### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE N ove m be r 29, 200 6 S es sio n

STA TE OF TEN NES SEE v. CH RIST OPH ER W. N ORWO OD

Appeal f rom the Cr im inal Cou rt for William son Coun ty No. II-01028-A R .E. Lee Davies

No. M2006- 00145-CCA -R3-C D - F iled March 23, 2007

The de fenda

nt, Christopher W. Norwood, was convicted by a Wil liamson County jury of conspira cy to commit ag g ravated robbery
, a C lass C felony
, and evading arr est, a C lass A misdemeanor . The trial court imposed a sentenc e of 2.7 y ear s as a mitigated offe nder to be serve d on probation af ter the service of six ty

day s incarc eration for the conspira cy offe nse and a

concur rent se n t ence of ele ven months and twenty -nine da y s for the e vading arr est offe nse. The de fenda nt ar gu es on appea l that the trial cour

t abused its discretion in deny ing him judicial diver sion. Upon a full re v i ew of the

re c or d, a rgume nts of

c ouns e l and

a pp lic a ble law, we a ff

ir m th e jud g me nts of

the tr ia l c ourt

.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt ar e Affi rm ed

D. K EL L Y T HOMAS , J R ., J
., delivere d the opi nion of the c ourt, in which D AVI D G. H A Y ES and N OR MA M C G EE O G LE , J J ., joined.

Tusca R.S. Alexis, for the appellant, Christopher N orwood.

Rob e rt E. Coo pe r, Jr., At tor

ne y Ge ne ra l and

Re po rt e r; B re nt C . Ch e rr

y , A ssi sta nt A tto rn e y

Ge ne ra l; Ronald L . Davis, Dist rict Att orney Gene ral; Brade n H. B oucek a nd Mary Kather ine White, Assist ant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

The de fenda

nt, Christopher

W

. No rw o o d
, ap p ea l s t h e t ri al co u rt ’s d en i al o f j u d i ci al d i version. Although the trial transc ript was not included in the r ecor d on appea l, we ar e able to determine f rom the sentenc ing he aring transcr ipt and prese ntence repor t that the defe ndant was convicted a fter a jury
tr ia l of c on sp ir a c y

to c omm i t

a g g r a v a t e d r ob be ry

a nd e va din g a rr e st b a se d u

po n h is i nv olv e me nt w ith another individual in a planned r obbery outside a Piz za Hut restaur ant. The pla n was thwa

rted whe n-2-

an obser vant employ ee c alled 911to investigate t wo s uspicious individuals parke d in the restaur ant parking lot after hour s. When approac hed by the s ummoned office rs, t he defenda nt and code fenda

nt fled on foot but wer e apprehe nded in a nearby parking lot. After e x ecuting a wa iver of r ights, the de fe nd a nt g a ve a state me nt to au tho ri tie s tha t he ne e de d mone y fo r sc ho ol a nd that he int e nd e d to rob someone w ho was walking throug h the par king lot. He admitted that he wa s armed w ith a pellet
g un a nd int e nd e d to c ov e r h is f

a c e wi th a

ba nd a na to a vo id i de nti fi c a tio n b y

a po te nti a l vi c tim

.

At th e s e n te n c in g h e a r in g , th e s tate p r e s e n te d Jo s e p h M

. T h o ma s , th e c o d e f e n d a n t, w ho testified that he a

nd the def

end an t we re b o t h students housed in the same dor mitory at Tenne ssee Sta te Un ive rs ity

a t th e tim e of

the of fe ns e s. He re c a lle d that the y de c ide d to ro b s ome on e be c a us e the def endant wa s “tired of

being broke.” Wit hin a month of formulating their plan, they wer e

arr ested for

the convicte d offe nses. They had stolen two pellet g uns at a W al -M ar t , acquir ed two bandana s and planne d to rob any random pe rson, but not a business. He also indicated that he and the defe ndant smoked marijuana about ever y day while in the dormitory toge ther. The c odefe ndant stated that he ple d g uilty

to cons p i ra cy t o commit ag g ravated robbe ry and attempted a g g ravated robber y out of a de sire to flatten his sente nce along with his violation of probation stemmi ng from a Davidson County

conviction for a g g ravated burg lary . He state d that he did not fe el t h at he wa s

a c tua lly g uil ty of the of fe ns e s.

Dr. Willi am Hy

tche, De an of Students at Te nnessee State University
, testified that he wa s responsible for

any disciplinary

action take n reg arding the def endant’ s arr est. He state d t h at the defe nd ant was pla c e d o n s oc ia l pr ob a tio n w hic h me a nt t ha t he wa s r e str ic te d to on ly a c a de mic activities on campus and moved to an uppe rcla ss dor mitory wher e he could be close ly monitored. Dr. Hy tche testified tha t the defe ndant per formed w ell o n p ro b ati on and that he r eg arde d the defe ndant as “ worth saving .”

Ad a No rw oo d, the de fe nd a nt’ s moth e r, te sti fi e d tha t, as a c hil d, the de fe nd a nt w a s a c tiv e in churc h and wa s alway s a g ood student. She felt like he ha d g one astray while awa y from home f

or

c oll e g e . Sh e sa id s he wa s sh oc ke d a t th e c ha rg e s a g a ins t hi m and

wa s r e lie ve d th a t no thi ng a c tua lly happene d in r ef

er en ce t o any

actua l culmination of a robbe ry . Since the off enses, the de fenda

nt expressed his remorse to her a nd she wa rned him to be car eful of his a ssociates. She a sked that the court g ive consider ation to him being a first time offe nder so that he could have “a se cond cha nce to r e sto re him se lf

to t he wa y he wa s tr a ine d b e fo re he le ft to g o a wa y to c oll e g e .” On

c ro ssexamination she acknowle dg ed her conce rn that he never abandone d the pl an to rob any one until the police appr oache d. She also ac knowledg ed his lack of aca demic per formanc e at c erta in times throug hout colleg e.

The defe ndant testified that he is a very r e s p e c tf u l p e r s o n w h o te n d s to f

o ll o w rules. He stated that the c odefe ndant first mentioned robbingsome o n e w h ile they wer e smoking marijuana

one evening . He state d that the banda nas belong ed to his c odefe ndant and denie d stealing the pellet g uns from Wal-Mar

t. He claimed t hat t hey had abandoned the plan t o rob som eone just bef ore the police

arr ived and a

pprehe nded them. He stated that there was no e x cu s e for his involvement in the offe nses and that if he had it to do over, he would not involve himself ag ain. On cr oss-examination,-3-

he ac knowledg ed that he ha d smoked marijuana . He a lso acknowle dg ed ar rests for possession of drug para pherna lia, disorderly conduct and resisting arr est. I t appea rs from the pr esente nce r eport that th e se a rr e sts did

no t r e su lt i n a

ny c on vic tio ns

.

Th e tr ia l c ourt

fo un d th a t th e de fe nd a nt s ho uld be se nte nced to 2.7 y e a rs a s an e sp e c ia lly mitigated of

fende r b as ed upon his lack of history of cr iminal convictions, the absenc e of enhanc ement fa ctors and the prese nce of two mitigating fac tors: (1) the de fenda nt’s criminal conduc t neither cau s ed nor threatene d serious bodily injury and (2) the def

endant, be cause of his y outh, lacke d substantial judgment in committing the of fense . Tenn. Code Ann. § 40-35-109, - 113(1) a nd (6 ). Ho we ve r, the tr ia l c ourt de nie d fu ll pr ob a tio n ba se d up on its be lie f that “ the re ne e ds to be a lit tle
t ime serve d here so that [t he def endant] will really

understand how

serious this is.” I nstead, the d e f e n d a n tw a s o r d e r e d

t o s e r v e s i x t y d a ys o f h i s s e n t e n c e o v e r t h e s u m m e r a n d C h r i s t m a s h o l i d a ys so it would not i nterfe re w ith his education, with f our y ear s of supervised pr obation to follow. The trial court de nied the def

endant’ s reque st for judicial diversion. The defe ndant now ap p eals that denial.

A N A LY S IS

Pursuant to Tenn. Code Ann. se ction 40-35-313( a)( 1)(B ), a defe ndant i s elig ible for judicial diversion when c onvict ed o f a Class C, D or E fe lony and has not be en pre viously convicted of

a felony or a Class A misdemea

nor. The decision to g rant judicial diver sion lies within t he discre tion of the tr ia l court a nd wi ll not be dis tur be d on ap pe a l unle ss it is sh ow n th a t th e tr ia l c ourt a bu se d it s discretion. State v. Parke r, 932 S.W.2d 945, 958 ( T en n. Crim. App. 1996). A denia l of judicial diversion will not be overturne d if the rec ord contains any substantial e vidence to suppor t the trial court’s a ction. I d.

When making a

deter mination reg arding judicial diversion, the trial c ourt must consider the following fac tors: (1) the de fenda nt’s amena

bility to corre ction, (2) the c ircumstance s of the off ense, (3) the defe ndant’s criminal rec ord, (4) the def endant’ s social history , (5) the de fenda nt’s mental and phy sical hea lth and (6) the deterr ent effec t of t he sentencing decision t o both the defe ndant and other simil arly situated defe ndants. State v. L ewis, 978 S.W .2d 558, 566 (Tenn. Crim. App. 1997) . The decision should be based on whether the g rant of diversion will se rve the ends of justice for both the
pu bli c a nd the de fe nd a nt. I d. Th e re c or d must re fl e c t tha t the tr ia l c ourt c on sid e re d a

nd we ig he d a ll these fa ctors in ar

riving at its decisi o n

. S t at e v. Elec troplating , I nc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998).

I niti a ll y , w e n o te th a t th e tr ia l c o u rt d id n o t ma k e s p e c if ic f in d in g s r e g a r d in g it s d e n ia l of judicial diversion. Howe ver, ba sed upon the detailed discussion of its ove rall sentenc ing de cision,

we a re a ble t o d eter

mine that the re quired fa ctors we re c onsidered a nd appropr iately

weig hed. Fur thermore , we f

ind that there is substantial evidenc e to support the trial c ourt’s denia l of diversion. The de fenda

nt admitted to additional criminal behavior when he testified a t the sentenc ing he aring
reg arding his marijuana use

. The circ umstances of the offe nse show a ver y dang erous plan that was

on ly sto pp e d b y

the int e rv e nti on

of a uth or iti e s a t th e be he st o f a n ob se rv a nt c iti zen . A s te sti fi e d to-4-

by Dr . Hy tc he , the de fe nd a nt s e e ms t o r e sp on d p os iti ve ly to s up e rv isi on

a nd sh ou ld f a re we ll w ith split confinement foll owed by four y ear s of proba tion as order ed by the trial cour

t. We also ag ree wi th t he tr ia l c ourt ’s c on c e rn th a t th e de fe nd a nt n e e ds to a pp re c ia te the se ri ou sn e ss o f t he of fe ns e and that a la ck of ja il tim e would s en d t h e wrong messag e to the public. Most important to our consideration is our conclusion that the denial of dive rsion is nece ssary for the def

endant to continue
to improve acade mically and follow the path he is prese ntly following

. Thus, the denial of diversion will serve the e nds of justice for both the defe ndant and the public.

CONCL USI ON

We conclude that there is substantial evidenc e to support t he trial court’s denial of judicial diversion. Ther efor e, the judg ment of the trial c ourt is affir med.

D. KE L L Y THOMAS, JR ., J UDGE