State of Tennessee v. Jordana Jenyane Wright ( 2020 )

12/04/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
July 29, 2020 Session
STATE OF TENNESSEE v. JORDANA JENYANE WRIGHT
Appeal from the Circuit Court for Anderson County
No. B7C00313 Donald R. Elledge, Judge
No. E2019-01599-CCA-R3-CD
The Defendant, Jordana Jenyane Wright, pled guilty to Class E felony theft of property
with an agreed-upon sentence of one year and six months of probation. Following a
hearing, the trial court denied the Defendant’s request for diversion. The Defendant
appeals, arguing that the trial court, in its decision to deny diversion, failed to properly
account for the Defendant’s lack of a criminal record and improperly weighed irrelevant
facts, such as the Defendant’s failure to implicate any potential co-defendants and the
criminal history of the Defendant’s fiancé. After our review, we affirm the judgment of
the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.
Patrick S. Rader, Assistant Public Defender, District Public Defenders Conference (on
appeal); and Ann D. Coria, District Public Defender (at hearing), for the appellant, Jordana
Jenyane Wright.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; David S. Clark, District Attorney General; and Emily F. Abbott,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
On March 13, 2018, the Anderson County Grand Jury indicted the Defendant for
theft of property, that being assorted jewelry belonging to Ms. Christine Schabot (“the
victim”), valued at more than $1,000.00 but less than $2,500.00, a Class E felony. See
Tenn. Code Ann. §§ 39-14-103, -105. The Defendant pled guilty as charged on March 29,
2019. In exchange for her plea, the Defendant received a sentence of one year and six
months to be suspended to supervised probation; she was ordered to pay court costs, as
well as to pay restitution in the amount of $1,585.00 to U.S. Standard Gold Buyers, the
pawn shop where she had sold the victim’s jewelry1; she was ordered to have no contact
with the victim, the pawn shop, or the nursing home where she had worked cleaning for
the victim; and she was prohibited from working in a nursing home or retirement facility
while on probation. The issues of diversion and whether the Defendant would be placed
on the Elderly and Vulnerable Adult Abuse Registry (“the Registry”) were left for the trial
court’s determination.
The factual basis articulated by the State at the guilty plea hearing indicated that on
June 20, 2016, the Defendant pawned the victim’s jewelry to U.S. Standard Gold Buyers,
a pawn shop in Oak Ridge, for $1,585.00. The State averred that Oak Ridge Police
Department Officer Marvelle Moore would testify that the victim, a resident of Greenfield
Senior Living Center (“Greenfield”), discovered that her jewelry, “some earrings and a
gold brooch with a cross,” was missing from her jewelry box on July 5, 2016. When
Officer Moore subsequently checked the online database for pawn shops, he was able to
determine that that jewelry had been pawned by the Defendant in the June 20, 2016
transaction. The State noted that the Defendant admitted to pawning the jewelry but not
that the jewelry was stolen. The Defendant agreed that these were “the true facts of this
charge” and that she was pleading guilty because she was in fact guilty. The trial court
accepted the Defendant’s plea.
The State filed a sentencing memorandum opposing the Defendant’s request for
diversion. Relative to the factors to be considered for judicial diversion, the State cited the
Defendant’s “lack of honesty and candor leading up to the charging in this case” as
justifying the denial of diversion. The State also averred that the “Defendant’s story that a
co-worker simply gave her very valuable jewelry as a gift [was] not credible”; that the
“Defendant abused her position of trust to perpetrate a crime on a vulnerable victim,”
especially “considering her employment at a facility that house[d] vulnerable and elderly
adults”; and that the Defendant continued to fail to take responsibility for “an active role
in depriving the victim of her sentimental property.” The State surmised that the
circumstances of the offense, the deterrence value to the Defendant and others, and whether
judicial diversion would serve the interests of the public all weighed against the granting
of judicial diversion to the Defendant. In addition, the State submitted that the Defendant
1
The original September 3, 2019 judgment form listed U.S. Standard Gold Buyers as the party owed
restitution, as outlined in accordance with the plea agreement. Although the record does not indicate why,
a corrected judgment was filed on December 2, 2019, ordering the Defendant to pay restitution to the victim
in place of U.S. Standard Gold Buyers.
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should be placed on the Registry pursuant to the considerations listed in Tennessee Code
Annotated section 68-11-1003(b).
The Defendant likewise filed a sentencing memorandum, asserting that the factors
supported granting judicial diversion. Specifically, the Defendant averred that her conduct
neither caused nor threatened serious bodily injury, that she was “extremely remorseful
regarding her conduct,” that she had no criminal record prior to this offense and that she
had committed no new offenses since being released on bond, that she had regained
employment and had “shown a work ethic that would allow her to pay restitution,” that she
was “at low risk of re-offense as recognized by her presentence investigation,” and that she
was amenable to mental health treatment if recommended. Relative to the State’s assertion
that the Defendant had attempted to minimize her responsibility for the offense, the
Defendant noted that she had admitted that she pawned the victim’s jewelry, and she
recognized “that she should have questioned where it came from, and should not have
accepted it, nor pawned it.” In addition, the Defendant asked that she not be placed on the
Registry.
A sentencing hearing was held on July 31, 2019. Upon inquiry from defense counsel
about the location of the victim’s missing jewelry and whether the items would be returned
to the victim, the State indicated that “there [was] a law enforcement hold on items at the
U.S. Standard Gold Buyers.”
The State called Officer Moore to testify. Officer Moore indicated that the police
had been informed some jewelry had been stolen from the victim’s room and had been
provided a list of names from the director of Greenfield, where the victim lived. When the
list was cross-referenced with an online database for pawn shops, the Defendant’s name
was returned as a match, showing that the Defendant had sold some items to U.S. Gold
Buyers on June 20, 2016. Officer Moore said that he contacted the pawn shop and was
able to obtain pictures of the pawned items. Officer Moore indicated that he took the
pictures to Greenfield and showed them to the victim, who identified the items as belonging
to her. According to Officer Moore, the victim began to weep because the items were of
sentimental value, having been purchased for the victim by her late husband.
Officer Moore testified that he, accompanied by another officer, responded to the
Defendant’s home a short time later and spoke with the Defendant about how she came to
possess the victim’s items. After being given Miranda warnings, the Defendant told
Officer Moore that she did not steal or take the jewelry, explaining instead that the victim
had given her the jewelry as a gift and that she had pawned it. The Defendant indicated
that she knew it was against policy to take gifts from clients, and though she accepted the
jewelry anyway, she knew it was wrong to take it even if it was a gift.
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Brittany Brown testified that she was a probation and parole officer with the
Department of Correction and that she had prepared the presentence report in this case and
had conducted a lengthy interview with the fifty-year-old Defendant. The report was
entered into evidence.
Reviewing the report, Ms. Brown confirmed that she summarized therein the
version of the events as the Defendant had relayed them to her. According to Ms. Brown’s
summarization in the report, the Defendant told her that one of the other housekeepers had
approached her and given her four items of jewelry and that the Defendant did not think
anything of it at the time. The Defendant informed Ms. Brown that she later pawned the
jewelry when she needed money and that she was surprised by the jewelry’s worth. The
Defendant again acknowledged the facility’s policy prohibiting employees from accepting
gifts from residents. The Defendant said that she never would have accepted the items had
she known they were stolen. The Defendant acknowledged to Ms. Brown “her poor
decisions” and indicated that she was “committed to continuing to improve herself and to
make amends for the difficulties she ha[d] caused in the lives of others.”
Ms. Brown confirmed that the Defendant had no criminal record prior to this
offense; at the time of this offense, the Defendant was forty-seven years of age. No new
charges were indicated in the report.
Relative to her health, the Defendant reported that she suffered from anxiety and
had been prescribed Zoloft for her condition, though she had stopped taking it due to her
lack of insurance. The Defendant stated that when her insurance with her new employer
would cover the medication, she intended to start it again. The Defendant also reported
that following “major surgery” nine years prior, she had to relearn to walk, use the
restroom, and perform other daily activities. The Defendant further indicated that she had
two “hernia surgeries” and suffered from fibromyalgia.
Relative to her family history, the Defendant indicated that she had two adult
children, a son who lived with her and a daughter who lived independently. The Defendant
also indicated that she and her boyfriend were engaged and planned to marry by year’s end.
Finally, the Defendant conveyed that she did not maintain contact with her parents but that
she would occasionally speak to some of her siblings.
The Defendant also informed Ms. Brown about her employment history. The
Defendant had worked at Rubbermaid and Days Inn after her employment was terminated
by Greenfield and worked with Kentucky Fried Chicken (“KFC”) at the time she was
interviewed, her employment beginning there in January 2019.
Finally, Ms. Brown testified that the Defendant was overall a low risk for re-
offending based upon a Strong-R Assessment. Ms. Brown explained, “A Strong-R
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Assessment calculates the risks and needs that an offender will have to basically re-offend
and what would keep them from re-offending. What would help to assist them from re-
offending.” According to Ms. Brown, one factor for re-offending on the Strong-R
Assessment that the Defendant scored in the high range was mental health, noting that this
included the Defendant’s reporting that she suffered from anxiety. Ms. Brown confirmed
that the Defendant had received a high school diploma but did not have any education
beyond the high school level, which placed the Defendant in the moderate range for re-
offending. According to Ms. Brown, the remaining factors, such as friends,
attitudes/behaviors, aggression, alcohol/drug use, residential, family, and employment,
were all low.
The ninety-one-year-old victim testified that she had lived at Greenfield for
approximately two and one-half years. According to the victim, the cleaning staff came to
her apartment on Fridays to clean, performing such chores as changing the linens, waxing
the furniture and floors, and taking the garbage out. The victim identified the Defendant
as part of a three-woman team that used to clean her apartment. At the time of her
employment, the victim viewed the Defendant as a nice person and friend, and she trusted
the Defendant to clean, knowing the Defendant had “been cleared statewide to work at
Greenfield.”
The victim indicated that she did not realize that her jewelry was missing until an
officer came to her room and showed her a picture of it. When the victim went to her
jewelry box, the items were missing, though she had the only key. The victim explained,
“[The officer] said this lady was wearing it and she said that the lady she cleaned for gave
it to her . . . . [The officer] kept questioning her until she finally agreed that she had taken
it.” The officer told the victim to look around, and the victim discovered that more items
had been taken. The victim averred that she was shocked because she believed that she
was in a safe place and that her health began to decline after the grief and anguish caused
by these events.
The victim denied ever giving any jewelry to the Defendant. The victim indicated
that the jewelry was valuable both monetarily and sentimentally, some of it having been
given to her by her late husband.
The victim read her prepared victim impact statement. In the statement, the victim
expressed that she felt the Defendant had taken advantage of their “trusting relationship,”
noting that she was vulnerable after losing her husband of sixty-nine years. The victim
stated that the Defendant had stolen her “most prized possessions” to make “a quick buck,”
explaining that she had planned to pass down these irreplaceable gifts from her husband
and from her world travels to her family. The victim said that her “whole world was
shattered by this woman” and that she was unable to trust anyone. The victim asked for
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“the maximum sentence possible” to keep the Defendant from ever doing something like
this again.
The fifty-year-old Defendant then testified. She stated that she worked at Greenfield
for approximately four years as part of a team cleaning the residents’ rooms. The
Defendant was asked to relay the details of her verbal statement to Officer Moore.
According to the Defendant, she admitted to Officer Moore that she pawned the jewelry
but explained to him that she had received the jewelry from “[a]nother employee[,] . . .
more than one.” When asked why she did not tell Officer Moore who gave her the jewelry,
the victim replied, “Because I felt bad, if I would have known—it just wasn’t right, I wasn’t
thinking, it just happened so fast.” The Defendant explained that “[i]t didn’t matter” where
the jewelry came from because “it was still wrong regardless.”
The Defendant then expressed her “deep regret” and “highest remorse” to the
victim. She apologized for her “one foolish selfish and stupid lapse” in judgment and
“careless mistake” that hurt the victim and the victim’s family. The Defendant said that
she felt “shame” for her behavior and had “learned [her] lesson.”
The Defendant confirmed that her employment with Greenfield was terminated due
to this incident. According to the Defendant, after her termination, she sought and obtained
unemployment benefits, and she also obtained employment through “a temp agency,”
working at “Rubbermaid, Bubble Barn, [and] Duncan and Sons.” The Defendant indicated
that she now had permanent employment with KFC in Oak Ridge, that she had been
employed there for approximately seven months, that she worked six days a week between
forty-two and forty-five hours per week, and that she made $9.00 an hour. The Defendant
averred that “getting this case resolved” would allow her to get a promotion to earn more
money, then getting paid $12.75 an hour, which in turn would help her make restitution
payments. She provided documentation of her employment history.
The Defendant also presented two letters from KFC employees. The first letter was
from Shelly Broyles, the Defendant’s shift manager. Ms. Broyles described the Defendant
as “a wonderful co-worker and friend.” Ms. Broyles hoped the court saw “how sorry” the
Defendant was for her behavior. According to the Defendant, Ms. Broyles wanted to come
to court on the Defendant’s behalf, but she had to work. The second letter was from
Rowland Williams, the manager at KFC. Mr. Williams likewise was not present, his
having to work. In the letter, Mr. Williams “recommended” the Defendant “as someone
who . . . possesse[d] great character and judgment for the betterment of her community.”
Mr. Williams portrayed the Defendant as a hard worker who arrived early and “carrie[d]
herself in a polite, respectable manner.” He also noted that the Defendant was “a family-
person, mom, who ha[d] always presented herself with levelheadedness, respect, and
grace.” Mr. Williams requested that the Defendant be given “the opportunity to correct
her wrong doing in the past.”
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The Defendant asserted that if she were granted diversion, she would continue to
work hard, pay restitution, and “do what [she] need[ed] to do to make it right.” The
Defendant said that she was “head of a family household” and that both of her adult
children lived with her. When asked if there was anything further she wished to tell the
victim or the court “about [her] remorse or desire to make this right,” the Defendant once
more stated that she was “very sorry.”
On cross-examination, the Defendant admitted that she was trusted by Greenfield
in her housekeeping capacity and that she had access to residents’ rooms when they were
not there. The Defendant affirmed that she was friendly with the victim and that the victim
“was good to [her].” The Defendant acknowledged that her behavior violated both the
victim’s and her employer’s trust.
The Defendant explained that all the cleaning staff “received gifts” despite the
policy prohibiting such, that they exchange these gifts amongst themselves, and that she
had participated in this type of exchange on two or three occasions. The Defendant again
said that she did not know the jewelry was stolen and that she did not know the jewelry’s
value until she took it to the pawn shop. The Defendant acknowledged that the victim was
“a vulnerable person” and apologized.
On redirect, the Defendant confirmed that her actions were wrong regardless of
whether she was the one who stole the jewelry. The trial court then asked the Defendant
for the name of the employee(s) who gave her the jewelry, but the Defendant would not
name any specific individual. When asked why she would not name the employee(s), the
Defendant replied that there were “a whole lot more involved than just [her]” and that she
was “just doing what [she] need[ed] to do on [her] end.” She maintained that she was not
trying to lessen her responsibility and desired “to make this right.”
On recross, the Defendant indicated that she did not know whether these other
employees still worked at Greenfield. The Defendant was then asked, “But do you
understand that if they still worked at Greenfield and you know that they’ve stolen stuff,
that would still continue to violate the trust of the people at Greenfield?” The Defendant
responded, “I understand that. But I was also let go immediately and didn’t have the
opportunity to even speak or even say anything.”
The trial court observed that the Defendant was eligible for diversion and that it was
required to review the diversion factors in rendering its decision. The trial court reviewed
the information contained in the presentence report. The trial court commented that this
was the Defendant’s only criminal offense, which occurred when she was forty-seven years
old, and that the Defendant had received a high school diploma. Relative to the
Defendant’s “health problems,” the trial court remarked that the Defendant had reported
“that she almost died of major surgery nine years ago,” requiring her to relearn to walk,
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use the restroom, and perform daily activities; that she had undergone two “hernia
surgeries”; that she was diagnosed with fibromyalgia; and that she suffered from anxiety
and took Zoloft, but was currently unable to obtain her medication due to lack of insurance.
The trial court then went over the Defendant’s family history, noting that the Defendant
reported she did not maintain contact with her parents, her children lived with her, and she
was engaged to be married. The trial court also recounted the Defendant’s employment
history, including her current employment at KFC, and noted that the Defendant had
submitted documentation concerning her work history.
The trial court then reviewed details of the Defendant’s Strong-R assessment. The
trial court commented that the Defendant’s mental health was classified as a high risk factor
for re-offending and stated that it was “tak[ing] that into consideration.” The trial court
noted that in the assessment, it was stated that the Defendant “may have a mental health
problem” and that “[s]he ha[d] participated in outpatient mental health counseling in the
past.”2 In addition, the trial court commented that the Defendant’s education was classified
as a moderate risk factor for re-offending and that it was stated in the assessment, “She
verbalizes a desire to obtain education but is not actively taking any steps.” The trial court
then remarked that though the assessment classified the Defendant’s “friends” as placing
her at low risk for re-offending, it also stated that she had “no friends during the most recent
six months.” Relative to the Defendant’s lack of aggression noted in the assessment, the
trial court observed that the Defendant “started getting agitated on the stand in cross-
examination.” Finally, the trial court indicated that it was “bother[ed]” by the family
information contained in the assessment, notably that the “subject’s partner has had
criminal convictions during the most recent six months in the community.” The trial court
found that the Defendant’s fiancé’s criminal history was “concern[ing] . . . in terms of
amenability to correction[] and in terms of her social history.”
Assessing the amenability to correction factor, the trial court reviewed the various
versions that the Defendant had given regarding her role in the offense. The trial court
noted Officer Moore’s testimony that when he questioned the Defendant, the Defendant
told him that she received the jewelry directly from the victim. The trial court then noted
that the Defendant testified at the hearing, claiming that she received the jewelry from
another employee, “more than one,” and that she did not know its value until she took it to
the pawn shop. The trial court commented that the Defendant provided Ms. Brown with a
third version, that being one of the housekeepers gave her four items of jewelry. The trial
court did not find these differing versions offered by the Defendant to be credible. The
trial court stated that it was placing “great weight” on the fact that the Defendant refused
2
We feel constrained to observe that in the assessment, it was the Defendant herself who indicated that she
may have a mental health problem, and not a conclusion reached by Ms. Brown. It was also noted therein
that the Defendant had “no in-patient stays” for mental health problems and that she had never been
officially diagnosed with any mental condition.
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to name the other housekeepers involved and that this fact was telling regarding the
Defendant’s amenability to correction because these employees could still be working at
Greenfield and engaging in this type of behavior. The trial court concluded that it was
weighing the Defendant’s amenability to correction “heavily against her.”
Relative to the circumstances of the offense factor, the trial court noted that the
ninety-one-year-old victim testified that she trusted the Defendant to clean her home
whether she was present or not. The trial court noted that one of the stolen items had great
sentimental value, its being given to the victim by her late husband, as well as its having
significant monetary value given the amount the Defendant received for it at the pawn
shop. The trial court also observed that the victim testified that other possessions had been
stolen. The trial court found that this was an elderly victim who was “vulnerable.”
The trial court found that the Defendant did not have a criminal record. The trial
court concluded that the Defendant “ha[d] no social history” and “weigh[ed] against her”
that she had no friends.3 The trial court observed that she had employment history, but did
not find that the Defendant had established her promotion at KFC was dependent upon her
receiving diversion. The trial court then remarked that the Defendant’s “physical health
[was] not great” and that her mental health, which required treatment, “weigh[ed] against
her.”
Relative to the deterrence value to the Defendant and others, the trial court remarked
that situations like this were why the Registry was created. The trial court commented,
“We have individuals who are vulnerable in a home and this lady won’t even tell us who
they are. Who allegedly took this jewelry from the victim and they probably are still
working there.” The trial court also determined that judicial diversion would not serve the
interests of the public because it would allow the Defendant to reapply for a similar position
once her probation was completed. The trial court did not want to permit the Defendant
the opportunity “to, at anytime, cause any harm to any vulnerable person again” through
her work.
The trial court concluded that in light of the Defendant’s amenability to correction,
the circumstances of the offense, the deterrence value, and the interests of the public, the
Defendant was not entitled to judicial diversion. The trial court observed that “at one point
in time,” it thought that the Defendant “had some remorse,” but then she “started getting
agitated on the stand” and would not provide the names of the other employees involved.
According to the trial court, it had reviewed all of the diversion factors, saying “I’ve gone
3
While the Strong R-assessment may have observed that the Defendant reported “no friends during the
most recent six months,” we feel constrained to note that letters from both of the Defendant’s co-workers
indicate to the contrary.
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A through G,”4 and determined that “the negatives greatly outweigh[ed] the positives.”
The trial court also ordered that the Defendant be placed on the Registry. The Defendant
filed a timely appeal.5
ANALYSIS
The Defendant contends that the trial court abused its discretion denying her judicial
diversion by failing to give any weight to the Defendant’s lack of criminal record and by
unduly considering irrelevant circumstances, such as the Defendant’s failure to implicate
any potential co-defendants and the criminal history of her fiancé. According to the
Defendant, this court should conduct a de novo review and grant her diversion. The State
responds that the trial court did not abuse its discretion by denying diversion.
There is no dispute that the Defendant was eligible for judicial diversion. See Tenn.
Code Ann. § 40-35-313(a)(1)(B). However, simply because a defendant meets the
eligibility requirements does not automatically entitle him or her to judicial diversion.
State v. Bonestal, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993). “Traditionally, the grant
or denial of judicial diversion has been left to the sound discretion of the trial court.” State
v. King, 432 S.W.3d 316, 323 (Tenn. 2014). When deciding whether judicial diversion is
appropriate, a sentencing court must consider seven common-law factors in making its
determination. Those factors are:
(a) the accused’s amenability to correction, (b) the circumstances of the
offense, (c) the accused’s criminal record, (d) the accused’s social history,
(e) the accused’s physical and mental health, (f) the deterrence value to the
accused as well as to others, and (g) whether judicial diversion will serve the
ends of justice—the interests of the public as well as the accused.
State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998) (citing State v.
Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996)); see also King, 432 S.W.3d at 326(reaffirming that the Electroplating requirements “are essential considerations for judicial
diversion”). The trial court must weigh the factors against each other and explain its ruling
on the record. King, 432 S.W.3d at 326 (citing Electroplating, 990 S.W.2d at 229). If the
trial court adhered to these requirements, “the determination should be given a presumption
of reasonableness on appeal and reviewed for an abuse of discretion.” Id. at 319. This
court will “not revisit the issue if the record contain[ed] any substantial evidence supporting
4
A reference to the diversion factors outlined in Parker and Electroplating, which are discussed in more
detail below.
5
The Defendant does not challenge on appeal her placement on the Registry.
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the trial court’s decision.” Electroplating, 990 S.W.2d at 229; see also Parker, 932 S.W.2d
at 958.
A trial court is “not required to recite all of the Parker and Electroplating factors
when justifying its decision on the record in order to obtain the presumption of
reasonableness.” King, 432 S.W.3d at 327. However, “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.” Id. If 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. “In those instances, the appellate courts may either conduct a de novo review or . . .
remand the issue for reconsideration.” Id. at 328. A trial court can also abuse its discretion
by considering and placing undue weight on an irrelevant factor. See State v. Chyanne
Elizabeth Gobble, No. E2014-01596-CCA-R3-CD, 2015 WL 12978645, at *6 (Tenn.
Crim. App. Aug. 12, 2015).
According to the Defendant, the trial court abused its discretion by denying judicial
diversion “because it failed to consider and weigh all relevant factors and placed undue
weight on irrelevant ones.” Specifically, the Defendant alleges that the trial court erred by
“merely reciting” the Defendant’s lack of criminal history, “without giving any indication
that it considered and weighed this highly relevant factor.” The Defendant cites to State v.
Thompson, a pretrial diversion case, in support of her argument that the trial court failed
to properly consider and weigh the Defendant’s lack of a criminal record. See 189 S.W.3d
260 (Tenn. Crim. App. 2005).
In Thompson, the prosecutor acknowledged the defendant’s, who was in his fifties,
lack of a criminal history but refused to place any weight on it, reasoning that “good
citizenship [was] expected of all.” Id. at 266-67. In concluding that the Thompson
prosecutor abused his discretion by refusing to accord this factor any weight, this court
reasoned,
[A] defendant’s criminal history—especially a lack thereof—is an important
signifier of whether the defendant is likely to offend again. That is, a
defendant’s criminal history is a critical factor to consider in evaluating his
or her amenability to correction: the primary focus required in evaluating a
request for pretrial diversion.
Id. at 267. The court continued, “The prosecutor’s refusal to give any favorable weight to
this factor is a refusal to accord any significance to a factor repeatedly stressed by
Tennessee’s appellate courts as crucial to the comprehensive analysis required of district
attorneys in assessing a request for pretrial diversion.” Id.- 11 -
“[J]udicial diversion ‘is to be imposed within the discretion of the trial court subject
only to the same constraints applicable to prosecutors in applying pretrial diversion.’”
King, 432 S.W.3d at 327 (quoting State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim.
App. 1992)) (emphasis added in King); see State v. Cutshaw, 967 S.W.2d 332, 343 (Tenn.
Crim. App. 1997) (“Tennessee courts have recognized the similarities between judicial
diversion and pretrial diversion and, thus, have drawn heavily from the case law governing
pretrial diversion to analyze cases involving judicial diversion.”). If a prosecutor can abuse
his or her discretion by refusing to accord a defendant’s lack of a criminal history any
weight in determining pretrial diversion, then it stands to reason that a trial court can
likewise abuse its discretion in doing the same thing when making a judicial diversion
determination. See State v. Edythe Christie, No. W2015-02485-CCA-R3-CD, 2016 WL
7495187, at *9 (Tenn. Crim. App. Dec. 30, 2016).
Though we agree with the Defendant’s legal premise, her argument must fail. In
reviewing the presentence report, the trial court commented that this was the Defendant’s
only criminal offense, which occurred when she was forty-seven years old. The trial court
later delineated each of the seven Parker and Electroplating factors and, in specifically
addressing the criminal history factor, stated that the Defendant did not have a criminal
record. The trial court did not indicate the weight it was assigning to this factor. However,
the trial court noted throughout its ruling when addressing each factor what factors weighed
against the Defendant and why, as well as indicating at the conclusion of its ruling that it
had reviewed all of the diversion factors, saying, “I’ve gone A through G,” and determining
that “the negatives greatly outweigh[ed] the positives.” In addition, the trial court stated
that it placed great weight on the Defendant’s amenability to correction, as well as giving
weight to the circumstances of the offense, the deterrence value to the Defendant and
others, and the interests of the public.
The record does not support the Defendant’s claim that the trial court made “a
blanket statement” that it had considered all of the relevant factors without more. We
believe that the record reflects 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, and that the trial court weighed the factors against each other and placed an
explanation of its ruling on the record. See King, 432 S.W.3d at 326-27. To hold otherwise
would require mathematical rigidity in a judicial diversion determination, something not
required by the presumption of reasonableness and abuse of discretion standard of King.
Insofar as the Defendant challenges the trial court’s consideration of the appropriate factors
and the trial court’s compliance with the procedure requiring an explanation of its ruling
on the record, we conclude that the trial court substantially complied with the procedures
outlined in King. See State v. Henri Brooks, No. W2015-00833-CCA-R3-CD, 2017 WL
758519, at *8 (Tenn. Crim. App. Feb. 27, 2017) (holding same though “[t]he trial court did
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not assign a mathematical weight to each factor, but discussed certain factors more
exhaustively in imposing judgment”).
The Defendant also submits that the trial court improperly weighed irrelevant
factors, denying judicial diversion primarily because it found the Defendant unamenable
to correction due to her failure to name who gave her the jewelry and the criminal history
of her fiancé, which were irrelevant to her fitness for judicial diversion, according to the
Defendant. A trial court can abuse its discretion by considering and placing undue weight
on an irrelevant factor. See State v. Chyanne Elizabeth Gobble, No. E2014-01596-CCA-
R3-CD, 2015 WL 12978645, at *6 (Tenn. Crim. App. Aug. 12, 2015). According to the
Defendant, the trial court abused its discretion by placing heavy emphasis on these
irrelevant circumstances.
First, we note that the trial court discussed the Defendant’s fiancé’s criminal history
during its review of the Strong-R assessment. The trial court indicated that it was
“bother[ed]” by the family information contained in the assessment, notably that the
“subject’s partner has had criminal convictions during the most recent six months in the
community.” The trial court found that the Defendant’s fiancé’s criminal history was
“concern[ing] . . . in terms of amenability to correction[] and in terms of her social history.”
The Strong-R assessment, also referred to as a risk and needs assessment, was
prepared by Ms. Brown and was attached to the presentence report. Ms. Brown explained,
“A Strong-R Assessment calculates the risks and needs that an offender will have to
basically re-offend and what would keep them from re-offending. What would help to
assist them from re-offending.” The Defendant lodged no objection to the information
contained therein. Though the trial court may have taken some liberties with its review of
the Strong-R assessment, we cannot say that the trial court considered irrelevant
information when the Strong-R assessment is a tool prepared as part of the presentence
report to be utilized in making just such a determination. In fact, before imposing sentence
on a defendant, a trial court is required to consider, among other things, the result of a
validated risk and needs assessment included in the presentence report. See Tenn. Code
Ann. § 40-35-210(b). Furthermore, a defendant’s home environment and marital stability
have been held to be relevant considerations in a judicial diversion determination. See
Cutshaw, 967 S.W.2d at 343-44. Here, the trial court reviewed the information contained
in the Strong-R assessment and discussed at length throughout its ruling the different facts
it found important to the Defendant’s amenability to correction. The trial court did not
unduly emphasize the Defendant’s fiancé’s criminal history as the Defendant asserts.
Turning to the Defendant’s next assignment of error, we observe that the trial court,
in rendering its determination, did make multiple references to the Defendant’s failure to
name the other employees who gave her the stolen jewelry. Relative to assessing the
amenability to correction factor, which it weighed heavily against the Defendant, the trial
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court reviewed the various versions that the Defendant had given regarding her role in this
offense. The trial court observed that the Defendant had given one to Officer Moore, one
to Ms. Brown, and yet another at the hearing. The trial court also noted that the Defendant
claimed not to know the value of the jewelry until she took it to the pawn shop. From these
facts, the trial court determined that the Defendant was not credible. The trial court also
stated that it was placing “great weight” on the fact that the Defendant refused to name the
other housekeepers involved and that this fact was telling regarding the Defendant’s
amenability to correction because these employees could still be working at Greenfield and
engaging in this type of behavior.
Prior decisions of this court have recognized that a trial court’s directive that a
defendant cooperate with the police or divulge information may be violative of sentencing
principles. See State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994) (requiring
a defendant to participate in undercover activities was outside scope of the Sentencing Act
as it was clearly not voluntary, was not reasonably related to any form of rehabilitation,
and was unduly restrictive of the defendant’s liberty). Nonetheless, in State v. Ruiz, the
Tennessee Supreme Court, affirming a trial court’s decision to deny early release, stated
that “a refusal to identify the person who supplied the drugs that the defendant admittedly
sold demonstrates deficiencies in his asserted feelings of remorse and contrition, and casts
doubt upon his potential for rehabilitation.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn.
2006) (citation omitted), overruled on other grounds by State v. Patterson, 564 S.W.3d 423,
433-34 (Tenn. 2018). In so concluding, the Ruiz court cited to this court’s opinion in State
v. Alexander A. Lee, wherein we held the same in the context of a trial court’s decision to
deny probation. No. W1999-01804-CCA-R3-CD, 2000 WL 1840077, at *4 (Tenn. Crim.
App. Dec. 14, 2000). Prior to reaching our conclusion in Alexander A. Lee, this court
noted that it would be improper for a trial court to deny alternative sentencing based solely
upon a defendant’s refusal to reveal the names of his sources. Id. (citations omitted).
Here, as in Alexander A. Lee, we are constrained to conclude that the trial court did
more that deny diversion solely based upon the Defendant’s unwillingness to reveal the
names of the other employees involved. The trial court’s ruling regarding the Defendant’s
amenability to correction indicates that it found the Defendant was not being truthful and
candid with the court. This determination is supported by the record given the multiple
different versions proffered by the Defendant, as well as her assertion that she was unaware
of the jewelry’s value. Lack of candor and untruthfulness support a denial of diversion,
negatively impacting a defendant’s amenability to correction. See State v. Nunley, 22
S.W.3d 282, 289 (Tenn. Crim. App. 1999); State v. Dowdy, 894 S.W.2d 301, 306 (Tenn.
Crim. App. 1994).
Moreover, though the Defendant pled guilty and professed to accept responsibility
for her actions, the trial court felt that the Defendant had not fully accepted responsibility
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for her criminal conduct. “[T]he failure of the defendant to admit guilt is not, in and of
itself, a proper basis for denying diversion.” State v. Oakes, 269 S.W.3d 574, 578 (Tenn.
Crim. App. 2006). “However, there is a critical distinction between confessing guilt to a
crime and accepting responsibility for wrongful conduct. Admitting that one’s conduct
complies with the elements of a criminal offense and accepting responsibility for wrongful
conduct are not necessarily synonymous.” Stanton v. State, 395 S.W.3d 676, 688-89
(Tenn. 2013). The failure to admit any wrongdoing or accept any responsibility is a
relevant consideration to the denial of judicial diversion. Henri Brooks, 2017 WL 758519,
at *9.
Accordingly, we cannot say that trial court considered irrelevant factors as the
Defendant protests because her lack of candor, as well as her failure to accept
responsibility, were relevant to an assessment of the Defendant’s amenability to correction.
In addition, while discussing it in the context of amenability to correction, the trial court
remarked that these other employees could still be working at Greenfield and engaging in
this type of behavior. Also, relative to the deterrence value to the Defendant and others,
the trial court commented, “We have individuals who are vulnerable in a home and this
lady won’t even tell us who they are. Who allegedly took this jewelry from the victim and
they probably are still working there.” These considerations were certainly proper in the
context of deterrence. See Alexander A. Lee, 2000 WL 1840077, at *4.
Accordingly, the trial court’s decision in this case is afforded a presumption of
reasonableness and reviewed for an abuse of discretion. The record in this case reflects
that the trial court individually examined each of the relevant factors in denying
Defendant’s request for judicial diversion and stated its reasons on the record. The trial
court explained that although the Defendant was eligible for judicial diversion, certain
factors weighed against the Defendant, including her amenability to correction, the
circumstances of the offense, the deterrence value to the Defendant and others, and the
interests of the public.6 The victim in this case was an elderly individual who trusted the
Defendant to clean her apartment; the Defendant was an employee who cleaned for many
elderly and vulnerable residents at the facility. The Defendant gave varying accounts
regarding her responsibility for this crime and refused to identify the other employees
involved, some of whom potentially still worked at Greenfield. Ultimately, the victim
determined that multiple items were missing from her room, and she relayed that the items
pawned by the Defendant were of both sentimental and monetary value. In addition, the
Defendant admitted that she had engaged in this type of exchange with the other employees
on prior occasions. Also, the trial court expressed its desire that the interests of the public
be protected from allowing the Defendant to reapply for a similar position. We conclude
6
Though we have some concerns regarding the trial court’s findings about the Defendant’s mental health
and her lack friends, these considerations did not appear to factor heavily into the trial court’s decision to
deny diversion.
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that trial court did not abuse its discretion and that there is substantial evidence in the record
to support the trial court’s denial of judicial diversion.
CONCLUSION
Upon consideration of the foregoing and the record as a whole, the judgment of the
trial court is affirmed.
D. KELLY THOMAS, JR., JUDGE
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