### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON STATE OF TENNESSEE v. SHANNO N PRIER Direct Appeal from the Criminal Court for Lauderdale County

No. 6674 Joseph H. Walker, III, Judge

No. W1999-01436-CCA-R3-CD - Decided July 24, 2000

The defendant appeals her conviction for theft over $1,000 for which she rece ived a two -year suspendedsentence. The defendant comes before this court raising the following issues: 1) whether the evidence was sufficient to support her conviction; and 2) whether the trial court properly denied her petition for judicial diversion. We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt Affirmed.
R ILEY , J., delivered the opinion of the court, in which T IPTON and G LENN , JJ., joined. Gary F. Antrican, District Public Defender; and Julie K. Pillow, Assistant District Public Defender, Somerville, Tennessee, for the appellant, Shannon Prier. Paul G. Summers, Attorney General and Rep

orter; Mark E. Da

vidson, Assistant At

torney Gen

eral; Elizabeth T. Rice, District A

ttorney Ge

neral; a nd Trac ey Brewer, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION FACTS
The defendant was a swing manager at the McDonald’s resta

urant in Ripley . As a result of financial problems, defendant plann ed a the ft. On June 10 and 12, 1998, the defendant was instructed by senior level management to take two separate deposits to the bank and deposit them into the McDonald’s bank account. Instead of depositing all of the money , the defendant

kep t $6,399.19 of the deposit.
The theft was discovered when a juvenile accomplice of t he defendant was st

opped in Memphis for running a r

ed light. In a subsequent search of the vehicle, the police found $ 1,244 in cash in the door of

the car and unde

r the driver’s se

at. The cash that was found under the driver’s seat was in a M cDonald’s bag. In addition to the cash in the McDonald’s bag, police also found-2-

checks made out to the McDonald’s restaurant in Ripley and deposit slips. The defendant’s wallet was found on the ba

ckseat. Other testimonyindicated that the defendant and the juvenile accomplice had swapped cars on the date of the second deposit, and the defendant drove the accomplice’s car to make that deposit. The accomplice testified

that the defenda

nt was his girlfr

iend, and that she

told him that she falsified the cash sheets in order to steal some of the money that was to be deposited. The defendant testified shedeposited all funds she was told to deposit. The defendant stated that she had no knowledge of the crime until she was arrested. She denied any involvement

in the crime. Based upon testimony given at trial, the defendant was convicted at a bench trial of theft over $1,000, a Class D felony. The defendant was sentenced to two y ears as a standard offen der; the sentence was suspended; and she was placed on probation. Judicial diversion was requested, but the trial court found that judicial diversion was inappropriate. This case now comes before this court on direct appeal. The defendant raises two issues: 1) whether the evidence presented at trial was sufficient as a matter of law to sustain a conviction for theft over $1,000; and 2) whether the trial court erred in refusing to grant judicial diversion. After reviewing the record, we affirm the conviction and hold that the trial co urt’s denial of judicial diversion was proper.

SUFFICIENCY OF THE EVIDENCE
The defendant contends that the evidence is insufficient as a matter of law to sustain a conviction for theft over $1,000. We disagree.
A. Standard of Review
In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the evidence. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the state is entitled to the strongest legi

timate view of the

evidence and al

l legitimate or

reasonable inferences which may be drawn therefr

om. Statev. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994). This court will not disturb a verdict of guilt due to thesufficiency of the evidence unless the defendant demonstrate s that the facts contained in the record and the inferences which may be drawn therefrom are insufficient, as a matter of law, fo

r a rational trie

r of fact to find th

e accused guil

ty beyond a reasonable doubt. State v. Brewer , 932 S.W.2d 1, 19 (Ten n. Crim. App. 1996).

Accordingly

, 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 doub

t. Tenn. R. App. P. 13(e); Jackso n v. Virginia , 4 43 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994).-3-

B. Analysis Testimony

at trial established the d efendant’s involvement in the crime. The accomplice testified that

the defendant informed him of her plan to steal money from her employ er. He further testified that the defenda

nt told him that she pla

nned to take one of

the deposit bags

and make it appear that another employee had taken the money

. The accomplice also testified that the defendant switchedcars with him on the morning of June 12. The witness testified that he and his aunt later returned to get his car, and his aunt found money from the June 10 and 1 2 deposits in the gl ove compartment o

f the car. This

was the same car in w h ich the police subsequently found the McDonald’s bag that contained: 1) $1,244 in cash; 2) checks made out to McDonald’s that were from the deposits that were missing; and 3) deposit slips from the June 10 and 12 deposits that were never deposited. Further, he testified that the defendant told him that she did not believe she would get ca ught because

the money tha

t was missing would not be discovered until the end of the year, and she was going to use the money to pay off her new car. Testimony

of the accomplice was corroborated by other witnes ses. Their testimony established: 1) the monies were given to the def

endant to deposit; 2) over $6,000 was missing from the monies that should ha ve been deposit

ed; and 3) the defendant had complained of financial difficulties just pr

ior to the theft. Although the defendant denied any involvement in the theft, the credibility of the witnesses is a question for

the trier of fact. The trial court, as the trier of fact in the bench trial, accredited the testimonyof

the state’s witnesses and discredited the defendant’s testimony. This was the judge’s prerogative. Viewing the evidence in a light most favorable to the state, as we must, a rational trier of fact could conclude that the defendant was guilty of theft over $1,000.

JUDICIAL DIVERSION
When a defendant con

tends th at th e trial court committed error in refusing to impose a sentence pursua

nt to Tenn. Code Ann. § 40-35-313, commonly referred to as “judicial diversion,” this Court must determine whether the trial court abused its discretion in failing to sentence pursuant to the statute. State v. Electroplating, Inc. , 990 S.W.2d 211, 229 (Tenn. Crim. App 1998); State v. Cutshaw , 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997); State v. Bonestel , 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993). Judicial diversion is similar to pretrial diversion; however, judicial diversion follows a determination o f guilt, and the de

cision to grant ju

dicial diversion r

ests with the trial court, not the prosecutor. State v. Anderson , 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992). When a defendant challenges the trial court’s denial of judicial diversion, we may not revisit the issue if the record contains any substantial evidence supporting the trial court’s decision. Cutshaw ,-4-

967 S.W.2d at 344; State v. Parker , 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). As this Court said in Anderson :

We conclude that judi

cial diversion is

similar in purpose t

o pretrial diversion and is to be imposed within the discretion of the

trial court subjec

t only to the same constraints

applicable t o prosecutors in applying pretrial diversion under TENN. CODE ANN. § § 40-15-105. Therefore, upon review, if “any substantial evidence to support the refus

al” exists in the record, wewill give the trial court the benefit of its discretion. Only an abus e of that discreti

on will allow us to ove

rtu rn the tri al court. 857 S.W.2d at 572 (citation omitted). The criteria that mus

t be considered in

determining whe

ther an eligib

le a ccused should be granted judicial diversion include : (a) the defendant’s amenability to correction; (b) the circumstances of the offense; (c) the defendant’s criminal record; (d) the defendant’s soc ial his tor y; (e) the defendant’s physical and mental health; and (f) the deterr ence value t o t he defendant and others. Cutshaw , 967 S.W.2d at 343-44; Parker , 932 S.W.2d at 958. An additional consideration is whether judicial diversion will serve the ends of justice, i.e., the interests of the public as well as the defendant. Cutshaw , 967 S.W.2d at 344; Parker , 932 S.W.2d at 958. The trial court considered the evi dence hear d at trial and at the sentencing hearing, and concluded “t hat judicial diversion was not appropriate due to the nature and circumstances of the offense.” There a

re a numb er of factors that would support the granting of judicial diversion. However, the defendant’s lack of candor and failure to accept responsibility for her criminal actions negatively

reflected upon her potential for rehabilitati on. See Electroplating, Inc. , 990 S.W.2d at 230; Anderson , 857 S.W.2d at 574. Considering the trial court’s concern with the nature and circumstances of t h e offense and th e defendant’s la

ck of candor, the

re is substantial e

vidence to support the denial of judicial diversion. This issue has no merit.

CONCLUSION Based upon our review of thetrial record, sufficient evidence was presented at trial to find the defendant g

uilty of theft in an amount over $1,000. Further, the trial court’s denial of judicial diversion was proper. The judgment of the trial court is affirmed.