        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                October 24, 2012 Session

                STATE OF TENNESSEE v. CYNTHIA J. FINCH

                   Appeal from the Criminal Court for Knox County
                      No. 92216 Jon Kerry Blackwood, Judge


              No. E2011-02544-CCA-R3-CD - Filed November 22, 2013




J OSEPH M. T IPTON, P.J., concurring and dissenting.

        I concur with the majority opinion in all respects save one. I believe the Defendant
should have been granted judicial diversion, given the circumstances of this case, the
Defendant’s excellent background, and the circumstances existing in Knox County relative
to official misconduct and the granting of diversion.

       As indicated in the majority opinion, this case arose when a major audit was
conducted, primarily of the Knox County Mayor’s office but also focusing on other county
employees with P cards. Employees with P cards were to keep receipts for all purchases.
The Defendant was convicted for her preparing and submitting false receipts. Ironically, the
purchase involving the largest false receipt, $1759, was ultimately proven, I believe, to have
been for county purposes. In this regard, I view the State’s evidence to show a person
unwisely attempting to present false receipts to justify twelve purchases over two and one-
half years.

        I am aware of cases that affirm denial of diversion for public employees. See, e.g.,
State v. Donna F. Benson, No. W2001-01926-CCA-R3-CD (Tenn. Crim. App. Oct. 8, 2002)
(denying diversion to an assistant court clerk who took two bribes); State v. Charles
Chesteen, No. E1999-00910-CCA-R3-CD (Tenn. Crim. App. June 8, 2000) (denying
diversion to a clerk and master who took over $100,000). In this case, though, the
Defendant’s conduct pales in comparison, and her good works and stellar background set her
apart.

       In State v. Hooper, 29 S.W.3d 1, 11 (Tenn. 2000), our supreme court recognized that
substantial publicity in the community may affect whether incarceration is appropriate as a
deterrence. I look at the present case in the light of the publicity in the Knox County
community regarding higher public officials committing more egregious offenses in recent
times getting judicial diversion. The Defendant is certainly amenable to rehabilitation, a
basic premise for considering the use of diversion, and I believe that denying her the chance
to become a fully useful citizen unencumbered with a conviction on her record is simply not
the fair and just thing to do.




                                          ____________________________________
                                          JOSEPH M. TIPTON, PRESIDING JUDGE




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