        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                October 27, 2009 Session

           STATE OF TENNESSEE v. KENNETH ROSS JACKSON

             Direct Appeal from the Criminal Court for Hamilton County
                     Nos. 267283, 269828   Don W. Poole, Judge




                  No. E2009-00852-CCA-R3-CD - Filed May 13, 2010


The defendant, Kenneth Ross Jackson, appeals the denial of judicial diversion from the
Hamilton County Criminal Court. He entered pleas of guilty to theft of property in excess
of $1000, a Class D felony; filing a false report to a law enforcement officer, a Class D
felony; and theft of property under $500, a Class A misdemeanor. He was sentenced as a
Range I offender to concurrent terms of two years, suspended to supervised probation for
both Class D felony convictions. He was sentenced to a concurrent term of eleven months
and twenty-nine days on unsupervised probation for the Class A misdemeanor. On appeal,
the defendant contends that he was improperly denied judicial diversion. After careful
review, we affirm the judgments of the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

Robin Ruben Flores, Chattanooga, Tennessee, for the appellant, Kenneth Ross Jackson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; William H. Cox, III, District Attorney General; and Cameron B. Williams, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                         OPINION

       The defendant participated in two separate incidents that resulted in his indictment for
the commission of three crimes. On December 7, 2007, the defendant, who was employed
as a manager at McDonald’s, participated in taking $2400 from the restaurant and then filed
a false report about the incident. The defendant exchanged text messages with his co-
defendants, who were also employees of the restaurant, and they planned a staged robbery.
One employee left the restaurant’s back door open, and two men entered it and took the
money from the defendant while brandishing a gun. When the police arrived, the defendant
falsely reported that he was robbed at gunpoint. He was indicted for these crimes on
February 20, 2008.

       On July 25, 2008, while on bond for the crimes committed on December 7, 2007, the
defendant was involved in shoplifting from a Sears store. The facts introduced during the
guilty plea hearing demonstrated that the defendant and another person were observed
entering a fitting room and removing tags from merchandise. They walked past the “points
of sale” and attempted to exit the store when they were taken into custody by the store’s loss
prevention agents. The total value of the items was $124.53.

       The defendant entered guilty pleas to the charges on November 20, 2008. It was
announced by the State’s attorney that the only stipulation in the entry of the guilty pleas was
that the sentences would run concurrently. The length and the manner of service of the
sentences, in addition to the issue of judicial diversion, would be determined at the
sentencing hearing.

        Officer Brian Moseley, of the Chattanooga Police Department, testified during the
sentencing hearing on March 16, 2009, that he was an investigator at the time the incident
occurred at McDonald’s. He testified that he responded to a robbery call at 11:16 p.m. on
December 7, 2007. He interviewed the employees at the restaurant, including the defendant
who was the manager on duty. The defendant told Moseley that he was counting money after
the restaurant closed when two men entered and held a gun to his head. Moseley also spoke
to the other employees who were on the scene.

       After talking with the co-defendants, Officer Moseley testified that he determined this
was not an armed robbery. He developed the co-defendants as suspects after a district
manager for McDonald’s recognized the car used in the getaway. The co-defendants
implicated the defendant. Moseley also discovered that text messages were exchanged that
showed the defendant knew what was to happen at the restaurant. The police only recovered
$500 of the estimated $2400 taken from the restaurant.

       The police recovered a BB gun and concluded that there was never any intention for
harm during the staged robbery. The police were unable to determine the “ringleader” of the
crime.




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       Next, the defendant testified that he was not involved in the robbery of McDonald’s
and that he did not steal shoes from the Sears store. On cross-examination, he testified that
he was counting the money at McDonald’s when a man wearing a red hooded sweatshirt
entered the restaurant. He testified that he had no indication that a robbery would occur. He
acknowledged that he did not tell the police that he recognized the car used in the escape.

       The defendant testified that he did not shoplift at Sears and, specifically, that he did
not remove tags from clothing. However, he did acknowledge that he left the store with
merchandise that he did not purchase.

       The trial court took a recess for the defendant to retrieve his pay stubs from his car to
verify his current employment. The defendant left the courthouse, and an officer saw him
leave in his vehicle.

       The defendant testified when the sentencing hearing resumed on April 20, 2009.
During this hearing, he acknowledged his part in the shoplifting incident and that he knew
about the theft before it took place. He also acknowledged his participation in the theft at
McDonald’s but said that he did not think his co-defendants would follow through with the
robbery. He testified that he was now employed at a different restaurant and that he was
enrolled in college.

       The State objected to the defendant’s being placed on judicial diversion because of
the defendant’s involvement in the theft at Sears while he was on bond for the crime at
McDonald’s. The State further cited the defendant’s lack of candor at the first sentencing
hearing, where he denied all involvement in the crimes.

        In sentencing the defendant, the trial court was troubled that the defendant initially
testified that he did not commit the crimes before he reconsidered and acknowledged his
involvement. The trial court placed little weight on the defendant’s prior criminal history
because he had a single Class C misdemeanor conviction. However, the trial court did
consider that the defendant was in a position of private trust as a manager of the restaurant.
The court also considered that there was one mitigating factor, that the defendant’s criminal
conduct did not threaten serious bodily injury.

         The trial court concluded that the defendant was eligible for judicial diversion and
specifically stated that, had the defendant been before the court for only one incident, the
court “would look long and hard at granting judicial diversion.” However, the trial court
denied diversion because the defendant committed the theft at Sears eight months after the
first crime, when he should have been doing everything in his “power not to violate the law



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again.” The trial court seemed to be troubled over the fact that this defendant committed
another crime while he was on bond.

       The trial court denied judicial diversion and sentenced the defendant as a Range I
offender to concurrent terms of two years, suspended to supervised probation for both Class
D felony convictions. He was sentenced to a concurrent term of eleven months and twenty-
nine days on unsupervised probation for the Class A misdemeanor.

                                           Analysis

       On appeal, the defendant argues that the trial court did not properly consider all the
factors in denying his application for judicial diversion. He contends that the trial court
placed too much emphasis on the second theft, which occurred while the defendant was on
bond for the first theft.

       The decision to grant or deny a request for judicial diversion lies within the sound
discretion of the trial court. See State v. Harris, 953 S.W.2d 701, 705 (Tenn. Crim. App.
1996). Accordingly, the trial court’s decision regarding diversion will not be disturbed on
appeal absent an abuse of that discretion. See State v. Electroplating, Inc., 990 S.W.2d 211,
229 (Tenn. Crim. App. 1998) (citing State v. Hammersley, 650 S.W.2d 352, 356 (Tenn.
1983)). Discretion is abused if the record contains no evidence to support the denial of
judicial diversion. See State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992)
(quoting Hammersley, 650 S.W.2d at 356). When a defendant challenges the denial of
judicial diversion, we may not revisit the issue if the record contains any substantial evidence
supporting the trial court’s decision. Electroplating, Inc., 990 S.W.2d at 229; (citing State
v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996); Hammersley, 650 S.W.2d at 356).

       In determining whether to grant judicial diversion, the trial court must 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 interests of the public as well
              as the accused.

Parker, 932 S.W.2d at 958; State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993).
Moreover, the record must reflect that the court has weighed all of the factors in reaching its

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determination. Bonestel, 871 S.W.2d at 168. The 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.; State
v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998).

      In the instant case, the defendant was convicted of two Class D felonies and one Class
A misdemeanor. Because he has no prior felony or Class A misdemeanor convictions, the
defendant is a candidate for judicial diversion. See T.C.A. § 40-35-313(a)(1)(B)(i).

       Following a sentencing hearing, the trial court set out its reasons for denying judicial
diversion on the record. The trial court noted that the defendant’s criminal record was
limited to a Class C misdemeanor. The trial court also found that the defendant had a
favorable social history. The trial court noted that even though the defendant admitted some
involvement with the use of marijuana, his overall physical and mental background was
good. The trial court noted that the deterrence value was important in this case, particularly
with regard to the defendant’s being employed in a position of trust and his violation of that
trust. The trial court would likely have granted judicial diversion had the defendant been
before the court only for the incident at McDonald’s.

        In denying judicial diversion, the trial court placed great emphasis on the facts that the
defendant committed a second theft while he was on bond approximately eight months after
the McDonald’s theft and on the defendant’s lack of candor during the first portion of the
sentencing hearing. During the first sentencing hearing on March 16, 2009, the defendant
testified that he had no involvement in either theft. The defendant left the courthouse during
a recess and caused the hearing to be postponed until April 20, 2009. When the sentencing
hearing resumed, the defendant acknowledged part of his role in the thefts but still minimized
his participation in the McDonald’s theft.

       It has been widely held that a defendant’s truthfulness while testifying on his own
behalf is probative of his attitudes toward society and his prospects for rehabilitation and,
therefore, is a relevant factor in the sentencing process. See, e.g. U.S. v. Grayson, 438 U.S.
41 (1978); Williams v. New York, 337 U.S. 241 (1949); State v. Bunch, 646 S.W.2d 158, 160
(Tenn. 1983). We have held that a defendant’s credibility and willingness to accept
responsibility for an offense are circumstances relevant to determining his rehabilitation
potential. State v. Anderson, 857 S.W.2d 571, 574 (Tenn. Crim. App. 1992). “It is
unrealistic to assume that someone who has just pled guilty to a felony conviction, who then
denies any criminal wrongdoing for the offense for which they have just pled, and is in
general unrepentant is someone who could immediately return to their community and be
expected to assume a role as a functioning, productive and responsible member of society.”
State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994).

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        Our review reflects that the trial court properly considered the relevant factors and
explained its reasoning for denying judicial diversion. Therefore, we conclude that no error
exists with the trial court’s denial of judicial diversion, and we have no issue with the weight
the trial court placed on the fact that the defendant committed the second crime while he was
on bond for the first offenses. We note our legislature has expressed disfavor for people
committing felonies while on bond by providing for enhanced punishment and requiring
consecutive sentences. See T.C.A. §§ 40-35-114(13)(A), 40-20-111(b).

       Because the second theft was a misdemeanor, the enhanced and consecutive
sentencing provisions were not triggered. However, the trial court’s denial of judicial
diversion was justified in part by the defendant’s committing a crime while on bond for the
commission of other offenses.

                                          Conclusion

        Based on the foregoing and the record as a whole, we affirm the judgments from the
trial court.




                                                    ___________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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