        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                December 7, 2010 Session

                  STATE OF TENNESSEE v. STEPHEN DAVIS

              Direct Appeal from the Criminal Court for Shelby County
                    No. 07-08565     James C. Beasley, Jr., Judge


                 No. W2009-01878-CCA-R3-CD - Filed August 8, 2011


       The defendant, Stephen Davis, a pharmacist at Rite Aid, was convicted of one count
of obtaining a controlled substance by fraud (a Class D felony) after he filled several
suspicious prescriptions for Hydrocodone (a Schedule III controlled substance). The trial
court imposed a two-year suspended sentence. On appeal, the defendant claims that the
evidence is insufficient to support his conviction and that the trial court erred by denying his
motion for a mistrial and by failing to place him on judicial diversion. After carefully
reviewing the record and the arguments of the parties, we affirm the judgment of the trial
court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and A LAN E. G LENN, JJ., joined.

James E. Thomas (on appeal), and John Candy and Louis Chiozza (at trial), Memphis,
Tennessee, for the appellant, Stephen Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
William L. Gibbons, District Attorney General; and Anita Spinetta, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

       This appeal concerns a pharmacy employee who filled dubious painkiller prescriptions
at suspiciously low prices. In the summer of 2007, the defendant had worked as a pharmacist
with the Rite Aid Corporation for more than ten years and served as a manager-level
pharmacist of the Rite Aid in Bartlett, Tennessee. His legal troubles began when a
subordinate pharmacist technician, Mr. Larry Cross, started to notice that beginning on May
17, 2007, the same patient name, “Nancy Miller,” was showing up in the store’s computer
system every few days as receiving filled prescriptions for Hydrocodone – a powerful and
addictive painkiller which is also a Schedule III controlled substance. Mr. Cross became
concerned because he had never seen or met a Ms. Nancy Miller, and the amount of
Hydrocodone that was being dispensed to her was highly unusual. The “Nancy Miller”
prescriptions were always filled during a time that the defendant was the pharmacist on duty,
and Mr. Cross became further concerned because he never assisted with filling any of these
prescriptions – a fact he also found unusual. Rather than raise his concerns with the
defendant, Mr. Cross opted to go over his head and reported the situation to Mr. Shan Parker,
the Rite Aid pharmacy district manager in charge of overseeing the Bartlett pharmacy.

       After conducting some preliminary investigation into the “Nancy Miller” prescriptions
using Rite Aid’s computer system, Mr. Parker found the amount of Hydrocodone being
dispensed to her to be highly unusual. He further discovered that he was unable to locate
the legally-required hard copies for any these prescriptions. Mr. Parker brought in Mr.
Dustin Higgins, a regional loss prevention director, and the two began to investigate the
suspicious activity further. During their investigation, they contacted the doctor listed on the
store computer system as the issuing doctor, Dr. Stephen Landy, a neurologist at the Wesley
Neurological Clinic. Dr. Landy denied issuing any of the prescriptions and further stated that
he had never treated a patient named Nancy Miller who had the birthday and lived at the
address provided by the store’s computer system.

        Mr. Higgins confronted and interviewed the defendant concerning his filling of the
“Nancy Miller” prescriptions twice, the first time by surprise as the defendant was leaving
work and the second time at an arranged meeting, which Mr. Parker also attended. During
these interviews, the defendant admitted to filling the prescriptions listed for “Nancy Miller”
and in some cases removing them from the store. The defendant also admitted to putting
cash in the register for some of the prescriptions and to lowering the price for each of the
prescriptions by overriding the normal price appearing in Rite Aid’s computer system. At
the conclusion of the initial unannounced interview, Mr. Higgins asked the defendant to
empty his pockets, but the defendant refused to do so.

       However, while acknowledging that he had made an error of judgment in filling these
prescriptions due to the amount of Hydrocodone involved, the defendant asserted that he
believed the entire time that he was dealing with legitimate prescriptions, and that he was in
compliance with store policy when he filled the prescriptions, lowered the price, and
delivered the filled prescriptions to individuals off-site. He claimed that the prescriptions
were phoned in and that he made hard copies of the prescriptions on one of the store’s in-
house prescriptions pads and left them to be filed by someone else. He claimed that the filled
prescriptions were usually picked up by someone he believed to be Nancy Miller at the drive-

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through window. However, on a few occasions, the defendant removed the filled
prescriptions from the store after work, and then drove around to various parking lots and
gave them to a man purporting to be Nancy Miller’s husband. The defendant claimed that
he altered the regular price charged for these prescriptions pursuant to Rite Aid’s price-
matching policy, which permitted a pharmacist to override the normal price and charge a
lower price for a prescription in order to match the price charged by any local competitor.
He claimed that the price to which he lowered the “Nancy Miller” prescriptions matched the
price quoted to him over the phone by someone from Medicap.

       On November 15, 2007, the defendant was indicted on one count of Obtaining a
Controlled Substance by Fraud and one count of Theft of Property over $1000, both Class
D felonies. He was tried on March 23-27th, 2009. At the trial’s conclusion, the jury
convicted the defendant of the fraud charge but acquitted him of the theft charge. At
sentencing, the trial court denied the defendant’s application for judicial diversion and gave
him a two-year suspended sentence, placing him on probation for a period of two years. The
defendant’s motion for a new trial was heard and denied on July 27, 2009. This appeal
timely followed.

                                               I.

       The defendant claims that the evidence was insufficient to support his conviction for
fraudulently obtaining a controlled substance. Specifically, he contends that there was no
evidence showing that he actually possessed any Hydrocodone or that he made any
misrepresentations in order to do so. We disagree.

       For purposes of challenging the sufficiency of evidence on appeal, a jury’s verdict of
guilt with respect to the charge in question carries great weight and effectively serves to strip
the defendant of the presumption of innocence and replace it with a presumption of guilt.
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). A defendant generally bears the
burden of overcoming this presumption on appeal, a burden rendered all the heavier by the
fact that the State is afforded “the strongest legitimate view of the evidence and all
reasonable inferences that may be drawn therefrom,” during appellate review. Id. (quoting
State v. Vasques, 221 S.W.3d 514, 521 (Tenn. 2007)). Matters such as the credibility of
witnesses, the weight that ought to be given to their testimony, and the proper resolution of
any conflicts in the evidence may not be re-litigated on appeal; these were issues for the jury
to decide, and their decision must be respected. Id. “[T]he relevant question is whether, after
reviewing the evidence in the light most favorable to the State, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Id.; see also
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979).



                                               -3-
        The defendant was convicted of violating Tennessee Code Annotated section 53-11-
402(a)(3), which renders it a crime to “[a]cquire or obtain, or attempt to acquire or attempt
to obtain, possession of a controlled substance by misrepresentation, fraud, forgery,
deception or subterfuge.” T.C.A. §53-11-402(a)(3) (2011). Tennessee law further clarifies
that “‘[f]raud’ means as used in normal parlance and includes, but is not limited to, deceit,
trickery, misrepresentation and subterfuge, and shall be broadly construed to accomplish the
purposes” of our state’s criminal laws. T.C.A. §39-11-106(a)(13). The defendant’s claims
regarding the sufficiency of the evidence concern (1) whether he ever “[a]cquire[d] or
obtain[ed] . . . possession”of the Hydrocodone within the meaning of the statute and (2)
whether he did so by “misrepresentation, fraud, forgery, deception or subterfuge.” Id.

      The defendant first claims that there is no evidence in the record that he obtained the
drugs in question because there was no evidence that anyone ever saw him take the
Hydrocodone out of the pharmacy or that he ever retained or used any of the Hydrocodone.
However, no such evidence is necessary to support a conclusion that the defendant possessed
the Hydrocodone. This jury’s conclusion concerning this element of the offense is fully
supported by circumstantial evidence as well as the defendant’s own testimony.

        Mr. Larry Cross testified that the defendant frequently filled large prescriptions for
Hydrocodone under the name “Nancy Miller” and that the filled bottles would no longer be
present at the pharmacy during his next shift. He further testified that the defendant told him
that he was not to handle any prescriptions for “Nancy Miller,” that the defendant always
filled these prescriptions himself, and that he had never seen a customer named “Nancy
Miller” appear either in the store or at the drive-through window. Other witnesses testified
that no prescriptions were ever filled for “Nancy Miller” during the shifts when a pharmacist
other than the defendant was on duty. Finally, the State presented the testimony of a Ms.
Nancy Miller, who once resided at the address provided for on the “Nancy Miller”
Hydrocodone prescriptions and whose middle initial and birthday matched the prescriptions
filled by the defendant, who stated that she lived in Wisconsin during the relevant time
period, had never been a customer of the Bartlett Rite Aid, and had never picked up any
prescriptions there or given anyone else permission to do so. This evidence – while
circumstantial – is certainly sufficient and could reasonably support the jury’s conclusion that
the defendant himself was obtaining possession of the Hydrocodone.

       In addition, the defendant himself gave direct evidence during his testimony that he
obtained and removed filled Hydrocodone prescriptions under the name “Nancy Miller” from
the store on three occasions. While the defendant further claimed that he did so in order to
provide good customer service by hand-delivering these prescriptions to Nancy Miller
(through the intermediary of an individual purporting to be her husband) at a site off-
premises, the jury was free to disbelieve this explanation.

                                              -4-
        Moreover, regardless of the drugs’ ultimate destination – whether the defendant kept
them, used them, sold them, or simply gave them away to either a stranger or someone he
knew – the defendant’s admission that he possessed the controlled substance, no matter how
briefly, suffices to satisfy the statute’s requirement that he “acquire or obtain . . . possession”
of the prohibited drugs and suffices to uphold liability under this specific element of the
statute. The statute expressly criminalizes even the “attempt to acquire or attempt to obtain”
the specified controlled substances, so long as the attempt is one made by fraud, etc.
Consequently, the “possession” element of section 53-11-402(a)(3) would appear to be
satisfied under the proper circumstances even if the controlled substance was never in fact
in the defendant’s actual possession. The defendant’s contention that no evidence exists to
support the statute’s “acquire or obtain . . . possession” requirement simply because no one
ever saw him take or use the drugs in question must therefore be rejected.

        The defendant next claims that there was “no proof . . . that he misrepresented
anything,” which we understand to be a claim that there is no record evidence that he made
any misrepresentations in furtherance of an attempt to possess Hydrocodone. In support of
this claim, the defendant references his testimony to the effect that while he did remove
Hydrocodone from the Rite Aid pharmacy, he did so in order to deliver what he believed to
be valid call-in prescriptions for a “Ms. Nancy Miller,” and he did not make any
misrepresentations in the course of doing so. While it would not have been outside of the
realm of possibility for a jury to elect to credit this testimony and find that the defendant was
an innocent victim in this entire affair, this particular jury did not choose to do so, and its
conclusion is supported by considerable circumstantial evidence.

        The record contains substantial evidence that the defendant entered false statements
concerning the existence of Hydrocodone prescriptions for a “Nancy Miller” into the Rite
Aid computer system. Store witnesses testified that the Rite Aid computer system listed
numerous prescriptions for Hydrocodone that were filled for a “Nancy Miller,” between May
17, 2007, and July 30, 2007. Store witnesses testified that no hard copies of these
prescriptions could ever be located. The prescriptions appearing in the system listed the
patient’s birthday and gave her specific address in Memphis, Tennessee. A Nancy Miller,
whose former address was at that specific address in Memphis and whose middle initial and
birthday matched the “Nancy Miller” appearing on the Rite Aid computer system, testified
that she had never seen the doctor listed as the issuing physician in the system and had never
been prescribed Hydrocodone. Dr. Stephen Landy, who was listed as the issuing physician
on the information appearing on the Rite Aid computer system, testified that he never had
as a patient anyone named Nancy Miller with an address and birthday matching that
appearing on the Rite Aid system, that he never issued the prescriptions that were filled by
the defendant, and that he would never issue prescriptions for Hydrocodone in the amount
listed as prescribed for “Nancy Miller” because it would be unsafe for the patient and had the

                                                -5-
potential to cause liver failure. From this and other testimony, a jury could reasonably reach
the conclusion that no prescription for Hydrocodone had ever been issued to “Nancy Miller.”

        Yet somehow numerous prescriptions for Hydrocodone under the name “Nancy
Miller” appeared in the Rite Aid system and were filled by the defendant. The defendant
implies that this was the result of some sort of conspiracy. He testified that he received call-
in prescriptions for a “Nancy Miller,” entered her information into the system pursuant to
those phone calls, and verified the prescription with the issuing doctor at least once –
conflicting with the testimony of Dr. Landy that no such prescriptions were ever issued. He
testified that he created hard copies for these prescriptions and placed them in a basket to be
filed, all in accordance with store practice – conflicting with the testimony of numerous store
witnesses that none of these copies were ever seen or could ever be located. And the list of
conflicting testimony could go on. However, in light of the circumstantial evidence
summarized above, a rational jury could certainly have concluded that, with respect to this
case, the simplest explanation for the testimonial discrepancies was the best one: the
defendant, who had the access and means necessary to do so, simply entered the false
prescription information into the Rite Aid computer system. When appealing a sufficiency
of the evidence claim, all conflicting evidence is resolved in favor of the State. See
Dorantes, 331 S.W.3d at 379. The defendant has failed to overcome the presumption of guilt
that attached after the jury’s guilty verdict with respect to his making of false statements. His
claim is therefore denied.

                                               II.

        The defendant’s second claim is that the trial judge erred in failing to grant a mistrial
after the prosecution asked him a question on the stand concerning prior drug addiction.
“The decision of whether to grant or deny a motion for a mistrial rests within the sound
discretion of the trial court” and will not be reversed “absent a clear showing that the trial
court abused its discretion.” State v. Robinson, 146 S.W.3d 469, 494 (Tenn. 2004). In
general, a mistrial is only “an appropriate remedy when a trial cannot continue, or a
miscarriage of justice would result if it did.” Id. (quoting State v. Land, 34 S.W.3d 516, 527
(Tenn. Crim. App. 2000)). “[T]he burden of establishing the necessity for mistrial lies with
the party seeking it,” Land, 34 S.W.3d at 527, and in this case the defendant has not borne
his burden.

       As matters transpired in the court below, while the defendant was being cross-
examined on the stand, the prosecutor asked the question, “Mr. Davis, you yourself have had
prior problems with Hydrocodone?” Defense counsel objected before the defendant
answered. A bench conference, followed by a jury-out hearing over the admissibility of any
evidence pertaining to the defendant’s prior Hydrocodone use and his disciplinary record

                                               -6-
before the Board of Pharmacy relating to it, immediately ensued. The prosecution argued
that evidence of his prior addiction to Hydrocodone was relevant and that the defense had
opened the door to impeachment of the defendant’s character by asking him during his direct
examination whether he was a “good” pharmacist. The defense argued that evidence
concerning his addiction and any subsequent discipline concerning it was unduly prejudicial
and was inadmissible as evidence of a prior bad act pursuant to Tennessee Rule of Evidence
403. The trial court ultimately ruled in favor of the defense and refused to permit any
questions by the prosecution concerning the defendant’s Hydrocodone use except during the
time period during which the suspicious prescriptions were filled.

       During the same jury-out hearing, the trial court denied the defense’s request for a
mistrial based on the fact that the question concerning the defendant’s Hydrocodone
problems had been asked in the presence of the jury. However, the trial court granted the
defense’s request for a curative instruction and stated to the jury when it returned that:

       [R]ight before the break there was a question asked about some prior problem
       with Hydrocodone. That – I have ruled that’s an improper question. You’re
       not to consider that. You are to totally disregard that question. And we’re
       going to move on. Does everybody understand that? Okay.

Nonetheless, the defendant urges that once the prosecution insinuated that the defendant had
a prior addiction to Hydrocodone, the jury necessarily inferred that the defendant was using
the Hydrocodone that was prescribed for “Nancy Miller,” and that it was “impossible for a
juror to put [this question] out of [his or her] mind[] and disregard it.”

        Although we are not entirely unsympathetic to the defendant’s argument that it is
difficult to unring such a loud proverbial bell, the law is clear that “[j]urors are presumed
to follow the instructions of the court.” Robinson, 146 S.W.3d at 494; see also State v. Stout,
46 S.W.3d 689, 715 (Tenn. 2001); State v. Reid, 91 S.W.3d 247, 279 (Tenn. 2002); State v.
Smith, 893 S.W.2d 908, 923 (Tenn. 1994). The judge’s instruction was very explicit on the
point that the jury was to completely disregard the prosecutor’s question. We must assume
on appeal that the jury followed this instruction.

       Moreover, reviewing the record as a whole, we do not believe that the prosecutor’s
act of asking this solitary question concerning the defendant’s prior problems with
Hydrocodone so tainted the proceedings that allowing the trial to continue could be
considered a miscarriage of justice. The information sought to be elicited by the
prosecution’s question was not inherently inadmissible – when the State seeks to introduce
evidence concerning a defendant’s prior bad acts or evidence that is potentially prejudicial
to the defense, the Tennessee Rules of Evidence generally require a judge to carefully

                                              -7-
scrutinize the evidence at issue, weigh and consider various factors, and evaluate the overall
impact of the evidence in a particular case prior to determining the evidence’s admissibility.
See generally Tenn. R. Evid. 401-404. While the trial court took into consideration all the
relevant factors and ultimately ruled that evidence concerning the defendant’s prior
Hydrocodone addiction was inadmissible – a ruling that was within its discretion – that result
was certainly not guaranteed ex ante. While ideally any issue concerning the admissibility
of this evidence would have been decided prior to trial and entirely outside the presence of
the jury, its resolution in the course of events as they actually transpired is not so offensive
to any traditional notion of justice that the judge should have felt obligated to terminate the
trial entirely. That questioning ceased and the jury was excused before the defendant ever
answered the question only lends strength to this conclusion. The defendant’s claim that the
trial judge erred by failing to grant his motion for a mistrial is therefore denied.

                                               III.

        The defendant’s final claim is that the trial court erred in denying his request for
judicial diversion. “Judicial diversion is legislative largess whereby a defendant adjudicated
guilty may, upon successful completion of a diversion program, receive an expungement
from all ‘official records’ any recordation relating to ‘arrest, indictment or information, trial,
finding of guilty, and dismissal and discharge’ pursuant to the diversion statute.” State v.
Schindler, 986 S.W.2d 209, 211 (Tenn. 1999) (quoting T.C.A. § 40-35-313(b)). A candidate
who is granted judicial diversion and successfully completes the program as outlined in
section 40-35-313 is never legally convicted of the offense charged and, after receiving an
order of expungement, is effectively “ restore[d] . . . in the contemplation of the law, to the
status the person occupied before the arrest or indictment or information.” T.C.A. 40-35-
313(b). With extremely rare exceptions, the individual in question may legally deny ever
having been arrested, indicted, or tried of the offense or offenses “in response to any inquiry
made of the person for any purpose” without fear of being charged with perjury or suffering
any other penalty of law. See id. For individuals engaged in professional careers or those
whose jobs require them to be licensed or certified by a professional board or governing
body, the impact of a trial court’s decision to either grant or deny judicial diversion upon
their ability to continue to practice their chosen profession is profound in the extreme.

        For this reason, the decision regarding whether to grant or deny judicial diversion is
often among the most solemn decisions a trial judge must make. It requires devoting
fastidious attention to a panoply of issues concerning the defendant and crime at issue, and
a careful weighing of societal interests. In reaching an informed decision regarding whether
to bestow the boon of diversion to a particular defendant, “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

                                               -8-
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.” State v.
Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998). Because the trial court
is in the best position to consider and evaluate each of these factors, the decision to grant or
deny diversion generally remains in the trial judge’s discretion and will only be reversed on
appeal if that discretion is abused. State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App.
1997); State v. Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993). “To find an abuse
of discretion, we must determine that no substantial evidence exists to support the ruling of
the trial court.” Cutshaw, 967 S.W.2d at 344 (citing Bonestel, 871 S.W.2d at 168; State v.
Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992)). However, in this case,
substantial record evidence supports the trial court’s ruling.

       The law requires that when a trial court denies diversion and bases its determination
on only some of the legally-required considerations, “it must explain why these factors
outweigh the others.” Electroplating, Inc., 990 S.W.2d at 229. The court below complied
with this requirement. At hearings held on April 24, 2009, and June 1, 2009, the trial court
carefully considered the evidence and the arguments of the parties and analyzed all the
legally-required factors. The trial court found that four of the seven legally-required factors
balanced in favor of judicial diversion, three balanced against, and explained why the three
factors balancing against diversion outweighed the four factors balancing in its favor.

       Balancing in favor of judicial diversion, the court examined the defendant’s criminal
history and deemed that he had no criminal record. Concerning the accused’s amenability
to correction, while the trial court found his lack of candor regarding his commission of the
offense and the circumstances surrounding it troubling, in the end the trial court concluded
that there was nothing in his background or character that indicated that he would not be
amenable to correction. Respecting the accused’s social history, the court considered
numerous letters written on his behalf by members of the community, which generally lauded
his skill as a pharmacist and praised his contributions to the community – including his
history of assisting others who suffered from substance abuse. Finally, the trial court
considered the accused’s mental and physical well-being, including the defendant’s prior
success in overcoming addiction and an existing ailment in his leg. The court considered all
of these factors to weigh in the defendant’s favor.

       However, the trial court considered the remaining three factors to weigh against
judicial diversion. The court carefully considered the circumstances of the offense, which
involved his obtaining possession of a very large quantity of a controlled substance and his
abuse of a position of trust in the community, and considered this factor to weigh strongly
against diversion. In considering the need to exert a deterrent effect on the defendant and
others, the trial court noted the testimony concerning the numerous ethical rules that the

                                              -9-
defendant broke during his course of conduct, and spoke eloquently of the need to ensure that
pharmacists are not tempted to jeopardize their patients’ health or their own. Finally, the trial
judge deemed diversion to not be in the public interest or the interest of the accused – even
taking the accused at his word that he delivered all of the Hydrocodone at issue to an
unidentified person, he provided an addictive substance at very dangerous levels to members
of the community without taking adequate precautions to ensure the public’s safety.

        The defendant asserts that no record evidence supports the trial judge’s conclusions
with respect to these latter three findings. With respect to the circumstances of the offense,
the defendant urges that there was no evidence revealing what happened to the Hydrocodone
prescribed to “Nancy Miller,” and no indication that the defendant was taking or abusing the
prescription drugs. However, any lack of evidence concerning the ultimate destination of the
Hydrocodone at issue does not undercut the trial judge’s conclusion regarding the
unfavorable circumstances of the offense – the unauthorized release of such a large amount
of a controlled substance into the community at large, regardless of its ultimate destination,
is a factor that the trial court was free to weigh against the defendant. With respect to the
trial court’s analysis of the deterrence factor, the defendant claims that “there was absolutely
no proof that the defendant violated any ethical rules.” This contention simply flies in the
face of the trial record. Both witnesses, Dr. Stephen Landy and Shan Parker, a pharmacist,
testified that the frequency and dosage of the Hydrocodone being dispensed under the name
“Nancy Miller” would have been dangerous to the health of anyone consuming it. Record
evidence establishes that the defendant, an experienced pharmacist, necessarily knew this fact
as well or better than anyone. Knowingly dispensing medication in a manner that endangers
human life clearly violates the fundamental principle of the Hippocratic oath and ethical
norms that ought to have been self-evident to the defendant.

       After carefully considering each factor, the trial court concluded that the weight of the
factors balanced against the defendant, and placed his reasons for reaching this conclusion
and denying judicial diversion on the record. The trial judge was well within his discretion
in reaching this conclusion, as record evidence supports each of the trial court’s findings.
Consequently, we will not disturb the trial court’s decision on appeal. The defendant’s claim
is denied.

                                       CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.


                                                     _________________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE

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