                                                                                              06/06/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                February 26, 2019 Session

             STATE OF TENNESSEE v. JUSTIN PATRICK KISER

                   Appeal from the Criminal Court for Knox County
                       No. 105153     Steven W. Sword, Judge


                              No. E2018-00696-CCA-R3-CD


The defendant, Justin Patrick Kiser, appeals his Knox County Criminal Court jury
convictions of facilitation of aggravated burglary and theft of property valued at $500 or
less, arguing that the trial court erred by permitting the State’s fingerprint expert to testify
that another examiner had verified his conclusions; by admitting into evidence a
document showing the work performed by the second, non-testifying analyst; and by
denying his motion for a mistrial after the prosecutor relied on the verification of the non-
testifying analyst during closing argument. He also claims that the evidence was
insufficient to support his conviction of facilitation of aggravated burglary because the
State failed to establish that he did not intend to promote or assist in the burglary or to
benefit from its proceeds and that the trial court erred by denying his bid for judicial
diversion. Discerning no reversible error, we affirm the judgments of the trial court.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Mark E. Stephens, District Public Defender; and Jonathan Harwell (on appeal) and
Melissa Dirado (at trial), Assistant District Public Defenders, for the appellant, Justin
Patrick Kiser.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Randall Kilby,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                       OPINION

              The Knox County Grand Jury charged the defendant with aggravated
burglary and theft of property valued at $1,000 or more but less than $10,000 in relation
to the burglary of and theft of items from the home of Phillip Crye on May 29, 2014.

               At the June 2016 trial, Mr. Crye testified that his wife telephoned him on
the day of the offense to let him know “that there had been a break-in at” their Knoxville
residence. When he arrived home shortly thereafter, he saw that “the kitchen window
had been broken open, and someone or some persons had come in through the kitchen
window from a patio area into the kitchen and rummaged and rifled around through the
house and took various items.” He said that the perpetrator or perpetrators “had put a
utility bar from the outside underneath the bottom sash and pried [the window] open
which broke the lock off the sash.” The perpetrator left through the back door.

              Mr. Crye determined that three shotguns, jewelry that had belonged to his
mother, a Bose CD/radio, a bag of foreign currency, a souvenir whiskey flask, his
grandfather’s pocket watch, and a Nook electronic reader had been taken during the
burglary. He also noticed that a partially full box of wine and three or four beers had
been taken from the refrigerator. Mr. Crye estimated the total value of the property taken
to be $4,000.

              Mr. Crye recalled that, during the initial investigation, he and the
investigating officer saw handprints on the window that had been used as the point of
entry. While the evidence technician lifted prints from the window, Mr. Crye “looked
around some more, and to the end of the patio out from the kitchen window,” he observed
“a path beat down in some ivy where” it appeared that someone had entered his lot “from
the back area of the Sharp house next door.” Mr. Crye said that he thought he might have
seen the defendant in the company of the Sharp’s oldest son before the burglary and that
he had definitely seen the defendant at the Sharp residence following the burglary. Mr.
Crye said that he did not give the defendant or any other person permission to enter the
house and take the items.

              On the day after the burglary, Mr. Crye’s wife telephoned Barnes and
Noble to report that the Nook had been stolen. She telephoned the company again two
days later and asked whether the device could be tracked. After that conversation, Mrs.
Crye told Mr. Crye “that it had been registered on Friday, the day after the break-in, to
some person named Justin in Knoxville” after an unsuccessful attempt to register it on the
Thursday evening of the burglary.



                                           -2-
              During cross-examination, Mr. Crye said that he did not know the Sharp
children well, and his only direct interaction with them had occurred approximately two
weeks before the burglary when he helped the youngest boy catch his wayward puppy.
Mr. Crye admitted that he told the police that he suspected that the Sharp boys had
committed the offense, noting “the evidence [he] saw on the ground that went directly to
the back of their house.” He said that it was his understanding that the police had
attempted to speak to the Sharps or their mother “but that she or they were not very
cooperative.”

               Beth Goodman, who had previously worked as an evidence technician for
the Knoxville Police Department (“KPD”), testified that she attempted to collect prints
from the point of entry in the kitchen, in the bedrooms, and in a bathroom. Ms. Goodman
“recovered latent prints from the exterior kitchen window, and there were no useable
latent prints inside.” She recovered a total of three usable palm prints from the exterior
“bottom part of the window” and submitted those to the KPD fingerprint examiner.

              KPD Investigator David Ogle, who investigated the burglary of the victim’s
home, testified that “it was pretty obvious that someone had at some point walked back
and forth through the . . . decorative ivy right close to the point of entry.” He said that the
path through the ivy led directly from the victim’s house to “the adjacent house where
two young boys lived.” Investigator Ogle obtained information about the Nook from the
Cryes and then contacted Barnes and Noble. He learned that the defendant had registered
the Nook using his own name, address, and bank card information. Investigator Ogle
went to the defendant’s residence and “asked him if he had possession of a Nook.” The
defendant admitted that he had the device and immediately turned it over to Investigator
Ogle. Investigator Ogle confirmed that the device given to him by the defendant had the
same serial number as the device taken from the Crye residence.

               The defendant initially told Investigator Ogle “that he had found it on
Craigslist and had met two individuals that were driving a small SUV in the Walmart
parking lot of Halls and had paid $60 for the item.” Investigator Ogle said that, based
upon this information, he did not initially consider the defendant a suspect in the
burglary. Investigator Ogle contacted the defendant again a few days later to come into
the station to look at a photographic array. He said that, at that point, he believed that the
Sharp boys had committed the burglary, and he wanted to see if the defendant would
identify any of them as the person from whom he had purchased the Nook. Upon
viewing two separate arrays, the defendant identified an individual named Lucas Kiley
and the younger Sharp boy, Graham Sharp, as the individuals who sold the Nook to him.

               After making the identifications, the defendant admitted that he had lied in
his first statement to the police and apologized to Investigator Ogle. At that point, the
                                              -3-
defendant prepared a written statement wherein he stated that he had purchased the Nook
for $60 from “Lucas and Graham” and that he did not know it was stolen. The defendant
said that he called Mr. Kiley and Graham Sharp after the police confiscated the Nook and
that Mr. Kiley had told the defendant “that he had a gun and not to say anything.” The
defendant insisted that he lied in his original statement because he feared for his life.

              Investigator Ogle testified that he still did not suspect the defendant and
asked him to provide palm prints “so we could exclude him.” The defendant agreed.
After he received the report from the fingerprint examiner, Investigator Ogle attempted to
contact the defendant several times, but the defendant did not answer his telephone and
did not return Investigator Ogle’s calls. During that time, Investigator Ogle also spoke
with Ms. Sharp, who agreed to bring her sons in for questioning. When she did not arrive
as scheduled for the interview, Investigator Ogle called her again, and she told him that
“she was unable to get her sons to come to the police department, and that she couldn’t
do anything about it.” When Investigator Ogle went to the Sharp residence in an attempt
to speak to the boys, no one would answer the door.

              During cross-examination, Investigator Ogle testified that shortly after the
burglary, the victim sent him an email that contained the first and last names as well as
the dates of birth and social security numbers for the Sharp boys. When asked whether
he had told the defendant that a neighbor had identified him as having been at the Sharp
residence, Investigator Ogle replied, “I said that someone had seen a red-headed boy at
the Crye house, yes.” He explained that it was his recollection that the victim had told
him “that there had been a red-headed, orange-colored haired boy there at the house” and
“that the next door neighbor had told [him] the same thing, that she’d seen [an] orange-
haired boy there at the house, but nobody could identify him.”

               Certified fingerprint examiner Tim Schade testified as an expert in the area
of fingerprint examination. Investigator Schade, a member of the KPD Forensics Unit,
testified that he utilized a methodology called ACE-V, which stands for “analysis,
comparison, evaluation, and verification,” to make identifications in this case. In this
case, Investigator Schade manually compared the palm prints collected by Ms. Goodman
with the known palm prints obtained from the defendant on July 24, 2014, and he “was
able to identify all three cards to [the defendant’s] palm print.” Investigator Schade
identified coordinating yellow dots on the digitized copies of the palm prints collected
from the scene and the defendant’s known palm prints as “minutia points,” explaining,
“They’re just corresponding points for each -- where the latent palm and the known palm
[match].” He said that he found no dissimilarities between the recovered prints and the
known prints that would have caused him to conclude that the prints did not belong to the
defendant. Investigator Schade said that, based upon his examination, he concluded that
the palm prints collected from the exterior of the kitchen window of the victim’s house
                                            -4-
belonged to the defendant. Investigator Schade testified that his conclusions were
verified as part of the standard process followed by the KPD.

             During cross-examination, Investigator Schade testified that no standard
number of “minutia point” matches was required to make a positive identification. He
added, “False positives [are] extremely rare, and it’s incredibly rare whenever you have
two competent fingerprint specialists looking at it to be able to verify it.”

               During redirect examination, Investigator Schade reiterated that the KPD
took “the verification process very seriously,” having “two or three people that verify
those.” He added that the quality of the palm prints obtained by Ms. Goodman was
“really high.”

              The 20-year-old defendant testified that at the time of the offense, he was
18 years old and attending Central High School. He said that he was a friend of Peyton
Sharp’s and that on May 29, 2014, he visited Peyton Sharp at his residence. The
defendant recalled that while he was visiting with Peyton Sharp, Graham Sharp and Mr.
Kiley approached him and asked if he knew anyone who would like to buy a tablet. After
the boys showed the defendant “a white Nook that had a case, charger, and had been
wiped,” he offered to buy the device. The defendant said that he looked on Craigslist to
determine a fair value and that he paid $60 to Mr. Kiley for the device. The defendant
said that when he received the Nook from Mr. Kiley, “[e]very bit of the data had been
erased off of it. It was in factory reset. It was ready to be set up for a new user.” The
defendant testified that, after buying the Nook from Mr. Kiley, he charged the device
overnight and then, on the following morning, he registered the device by putting his
information on it and attaching his bank card information to the device for purchases. He
said that he purchased and downloaded “one or two of the Harry Potter books.”

              The defendant said that he did not suspect “that there was anything wrong
with” the Nook until “the investigator showed up at [his] house.” He said that
immediately after Investigator Ogle asked about the Nook, he “unplugged the Nook,
grabbed the charger and everything [he] had for it, and . . . handed it straight to them.”
The defendant testified that he telephoned Peyton Sharp immediately after Investigator
Ogle left his house with the Nook. Peyton Sharp put Graham Sharp on the telephone;
Mr. Kiley was with them. The defendant said that after he “told them what all was going
on and everything,” Mr. Kiley told him that if he implicated them in the theft of the
Nook, Mr. Kiley “had a .38 special, and then he also had other guns.” The defendant
claimed that he thought he had previously seen Mr. Kiley with a gun, and he “knew that
Graham and Lucas both liked to fight a lot.”



                                           -5-
              The defendant testified that Investigator Ogle called him to come to the
police department to view a photographic lineup. He said that he identified a photograph
of Graham Sharp from that first lineup. Investigator Ogle asked him to view another
lineup on a later date, and he identified a photograph of Mr. Kiley from that second
lineup. The defendant said that he told Investigator Ogle that he had purchased the Nook
from Mr. Kiley. At that point, the defendant admitted to Investigator Ogle that he had
previously lied about where he got the Nook, saying that he did so because he was scared.
The defendant claimed that when he eventually expressed his fear of Graham Sharp and
Mr. Kiley to Investigator Ogle, the investigator told the defendant that he would not have
let somebody around that size threaten him. The defendant said that, on their last
meeting, Investigator Ogle took him to be fingerprinted, and he “thought it was to try and
clear” him. He maintained that he had never been to the Crye residence and that there
was no reason his palm print should have been on the window.

              Based upon this evidence, the jury convicted the defendant of the lesser
included offenses of facilitation of aggravated burglary and theft of property valued at
$500 or less. The defendant filed a timely but unsuccessful motion for new trial followed
by a timely notice of appeal. In this appeal, the defendant challenges the admission of
certain evidence, the sufficiency of the convicting evidence, and the propriety of the
sentence imposed.

                                I. Fingerprint Evidence

             The defendant first asserts that the trial court erred by admitting
Investigator Schade’s testimony regarding the verification of Investigator Schade’s
conclusion that the palm print obtained from the exterior window of the Crye residence
belonged to the defendant and by admitting into evidence documents prepared by the
verifying examiner who did not testify at trial. The defendant argues that both the
testimony and the documents were inadmissible hearsay and that both violated the
Confrontation Clause. The State avers that Investigator Schade’s testimony was not
hearsay and did not violate the Confrontation Clause. The State concedes that the
documents prepared by the verifying examiner should not have been admitted into
evidence but argues that the error was harmless beyond a reasonable doubt.

            During direct examination, Investigator Schade explained the ACE-V
methodology:

                    It’s analysis, comparison, evaluation, and verification.
             So first we analyze the print to determine whether it’s of
             quality to be identified. Then we’ll do an actual comparison,
             and then through that comparison, do an evaluation to
                                           -6-
              determine whether there’s enough . . . detail in the known
              print and latent print to be able to individualize that print.
              Then we have a verification process where . . . we’ll have
              somebody verify the print afterwards.

He said that it was the practice of fingerprint examiners at KPD to examine prints “at
least twice. Sometime three times” before making an identification. Investigator Schade
identified “three sets of documents” that included the comparison that he performed,
which was marked with yellow dots, and the “verifications from other people.” At that
point, the defendant objected to “anything that the certifying expert also did in this
process,” and the court ruled that Investigator Schade could testify that the certification
process was followed in this case but could not relate any conclusion made by the
reviewing examiner. Thereafter, Investigator Schade agreed that another person had
verified his comparison in this case. The State sought admission of the original
fingerprint card prepared by Investigator Schade that contained the defendant’s
fingerprints as well as “the three comparison cards.”

               The record establishes that the “three comparison cards” are the enlarged
digitized copies of the palm prints recovered from the scene presented side-by-side with
the corresponding portion of the defendant’s known prints obtained by Investigator
Schade. Each was entered as a separate exhibit, and each exhibit is two pages. The first
page of each exhibit illustrates the comparison performed by Investigator Schade, with
his comparisons marked in yellow. The second page of each illustrates comparisons
made by another individual, presumably the person who verified Investigator Schade’s
work, with those comparisons marked in red. Although the defendant initially objected
to the admission of the exhibits, he did so on grounds that the State had failed to lay a
sufficient foundation “in terms of . . . what sort of computer system is used? Is it a
database? How are those parts selected, and what goes into making that?” The trial court
clarified that the exhibits “were manual comparison” and that none of “the computer
stuff” would be admitted. The defendant made no further objection.

               During cross-examination, in response to the defendant’s line of
questioning about the accuracy of fingerprint identification, Investigator Schade said that
misidentification of fingerprints was “incredibly rare” when “two competent fingerprint
specialists” are “looking at it to be able to verify it.”

             During redirect examination, Investigator Schade, in response to the State’s
question about the reliability of fingerprint examination, stated,

                     Whenever we have two or three people that verify
              those, and I mean, we take the verification process very
                                            -7-
              seriously. It’s -- you know, if we have an AFIS print, . . .
              what we’re doing is doing a blind verification where you’re
              looking at it, you’re comparing it to whatever is there without
              knowing the results of which one was identified. So you have
              that blind verification.

               During closing argument, the State mentioned Investigator Schade’s
fingerprint identification and noted its importance in the case but made no specific
reference to the verification procedure. The defendant, however, emphasized the
verification procedure during his closing argument:

              The fourth step he told you about was verification, and he
              spent a lot of time talking about how verification was the
              most important step. If that was done in this case, the [S]tate
              did not give you that information, and you did not hear from
              the person who verified Mr. Schade’s work. . . .

                    No one else was able to tell you if his work was
              appropriate, if it was accurate, if it was complete. That was
              Mr. Schade’s interpretation of his job. . . .

                    . . . . He said there’s a lot of dots that I’m able to
              compare, but no one came in to say, ‘Yeah, I agree. Those
              dots match.’ He put dots on a screen and said close enough. .
              ..

               During rebuttal, the prosecutor stated that “these prints were verified” and
classified the defendant’s argument otherwise as “a misstatement of the evidence.” The
prosecutor added:

              Investigator Schade testified that it’s part of the procedure to
              have another investigator verify a fingerprint comparison. He
              testified that was done in this case. You can see the initials
              and the check of the person who verified those prints. She’s
              not available, ‘cause she moved to North Carolina.

The defendant objected, saying, “That was the whole reason I objected while Mr. Schade
was testifying. Those prints were -- we never heard anything about the verification
process other than -- it was maybe done.” The court agreed with the defendant’s
characterization of the evidence and sustained the objection, admonishing the prosecutor
to “just move on -- instead of harping on that.” The prosecutor then stated, “Anyway he .
                                            -8-
. . did testify that those prints were verified, that . . . the procedure was followed, and I’ll
just end by talking again about Mr. Kiser’s credibility.”

                Following the jury charge, the defendant moved for a mistrial on the basis
of the “mention of the verification process.” The defendant argued that this mention,
when “the verification process was not addressed to the jurors during the course of the
trial,” violated the Confrontation Clause and undermined “the fundamental fairness of
this trial.” As an alternative to the granting of a mistrial, the defendant asked the trial
court “for a very strong curative instruction to the jury to disregard anything about the
verification process being completed by someone who’s not here.” The trial court noted
its earlier ruling that Investigator Schade would be permitted to testify “to the steps that
they take, including having somebody verify it” and observed that no proof was admitted
“about what the results of that verification was.” The court stated that it had sustained
the defendant’s objection during the State’s rebuttal because it “didn’t want to focus on
what that person may have said.” The court denied the defendant’s motion for a mistrial
but agreed to provide a curative instruction. The court recalled the jury into the
courtroom and provided the following instruction:

                     Welcome back, folks. After you left, the attorneys
              discussed a matter with me that they felt like probably needed
              some clarification. I thought that was a good idea.

                      So you may remember when [the prosecutor] was
              making his rebuttal argument he talked about verification
              process on the fingerprints, and the attorneys approached the
              bench. There was an objection made about that, and I want to
              clarify, I was sustaining that objection. So you’re not to
              consider any statements made about what this other person
              other than Mr. Schade may have said. Mr. Schade was
              allowed to testify that it went through the verification process,
              but there’s no other witnesses, you’ve heard no other
              testimony about what any other person’s findings were. So
              all you can consider is what Mr. Schade said about the
              verification process. You are to disregard any statements
              made about any other person or what they may or may not
              have said. Okay? Does that make sense to you[?]

All of the jurors affirmatively indicated that they understood the trial court’s instruction.

              In his motion for new trial, the defendant argued that the trial court erred by
permitting Investigator Schade to testify “regarding the verification step of the fingerprint
                                              -9-
identification process,” claiming that, although the testimony was “objected to and
sustained,” it “was still heard by the jurors,” which violated the defendant’s right to
confrontation.

             As indicated, the defendant now contends that both Investigator Schade’s
testimony regarding the verification process and the documents reflecting the work
product of the non-testifying examiner violated the rule against hearsay as well as the
Confrontation Clause.

                                        A. Hearsay

               “‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Tenn. R. Evid. 801(c). “Hearsay is not admissible except as provided by these
rules or otherwise by law.” Id. 802. Tennessee Rules of Evidence 803 and 804 provide
exceptions to the general rule of inadmissibility of hearsay.

               Our supreme court has confirmed that “[t]he standard of review for rulings
on hearsay evidence has multiple layers.” Kendrick v. State, 454 S.W.3d 450, 479 (Tenn.
2015). The “factual and credibility findings” made by the trial court when considering
whether a statement is hearsay, “are binding on a reviewing court unless the evidence in
the record preponderates against them.” Id. (citing State v. Gilley, 297 S.W.3d 739, 759-
61 (Tenn. Crim. App. 2008)). “Once the trial court has made its factual findings, the next
questions—whether the facts prove that the statement (1) was hearsay and (2) fits under
one [of] the exceptions to the hearsay rule—are questions of law subject to de novo
review.” Kendrick, 454 S.W.3d at 479 (citing State v. Schiefelbein, 230 S.W.3d 88, 128
(Tenn. Crim. App. 2007); Keisling v. Keisling, 196 S.W.3d 703, 721 (Tenn. Ct. App.
2005)); see also Gilley, 297 S.W.3d at 760 (stating that because “[n]o factual issue
attends” the trial court’s determination whether a statement is hearsay, “it necessarily is a
question of law”). “If a statement is hearsay, but does not fit one of the exceptions, it is
inadmissible, and the court must exclude the statement. But if a hearsay statement does
fit under one of the exceptions, the trial court may not use the hearsay rule to suppress the
statement.” Kendrick, 454 S.W.3d at 479; see also Gilley, 297 S.W.3d at 760-61.

                             Investigator Schade’s Testimony

               Investigator Schade testified that he followed the ACE-V methodology and
that his identification of the defendant’s palm print had been verified. Verify means “to
prove or confirm the truth of,” verify, WEBSTER’S NEW DICTIONARY (2013), or “to show
to be true; authenticate,” WEBSTER’S ENGLISH DICTIONARY (2010). The term is derived
from the Latin root “verus,” which means “true,” combined with the Latin “facere,”
                                            -10-
which       means       “to    make.”          ONLINE       ETYMOLOGY          DICTIONARY,
https://www.etymonline.com (last visited April 23, 2019). Thus, to say that a conclusion
has been verified is to say that the conclusion has been deemed true or accurate. Given
this definition, Investigator Schade’s statement that his identification of the palm print in
this case had been verified necessarily conveyed an affirmative statement that another
expert had deemed his conclusions true or accurate. Because the verifying examiner did
not testify, this affirmative statement of accuracy belongs to an out-of-court declarant,
thus creating the potential for hearsay and Confrontation Clause problems.

               Courts across the country have wrestled with the admission of testimony
and other evidence regarding the verification step in the ACE-V methodology when the
verifying expert does not testify at trial precisely because such evidence has imbedded
within it the findings and conclusions reached by an expert who is not subject to cross-
examination.

               In Commonwealth v. Fulgiam, the Massachusetts Supreme Court reviewed
a claim that the trial court erred by permitting a fingerprint analyst “to testify that another
fingerprint analyst had reviewed her work.” Commonwealth v. Fulgiam, 73 N.E.3d 798,
821-22, as amended (Mass. 2017), cert. denied sub nom. Fulgiam v. Massachusetts, 138
S. Ct. 330 (2017). The Fulgiam court determined that the challenged testimony did not
constitute inadmissible hearsay because “the analyst testified as to the ACE-V process”
but “did not testify as to the second analyst’s independent conclusions.” Id. at 821. The
court contrasted the analyst’s testimony in Fulgiam’s case with that offered by an analyst
in an unrelated case who “testified that two secondary analysts ‘concurred’ with his
conclusions regarding individualization.” Id. (citation omitted). The latter testimony, the
court concluded, did contain inadmissible hearsay in the form of the other analysts’
conclusions. Id. The Massachusetts Supreme Court cautioned that courts “must use
caution in allowing testimony regarding the verification step in ACE-V analysis, as
‘verifying’ suggests that a nontestifying expert concurs with the testifying expert’s
conclusion. Such testimony would be improper hearsay testimony.” Fulgiam, 73 N.E.3d
at 821 (citing Commonwealth v. Chappell, 40 N.E.3d 1031 (2015)).

               Like the Massachusetts Supreme Court, the New Hampshire Supreme
Court found error when the testifying analyst “did not merely testify that all four steps of
this procedure had been followed” but “described the verification process[] and the
results of the verification.” State v. Connor, 937 A.2d 928, 930 (N.H. 2007). The court
observed that, “[b]y its very nature, the purpose of this verification . . . lies in the truth of
[the verifying examiner’s] opinion, that is, that her independent ACE procedure resulted
in the same conclusion, thus corroborating [the other examiner’s] opinion.” Id. at 931.
The court found that, when testimony extends beyond “compliance with procedure,” it
constitutes hearsay that would not be admissible in the absence of an applicable
                                              -11-
exception to the hearsay rule. Id. Following similar logic, other state courts to consider
the issue have determined that testimony that the ACE-V procedure was followed does
not constitute inadmissible hearsay or violate the Confrontation Clause but that testimony
that the specific identification in a particular case was verified by another examiner is
inadmissible. See, e.g., People v. Pearson, 116 N.E.3d 304, 311 (Ill. App. Ct. 2019)
(concluding that testimony that a non-testifying examiner “concurred with the
verification and the correct markings” “was hearsay in that [the non-testifying
examiner’s] verification was an out-of-court statement and it was offered to prove the
truth of the matter asserted”); Bond v. State, 925 N.E.2d 773, 781 (Ind. Ct. App. 2010)
(finding no error when fingerprint analyst “said that the ACE-V protocol was followed”
but “the absent examiner’s results were never referenced”); State v. Smith, 628 N.E.2d
1176, 1181 (Ill. 1994) (deeming fingerprint expert’s testimony that his conclusion was
verified by another examiner inadmissible hearsay); State v. Wicker, 832 P.2d 127, 128-
30 (Wash. Ct. App. 1992) (same).

               In our view, the logic employed by these courts is sound. The potential for
hearsay, and, by extension, Confrontation Clause violations is mitigated when an analyst
provides a simple explanation of the ACE-V methodology accompanied by a statement
that the methodology was used in a particular case. When, as here, the expert goes
further to indicate that the particular identification has been verified by another examiner,
problems arise. That is because the import of a statement that the identification has been
verified is that the identification has been deemed correct by an expert who reached the
same conclusion. Moreover, the value of the verification lies in its truth. The State
essentially gets two expert opinions from the testimony of one testifying expert. Thus,
we conclude that Investigator Schade’s testimony that another fingerprint examiner had
“verified” his identification of the defendant’s palm print was hearsay.

               Even hearsay evidence, however, may be revealed to the jury when it is “of
a type reasonably relied upon by experts in the particular field in forming opinions or
inferences upon the subject” and “the court determines that [its] probative value in
assisting the jury to evaluate the expert’s opinion substantially outweighs [its] prejudicial
effect.” Tenn. R. Evid. 703. Evaluating verification testimony in light of New
Hampshire Rule of Evidence 703, which is nearly identical to Tennessee Rule of
Evidence 703, the New Hampshire Supreme Court held that such evidence would not be
admissible pursuant to that rule because a testifying analyst does “not rely upon [the non-
testifying analyst’s] verification as a basis for his opinion; it was simply a necessary
prerequisite to the release of his already formed opinion.” Connor, 937 A.2d at 931.

             Conversely, when faced with a similar situation, the North Carolina
Supreme Court found that testimony regarding the non-testifying analyst’s opinion,
though hearsay, was admissible pursuant to North Carolina Rule of Evidence 703. State
                                            -12-
v. Jones, 368 S.E.2d 844, 848 (N.C. 1988). Similarly, the Georgia Supreme Court ruled
that “testimony that another examiner had ‘verified’ the work of” the testifying examiner
was not hearsay because it “tended to show that [the testifying examiner] had followed a
standard and accepted methodology in her field of expertise, and the verification to which
[she] testified, therefore, formed a basis for her own expert opinion.” Jarnigan v. State,
761 S.E.2d 256, 260 (Ga. 2014). Citing other Georgia cases as precedent, the court stated
that “testimony merely about the fact of ‘verification,’ not about the details of the
verification process or the independent conclusions of the verifying examiner—was
properly admissible to explain the basis for the opinion of the testifying examiner, which
is not hearsay.” Id. (citations omitted). In this state, however, evidence admissible
pursuant to Rule 703 as forming the basis of an expert opinion is deemed admissible not
because it is not hearsay but despite that it is hearsay.

              In this case, Investigator Schade did not testify that he relied on the
conclusions reached by the verifying examiner in forming his opinion in this case. To the
contrary, Investigator Schade emphasized that both he and the second examiner
conducted sequential, independent manual comparisons of the prints in this case. The
State does not assert Rule 703 as an avenue of admission for Investigator Schade’s
statement, and the evidence adduced at trial does not support admission of this evidence
via Rule 703.

              Our conclusion that Investigator Schade’s statement that the non-testifying
examiner verified his identification was hearsay does not end our inquiry. Instead, we
must assess the harmful effect of the error.

               Interestingly, the trial court, following the defendant’s objection, attempted
to limit Investigator Schade’s testimony to a statement that he had followed the ACE-V
procedure in this case. After the trial court made its ruling, the State asked Investigator
Schade if his conclusions in this case had been verified, and he replied in the affirmative.
The defendant did not object to this statement. Investigator Schade did not provide a
detailed description of the non-testifying analyst’s findings. No further mention of the
verification was made until cross-examination when Investigator Schade referenced the
verification procedure in a general discussion of the reliability of fingerprint
identifications. He then made a similar statement during redirect examination. The
defendant, however, can be credited with drawing the most attention to the verification
procedure testimony. Defense counsel essentially made the verification procedure a
lynchpin of her closing argument and asserted, erroneously, that Investigator Schade had
not testified that he followed the verification procedure or that his results had been
verified in this case. When the State attempted to correct the misstatement during
rebuttal, the defendant objected, and the trial court sustained the objection. The trial
court then provided a specific and forceful curative instruction on how to treat evidence
                                            -13-
regarding the verification procedure. Most importantly, the most damaging testimony,
Investigator Schade’s own identification of the defendant’s palm print and the
defendant’s possession of the recently stolen Nook, was not impacted by the inadmissible
hearsay. Finally, although the evidence against the defendant could not be classified as
overwhelming, it was certainly more than sufficient. Under these circumstances, it is our
view that the error was harmless.

                                        Exhibits

              The State concedes, and we agree, that those portions of exhibits 19, 20,
and 21 that were prepared by the non-testifying fingerprint examiner were inadmissible
hearsay. The State argues, however, that admission of these exhibits was harmless
beyond a reasonable doubt. Again, we agree with the State. It was not clear at the time
of their admission that these documents contained the work product of the non-testifying
examiner, which is why, we suspect, that the defendant did not object to their admission.
None of the documents states any particular conclusion and instead consists of colored
dots superimposed over fingerprints. Although the State briefly mentioned the
verification documents during closing argument, the defendant objected, and the trial
court sustained the objection. Moreover, even without the inadmissible evidence,
Investigator Schade’s testimony linking the defendant to the Crye residence via the palm
print remained, rendering the challenged documents cumulative.

                                B. Confrontation Clause

              The Sixth Amendment to the federal constitution and article I, section 9 of
the Tennessee Constitution afford the criminal accused the right to confront the witnesses
against him. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. Although the
provisions are not coterminous, our supreme court has “expressly adopted and applied the
same analysis used to evaluate claims based on the Confrontation Clause of the Sixth
Amendment.” State v. Dotson, 450 S.W.3d 1, 62 (Tenn. 2014) (citing State v. Parker,
350 S.W.3d 883, 898 (Tenn. 2011); State v. Franklin, 308 S.W.3d 799, 809-10 (Tenn.
2010); State v. Cannon, 254 S.W.3d 287, 301 (Tenn. 2008); State v. Lewis, 235 S.W.3d
136, 145 (Tenn. 2007)). In Crawford v. Washington, the United States Supreme Court
departed from decades-long precedent and held for the first time that “[w]here testimonial
evidence is at issue . . . the Sixth Amendment demands . . . unavailability and a prior
opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 68 (2004).
“Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’
design to afford the States flexibility in their development of hearsay law.” Id. Because
the Confrontation Clause does not bar nontestimonial hearsay, see Davis v. Washington,
547 U.S. 813, 823-24 (2006); Whorton v. Bockting, 549 U.S. 406, 420 (2007), “the
threshold question in every case where the Confrontation Clause is relied upon as a bar to
                                           -14-
the admission of an out-of-court statement is whether the challenged statement is
testimonial.” Dotson, 450 S.W.3d at 63 (citing Cannon, 254 S.W.3d at 301).

               The Crawford court identified, for illustrative purposes, a “core class of
‘testimonial’ statements”: “ex parte in-court testimony or its functional equivalent—that
is, material such as affidavits, custodial examinations, prior testimony that the defendant
was unable to cross-examine, or similar pretrial statements that declarants would
reasonably expect to be used prosecutorially”; “extrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits, depositions, prior testimony, or
confessions”; and “statements that were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for use at a
later trial.” Crawford, 541 U.S. at 51-52 (alteration in original) (citations omitted).
Similarly, the court observed that some “statements . . . by their nature were not
testimonial,” including, among other things, “business records.” Id.; Dotson, 450 S.W.3d
at 64. The Supreme Court has also recognized that “medical reports created for treatment
purposes . . . would not be testimonial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305,
312 n.2 (2009); see also Cannon, 254 S.W.3d at 303 (statements in medical records given
for the primary purpose of medical diagnosis and treatment are nontestimonial). Thus,
statements that are properly categorized as business records or medical records are
nontestimonial, and the Confrontation Clause has no application to their admission into
evidence. Cannon, 254 S.W.3d at 303.

              For those statements that are not easily classified as nontestimonial, our
supreme court has concluded that “a statement is testimonial at least when it passes the
basic evidentiary purpose test plus either the . . . targeted accusation requirement”
adopted by the plurality of the Supreme Court in Williams v. Illinois, 567 U.S. 50 (2012),
or the “formality criterion” espoused by Justice Thomas in his concurring opinion in
Williams, stating that “[o]therwise put, . . . an out-of-court statement is testimonial . . . if
its primary purpose is evidentiary and it is either a targeted accusation or sufficiently
formal in character.” Dotson, 450 S.W.3d at 69 (quoting Young v. United States, 63 A.3d
1033, 1043-44 (D.C. 2013)).

               As indicated, Investigator Schade’s testimony that another analyst had
verified his identification of the defendant’s palm print necessarily included that analyst’s
statement that Investigator Schade’s identification was accurate or true. Moreover, there
can be no serious question but that the primary purpose of the analyst’s verification as
well as the documents associated with it was evidentiary and that it was a targeted
accusation. Consequently, both the statement and the documents qualified as testimonial
under the loose framework announced in Williams and adopted in Dotson. Because the
verifying analyst did not testify at trial, the defendant’s Confrontation Clause rights were
implicated.
                                             -15-
              That being said, for the reasons discussed more fully above, it is our view
that the admission of this testimony was harmless beyond a reasonable doubt. See Coy v.
Iowa, 487 U.S. 1012, 1021 (1988) (“We have recognized that other types of violations of
the Confrontation Clause are subject to that harmless-error analysis, see e.g., Delaware v.
Van Arsdall, 475 U.S. [673, 679, 684 (1986)], and see no reason why denial of face-to-
face confrontation should not be treated the same.”).

                                  C. Motion for Mistrial

              In a related issue, the defendant asserts that the trial court erred by denying
his motion for mistrial when the State referred to the non-testifying analyst’s verification
as substantive evidence during closing argument. The State asserts that the curative
instruction provided by the trial court cured any error.

               We find no abuse of discretion in the trial court’s decision to deny the
defendant’s motion for mistrial. See State v. Nash, 294 S.W.3d 541, 546 (Tenn. 2009).
“Normally, a mistrial should be declared only if there is a manifest necessity for such
action.” State v. Saylor, 117 S.W.3d 239, 250 (Tenn. 2003) (citing State v. Millbrooks,
819 S.W.2d 441, 443 (Tenn. Crim. App. 1991)). “In other words, a mistrial is an
appropriate remedy when a trial cannot continue, or a miscarriage of justice would result
if it did.” Saylor, 117 S.W.3d at 250 (quoting State v. Land, 34 S.W.3d 516, 527 (Tenn.
Crim. App. 2000)). “The purpose for declaring a mistrial is to correct damage done to
the judicial process when some event has occurred which precludes an impartial verdict.”
State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).

             The trial court sustained the defendant’s objection to the challenged
argument and instructed the jury that it was “not to consider any statements made about
what this other person other than Mr. Schade may have said” and “to disregard any
statements made about any other person or what they may or may not have said.” We
must presume that the jury followed the instructions from the trial court. See State v.
Cribbs, 967 S.W.2d 773, 784 (Tenn. 1998). Under these circumstances, nothing
indicated a manifest necessity for the declaration of a mistrial, and the trial court’s
decision to deny the motion did not result in a miscarriage of justice. See Saylor, 117
S.W.3d at 250.

                                       II. Sufficiency

              The defendant next asserts that the evidence was insufficient to support his
conviction of facilitation of aggravated burglary, arguing that the State failed to establish
that he “participated in the burglary but lacked any intent to promote the burglary or to
                                            -16-
benefit in the proceeds or results of the burglary.” Essentially, the defendant contends
that because the evidence established that he did participate in and benefit from the
proceeds of the burglary, the evidence was sufficient to support a conviction of the
charged offense of aggravated burglary but insufficient to support his conviction of the
lesser included offense of facilitation of aggravated burglary. The State avers that the
evidence was sufficient.

              We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.

               The defendant was originally charged with aggravated burglary, which as
charged in this case, is the knowing entry into a habitation as defined by Code section 39-
14-401 without the victim’s consent and with the intent to commit a theft therein. See
T.C.A. § 39-14-402(a)(1); -403(a). He was convicted, however, of the lesser included
offense of facilitation of aggravated burglary. “A person is criminally responsible for the
facilitation of a felony, if, knowing that another intends to commit a specific felony, but
without the intent required for criminal responsibility under § 39-11-402(2), the person
knowingly furnishes substantial assistance in the commission of the felony.” Id. § 39-11-
403(a). The intent required for criminal responsibility under Code section § 39-11-402 is
the “intent to promote or assist the commission of the offense, or to benefit in the
proceeds or results of the offense.” Id. § 39-11-402(2). This court has explained:

              Before an accused can be convicted of the facilitation of a
              felony, the state must prove beyond a reasonable doubt that
              the accused (a) knew another person was going to commit a
              specified felony and (b) knowingly furnished substantial
                                            -17-
              assistance in the commission of the felony although the
              accused did not possess the requisite intent to be guilty of the
              felony. In other words, the state must prove the commission
              of a specified felony and the assistance the accused gave to
              the person committing the specified felony.

State v. Parker, 932 S.W.2d 945, 951 (Tenn. Crim. App. 1996).

             We note initially that the defendant requested an instruction on facilitiation
of aggravated burglary, and the trial court agreed that the instruction was appropriate,
explaining,

                      As far as facilitation of aggravated burglary goes, I
              think it makes sense. I mean, [the defendant] testified that the
              Sharps were over there. He got this Nook either from
              Graham Sharp or from Lucas Kiley, and Mr. Crye testified
              that he suspected that it was the Sharps, and that there was a
              line through the . . . ivy. So it’s possible, I think, for
              somebody to look at that evidence and say that it would
              support, that maybe he provided the assistance by opening the
              window, but didn’t intend to do anything else and left. So I
              think that’s appropriate, and it’s a well taken request. I’m
              going to instruct on facilitation of aggravated burglary.

              In the light most favorable to the State, the evidence adduced at trial
supported a conclusion that the defendant helped someone else break into the Crye
residence but did not intend to enter the residence or benefit from the entry. The
evidence established that the defendant was present on the exterior of the Crye residence
and that he placed his hand on the window that was used as the point of entry for the
burglary. Other evidence established that the defendant possessed the stolen Nook device
and that it came into his possession within hours of the burglary. We disagree with the
defendant that the jury had no choice but to conclude that, because he actually benefited
from the proceeds of the burglary, he necessarily intended to do so. Importantly, as the
judge of “the law and the facts,” the jury is free to accept or reject any evidence “no
matter how uncontroverted or uncontested a particular fact or element may appear.”
State v. Thorpe, 463 S.W.3d 851, 862-63 (Tenn. 2015) (quoting State v. Richmond, 90
S.W.3d 648, 660 (Tenn. 2002)) (internal quotation marks omitted). Accordingly, we
conclude that the jury could have reasonably inferred from the evidence that the
defendant provided substantial assistance in the burglary by opening the window but that
he did not originally intend to benefit from the proceeds of the burglary. Consequently,
the evidence was sufficient to support the defendant’s conviction.
                                            -18-
                                   III. Judicial Diversion

              Finally, the defendant asserts that the trial court erred by denying his bid for
judicial diversion, claiming that the trial court failed to engage in “the kind of reasoned
and explained analysis required by precedent.” He also argues that the trial court violated
his privilege against self-incrimination by relying on the defendant’s own admission of
drug use as a basis for denying diversion. The State contends that the trial court did not
err.

              “Judicial diversion” is a reference to the provision in Tennessee Code
Annotated section 40-35-313(a) for a trial court’s deferring proceedings in a criminal
case. See T.C.A. § 40-35-313(a)(1)(A). Pursuant to such a deferral, the trial court places
the defendant on probation “without entering a judgment of guilty.” Id. To be eligible or
“qualified” for judicial diversion, the defendant must plead guilty to, or be found guilty
of, an offense that is not “a sexual offense or a Class A or Class B felony,” and the
defendant must not have previously been convicted of a felony or a Class A
misdemeanor. Id. § 40-35-313(a)(1)(B)(i)(b), (c). Diversion requires the consent of the
qualified defendant. Id. § 40-35-313(a)(1)(A). “[A] ‘qualified’ defendant is not
necessarily entitled to diversion. Whether to grant judicial diversion is left to the
discretionary authority of the trial courts.” State v. King, 432 S.W.3d 316, 326 (Tenn.
2014). Following a determination that the defendant is eligible for 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, and (f) the deterrence value to the
              accused as well as others. 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. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996)). “Further,
the trial court must weigh the factors against each other and place an explanation of its
ruling on the record.” King, 432 S.W.3d at 326 (citing State v. Electroplating, Inc., 990
S.W.2d 211, 229 (Tenn. Crim. App. 1998)). The trial court need not provide a recitation
of all the applicable “factors when justifying its decision on the record in order to obtain
the presumption of reasonableness,” but “the record should reflect that the trial court
considered the Parker and Electroplating factors in rendering its decision and that it
identified the specific factors applicable to the case before it.” King, 432 S.W.3d at 327.

                                            -19-
              Although judicial diversion is not a sentence, our supreme court has
determined that the standard of review first expressed in State v. Bise, applies to
“appellate review for a trial court’s sentencing decision to either grant or deny judicial
diversion.” King, 432 S.W.3d at 325; State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012)
(holding that the standard of review of the trial court’s sentencing determinations is
whether the trial court abused its discretion, but we apply a “presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act”). Importantly, the court emphasized
that the adoption of the Bise standard of review “did not abrogate the requirements set
forth in Parker and Electroplating, which are essential considerations for judicial
diversion.” King, 432 S.W.3d at 326. Thus, when the trial court considers each of the
factors enumerated in Parker and weighs them against each other, placing its findings in
the record, as required by Electroplating, Inc., we “apply a presumption of
reasonableness,” per Bise, and will “uphold the grant or denial so long as there is any
substantial evidence to support the trial court’s decision.” Id. When “the trial court fails
to consider and weigh the applicable common law factors, the presumption of
reasonableness does not apply and the abuse of discretion standard . . . is not
appropriate.” Id. Instead, “the appellate courts may either conduct a de novo review or,
if more appropriate under the circumstances, remand the issue for reconsideration. The
determination as to whether the appellate court should conduct a de novo review or
remand for reconsideration is within the discretion of the reviewing court.” Id. at 328.

              At the sentencing hearing, the State indicated that it would not object to a
judicial diversion placement if the defendant was deemed eligible for judicial diversion.
The defendant asked for diversion, claiming that he was eligible under the terms of Code
section 40-35-313 despite having a prior misdemeanor conviction because his sentence in
the former case did not include confinement. The defendant also noted that he had been
deemed eligible for judicial diversion by the Tennessee Bureau of Investigation. The
defendant also highlighted his full-time employment and amenability to drug treatment as
factors favoring a judicial diversion placement.

               The trial court observed that the defendant did not have an extensive
criminal record but that the defendant was “somebody who’s encountered the criminal
system before,” noting that the defendant had garnered misdemeanor convictions after the
offense in this case. The court also questioned the defendant’s “amenability to correction
because of the direction his life has been going lately,” noting that the defendant had “had
encounters with juvenile court and continued on into his adulthood, engaging in this
criminal type -- mostly minor criminal behavior, but still didn’t get his attention.” The
court observed that the circumstances of the offense were not so “terribly egregious” as to
“warrant denial of judicial diversion.” Describing the defendant’s social history, the
court said,
                                            -20-
              His social history is kind of a mixed bag. I’m probably
              mostly concerned with his daily use of marijuana. I think that
              that gives me very strong concerns about his ability to be
              successful on either diversion or probation, and there’s
              nothing wrong with his physical or mental health. He can be
              a productive citizen if he sort of gets his life together.

The trial court found that there was “nothing about deterrent value toward the community
or the defendant that I think warrants denial of diversion.” Finally, the court considered
“whether judicial diversion will serve the interest of justice for the public and defendant,”
finding, “that’s just sort of a mixed bag, considering a lot of things I’ve just -- I’ve read.”
The court concluded:

                     If Mr. Kiser was standing before me with a clean
              criminal history and didn’t have such a long continued use of
              marijuana even after treatment, I would be much more
              inclined to grant judicial diversion, but that’s not the case
              here. He’s continued to engage in this kind of stupid,
              immature behavior, and it’s got him caught up finally with a
              felony, and I’m not going to protect him from the
              consequences of those actions.

                     And so I’m going to give you probation, Mr. Kiser, but
              I don’t believe the interest of justice be served by granting
              you diversion in this case.

              Contrary to the defendant’s assertion, the record reflects that the court
considered each of the factors enumerated in Parker, that the court weighed those factors
against each other, and that the court placed sufficient findings in the record as required
by Electroplating, Inc. See King, 432 S.W.3d at 327. Accordingly, we “apply a
presumption of reasonableness” to the denial of judicial diversion in this case. See id.

              As an initial matter, we consider the defendant’s claim that the trial court
violated his privilege against self-incrimination by relying on his admission of marijuana
use in the presentence report. The State argues that the defendant has waived our
consideration of this issue because it is presented for the first time on appeal. We agree.
See Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App. 2004) (“[A]n issue raised
for the first time on appeal is waived.”). More importantly, however, no evidence
suggests that the trial court forced the defendant, against his will, to answer the questions
posited by the preparer of the presentence report. The trial court instructed the defendant
                                             -21-
to initiate the process of the preparation of the presentence report, a process mandated by
Code section 40-35-205. See T.C.A. § 40-35-205(a). The Code also mandates the
contents of the report, see id. § 40-35-207, and the trial court’s consideration thereof, see
id. § 40-35-210(b)(2). Under these circumstances, we decline to view the trial court’s
instruction to the defendant to begin a statutorily mandated process as an act overbearing
the defendant’s will and forcing him to provide self-incriminating information. The
defendant was represented by counsel, and, as the record indicates via the full Momon
colloquy undertaken before the defendant testified at trial, the defendant was fully aware
of his right to remain silent. Additionally, the defendant does not assert that he did not
voluntary answer the questions posed of him. In support of his argument, the defendant
directs our attention to Mitchell v. United States, 526 U.S. 314, 316-17 (1999), wherein
the Supreme Court ruled that neither a defendant’s guilty plea nor statements at the plea
colloquy function as a waiver of the right to remain silent at sentencing and that the
sentencing court cannot draw an adverse inference from a defendant’s silence in
determining the facts relating to the circumstances and details of the crime. In our view,
citation of Mitchell under these circumstances is inapt because it dealt with the trial
court’s improper use of a defendant’s silence and not the trial court’s use of voluntary
statements made as part of the sentencing process. Mitchell, in other words, did not
disturb the principle that the Fifth Amendment privilege against self-incrimination is not
self-executing, and an individual must claim the privilege against self-incrimination in
response to specific questions if he desires the protection of the privilege. See generally
Roberts v. United States, 445 U.S. 552, 559 (1980). In consequence, we find no merit to
the defendant’s claim.

               Turning to the propriety of the denial of judicial diversion in this case, we
conclude that the record contains “substantial evidence to support the trial court’s
decision” and affirm the denial. The record supports the trial court’s conclusion that the
defendant’s spate of criminal activity and continued drug usage reflected poorly on his
amenability to correction. The defendant committed other crimes after the offense in this
case and had multiple brushes with the law prior to the offense, albeit for minor
infractions. The record also supports a determination that these factors outweighed each
of the factors in favor of a grant of diversion.

                                        Conclusion

              Based upon the foregoing analysis, we affirm the judgments of the trial
court.


                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE
                                            -22-
