3d at
708 and State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012)).

       The appellant contends that the trial court determined the amount of restitution based

                                              -10-
upon hearsay. We note that Tennessee Code Annotated section 40-35-209(b) provides that
in a sentencing hearing, reliable hearsay is admissible as long as a defendant “is accorded a
fair opportunity to rebut any hearsay evidence so admitted.” In the instant case, the trial
court found that the appellant and Carpenter were not credible about the amount of money
taken, noting that they were “high” at the time of the offense. The court further noted that
the appellant and Carpenter gave conflicting accounts regarding the amount, indicating that
they probably did not know how much money was taken. Additionally, we note that Rines
testified that there was a lot of money in the safe and that the victim’s wife had “paper clips
with little pieces of paper that had the amounts on it.” Rines also saw a paper reflecting that
the victim’s wife had received $17,000 from a legal settlement. The trial court found that the
victim’s testimony regarding the amount of money in the safe was reliable hearsay. We
agree.

        Finally, the appellant asserts that the trial court failed to consider his ability to pay in
determining the amount of restitution imposed. However, the appellant did not raise this
issue in the trial court. Therefore, he has waived the issue. See Tenn. R. App. P. 36(a)
(providing that “[n]othing in this rule shall be construed as requiring relief be granted to a
party responsible for an error or who failed to take whatever action was reasonably available
to prevent or nullify the harmful effect of an error”). Accordingly, we conclude that the trial
court did not abuse its discretion in imposing restitution in the amount of $15,250.

                                        III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.

                                                      _________________________________
                                                      NORMA McGEE OGLE, JUDGE




                                               -11-
