        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE                FILED
                        APRIL SESSION, 1999            June 1, 1999

                                                 Cecil W. Crowson
STATE OF TENNESSEE,        )                   Appellate Court Clerk
                                C.C.A. NO. 01C01-9808-CC-00350
                           )
      Appellee,            )
                           )
                           )    WILLIAMSON COUNTY
VS.                        )
                           )    HON . DON ALD P . HARR IS
HEATHER DENISE CURRY,      )    JUDGE
                           )
      Appe llant.          )    (Judicial Diversion)


                ON APPEAL FROM THE JUDGMENT OF THE
                CIRCUIT COURT OF WILLIAMSON COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

RICHARD McGEE                   JOHN KNOX WALKUP
601 Woodland Street             Attorney General and Reporter
Nashville, TN 37206
                                MARVIN E. CLEMENTS, JR.
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                JOE D. BAUGH, JR.
                                District Attorney General

                                LEE DRYER
                                DEREK SMITH
                                Assistant District Attorneys General
                                P.O. Box 937
                                Franklin, TN 37065-0937



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                 OPINION
         On February 29, 1998, the Defendant, Heather Denise Curry, was indicted

on charges of attempted theft and criminal impersonation. On April 6, 1998, she

pleaded guilty to attempted theft, and as part of her negotiated plea agreem ent,

the charge of crimina l imperso nation w as “nolle p rossed .” The agreement called

for the trial judge to determine her sentence, and the Defendant requested

judicial diversion. On August 20, 1998, the trial court denied her request and

sentenced her to two years’ con fineme nt, suspended, with four years on

supervised probation. Th e Defend ant now ap peals her sentence, pursu ant to

Rule 3 of the Tennessee Rules of Appellate Procedure. The sole issue for our

consideration on appeal is whether the trial court erred by denying the

Defe ndan t’s reques t for judicial dive rsion. We affirm the judgment of the trial

court.



         At the sente ncing he aring, the Defendant testified that on November 3,

1997, she and her then-boyfriend, Clarence Dickson, went to Walker Chevrolet

in Franklin, Tennessee to purchase a vehicle. At the time, the Defendant was a

twenty -year-o ld college student, and Dickson was thirty-three years old. She

stated that Dickson told her that although his credit was not good enough for him

to purchase a vehicle, a friend of his had offered to allow him to use her credit for

the purchase. According to the Defendant, Dickson told her that his friend, Brand

D. Sanders, had sent certain personal information to him, including a copy of her

driver’s license, her social security card, and a copy of her college diploma, for

use in purchasing the vehicle. The Defendant claimed that she was told by

Dicks on tha t Sand ers co uld no t acco mpa ny him to the dealership because she

                                        -2-
was out of town visiting her father, who was ill at the time. According to the

Defen dant, she understood that she had Sanders’ permission to fill out and sign

the cred it application on San ders’ beh alf.



       The Defendant testified that while at the dealership, she told the salesman

that her name was Brand D. Sanders and that she was a paralegal. She also

supplied other false informa tion from the pack et of docu ments given to her by

Dickson. However, she did provide the salesman with Dickson’s correct phone

number and address because “[h]e was supposed to be responsible for the

payment of the vehicle.” She maintained that Dickson used his real name during

the meeting.



       After the salesman filled out the application using the false information, the

Defendant signed it as though she were Brand D. Sanders. She stated, “I was

under the pretense th at the information was correct, that Ms. Sander’s [sic]

information was co rrect and that I was not doing anything wrong because of the

simp le fact it was correct and I had he r permission to u se the credit.” How ever,

the Defendant also stated that during the application process, she was nervous.



       At some point during the application process, the Defendant began to have

second thoughts because of Dickson’s “de meano r.” She stated, “I just didn’t feel

like it was a safe situation for myself.” Therefore, she approached the salesman

and asked to terminate the process. He responded that he would do so after he

finished h is cigarette .




                                         -3-
       Shor tly thereafter, the police arrived. The Defendant was arrested and

transported to the police department. The Defendant denied ever representing

herse lf as Ms. Sanders to police, claiming instead that she did not tell the police

anything until she reached the police department. She also denied telling police

that she did not have her wallet or purse at the time of her arre st. Dickson later

posted the Defendant’s bond. The Defendant claimed not to have had any

personal contact with Dickson since that time, with the excep tion of s eeing him

once in c ourt.



       Dete ctive B ecky J ohns on of th e Fran klin Police Department testified that

she was called to Walker Chevrolet on the night of the offense. She stated that

when she arrived, she approached the Defendant, who told her that her name

was “Brand y Sand ers.” Johnson stated that when she asked the Defendant for

identification, the Defendant responded that she had none, claiming that her

purse a nd wallet w ere at ho me.



       Johnson also reported that when she asked Dickson his name, Dickson

replied that he was Joseph Young and supplied a driver’s license with that name.

Howeve r, Johnson “told him point blank that he w as not the pers on in the picture

on that driver’s license.” She e xplained, “[I]t was very obvious that he was not

that person .” Johnson testified that the officers soon found a collection of cred it

and business cards under the seat of Dickson’s car, all of which were in the name

of Clarence Dickson. It was later determined that Dickson had a prior criminal

record.




                                         -4-
      According to Johns on, during an interview at the police department

following the Defe ndant’s a rrest, the D efenda nt continu ed to claim that she was

Ms. Sanders, while Dickson continued to claim he was Joseph Young.

Eventually, after continued questioning, the Defendant admitted her real name

to police and explained that she had gone to Walker Chevrolet to do a research

project for schoo l.   Johnson testified that when asked about the identity of

Dickson, the Defendant stated that “she didn’t know who he was. She had met

him, he told her his name was Joe. He had bought her some clothes, they had

gone out but she didn’t know what his name was.” According to Johnson, the

Defendant never explained to police, as she did in court, that she was using

information provided by Ms. Sanders with Sanders’ permission to help Dickson

purchase a vehicle.



      Detective Johnson also testified that she received a call from an employee

at Wa lker Che vrolet on the day followin g the De fendan t’s arrest. She testified

that the employee told her that the child of a customer had discovered the

Defendant’s purse in one of the artificial plants at the dealership. Inside the

purse w as pho to identificatio n of the D efenda nt with her re al nam e.



      Finally, Johnson testified that she saw the Defendant and Dickson together

at the ma ll approxim ately two w eeks p rior to the sente ncing he aring. She stated

that when the Defendant noticed her, she “turned her head very quickly.” She

testified that she w as uns ure wha t time of da y she sa w the pa ir, but when

pressed, she stated, “If I were going to have to gue ss I wo uld sa y prob ably

between 10:45 and 1:30 in the afternoon.” In response to this testimony, the

Defendant again took th e stan d and denie d acc omp anying Dicks on to th e ma ll.

                                         -5-
She produced payroll records from the “temp agency” where she worked,

showing that on the day that Johnson claimed to have seen her in the mall, she

worked from 8:0 0 a.m. u ntil 5:00 p.m .



       On appea l, the Defe ndant a rgues th at the trial cou rt erred by refusing to

grant he r judicial divers ion. In her b rief, she sta tes,

       In sum, what you have in this case is a twenty-one (21) ye ar old
       college student who was swep t off her feet by an older, experienced
       “con.”    This young woman comes from a very strict fam ily
       background and is the classic type of prey for a “con” such as
       Clarence Dickson. Ms. Curry not only successfully graduated
       college in four years, but did so we ll she was accep ted to gra duate
       scho ol, while wor king an a verage o f 37 hours a week and being
       respo nsible for the c ost of h er edu cation . Coun sel sub mits th at this
       is exactly the kind of Defendant who should be sentenced pursuant
       to T.C.A. §40-35-313.



       The sentencing option commonly known as judicial diversion is codified at

Tennessee Code Anno tated § 40-35 -313. A defen dant is eligible for judic ial

diversion if he or she (a) “is found guilty or pleads guilty to a misdemeanor which

is punishable by imprisonment or a Class C, D or E felony,” (b) “has not

previo usly been c onvicted of a felony or a Class A misdemeanor,” and (c)

conse nts to the defe rment o f proceedings an d placem ent on proba tion “for a

period of time no t less than the period of the maximum sentence for the

misdemeanor with which the person is charged, or not more than the period of

the maximu m senten ce of the felony with w hich the perso n is charged.” Tenn.

Code Ann. § 4 0-35-31 3(a)(1)(A ).

       The fact that the ac cuse d me ets the se pre requis ites do es no t entitle
       the accused to judicial diversion as a matter of right. The statute
       states that a trial cou rt ‘may’ gra nt judicial dive rsion in ap propriate
       case s. . . . Thu s, whe ther the accu sed s hould be gra nted ju dicial




                                           -6-
      diversion is a question which addresses itself to the sound discretion
      of the trial cou rt.

State v. Bonestel, 871 S.W .2d 163, 168 (Tenn. Crim . App. 1993 ).


       Tennessee courts have recognized the similarities between judicial

diversion and pretrial diversion and, thu s, have drawn heavily from the case law

governing pretrial diversion to analyze cases involving judicial diversion. For

instance, in determining whether to grant pretrial diversion, a district attorney

general should consider the defendant’s criminal record, social history, mental

and physical condition, attitude, behavior since arrest, emotional stability, current

drug usage, past employment, home environment, marita l stability, fa mily

responsibility, gene ral repu tation, a nd am enab ility to corr ection; as well as the

circumstances of the offen se, the de terrent effe ct of punishment upon other

criminal activity, a nd the likelihoo d that p retrial d iversion will serve the ends of

justice and best interests of both the public and the defe ndant. See State v.

Washington, 866 S.W .2d 950 , 951 (T enn. 19 93).



      A trial court should consider generally the same factors when deciding

whether to grant judicial diversion. See Bonestel, 871 S.W .2d at 168 ; State v.

Anderson, 857 S.W .2d 571 , 572-73 (Tenn . Crim. A pp. 199 2); State v.

Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983). In asses sing a de fenda nt’s

amen ability to correction, a court may consider the defendant’s truthfulness on

the stand . State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. A pp. 199 4); see

Anderson, 857 S.W.2d at 574. If, after assessin g all relevant factors, the trial

court chooses to deny jud icial diversion , the court m ust articula te on the record

both the sp ecific reasons supporting the denial and w hy thos e facto rs app licable




                                          -7-
to the denial of diversion outweigh other factors for consideration. See Bonestel,

871 S.W.2d at 168.



       In reviewing the decis ion of a trial court to grant or deny judicial diversion,

this Court applies “th e sam e level of revie w as tha t which is a pplicable to a review

of a district attorney general’s ac tion in denying pre -trial diversion.” State v.

George, 830 S.W .2d 79, 80 (Tenn . Crim. App. 1992); see also Bonestel, 871

S.W.2d at 168; Anderson, 857 S.W.2d at 572. In other words, this Court reviews

the record to determine whether the trial court abused its discretion.              See

Bonestel, 871 S.W .2d at 168 ; Anderson, 857 S.W.2d at 572. To find an abuse

of discretion, we must determine tha t no substantial evide nce exists to sup port

the ruling o f the trial court. Id.



       In the present case, the trial judge stated that he believed the Defendant

“misrepresented the facts relating to the incide nt.” Specifically, he stated that he

believed she lied first by claiming she never told Dete ctive Johnson that her purse

and wallet were at home at the time of her arrest and second, when she testified

that she never misrepresented Dickson’s identity to police. His belief that she

lied about the se facts, h e state d, also caused him to doubt the sincerity of her

testimony refuting Detective Johnson’s claim of seeing the Defendant and

Dickson at the mall two weeks prior to sentencing. Therefore, he concluded, “I

think she has failed to prove to this Cou rt that she is a n appro priate can didate for

sentencing unde r 40-35 -313. A nd the re is a s ubsta ntial likelih ood th at she is

involved with perso ns who are involve d in crime and tha t may co ntinue.”

Howeve r, he also concluded that because the Defendant was in school at the

time of the crime and at the time of sentencing, “requiring her to serve a sentence

                                          -8-
may be more detrimental to society and the purposes of sentencing” and

therefore elected to suspe nd her s entenc e.



      W e simply cannot conclude that the trial court abused its discretion by

denying the Defendant judicial diversion. As this Court noted in Anderson,

      the record reflects that the trial court did not consider the defendant
      sincere in accepting responsibility for the offense and it w as du ly
      concerned with the defendant’s attem pt to divert the blame to
      another. These circumstances are relevant to assessing the degree
      of rehabilitation potential shown by the defendant. Since the trial
      court was in the best position to determine [the defendant’s] attitude
      and demeanor, we are not in a position to view the defendant
      differently upon the record before us.

857 S.W.2d at 574. In this case, the trial judge stated that in determining the

Defe ndan t’s sentence, he considered the presentence report, the testimony of

witnesses at the sen tencing h earing, the exhibits introduced at the hearing,

argum ents of counsel concerning alternative sentencing, m itigating and

enhancement factors, and “the pu rposes an d sentencing considerations that are

set forth in our statute.” The trial judge found that the Defendant misrepresented

the facts during her testimony at her sentencing hearing causing him to disrega rd

part of her testimony. Based on a thorough review of the record, we see no

reason to overturn the trial court’s decision.



      Accordingly, the judgment of the trial court is affirmed.




                                 ____________________________________
                                 DAVID H. WELLES, JUDGE




                                        -9-
CONCUR:



___________________________________
JOHN H. PEAY, JUDGE



___________________________________
JAMES CURWOOD WITT, JR., JUDGE




                             -10-
