# FILED
June 10, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE FEBRUARY

, 1998 SESSION

STATE OF TENN ESSEE, ) No. 01C01-9612-CR-00535 ) Appellee ) ) Davidson County vs. ) ) Honorable W alter C. Kurtz, Judge ) ELECTROPLATING, INC., and ) ROSS CUNNINGHAM, ) (Violation of the Water Quality Control ) Act of 1977) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: JERRY D. HUNT (Trial on ly) JOHN KNOX WALKUP 102 E. Main St. Attorney General & Repor ter P.O. Box 812 Lebanon, TN 37088-0812 ALBERT L. PARTEE, III Senior Counsel BOB LYNCH, JR. (Trial and Appeal) 425 Fifth Ave. North, 2nd Fl oor Suite 316 Nashville, TN 37243-0493 Washington Square 222 Second Ave. North VICTOR S. JOHNSON III Nashville, TN 37201 District Attorney General JOHN SEABORG JOHN A. MOORE Assistant District Attorney Generals Suite 500 Washington Square 222 2nd Ave. North Nashville, TN 37201-1649

OPINION FILED: ____________________
CONVICTION AND SENTENCE AFFIRMED STATE’S APPEAL DISMISSED CURWOOD WITT, JUDGE
OPINION1 The grand jury issued a three-count indictment against

Cunningham and his closely held corporation, Electr oplating, Inc. Both defendants were charged w ith violating Tennessee Code Annotated sections 69- 3-114(b) and 69-3-115(c) by discharging c hromium on September 4, 1994 (Count 1), and with feloni ously and knowingl y causing property

damage to Metropolitan Government’ s sewer system in violation of Tennessee Code Annotated section 39-14-408 (C ount 3). In the second count, the corporation was charged with the willful discharge of chromium and nickel between September 9 - 12, 1994. The jury found Cunningham guilty on the first count but acquitted him on the third. The corporation did not make an appear ance in the trial court and was c

onvicted of all three counts and received fines amounting to $169,480.16. Electroplating,Inc., is not a party to this appeal. 2 The appellant, Ross Cunningham, appeals his conviction for willfully failing to comply with the Tennessee Water Cont rol A c t of 1977 by discharging chromium into the MetropolitanGovernment Sewer Sy stem on September 5, 1994,
a class E fe lony. 1 After the Davidson County j ury returned a guilty verdict, the tr ial court sentence d the defendant to the minimum one-year sentence and a fine of $10,000. The trial court suspended the sentence and orde red Cunni ngham to serve two years on probation incl uding 800 hours of community service and, in addition, req uired a ca sh bond securing payment of hi s fine and the costs. In this appeal pursuantto R u le 3 of the Tennessee Rules of Appellate P rocedure, Cunningham alleges that: 1. The trial cou rt erred when it denied his

motion for judgment of acquittal at the close of the st

ate’s pr oof a n d in the motion for a new trial. 2. The trial cour t erred by admitting evidence of the defendant’s prior bad acts. 3. The trial court erred by admitting extrinsic evidence of specific instances of conduct to impeach the defendant’s credibil ity. 4. The trial court erred i n al lowing the de fe ndant to stand tri al for the same chargesboth as an i ndi vidual and as a corporate defendant. 5. The trial court erred i n denying the defendant’s request that he be granted judicial diversion under Tennessee Code Annotated section 40-35-313. The state also raises an iss ue in this appeal. It contends that the trial court erred by not requiring the defendant to pay restitution.2 In 1994, Labor Day fell on the fifth of Sept ember. 3 We have reviewed the record and the law in this rather unusual case. Because the state does not have the ri ght to appeal a trialc ourt’s failure to order restitution, the state’s appea l is dismissed. See Tenn. Code Ann. § 40-35-402 (1997). Finding no error warranting reversal of Cunningham’s convictio n orany modification of his sentence, we affirm the judgment of the trial cour t.

Facts Because o f the comp lexity of t he factu al issues in this cas e, we discuss the facts in detail.During the early morning hours of September 6, 1994,
an employee of the Metro Water Services Department at the Dry Creek facility took
a sample from the Old Hickory line and noticed th at the sample was yellowishorange rather than its

normal brown color. The employee preserved a gallon ofthe orange liquid, and later, James Pogue, a chemist for Metro Water Services, took the sample to the Central Waste W aterTreatment Plant for analysis of its metals content.

Based on his kn owl edge and experience, Pogue immediately identified two possible sources for the discharge in the Old Hickory/Lakewood area. The first company he visited was Chem-P late where he met with the o wner and informed him of the discharge. Chem-Plate’s owner st ated that he had had no spills in the past couple of days, and on a wa lk-through of the plant Pogue found no evidence of anything similar to the sample taken at the treatment plant. The second company

he visite d was Elec

troplating , Inc., whe re he met with Ross Cunn ingham, the owner. Cunningham told Pogue that he had closed the plant due to the deterioratingcondition of the roof. He denied any responsibil ity f or the discharge and explained that he had been out of tow n until late in the

evening on September 5. 2 Pogue testified that he was able to eliminate C hem-Plating as the source of the dischar ge rather quickly. First, the analysis of the sample taken at the treatment plant showed that the discharg e contained ahigh concentration of chromium, and3 Flow from the Lakewood ar ea goes first to the Lakew ood Pumping Station, then to the Old Hick ory Pumping Station, and final ly to the Dry Cr eek Wastewater Treatment Plant. 4 he knew that Chem-Plate did no chrome pl ating. Second, after examining a sewer plat map of the Lakewood Sanitary Sewer System, Pogue found that Chem-Plating and Elec troplating, Inc., w ere on the opposite sides of a hil l which prevented the
sewer flow from the two plants from combining until they were out of the Lakewood district. 3
Pogue then concentrated his att ention on the Electroplating facility. On September 7, he and William Bry ant, a senior

chemi st for the Metro Water Service, returned to conduct an inspec tion. Duri ng this ins pection , they fou nd two plating tanks at the back of the building. One tank was empty except for s om e yellow-orange sludge at the bottom, and the other contained approximately 250 gallonsof ayellow-orange solution. The official discharge point for the plant’s waste water w as a shallow

manhole directly behind the facility. The inspectors were unable to take a sample from this manhol e because it was completel y dry.

The official discharge point, however, connects to manhole 68 which also receives the sanitary discharges from the plant’s bath ro om and sink. Only Electroplatingis connected to manhole 68. No sample was taken from this manhole. Sewage from number 68 flows approximately 268 feet to manhole 15 into which four residence s also empty their sewage. Gravity flow carrie s the sewage through manholes 13, 14, and 17 and ultimately to the Lakewood and Old Hickory Pumping Stations. While Pogue was inspecti ng manhole 15 on S eptember 9, a yellow-orange substance flowed through the manhole, and he was able to secure
a s am ple. To provide for continui ng observation, an automati c sampler that took samples at regularly

scheduled intervals w

as installed that same day.

On September 12, Pogue returned t o manh ole 68. He found a blueish-green liqui d in the bottom of the manhole. Although no sampl es from this4 Pogue also testified to other expenses incurred by the Metropolitan Water Service as follows: Personnel costs: $2,280.16 Analytical costs: $3,060.00 Mileage: 111.25 On cross-examination, Pogue conceded that these items resulted in no extra outside cost to Metro Water Service as the personnel costs w ere for payroll, the mileage was incurred in government-owned vehicles, and that the analyses were performed in a Metro Water Service’s l aboratory. 5 site were analyzed, he

presumed that the liquid co ntained a concentrate of nickel because of the color. The concrete in the manhole had been eaten away by what ap peared to be some type of acid. Pogue testified that out of the thousands o f manholes he had seen, he had never found one as c orroded and ea ten awa y as this one. Later, Pogue stated that Ferguson Harbor, an environmental clean-up company, had removed the metal-bearing was te f ound in the sewer line near manhole 68 at a cost of $7,413.60. 4

Pogue and Bryant madeanother inspection of Electropl ating’s plant
on September 14. Cunningham allowed them to walk through theplant but denied permission to take pictures. During this visit, Cunning ham stated that, although he had dumped some “stuff” before, he was not responsibl e for the curr ent problem.

At trial, Bryant explained the Metro Water permit system. Users that discharge more than 25,000 gallons per day or that discharge pollutants must have an industrial user’s per mit. Electroplating’s permit was issued on M arch 15, 1994 and was effective throu gh March 15 , 1997. The permit defines the amount of variouspollutants that may be disc harged into the s ewer sys tem, spells out the methods to be used for collection and anal ysis of samples, andrequires that certain records be kept. Electroplating’ s permit specifically limits the amount of ch romium, nickel, copper, zinc, cadmium and other metals the plant could discharg e into the system both at a given moment of time a nd in a twenty-four hour period. For example, the ‘grab’ sample limit on chromium was ten parts per million (ppm) and the limit for a twe nty-four hour composite sampl e is five ppm. Dry C reek Water6

Treatment Plant also has limits which it cannot exc

eed.

The state intro

duced the tes

t results fr

om th ree different samples: #1520, the original sample taken on September 5 at Dry Cr eek; # 1556, the ‘grab’ sample taken on September 9 from manhole 15; and #1567, the composite sample obtai ned f rom the autom atic sampler on manhole 15 f rom Septembe r 9 through September

12. Sam Seged, a laboratory chemist employed by Met ro Water Services, testified that he analyzed each sample for the presence of vari ous metals inc luding chromium, nickel, copper and zinc. The reported results, expre ssed i n part per million, and the permit limits are compare d in the table below. The li mits in #1520 are from the limits imposed on influent at the Dry Creek treatment plant. The other two samples are compar ed to the limits in Electr oplating’s permit.
# Type Chromium Lim it Nickel Lim it Copper Lim it Zinc Lim it 1520 grab 560 .51 16 . 32 11 .52 .4 .43 1556 grab 400 10 23 10 2.5 10 3.1 10 1567 composite 450 5 1300 5 160 5 130 5

According to William Bryant, once sewag e at the treatment plant exceeds the limitations there is a possibility for environmental harm. Not only would the Cumberland River

be harmed, but thetoxicity of the metals could destroy the biological activity at the tr eatment plant itself and, as a result , the treatment system could fail. Bryant also con clu ded from the data that there were two separate discharges

represented by samples 1520 and 1567. He described samples 1520 and 1556 as having the same “fingerprint” and, therefore, he con sidered them to be represen tative of the same spill. The first dis charge was high i n chromium with smaller amounts of the other metals; the second discharge, on the other hand, was extremely high in nickel. The state’s experts conceded that it was possible that a backflow from the area below manhole 15 could occur; however, such a back flow
was extremely unlikel

y except during per

iods of heavy rain. James Pog ue explained that the yellow-orange flow he observed in manhole 15 on September 9
was probably caused by l iquid emptied into the line earlier but trapped in a l ow spot.5 The defendant objected to this testim ony as based on facts not in

evidence. The trial cour t overruled the objecti on finding that a hypothetical does not have t o be abso lutely acc urate an d that th e evidenc e was releva nt to prove motive. The defendant has not raised this issue on appeal. 7 When a new surge of liquid passe d through th e line, the trapped discharge was released. On cross-examination,Bryant acknowledged that any thing discharged from the plant had to pass through either the official discharge point or manhole 68 or both and that he had no direct pr oof that such a discharge had occ urred.

James North, an environmental consultant, testified that it would have cost approximately $9,000 for an electroplating company to dispose legally of 1,750 gallo ns of spent nickel and chrome plating waste. 5 He also testified to the toxic effect of such metals which can eat through t he co ncrete and masonry of sewer lines, contaminate water supplie s downstream from the discharge, and negatively affect the wildlife as wel l as the surface and ground w ater of the area involved.

Three non-expert witnesses conclu ded th e state’s case. Bill Crusenberrytestified that at about 1:00 p.m. o n Sept ember 5 he saw Ross Cunningham standing near his pickup truck behind the plant. Crusenberry had known the defendant for years and was familiar

with the truck. Jack Barnes owned
a garage across the st reet from Elec troplating. He t estified he had known the defendant since t he late seventies. He des cribed the condition of the facili ty as “needing a lot of work.” He sai d that the roof was in parti cul arly b ad shape and leaked terrib ly. In the past, he had noticed that, during a heavy rain, a y

ellowishorange liquid woul d run out of the door of the plant and acr oss the street.

The last witness, Billy

Clark, was a former emplo yee of Electrop lating. Dur ing a jury-out hearing, the state offered the testimony of Clark, Miller J akes , former codes director

for the city of Lakewood, and Ann Rochelle, an environmental specialist for the State Department of Environment and Conservation. Cunni ngham also testified briefly. The trial court found Clark’s testimony admissible under rule6 As originally charged, the vandalism would have been a class Cfelony. The trial court al lowed the jury to det ermine whether the defendant w as guilty of a D or E felony or a misdemeanor. The jury acquitted the defendant of this charge. 8 404(b) of the Tennessee Rules of Criminal P rocedure. He r efused to allow the other two witnesses to

testify unless something in the defendant’s proof “openedthe door.“

Before the jury, Clark described the process by which Electroplating had plated chrome and nickel part s. He also testified that dur ing rai nyperiods, Cunningham would open thevalve on the bottom of the ri nse tank. The rain falling through the roof would wash the s olution ou t the door, down the road and into a storm drain. During the ten years he worked at the plant, he said that the rinse tank had been emptied a few times in this manner. He also described the trench drain and sump pump that he helped the defe ndant in s tall in front of the doorway approximately five years before the plant closed. The solution would flo w across the floor into the trench drain w here it would be pumped throug h a filtration system and then collected in another tank. On cross-examination C lark admitted that he had “caught an attitude” w hen he was laid off without any severance pay. He said he was “droppedlike a hot potato” when Cunningham suddenly decided to close the plant. At the c lose of Clark’s testimony , the judge instructed the jury that the evidence of Cunningham’s prior acts were to beconsidered for the limited purpose of determining the defendant’s intent, knowledge, and/or absence of accident and could not be used to prove the defenda nt’s disposition to commit the cr imes for which he was on trial.

After the state rested, the trial court reduced the vanda lism cha rge involving damages in excess of ten thous and dollars to one for whic h the damages
were less than ten thousand. 6 The defense did not move for a judgment o f acquittal on the first count of the indictment.7 The record does not contain either the motion to suppress or the transcrip t of the s uppressi on hearin g. From the comment s made du ring the ju ryout hearing at trial, w

e gather that five samples w ere taken from inside the plant without a valid w

arrant and that the trial c ourt suppressed the results . One of the tests clearly indic

ated that zinc was pr

esent in sludge found in the toi let bowl. 9 Ross Cunningham took the stand in hi s own defense. He denied that he had dumped a ny toxic materials on September 5. Although he acknowledged that some waste material had flow ed out the door in the past, he insisted that the spillage had ceased once the trench drain and sump pump were in place. He te stified abo ut his process for recy cling the waste from the r inse tanks. He had patented a process which remov ed contaminat ion fr

om the rinse water and had used the system for the past several years. When spillage occurred i n the facility everything

went through the sump pump and filter via the trench dr

ain. The process removed the metals, and the water was then r eturned to the pretreatment tank. The metals could then be returned to the plating tan ks and reused. He testified that he had performed no zinc plating and had no zinc in his shop. He reiterated on crossexamination that his shop contained no zinc.

The defens e offer ed the exp ert test imony of Donald Pearson, a former chemistry professor at Va nde rbilt University. Pearson testified that he had examined the defendant’s patent and conducted an experiment using the process. He found that the process did in fact work to remove chromium from the wat er. In his experime nt, the ch romium wa s red uced to six parts per million. However, Pearson acknowledged that he had nev er seen the process at work in the plant and had tested it only under l aboratory conditions. A t this point the defense rested.

After the jury left the courtr oom, the state moved for admission o f certain evidence to rebut the defendant’s direct testimony that the re wasno zinc in his plant and that hehad never emptied any contaminated material into the sewer system. The evi dence, which consisted of l aboratory analyses per formed on samples taken from inside the plant, had been suppres sed prior to trial. 7 After considerable discussion the court rul ed that the r esult of only one test was10

admissible and was limited to impeachment purposes. The pro sec ution then recalled James Pogue and Samuel Seged. They testified that th e sludge take n from the toilet bowl in the boarded up lavatory cont ained 16 parts per

million of zinc
as well as smaller amounts of chromium and nickel. The trial judge instructed the jury that this testimony was admissible only on the issue of the defendant’s credibility.

The state then called Sherman Reeves w ho lived down the str

eet from the Electroplating plant and pa ssed it ever y day. He testified tha t between 1989 and 1994 he had observed some unusual blue-green or orange liq uid coming from the plant on 20 or 30 different occasi ons.

The defense then recalled Ross Cunni ngham who again testified that his plant did not perform any zinc plating. He explained that when items containing zinc were placed in the plati ng tank, the solutionwould pull impuriti es such as zinc into the bath . Over a peri od of tim e, the zinc in the sol ution wo uld bu ild up. Cunningham also testified that prior to plating, zinc diec

ast products and pot metal required polishing. Dust from the p rocess settled onto everything i ncluding thetoilet bowl. He reiterated that after the installation of the tre nch drain, no contaminated liquid had escaped from the plant. Oncross-examination, he said that he had not plated any zinc since 1982 a nd th at any zi nc in the shop was a by -product of the process.

Based on this eviden ce, the j ury fo u nd Ross Cunningham guilty of willfully discharging chromi um into the Metropolitan Gov ernment Sewer System on September

5, 1994 as charged in count on e of the indictment but acquitted him of the vandalism charge in c ount three. The jury returned guil ty verdicts agai nst the corporation in all three counts.

Denial of the Defendant’s Judgment of A cquittal8 The state contends that the defen dant waived this issue because

he presented evidence on his own behalf rather than standing on the motion. Rule 29(a) of the Tennessee Rules of Criminal Procedure prov ides that a defendant may offer evidence after the tr ial court denies a judgment of acquittal without having reserved the right. If the jury returns a guilty verdict or is unable to reach a verdict, the defendant may immediately make or renew a motion for judgment of acquittal. Tenn. R. Crim. P. 29(c). In the alternative, the rule permits the defendant to include the mo tion for a judgment of acquittal in a timely motion for new trial. Id . In this instance, the defendant raised the issue in his motion for new trial. M oreover, as discussed above, a defendant may raise the issue of the sufficiency of the evidence for the first time on appeal. 11 The framing of this issue has prod uced some confusion on appeal

. The defendant contends in his brief that the state failed t o prove t hat he willfully discharged chromium con tamina ted waste into the sew er system and that, therefore, the evidence is insufficient to sustain the jury v

erdict. The issue, on the other hand, is framed as whether the trial court erred when it de nied the defendant’s motion for judgment of acquittal at the close of state’s proof and in the subsequently filed motion for new trial. The record shows that the defendant did no t move for a judgmentof acquittal withrespect to the first count of the indictment at the close of the state’s proof. After the jury left the courtroom, def ense counsel sa id, “Your Honor, at this time, we’d ask for a -- we make a motion for j udgment of acquittal on the vandalism charge. Ther e has been no proof of damages to the Metropolitan system whatsoever.” The tr ial court partially

granted the defens e mo tion by reducing the charge to no greater than a D felony. We need no t review the tri al court’s action because the jury acquitted the defendant of the charge of vandalism and our consideration woul d be moot. 8

However, not hing in the rules req uires the defendant to raise the sufficiency of the eviden ce either in a motion for judgment of acquitta l or in the motion for new trial in order to preserve the

i ssue for appellate review. The Tennessee Rules of Appellate Procedur e provide that in all casestried by a jury, no issue presented for revi ew shall be pr edicated upon error in the admi ssion or exclusion of evidence, jury instruct i ons granted or refused, misconduct of jurors, parti es o r counsel, or other action committed or occurr ing during the t ria l of the case, or other groun d upon wh ich a new trial is so ught , unless the same was speci fically statedin a12 motion for new trial. . .

. Tenn. R. App. P.3 (e) ( emphasis added). When the issue, if found to be
mer i torious, would result in dis missal of the prosecution agai nst the accused, the Rule 3 waiver prov

ision does not apply. State v. Keel , 882 S.W.2d 410, 416 (Tenn. Crim. App. 1994). If this court determines that the evidence in the record is insufficientto sustain the jury’s verdict, no new tr

ial will result . The charge must be dismissed. Thus, the sufficiency questi on is subject to revi eweven if the defendant had not raised it in his moti on for new trial.

When an acc used challenges the sufficiency of the evidence, an appellate court’s standard of review is, whether after considering the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt

. Jackson v. Virginia , 443 U.S. 307, 317, 99 S. Ct. 2781, 2789 (1979); S tate v. Dun can , 698 S.W.2d 63, 67 (Tenn. 1985 ); Tenn. R. App. P. 13(e). Since a jury conviction
rem oves th e presumption of innocence with which a defendant is initi ally cloaked and replaces it wit h one of guilt, a convicted defendant has the burden of demonstrating on appeal that the evidence i s insufficient. Sta te v. T uggle , 639 S.W.2d 913, 914 (Tenn. 1 982). In d etermin ing that su fficie ncy, this court does not reweigh or reevaluate the evi dence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the state is entitled to thestrongest legitimate view of the evidence and all reasonable or le giti mate inf erences wh ich may be drawn therefrom. Sta te v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). It is the appellat e court’s duty to affirm the conviction if the evidence, viewed under these standards, is sufficient for any

rational trier of fact to find the essential elements of the offenses beyond a reasonable doubt. State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e).

We find that the evidence in this case, when re vi ewed according to these standard s, is suff icient to sustain t he defe ndant’s convi ctio n for willfully9 This court has generally equated the mens rea of ‘wil lful’ with ‘intentional’ as defined in Tenness ee Code Annotated section 39-11-302 (a). See , e.g., State v. Bordis , 905 S.W.2d 214, 224 (Tenn. Crim. App. 1995); State v. Fredrick Sledge , No. 02C01-9405-CR-00089, slip op. at 15 (Tenn. Crim. A pp., 13 dischargingchromium into the M etr opolitan Government’s sew er system on September

5, 1994 in violation of Tennessee Code Annotat ed sections 69-3-114(b) and 69-3-115(c). In pertinent part, section 69-3-114 states:

In addition it shall be unlawful for any person to act in a manner or degree which is viola tive ofany provision of this part or of any rule, regu lation, or standard of water quality pr omulgated by the boa rd or of any pe rmits or orders issued pursuant to the provision of this part.

. . . Tenn. Code Ann . § 69-3-1 14(b) (19 87). If a vi olatio n occurs, section 69-3-115 provides t he penal ty:

Any person who . . . wi llful lyand knowingly unlawfully pollutes the water of the st ate or willfully fails, neglects, or refuses to comply with any of the prov isions of this part shall be gu ilty of a f elony an d shall be pu nishe d by a fine o f not mo re than twe nty-five thousand dollars ($ 25, 000) or imprisonment not to exceed two (2) y

ears or both. Tenn. Code Ann. § 69-3-115(c) (Supp. 1994).

The indictment c

harged that

Ross Cunni ngham “did willfully fail to comply with the Tennessee Water Quality Cont rol Act of 1977 by discharging chromi um contaminated waste into the s ewer system of the Metr opolitan Governmen t of Nashville and Davi dson County in viola tion of the industrial user permit issued to Electroplating , Inc.” Therefore, the evidence presented at trial must demonstrate beyond a reasonable d oubt that

1. A discharge of chromiu m -contaminated waste into the Metro Government’s sewer system occurred. 2. The discharge was a vi ol ation of Ele ctroplat ing, Inc.’s industrial user permit issued pursuant to the Tennessee Water Quality Control Act of 1977. 3. The defendant, Ros s Cunningha m, willfully caused the discharge. 9Jackson, Nov. 24, 1997), perm. app. filed (Tenn. January 12, 1998); Mark

Steven Johnson v. State , No. 01C01-9212-CR-00 408, slip op . at 5 (Tenn. C rim. App., Nashville, Sept. 2, 1993).

10 The influent at Dry Creek may contain no more than .51 parts per million of chromium. Even thou gh the discharge had been g reatly diluted by the time it reached the treatment facility, the chromium still exceeded th e permissible amount by more than a thousand times.

11 Pogue testified that no sample coul d be taken at the official discharge point because it was dry. The record does not indicate why no sample was taken at manhole 68. Photog raphs in evidence show that on September 9, manhole 68 contained a bluish-g reen liquid. 14 At trial, the defendant did not chall enge t he state ’s evidence demonstrating that a discharge of chromium oc curred. Nor did he ques tion that such a discharge would viola t e the provisions of the indus trial user permit. The evide nc e that such a discharge occ urred is overwhel ming. A copy of Electroplating’s industrial user permit containing th e limita tions was placed into evidence. The analysis of the sample taken at the Dry Creek treatment plantin the earlymorning hours demonstrates beyond a reasonable doubt tha t the waste discharged contained chromi um far in excess of the permissi ble amount. 10

The major issue at trial w as whet her the il legal discharge w as the
resu lt of Ross Cunningham’s wi llful and knowing act. On appeal, Cun ningha m contends that the record contains no evidence that any contaminated sewage was discharged through e ither the officia l discharg e point o r manhol e 68, the only two locationsthrough which sew age from Electroplat in g could enter the system. It is true th at no samples

were taken

from either the discharg e point or fro m m anhol e 68 and thatthe st ate presented no direct evi dence that Cunningham was the perpetrator. 11 Circumsta ntial evid ence, ho weve r, does point unerringly t o the Electroplatingfacility as the source of the contamination and to Cunningham as the person responsible for the dis charge.

A criminal offense may be establi shed exclusively by circumstantial evidence. State v. Tharpe , 726 S.W.2 d 896, 899- 900 (Tenn. 1973); State v. Jones , 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire , 634 S.W.2d15

608 (Tenn. Crim

. App. 1981). However, the evidence must not only be consistent with the guilt of the accused but inco nsistent with innocence and must exclude every other reasonable theory or hypothesis except that of guilt. If the trier of fact
can determine from the proof that all other reason able theoriesexcept that of guilt
are excluded, the evidence is sufficient. State v. Tharpe , 726 S.W.2d at 900; State
v. Jones , 901 S.W.2d at 396. Inferences to be drawn from circumstantial evidence
are within the provinc

e of the trier of fact, and this cour t may not

su bstitute its inferences for those drawn by the j ury from the evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856,859 (1 956); State v. Gregory , 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993).

When Pogue conducted a walk-throug h of the facility on September 7, 1994, he found two plating tanks at the back of the plant. One was empty except f ora yellow-orange sludge at the bottom, and the other contained approximately 250 gallons o f a yellow-orange solution. The only other pos sible source of contamination in the relevant area w as t he operation at Chem-plate. Pogue’s inspection of that plant on September 7 found nothing that would have caused the high concentration of chromium present in the influe n t at Dry Creek. Moreover, Chem-plate did no chrome plating. T wo days later, w hile Pogue was inspec ting manho le 15, another yellow-orange substance flowed through the manhole

. Sewage from only five users flows through manhole 15. Four of these sources were residential users. The fifth was Elect roplating ’s plant, a fa cility w here chrome plating had represented a major portion of the business. From these facts, a jury could have reasonab ly in ferred that the source of the dischar ge was indeed the Electroplating plant.

Ross Cunningham was the sole owne r of th e corporation. He managed the operation of the plant and was intimately in volved in its day to day operations. He described himself as an inorganic chemist, and he had many years of experience in the pl ating b usiness. Just prior t o the discharge, Cunning ham12 Cunningham testified that since the trench drain and sum p were

installed in 1989, no liq uid discharges left the pla nt. 16 c losed the plant because of the condition of th e roof and announced his d ecisio n to retire. According to the environmental consultant, legal disposal of a full tank of plating s olution or rinse bath w ould have cost the corpora tion several thousan d dollars. Although thedefendant at first told the inspector s that he was out of

town until late in the evening on Labor Day, a witness who w

as well-acquainted with the defendant saw him standing in ba ck of the plant atapproximately 1:00 p.m. At trial, the defendant admitted that he had come to the plant at about 5:00 p.m

. to pick up his t ruck . Billy Clark, a employee of Electroplating for approximately ten years, testified that many times he had seen Cunningham open the valve on the rinse tanks and allow the liqui d to run out the door. Jack Barnes, the ow ner of a nearby garage testified that he had seen orange or blue-green liquids running acr oss the road. Although neither Clark nor Barnes p ro vided any dates for these events, Sherman Reeves, who lived nearby , testified that he had seena rust-colored liquid be ing discharged from the premises twenty or thirty

times between 198 9 an d 1994. 12 Although no eyewitne ss actually saw C unningham run the waste water into the s ewer system, the facts pr esented at trial place him on the scene during the critical time period. Because the busi ness was closed, he was the one person wi

th
access to the tanks, and it is reas onable to conclude that he woul d need to dispose of the plating solutions and rinses. He had the knowledge and ex perience required to handle the dangerous materials. He would profit by their disposal. In this instance, the facts and circumsta nces are su ch that the jury could dr aw no other reasonable inference save the guilt of the defendant beyond a reasonable doubt. State v. Jones , 901 S.W.2d at 396.

After reviewing th e facts p resente d at trial, we find thatthe evidence is legally sufficient to convict the defendant of willfully dis ch arging chromium contaminated waste into t he sew er system of the Metropolitan Government of Nashville and D avidson County in v iolation of the industrial us er permit issued to13 The state also offered another witness who would hav e testified to the defendant’s prior viol ations of the Water Quality Control Act of 1977. Tenn. Code Ann. §§ 69-3-101 through 69-3-129 (1987)(as amended in 1989) . The trial court excluded this tes

timony under Rule 404(b) because the evidence was not proof of an intentional violati on. 17 Electroplating, Inc.

Evidence of Prior Conduct - Rule 404(b) The defendant contends that the trial court should have excluded the testimony

of Billy Clark w

ho stated that he had seen the defendant open thevalves
on the rinse tanks during rainy periods and let the contaminated water flow out the door. The general rule is that evidence of prior conduct is inadmissible, especially when previo us crimes or acts are of the same character as the charged offense, because such evidence is irr elevant and invites th e “finder offact to infer guilt from propensity.” State v. Hallock , 875 S.W. 2d 285, 2 9 0 (Tenn. Crim. App. 1993). Moreover, “[e]vidence of other crimes, wrongs, or acts is n ot admis sible to p rove the character

of aperson in order to show action in conformity w

ith the character

trait.” Tenn. R. Evid. 404(b).

I n this case, the trial c ourt found that the evidence w as admissibl e under the exceptions found in Rule 404(b). The rule permits the admission of evidence of prior conduct if the evidence of other acts i s relevant to a litigated issue such as identity, intent, or rebuttal of accident or mi stake, and the probative value outweighs

the danger of unfair prejudice. S ee Tenn. R. Evid. 404(b) Advisory Comm’n Comments; State v. Parton , 694 S.W.2d 299, 303 (Tenn. 1985); State v. Hooten , 735 S.W.2d 823, 824 (Tenn. Crim. App. 1987).

After a jury-out hearing, the trial court found that Cl ark’s testimony
was probative on the issue of the defendant’s intent and that intent w as an essential element of the crime which the prosecution was required to prove at tria l. 13 The court also fou nd that t he state had shown by clear and convinc ing evidence that

the incidentsdescribed by Clark took place. Although the trial judge did not specifically14 Rule 404 (b) provides that (1) upon request, the court must hold a hearing outside the jury ’s presence; (2) the cour t must determine that the evidence is probativ

e on a material issue and must, i f requested, state on the record the material issue and the reasons for admitting or excluding the evidence; and (3) the court must exclude the evidence if the danger of un fair prejudice outweighs its probative value

. 18 weigh the probative value of the evidence against its potential prejudicial effect in his findings, his earlier comments indicate that he considered the evidence highly probative and, therefore, the pro bative value outwei ghed the unfair prejudice. When, as in this case, a trial court substantially complies with the pr ocedura l requirements of the rule, it s determination will not be overturned absent an abuse of discretion. State v. Dubose , 953 S.W.2d 649, 65 2 (Tenn. 1997). 14

On appeal, th e def endant contends that the evidence was in admissible on the issue of intent because (1) his attorney conceded in openin g argumentthat the crime had been committed intentiona lly, (2) t he state admitted that it had no other

evidence on the issue of intent, and (3) the probative value w as outweighed by the dang er of unfair prejudice. These arg uments have no merit.

First, the transcript befor e this court does not contain the opening arguments, and even if th e attorney’s statement w ere included, statements of counsel are not evidence. Tenn. R. C rim. P. 29.1; T enn. R. Evid. 401; State v. Draper , 800 S.W.2d 489, 493 (Tenn. Crim. App. 1990). At the time of the jury-out hearing, the defense had not yet put on any proof and had notoffered to stipulate that the discharge was not an accident or a mistake. U nder our law, the state

is required to prove ev

ery element

of the crime

charged beyond a reasonable doubt. Although evidence that the defendant committed certain prior acts is ad missible only if the ground for relevance is actual ly being contested, Bunch v. State , 605 S.W.2d 227, 230 (Tenn. 1980), we find that, on these facts, the element of the defe ndant’s willful intent to vi olate the law was a mat erial issue in this c

ase.
Moreover, our review of the rec ord does not disclose that the state19

conceded that it was unable to pr ove willfulness w

ithout Clark’s testimony. The prosecutor, at one point, merely remar ked that Clark’s testimony was theonly direct proof on the issue. As we di scussed above, there was considerable circumstantial evidence that Ross Cunni ngham was responsible for the illegal discharg e. In our view, the fact that the state had littl e direct proof of intent increase s the proba tive value of the testimony rather than decreases it. See Bunch v. State , 605 S.W.2d at 230. Although the earlier illegal discharges described by Clark did not involve any direct contam ination of the sewer sy stem, the evidence was i ndicative of C unningha m’s guilty knowledge and willful behavior

. See United States v. Blue Ridge Plating Co mpany, Inc. , No. 92-5441, 1993 WL 358780 (4th Cir. Sept. 14,1993) (N.C. unpublished per curiam disposition) (table case at 7 F. 3d 22 6).

Even if the trial court had erred in finding that Clark’s testimony w as admissible on the iss ue of int ent, the defend ant’s ide ntity was cle arly a mate rial issue at trial. Cunningham deni ed that he w as in any way r esponsible for the contamination. Therefore, it was incumbent upon the state to prove that he w as the person who spilled the ch romium-contaminated liquid into the sewer syst em. When identit

y is th e issue,the prob ative v alue of t he eviden ce of other crimes depends upon the extent to which it raisesan inference that the perpetrator of the prior offenses was the perpetrator of the o ffense at issue. State v. Bunch , 605 S.W.2d at 230 (quoting United Statesv. Powell , 587 F.2d 443, 448 (9th Cir. 1978)). An inference of identit y arises w hen the elements of the prior offense and the charged off ense are sufficiently distinctiv e that one can conclude that the per son who committed the former also committed the latter. Id . However, it i s not required that the other crime be identical in every detail to

the offense o n trial. Id . at 231. The evidence must support th e inf erence that the defendant, who committ ed the earlier acts, is the s

ame person who committed the offense on tr ial. Id

.

The elements as well as the details of Cunningham’s earlier criminal violations

are sufficiently distinc tive to sup por t an inference that he is th e same15 The transcript of the suppression hearing is not part of the record

on appeal. Apparently, the s earch warrant was

defective. 20 person who committed the offense on September 4, 1994. All of the violations occurred at the same location andinvolved the liq uids used in plating metal. In the prior acts, the defendant allowed the contaminated waste w ater to flow out the

door and into a storm drain. On this occasion, the liquid was somehow deposited directly into the sewer system. The defendant wasthe person in charge of plant operations in both insta nces and was present when the illegal activity took place. Clark identified the defendant as the person who open ed the val ve s on the tanks and allowed the liquid to flow out the door. Cunni ngham did not refute the identification. We must conclude that the similarity betw

een the prior violatio ns and the one at bar
was sufficiently distinctiv e to support an inference that the same person committed all of the acts.

The tes timony of Billy Clar k was highly pr

obative on the issues

o f intentand identity, an d the pro bative value outweighed the danger of unfair prejudice. The trial court gave instructions both at the con clusion of the testimony and in the formal jury instructions which limited the use of the evidence to the issues of intent, knowledge, and/or absence of accident and specifically disallowed its use to prove the defendant’s disposi tion to commit the crimes on tria l. We, therefore, conclude that the trial court did not abuse i ts discretion in admitting Clark’s testimony. The evidence w as relevant and properly admitted.
Impeachment with Extrinsic Ev idence The defendant contends that the tr ial court erred by per mitting the state to introdu ce evide nce derived from an illegal search and that substantial prejudice resulted from the error. The record discloses

that the trial court, after a pretrial hearing, suppressed the laboratory analyses of material obtained from two tanks and a to ilet b owl in the plant. 15 An analysi s of the s ludge in th e toilet b owl revealed that the s lud ge contained zinc at 16 pa rts per million. The plati ng tank21

sampl e contained 700 parts per mill ion of zinc. During the trial, the defendan t testified on direct exa mination that the Electroplati ng facility performed no z inc plating, that the plant contained no zi nc, and that he had never disc harged any contaminated liquid into the sew er system. After the defense rested, the prosecutors moved that the test result s be ad mitted to impeach Cunningham’s testimo ny. Based on Ja mes v. Illi nois , 493 U.S. 307, 110 S. Ct. 648 ( 1990) and Walder v. United States , 347 U.S. 62, 74 S. Ct. 354 (1954), the trial court admitted the analysis of t he toilet sludge but excluded the results obtained from the plating liquid in the tanks. The trial court also refused to admit photograph s o f the p lant and ordered that thestate’s witnesses not mention that the samples wer e obtained during a search. After the testimony was complete,the court instructed the j ury that the results could be considered only on the question of the defendant’s credibi lity and not as substantive evidence of guilt. The jury received a written jury instruction containing the same limitations.

The defen se argues on appeal that, although suppressed evidence maybe admissible for i mpeach ment purposes, the Tennessee Rules of C riminal Procedure prohibit the in tro duction of extrinsic ev idence other than convicti ons to prove specific instances of conduct in an attempt to impeach awitness. Tenn. R. Crim. P. 608(b), 609. The defendant also cont end s that the evidence was inadmissible under Rule 607 as it was offered to contradic t a collateral fact. The state argues, first, that the defendant w aived this complaint

because he did not invo ke Rules 607 and 608 during the jury-out hearing and,second, t hat th e evidence was properly admit ted under Walder . For the reasons discussed below
we find that the test results were properly admitted in this instance to impeach the defend ant’s dir ect testi mony.

The record reflects that the defendant di d not contend that the evidence was inadmi ssible pu rsuant to the rules of evi dence during the jury-out hearing. However, in his motio n for new t rial, he argues at length that the state’s22

rebuttal proof was inadmissible pur suant to Rule 608(b) and because it was relevant onlyto a collateral fact. Therefore, we consider the issue on its merits. See Tenn. R. App. P. 3(e), 36(a).

First, it is important to point out that, aside from constitutional exclusionary-rule const rai nts, the presence of zinc i n the defendant’s plant was otherwise clearly relevant to show substantively that the defendant was responsible forthe illegal discharge. The samples taken from manhole 15 and at the Dry Cr eek treatmentpla nt contai ned zinc as well as chromium, nickel and other metals. Therefore, but for the constitutional constraints, the fact that the sludge in the plant’s unused toilet co ntained zinc would h ave been a dmissibl e as releva nt substa ntive evide nc e under Tennessee Rules of Evidence 401 and 402 . Moreover, such evidence would not

have been excludab le under r ule 403. The prob ative value was not “subst

antiall y outw eighed by the d anger o f unfai r prejudice, confusion of the issues, or misleading the jury, or by consi derations of undue delay, w aste of time, or needless presentation of cumulative evidence.” Tenn. R . Evid. 403.

Next , we examine the scope of the “impeachment” exception to th e constitutional exclusionary rul e. Evidence obtained through illegal means

and, for that reason, rendered inadmissib le by t he exclusionary rule, is nevertheless admissible to impeach the direc t testimony

of the defendant in a criminal case, Walder v. United States , 347 U.S. 62, 74 S. Ct. 354 (1954), and also to impeach the defendant’s “answers to questi ons put to him on cross-ex amination that are plainly within the scope of the defendant’s direct examination.” United States v. Hav ens , 446 U.S. 620, 627, 100 S. Ct. 1912, 1916 (1980). This constitutionally permissible impeachmentis not limited to evidence that merely attacks the quali ty of a defenda nt’ s testimony. Rather, Walder and Havensclearly authoriz e the use of “impeachment”evidence which is relevant t o substa ntive issues and which usually implicatesthe defendant on the ultimate issue of g ui lt. In th ese cases , illegallyobtained physical evidence u sed to impeach the defendan t-witne ss would ha ve16 Rule 608(b) governs the admissibility of spec ific instances of conduct to attack or suppor t the cred ibility of a witness. Such proo f, if pro bative of truthfulness or untruthfulness, may be inquired into on cros s-examination. Tenn. R. Evid. 608(b). The defendant is correct when he argues that the rule specifically states that

extrinsic eviden ce of specific instances of conduct may not be admitted. Id

. Rule 608, however, i s not relevant to these facts

. See United St ates v. Perez-Perez , 72 F.3d 224, 227 (1st Cir. 1995). In this case, the laboratory analyses and the testimony about them is neither opinion testim ony nor evidence of a specific act. Rule 608 does not determine the admissibility of evidence introduced to factually cont radict a witness’s testimony. United States v. Lopez , 979 F.2d 1024, 1033 (5th Cir. 1992)(citations omitted).

17 In addition to his rule 608 ar gument (see n.16 supra ), the defendant has argued that the rebuttal impeachment was improper bec ause the facts being shown wer

e collateral. Because the defendant has challenged the state’s rebuttal as impeachment evidence, we have c

onsidered whether the limitation on the use of the consti tutionally-infirm ev

idence requires that the im pe ac hm en t p ro

vi si on s of t he

Te nn es se e R ul es

of Ev id en ce

be sa ti sf ie d. We see no reason nor basis for impos ing such a requirement.
23 cogentlyinculpated the defendant, were it not for the limitations on use. See also Harris v. New York , 401 U.S. 222, 91 S. Ct. 643 (1971) (allowing impea chmen t through the use of a Miranda -deficient confession). Nevertheless, as a function of the constitutional rule and not any evidentiary rule, such evidence is

not to be used in the “government’s direct case, or otherwise, as su b stantive evidence of gui lt.” Havens , 446 U.S. at 628, 100 S. Ct. at 1917. Thus, under the constitutional rule, “impeachment” does not refer to precisely-crafted rules of evidence so much as it signifiesa ge neral policy of not permitting “false testimony [to ] go unchallenged.” Id ., 446 U.S. at 627, 100 S. Ct. at 1917.

In the present case, the defendant complai ns about the use of rebuttal evidence. 16 However, as w e have seen, thi s evidence was admissible under the rules o f ev idence as su bstantive evidence of g uilt. It w as also admis

sible from a
c onstitutional standpoint as long as the use was limited to impeachin g th e defendant’s credibility. The trial court not only instructed the jury a t the conclusion of the rebuttal testimony that the rebuttal could be consider ed only on thequestion of the defendant’s credibility and not as substantive ev idence ofgui lt, but it also provided the jury with a written instructio n containing these limitati ons. As such, both evidentiary and co nstitutional requirements have been met. 17The type of impeachment typically called for in cases when the evidence

is physical evid ence that was illegal ly seized, such as in Walden , Havens , and the present case, is impeachment by fact contradiction. In Tennessee, fact contradiction is qualified by the “collateral evidence” rule. Neil P. Cohen, Donald F. Paine, & Sarah Y. Sheppear d, Tennessee Law of Evidence § 607.3 (1995). Although Tennessee’s rules of evidence do not ment ion it specifically, the rule is still a viable part

of our evidence law. See State v. Perkinson , 867 S.W.2d 1, 6-7 (Tenn. Crim. App. 1992) (co- defendant’s possible exchang e of drugs did not tend to prove a material i ssue); State v. Terry Bow en , No. 01C01-9505-CC00158 (Tenn. Crim. App., Nashv ille, Aug. 1, 1996) (on cross-examination, counsel is bound by wi tness’s answer if rel evant only to a collat eral issue); State v. Keith Mack and Terry D. Clark , No. 02C01-9107-CR-00156 ( Tenn. Crim. App., Jackson, Aug. 26, 1992) (no rebuttal testimony on a col lateral matter); Cohen, Paine, & Sheppeard, Tennessee Law of Evidence , §§ 607.3 and 613.5. A collateral fact is one which has no relevance except that it contradicts something said in court. The fact is not collateral “i f it is relevant independent of any contradiction.” C

ohen, Paine, & Sheppeard, Tennessee Law of Evidence , § 607.3. Extrinsic evidence is relevant where it logically impeaches a witness through factual contradicti on that reveals lack of oppor tunity or capacity to observe, bias, or other

wise implicates defici ent quality as a w itness. Id . The treatise writers do not mention impeachment by extrinsic evidence that factually contradicts the witnes

s on a substantive issue because extrinsic impeac hment evidence that is admissible because it is relevant to prove a material issue is generally admissible as substan tive evidence under Tennessee Rule s of Evidence 401 and 402. In effect the cour ts have not been called upon to review the impeachmentadmissibility of ext rinsic contradiction e vidence based on relevance to a mate rial issue in the cas e. Put an other way, r elevant su bstanti ve evidence that contradicts a witness’s statement i s almost always “n on-collateral,” in the parlance of impeachment evi dence. Once a court, in making an evidentiary analy

sis, finds the evidence admis sible substantivelyunder rule 401- 403, any inquiry about the collateral nature of the evidence as impeachmentby fact contradiction is superfluous. We are aware that, in Havens , the Supreme Court speaks of the tai nted evidence being used for impeachment that is “otherwise proper,” Havens , 446 U.S. at 628, 100 S. Ct. at 1917, but we believe that if fact-contradiction on a substantive issue must be pressed into the mold of impe achment evidence in order to satisfy a consti tutional constraint, such evidence can be said to be noncollateral for impeachment purpos es. This conclusion is s upported by an analogy to the use of a prior inconsistent statement as an i mpeachment device. The prior st

atement is not

collateral

if it is rel evant eithe r (1) “to i mpeach some specific testimonial quality” or (2) “ to prove or disprov e a material proposition .” Cohen, Paine, & Sheppeard, Tennessee Law of Evidence § 613.5 (emphasis added); see also State v. Ma yo , 735 S.W.2d 811, 817 (Tenn. Crim. App. 1987) (For purposes of using a pr ior inconsistent statement t o impeach a witness, a “collateral fact is one w hich affords no reasonable inference as to the principal matter in dispute.”) By

analogy to the collater al evidence rule employ ed under rule 613, evidence that tends to prove or disprove a material fact in issue would not be collateral evidenc e in a “theoretical” impea chment by fact contradiction.

24 Double Jeopardy The defendant contends that the convictions of Electroplating, Inc ., and himself personally for the same unlawful discharge of chromium violates double18 For purposes of the self-incrimination clause, a man who is

corporate president, director, and sole shareholder is a separate perso n from his corporation. See Braswell v. Uni ted States , 487 U.S. 99, 99, 108 S. Ct. 2284, 2285 (1988). 25 jeopard y. He argues that because he was the sole sha reholder and the president of the corporation, he

and the co rporatio n were the s ame part y. Theref ore, the two
c onvi ctions ar

e, in es se nce, a m ul ti pl e p un is hm en t f or a s in gl e offe ns e. We disagree.

The Fifth Amendment to the United States Constitution and Arti cle 1, Section 10 of the Tennessee Constitution protect on e accused of a crime (1) against a second prosecution after an acq uittal; (2) against a second prosecution afterconviction; and (3) against multiple punishments for the same offense. State
v. Denton , 938 S.W.2d 373, 378 (Tenn. 1996). Double jeopardy becomes a factor only when the defendant who faces retrial or multiple punishmen ts for t he sam e crimeis the same person in the each instance. The prosecution, conv iction, and punishme nt o f two co-defendants for the same criminal act do n ot violate double jeopardy principles.

In this instance, the

corporation, Electroplating, Inc., is not the same person as Ross Cunningham. A cor poration is, by definitio n , a legal entity, an “artifici al person” th at has the power to act and t o reason. State v. Sowder , 826 S.W.2d 924, 926 fn 2 (Te nn. Crim. App. 1991); Tenn. Code Ann. §§ 48-2-102(9), 48-3-501(4), 48-11-201(19) (1995). Mo re over, the corporation, as an artificial person, hasan identity separate and distinct from its officers and shareh olders. 18 Old Hickory

Engineering and Machinery Co. v. Henry , 937 S.W.2d 782, 785 (Tenn. 1996). Incorporation creates a new entity that bears responsibilities and liabilities beyond that of any single shareho lder. See Tenn. Code Ann. § 48-13-102 (1995). Indeed , the creation of this artifici al person whose exis tence reduces the financial liability of the shareholders is one of the main purposes of incorporation. See Tenn. Code Ann. § 48-16-205. Ross Cun ningham accepted the advantag es and19 As the state notes in its br ief, prosecutions against c orporations and individuals as co-

defendants for the same criminal acts,while rare, are not unknown in Tennessee. See, e.g. , State v. Superior Oil , Inc., et al. , 875 S.W.2d 658 (Tenn. 1994) (violatio ns of the Water Quality Control Act); State v. Lucy M. Hunt and Guess What, Inc. , 660 S.W.2d 513 (Tenn. Crim. App. 1983) (possessing obscene materi al with the intent to di stribute); State v. Shearon Davis and Guess What, Inc. , 654 S.W.2d 688 (Tenn. Crim. App. 1983) (unlaw ful distribution of obscene material). 26 protectionsinherent in this separate and distinct corporate identity. He cannot now argue that he and the corporati on are one. 19

The defendant a lso argues that a jury w ould be more inclined to convict the defendant when it learned of additional serious allegations against the corporation. This appears to be more of an argument for sev erance than one for double jeopardy and is likewise without merit. The jury in this case had no trouble distinguishing

between Ross Cunningham and the corporation. Cunning ham and the corporation were both charg ed with discharging chromi um into the sewer sys tem
on Septembe r 5, 1994 , and with vand alism t o public propert y. Count two of th e indictment

charges the corporation with other illegal discharges. The trial court carefully instructed the jury w ho convicted the corporation on all three counts but acquitted Ross Cunning ham of vandalism.

The convictio ns of both Ross Cunningham and the cor porate entity known as Electroplating, Inc ., for the same violation of the Water Quality Control Act of 1977 do not violate double jeopar dy principles.

Denial of Judicial Diversion In his last issue, Cunningham challenges the trial co urt ’s denial of judicial diversion. The Sentencing Reform Act of 1989 provides in pertinent part: If any person who

has not previously been convicted of a felony or a Class A misdeme anor is found guilty or pleads guilty to

. . . a Class C., D, or E felony, the court may, without entering a judgmentof guilty and with the consentof such person , defer furth er proceedings and plac e th e person on probation upon such reasonable conditionsas it may require an d for a period of time not less than the period of the maximum sentenc e . . . of27 the felony with whi ch he is charged . . . . Tenn. Code Ann. § 40-35-3 13(a)(1) (1997). T his proce dure, com monly kno wn as judicial diversion, is similar to pretrial diversion; however, judicial d iversion f ollows
a determination of guilt and the decision to grant di version rests wi

th the trial court, not the prosecutor. State v. Anderson , 857 S.W.2 d 5 71, 572 (Tenn. Crim. App. 1992).

Tennessee Code Annotated section 40-35-313 does not e ntitl e the accused to the fa vorable pr esumpti on create d by T enn essee Code Annotated section 40- 35 -102(6). The lower cour t’s denial of judicial div ersion is subject to reversal on appeal only if that court a b used its discretion. State v. Hammersley , 650 S.W.2d 352, 356 (Tenn. 198 3). When a defendant challenges the denial of judicial diversion, we may not revisit the iss ue if the record contains any substantial evidence supporting the trial court’s decision. State v. Parker , 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996); Hammersley , 650 S.W.2d at 356.

In determining whether to grant judicialdiversion, the trial court must consider (a) the accused’s amenability to correction,

(b) the circumstances of the offense, (c) the accused’s cri minal record, (d) the accused’s social history, (e) the accused’s phys ical and mental health, (f) the deterrence value t o the accused as well as others, and (g) whether judicial diversion will s e rve the interests of the public as wel l as the accused.
Parker , 932 S.W.2d at 958; State v. Bonestel , 871 S.W.2d 163, 168 (Tenn. Crim

. App. 1993) (citation omitted). Moreover, the record must reflect that the c ourt has weigh ed all of the factors in reaching its determination. Bonestel , 871 S.W.2d a t 168 (citations omitted) . T he court must explain on the record why the defendant28

does not qualify under its analysis, and if the court has based its determination on onlysome of the factors, it must explain why these factors outweigh the others. Id

.

In this instance, the trial court did not place on the record an adequate explanation for denying the defendant’s request for judicial divers ion as required in Bonestel

. The trial court did not explain whether it had considered all of the other factors or discuss th e weight gi ven to the applicable factors . After determining which enhancement and mitigating factor s app lie d, the trial judge merely said, “I think because of that history I’m not inc lined to divert under 40- 35-313, but rather set a sentence that will i nclude a substantial amount of public service w

ork and an appropriate fine and a period of probation.” We must, therefore, determine whether the trial court reached the c orrect result notwith standing its failure to ex plain its reasoning. See State v. Talmadge G. Wilb a nks , No. 02C01-9601-CR-00003 ( Tenn. Crim. App., Jackson, Nov. 19, 1996).

A numb er of fa ctors tend to favor the gr anting of judicial div

ersion. Ross Cunningham has lived a productiv e life. His wife was supportive of him through the resolution of these charges. Many friends and business acquaintances spoke on his behalf at the sentencing hearing . At the time of sentencing, he w as 66 years old. He suffers from asthma and other medical problems. After serving in the army from 1949 to 1951, he spent 42 ye ars in the electroplating business. He obtained a patent on a process for remov ing chromium from the plating solution and installed the system i n his plant in 1989.

On the other hand, the record als o disclosesthat the defendantdoes not accept any respon sibility for the di scharge of the toxic chemicals and apparently has made some attempt to hide assets. Si nce his retirement in 1994, he reported that he was living on Social Security benef its of $ 648.00 per month. He claimed that his only assets w

ere two vehicles that together were w orth less than $20,000. At the hearing, he testified that all ofthe real property and other assets were in his29

wife’s name. He has no business-rel ated retirement plan. He insisted throughout that h e had not intentionally dischar ged any contaminated liq uid into the sewer system.
Moreover, the circumstances surrou ndin g the discharge that occ urred
on September 5 are more egregi ous than the earlier ones. The plant was

closed. Although the defendant testified that he sold the waste li quid for a profit, he presented no proof of

the sale. A witness for the state tes tified t hat it woul d have cost Electroplating thousands o f dollars to dispose of the materi al legally. The discharge on September 5 was a deliberate, intentional ac t. Itcaused damage to the sewer

close to the plant andposed a potential danger to the pumping stations, the water treatment plant, an d to the Cumberland River and its ecosystem.
Although the pre-sentence report reveale d no prior criminal convictions

or arrests, testimony at trial and at the sentencing hearing i ndicated that
on many occasions contaminated liquids ran out the door of the pla nt and into a storm sewer across the str eet. The record also indicat es that the defendant had been cautioned and fined on sev e ral occasions for improperl y discharging contaminated liquid into the street . Cunningham freely admitte d that i nadvertent discharges

had occurred but insist ed that si nce 1989 the trench drain and his patented process had prevented further problems . One witness, how ever, testified that since 1989 he had observed dar k blue, turquoise or r

usty colored liqui ds running from the plant twent y or thirty times

.

We find that the circumstances of the offense and Cunningham’s past disregard of the regulations controlling the di sposal of cont aminated liquid outweigh his positive social history. Moreover, his unwillingnes s to accept responsibility and his efforts to disguise his assets reflect unfavorably on his amenability to correction. Judicial diversion, in this instance, would not se rve the manifest public interest in maintaining clean water and a healthy environment. On these facts, we cannot20 Also at issue was the t rial court’s decisi on not to impose a fine

although one had been set by the jury. The majority

concluded that neither fines nor restitution were appropriate issues for a stat e appeal. Kevin Crespo , slip op. at 2. 30 conclude that the trial cour t abused its discretion i n denying judicial d iversion.
State’s Appeal -- Restitution The state contends that the trial court erred in not requiring Ross Cunningham to pay restitution for co sts and damages to

the sewer system caused bythe illegal dumping of contaminated waste water. It is t he opinion of this court that the state does not have a right to appeal the issue pre sented for rev iew. A panel of this court addressed this issue in State v. Kevin Crespo , No. 03C01-9504- CR- 00118 (Tenn. Crim. App., Knoxv ille, Apr. 19, 1997) ( no perm. app. filed) , i n which the state appealed the a mount of restitution imposed by the trial court. 20

In Crespo , the majority held that based on the language contained in Tennessee Code Annotated section 40-35-402, the leg islature had not give n the state the right to appeal issu es concerning restitution. Kevin Crespo , slip op. at 2. One member

of the Crespo panel dissented on this iss ue. He argued that the broad language in the first sentence of the statute included fines and r

estitutio n. Kevin Crespo , separate concurring and dissenting opinion at 2 (Summers, J. concurring and dissenting). How

ever, asthe Kevin Crespo majority noted, the statute does not stop with this broad lang uage. See Kevin Crespo , slip op. at 2 n. 4. The statut e states: “The district attorney general in a criminal

case may appeal from the length, range, or manner

of the service of the sentence imposed by the sentencing court.” Tenn. Code Ann. § 40-35-402 (a). However, the statute also limits the rig ht of appeal to the following enumerated grounds:

(b) An appeal from a sentence i s limited to one (1)or more of the following grounds: (1) The court improperly sent enced the defendant to the wrong sentence r ange; (2) The court granted all or part of the sentence on probation;31 (3) The court ordered all or par t of the sentences to run con currentl y; (4) The court improperly found the d efendant to be an especially mitigated offender; or (5) The enhancement and mit igating factors we re not weighe d properl y. Tenn. Code Ann. § 40-35-402 (b) (1997).Based on the specific language in section 40-35-402(b), we find th at the sta te does n ot have the right to appeal a tri al court’s failure to order restituti on. Therefore, the state’s appeal i s dismissed.

Moreover, the record of the sentencing he aring is silent on the subject of restitution. Although the state presented evidence concerning the damage to the
sewer system and other costs at trial, the prosecutors did not refer to this evidence at the sentencin g hearing and d id not ask the court to impose any restitution. Therefore, even if this court had the j urisdicti on to conside r the issue, it would be waived. Tenn. R. App. P.36 (a).

Conclusion

For the reasons discussed above, we affirm Ross Cunnin gham’ s conviction for violation of the Wate r Quality Control Act of 1977 and the sentence imposed by the trial cour t. The state’s appeal is dis missed.

__________________________ CURWOOD WITT, Judge

CONCUR:

______________________________ GARY R. WADE, Judge

______________________________ WILLIA M M. BARKER, Judge