             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                            MAY SESSION, 1999         FILED
                                                      June 9, 1999

                                                 Cecil W. Crowson
STATE OF TENNESSEE,          )
                                               Appellate Court Clerk
                             )    No. 01C01-9805-CR-00224
      Appellee               )
                             )    DAVIDSON COUNTY
vs.                          )
                             )    Hon. Seth Norman, Judge
DAVID E. SMITH, JR.,         )
                             )    (Theft of Property over $1000)
      Appellant              )



For the Appellant:                For the Appellee:

Jeffrey A. DeVasher               Paul G. Summers
Asst. Public Defender             Attorney General and Reporter
1202 Stahlman Building
Nashville, TN 37201               Marvin E. Clements, Jr.
                                  Assistant Attorney General
(ON APPEAL)                       Criminal Justice Division
                                  425 Fifth Avenue North
Karl Dean                         2d Floor, Cordell Hull Building
Public Defender                   Nashville, TN 37243-0493

                                  Victor S. (Torry) Johnson III
Stephen G. Young                  District Attorney General
Joseph E. Clifton
Asst. Public Defenders            Pamela Anderson
1202 Stahlman Building            Asst. District Attorney General
Nashville, TN 37201               Washington Sq., Suite 500
                                  222-2nd Avenue North
(AT TRIAL)                        Nashville, TN 37201



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                OPINION



        The appellant, David E. Smith, Jr., appeals the verdict of a Davidson County

jury finding him guilty of one count of theft of property over $1,000, a class D felony.

For this offense, the appellant received a two year suspended sentence. On

appeal, the appellant challenges the sufficiency of the convicting evidence and

contends that the trial court erred by denying his request for judicial diversion.



        Finding no errors of law requiring reversal, we affirm.



                                             Background



        During the early morning hours of September 16, 1996, Metro Police Officer

Michael Eva responded to a reported robbery at the Hardee’s Restaurant located at

5775 Old Hickory Boulevard, Nashville. Upon his arrival, he was met at the door by

employee David E. Smith, the appellant in this case.1 The appellant reported that

he had been robbed.



        When questioned by Officer Eva, the appellant related that the perpetrator

forced his way through a side door on the south side of the building. He stated that

the perpetrator ordered him to get underneath a desk in the manager’s office. The

appellant remained beneath the desk while the perpetrator opened the combination

safe and took one deposit bag. Additionally, he described the perpetrator as a white

male, wearing gloves, a black ski mask, shorts, and a red and blue light weight

jacket. When Officer Eva inspected the alleged door of entry, he observed that the

door was still locked and he detected no signs of forcible entry. Additionally, Officer

Eva did not observe any indication that the safe had been forcibly entered. Because


        1
           The appellant was the “clean-up” person at the Hardee’s location. The proof was
undispu ted that he would be the only pers on in the re stauran t from c losing tim e at 10:00 p.m.
until he finishe d cleanin g the fac ility.

                                                   2
the safe was closed, Officer Eva contacted W anda Keith, the store manager,

requesting that she come to the store to open the safe. The proof established that

only a store manager had knowledge of the safe’s combination. When the safe was

opened, it was determined that one deposit bag was stolen containing $2526.

Moreover, Officer Eva discovered that “there were two other deposit bags in the safe

that [weren’t] taken. . . ,” containing approximately $ 1200. The appellant reported

that the incident occurred at approximately 1:10 a.m. The incident was not reported

to law enforcement authorities until 1:50 a.m., a forty minute lapse from the reported

time of occurrence. In an attempt to explain the time lapse, the appellant told

Officer Eva that “he didn’t know what to do.” Officer Eva then instructed dispatch to

release information regarding the robbery and the description of the alleged

perpetrator to all patrol cars in the area.



        Due to various inconsistencies between the appellant’s statements and the

contradictory physical evidence at the scene, he became a suspect in the

investigation. After Officer Eva informed the appellant of his rights, the appellant

responded, “Okay. Now, I’m going to tell you the truth.” The appellant abandoned

his original version of events and related that, approximately four days prior to the

incident, Mark Henley, a recently fired manager at Hardee’s, contacted him “to help

him steal some money from the business.” The appellant reported that, despite his

unwillingness to cooperate with Henley, Henley continued to contact the appellant

regarding his plan. The appellant stated that Henley came to Hardee’s on the night

of the incident. Henley beat on the door until the appellant, out of his fear of Henley,

let him inside. Henley then went to the safe, opened it, and took the deposit bag. 2

Notwithstanding his prior affirmation that he was going to “tell the truth,” he again

changed his story. He stated that “he did agree to let Mark Henley in the business




        2
          The appellant later admitted and independent police investigation confirmed the
similarities between the appellant’s initial description of an anonymous p erpetrator and Mark
Hen ley.

                                                 3
to take the money, and that Mark Henley told him to come to his house when he got

off work to get his half of the money.”



       After the appellant’s implication of Henley in the crime, Officer Mark Webb

proceeded to the residence of Henley. A search of Henley’s home did not reveal

the stolen deposit bag from Hardee’s. Moreover, officers also determined that

Henley’s vehicle was not in operating condition and observed that a heavy dew had

formed on the car indicating that it had not been moved recently.



       At trial, the appellant offered a somewhat modified version of his previous

statements to the police. He again related that Henley had pestered him about

“helping [Henley] rob the store.” On the night of the theft, Henley appeared at the

restaurant and the appellant testified that he permitted Henley to enter only because

he feared Henley would somehow harm his family.



       It is undisputed that the appellant did not have a key to the Hardee’s building

and that he did not know the combination to the safe. It is also uncontested that

Mark Henley, a former manager at Hardee’s did know the combination to the safe,

although he did not have a key to the building. The deposit bag containing

approximately $2526 was never recovered.



       Based upon this evidence, the jury found the appellant guilty of theft of

property over $1000.




                              I. Sufficiency of Evidence



       The appellant first contends that the evidence introduced against him at trial

is insufficient as a matter of law to support a conviction for theft of property over


                                          4
$1000. The appellant’s argument is two-fold: (1) “the State’s evidence is entirely

circumstantial and does not exclude every reasonable hypothesis except that of his

guilt;” and (2) “the evidence does not prove beyond a reasonable doubt that he was

criminally responsible for the conduct of Mark Henley, the person who, according to

the uncontroverted proof in this case, took the money from the safe at the

restaurant.”3



        Initially, a defendant is cloaked with the presumption of innocence. State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn.1982). However, a jury conviction removes this

presumption of innocence and replaces it with one of guilt, so that on appeal a

convicted defendant has the burden of demonstrating that the evidence is

insufficient. Id. In determining the sufficiency of the evidence, this court does not

reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn.1978). On appeal, the State is entitled to the strongest legitimate view of the

evidence and all legitimate or reasonable inferences which may be drawn therefrom.

State v. Harris, 839 S.W.2d 54, 75 (Tenn.1992). It is the appellate court's duty to

affirm the conviction if the evidence viewed under these standards was sufficient for

any rational trier of fact to have found the essential elements of the offense beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789

(1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn.1994); Tenn. R. App. P. 13(e).

This rule is applicable to findings of guilt predicated upon direct evidence,

circumstantial evidence, or a combination of both direct and circumstantial evidence.

State v. Matthews, 805 S.W.2d 776, 779 (Tenn.Crim.App.1990).



        Circumstantial evidence alone may be sufficient to support a conviction. See

State v. Buttrey, 756 S.W.2d 718, 821 (Tenn.Crim.App.1988); State v. Cooper, 736

S.W.2d 125, 129 (Tenn.Crim.App.1987); State v. Gilliam, No. 01C01-9603-


        3
         The appellant has failed to include a transcript of the jury instructions given in the present
case. As such, we assume that the trial court properly instructed the jury on the theory of criminal
respon sibility.

                                                  5
CC-00105 (Tenn.Crim.App. at Nashville, May 7, 1997) (for publication). However, if

a conviction is based purely on circumstantial evidence, the facts and circumstances

must be so overwhelming as to exclude any other explanation except for the

defendant's guilt. State v. Tharpe, 726 S.W.2d 896, 900 (Tenn.1987); Cooper, 736

S.W.2d at 129. In addition, "it must establish such a certainty of guilt of the

accused as to convince the mind beyond a reasonable doubt that the [appellant] is

the one who committed the crime." Tharpe, 726 S.W.2d at 896. When reviewing

the sufficiency of circumstantial evidence, this court must remember that the jury

decides the weight to be given to circumstantial evidence and that "[t]he inferences

to be drawn from such evidence, and the extent to which the circumstances are

consistent with guilt and inconsistent with innocence are questions primarily for the

jury." Gilliam, No. 01C01-9603-CC-00105 (citations omitted).



       In order to obtain a conviction for theft of property over $1000, the State must

show, beyond a reasonable doubt, that "a person ..., with intent to deprive the owner

of property, ... knowingly obtains or exercises control over the property without the

owner's effective consent." Tenn. Code Ann. § 39-14-103 (1991); Tenn. Code Ann.

§ 39-14-105(3) (1991). Additionally, Tenn. Code Ann. § 39-11-401(a) (1991)

provides that: “A person is criminally responsible as a party to an offense if the

offense is committed by the person’s own conduct, by the conduct of another for

which the person is criminally responsible, or by both.” “A person is criminally

responsible for an offense committed by the conduct of another if: (2) Acting with

intent to promote or assist the commission of the offense, or to benefit in the

proceeds or results of the offense, the person solicits, directs, aids, or attempts to

aid another person to commit the offense.” Tenn. Code Ann. § 39-11-402(2) (1991).

In other words, the jury must find that the appellant somehow associated himself

with the commission of the crime, acted with knowledge that an offense was being

committed, and shared in the criminal intent of the principal. See State v. Maxey,

898 S.W.2d 756, 757 (Tenn.Crim.App.1994).


                                          6
        The State’s proof demonstrated that the appellant was the sole occupant in

the Hardee’s restaurant at the time of the theft. The proof was undisputed that,

during the appellant’s shift, no other person could enter the building except through

the use of a key, by force, or with the appellant’s assistance. The appellant reported

the theft forty minutes after its occurrence. When police officers arrived, they

discovered no signs of forcible entry into the restaurant. After changing his story

several times, the appellant finally admitted that he let Mark Henley into the

restaurant and that he knew that Mark Henley planned to open the safe and take

one deposit bag. He stated that he was instructed to go to Henley’s residence after

the theft to obtain his half of the money. From these facts and circumstances, a jury

could have rationally inferred the guilt of the appellant. See State v. Crawford, 470

S.W.2d 610, 613 (Tenn.1971). Accordingly, we conclude that, when viewed in the

light most favorable to the State, the evidence presented at trial was sufficient to

support the findings by the trier of fact that the appellant committed the offense of

theft of property under either a direct liability or criminal responsibility theory. 4 Tenn.

R. App. P. 13(e). This issue is without merit.




                                      II. Judicial Diversion



        The appellant contends that the trial court erred by denying his request for

judicial diversion. Initially, we note that the appellant never formally requested that

the trial court consider or grant judicial diversion. Indeed, the record is absent any

mention of judicial diversion except for one statement in the appellant’s closing

argument at the sentencing hearing wherein defense counsel stated, “And he is




        4
          The appe llant’s ass ertion that th e pro of wa s unc ontro verte d as t o Ma rk H enley’s
participation as the principal actor in the theft is not supported, beyond a reasonable doubt, by the
record . The re cord co ntains no proof oth er than the appellant’s statem ents an d testim ony to
indicate that Mark Henley was a participant in the crime. Thus, we conclude that it was not
necessary for the State to rely solely upon a theory of criminal responsibility in order to obtain a
conviction.

                                                  7
eligible for 40-35-313, expungeable supervised probation.”5 This passing comment

can hardly be considered an adequate request to properly bring the issue of judicial

diversion before the trial court.6 See, e.g., State v. Starks, No. 02C01-9704-CR-

00133 (Tenn. Crim. App. at Jackson, Jun. 11, 1998), perm. to appeal denied, (Tenn.

Dec. 28, 1998); State v. Tidwell, No. 01C01-9610-CR-00445 (Tenn. Crim. App. at

Nashville, Mar. 4, 1998), perm. to appeal denied, (Tenn. Nov. 9, 1998).

Notwithstanding, we proceed to address the issue on its merits.



         The decision of whether to place an appellant on judicial diversion is within

the sound discretion of the trial court. See State v. Harris, 953 S.W.2d 701, 705

(Tenn. Crim. App. 1996). Thus, upon review by an appellate court, if “any

substantial evidence [exists in the record] to support the refusal,” the decision of the

trial court will be upheld. See State v. Hammersley, 650 S.W.2d 352, 356 (Tenn.

1983).



             In making the determination of whether to grant judicial diversion, the trial

court must consider the following factors:

         (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 status of 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.

State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997), perm. to appeal

denied, (Tenn. 1998) (citing State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim.

App. 1993) (citation omitted)). Additional factors which may be considered include

the appellant’s attitude, his behavior since his arrest, his home environment, current

drug usage, emotional stability, past employment, general reputation, family



         5
        We note, however, that trial counsel expressly asked the court to impose a two year
sentence on supervised probation. The court imposed such a sentence.

         6
          Because the appellant failed to make a definite request for judicial diversion, we find no
merit to his claim that his case should be rem anded for resentencing due to the trial court’s failure
to expressly state its reasons for denying judicial diversion.

                                                  8
responsibilities, and the attitude of law enforcement. Id, (citing State v. Washington,

866 S.W.2d 950, 951 (Tenn. 1993)).



       The record in the present case reveals that the appellant has maintained

consistent employment, has exhibited good behavior since his arrest, is emotionally

stable, does not abuse either alcohol or illegal drugs, and contributes to the support

of his fiancee and child. Notwithstanding these factors favoring judicial diversion,

the circumstances of the offense itself support a denial of judicial diversion, i.e., the

appellant’s crime was committed against his employer, he repeatedly misled law

enforcement officers in his initial report of the incident, and the stolen money was

never recovered. The appellant’s actions indicate a violation of a position of trust, a

sustained intent to violate the law, and lack of candor with authorities. Accordingly,

we conclude that the trial court did not abuse its discretion in refusing to grant the

appellant judicial diversion. This issue is without merit.



       The judgment of the trial court is affirmed.




                                   ____________________________________
                                   DAVID G. HAYES, Judge




CONCUR:



______________________________
JERRY L. SMITH, Judge


______________________________
NORMA MCGEE OGLE, Judge




                                          9
