State v. Heather Denise Curry ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL SESSION, 1999 June 1, 1999
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9808-CC-00350
)
Appellee, )
)
) WILLIAMSON COUNTY
VS. )
) HON . DON ALD P . HARR IS
HEATHER DENISE CURRY, ) JUDGE
)
Appe llant. ) (Judicial Diversion)
ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF WILLIAMSON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
RICHARD McGEE JOHN KNOX WALKUP
601 Woodland Street Attorney General and Reporter
Nashville, TN 37206
MARVIN E. CLEMENTS, JR.
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
JOE D. BAUGH, JR.
District Attorney General
LEE DRYER
DEREK SMITH
Assistant District Attorneys General
P.O. Box 937
Franklin, TN 37065-0937
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
On February 29, 1998, the Defendant, Heather Denise Curry, was indicted
on charges of attempted theft and criminal impersonation. On April 6, 1998, she
pleaded guilty to attempted theft, and as part of her negotiated plea agreem ent,
the charge of crimina l imperso nation w as “nolle p rossed .” The agreement called
for the trial judge to determine her sentence, and the Defendant requested
judicial diversion. On August 20, 1998, the trial court denied her request and
sentenced her to two years’ con fineme nt, suspended, with four years on
supervised probation. Th e Defend ant now ap peals her sentence, pursu ant to
Rule 3 of the Tennessee Rules of Appellate Procedure. The sole issue for our
consideration on appeal is whether the trial court erred by denying the
Defe ndan t’s reques t for judicial dive rsion. We affirm the judgment of the trial
court.
At the sente ncing he aring, the Defendant testified that on November 3,
1997, she and her then-boyfriend, Clarence Dickson, went to Walker Chevrolet
in Franklin, Tennessee to purchase a vehicle. At the time, the Defendant was a
twenty -year-o ld college student, and Dickson was thirty-three years old. She
stated that Dickson told her that although his credit was not good enough for him
to purchase a vehicle, a friend of his had offered to allow him to use her credit for
the purchase. According to the Defendant, Dickson told her that his friend, Brand
D. Sanders, had sent certain personal information to him, including a copy of her
driver’s license, her social security card, and a copy of her college diploma, for
use in purchasing the vehicle. The Defendant claimed that she was told by
Dicks on tha t Sand ers co uld no t acco mpa ny him to the dealership because she
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was out of town visiting her father, who was ill at the time. According to the
Defen dant, she understood that she had Sanders’ permission to fill out and sign
the cred it application on San ders’ beh alf.
The Defendant testified that while at the dealership, she told the salesman
that her name was Brand D. Sanders and that she was a paralegal. She also
supplied other false informa tion from the pack et of docu ments given to her by
Dickson. However, she did provide the salesman with Dickson’s correct phone
number and address because “[h]e was supposed to be responsible for the
payment of the vehicle.” She maintained that Dickson used his real name during
the meeting.
After the salesman filled out the application using the false information, the
Defendant signed it as though she were Brand D. Sanders. She stated, “I was
under the pretense th at the information was correct, that Ms. Sander’s [sic]
information was co rrect and that I was not doing anything wrong because of the
simp le fact it was correct and I had he r permission to u se the credit.” How ever,
the Defendant also stated that during the application process, she was nervous.
At some point during the application process, the Defendant began to have
second thoughts because of Dickson’s “de meano r.” She stated, “I just didn’t feel
like it was a safe situation for myself.” Therefore, she approached the salesman
and asked to terminate the process. He responded that he would do so after he
finished h is cigarette .
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Shor tly thereafter, the police arrived. The Defendant was arrested and
transported to the police department. The Defendant denied ever representing
herse lf as Ms. Sanders to police, claiming instead that she did not tell the police
anything until she reached the police department. She also denied telling police
that she did not have her wallet or purse at the time of her arre st. Dickson later
posted the Defendant’s bond. The Defendant claimed not to have had any
personal contact with Dickson since that time, with the excep tion of s eeing him
once in c ourt.
Dete ctive B ecky J ohns on of th e Fran klin Police Department testified that
she was called to Walker Chevrolet on the night of the offense. She stated that
when she arrived, she approached the Defendant, who told her that her name
was “Brand y Sand ers.” Johnson stated that when she asked the Defendant for
identification, the Defendant responded that she had none, claiming that her
purse a nd wallet w ere at ho me.
Johnson also reported that when she asked Dickson his name, Dickson
replied that he was Joseph Young and supplied a driver’s license with that name.
Howeve r, Johnson “told him point blank that he w as not the pers on in the picture
on that driver’s license.” She e xplained, “[I]t was very obvious that he was not
that person .” Johnson testified that the officers soon found a collection of cred it
and business cards under the seat of Dickson’s car, all of which were in the name
of Clarence Dickson. It was later determined that Dickson had a prior criminal
record.
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According to Johns on, during an interview at the police department
following the Defe ndant’s a rrest, the D efenda nt continu ed to claim that she was
Ms. Sanders, while Dickson continued to claim he was Joseph Young.
Eventually, after continued questioning, the Defendant admitted her real name
to police and explained that she had gone to Walker Chevrolet to do a research
project for schoo l. Johnson testified that when asked about the identity of
Dickson, the Defendant stated that “she didn’t know who he was. She had met
him, he told her his name was Joe. He had bought her some clothes, they had
gone out but she didn’t know what his name was.” According to Johnson, the
Defendant never explained to police, as she did in court, that she was using
information provided by Ms. Sanders with Sanders’ permission to help Dickson
purchase a vehicle.
Detective Johnson also testified that she received a call from an employee
at Wa lker Che vrolet on the day followin g the De fendan t’s arrest. She testified
that the employee told her that the child of a customer had discovered the
Defendant’s purse in one of the artificial plants at the dealership. Inside the
purse w as pho to identificatio n of the D efenda nt with her re al nam e.
Finally, Johnson testified that she saw the Defendant and Dickson together
at the ma ll approxim ately two w eeks p rior to the sente ncing he aring. She stated
that when the Defendant noticed her, she “turned her head very quickly.” She
testified that she w as uns ure wha t time of da y she sa w the pa ir, but when
pressed, she stated, “If I were going to have to gue ss I wo uld sa y prob ably
between 10:45 and 1:30 in the afternoon.” In response to this testimony, the
Defendant again took th e stan d and denie d acc omp anying Dicks on to th e ma ll.
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She produced payroll records from the “temp agency” where she worked,
showing that on the day that Johnson claimed to have seen her in the mall, she
worked from 8:0 0 a.m. u ntil 5:00 p.m .
On appea l, the Defe ndant a rgues th at the trial cou rt erred by refusing to
grant he r judicial divers ion. In her b rief, she sta tes,
In sum, what you have in this case is a twenty-one (21) ye ar old
college student who was swep t off her feet by an older, experienced
“con.” This young woman comes from a very strict fam ily
background and is the classic type of prey for a “con” such as
Clarence Dickson. Ms. Curry not only successfully graduated
college in four years, but did so we ll she was accep ted to gra duate
scho ol, while wor king an a verage o f 37 hours a week and being
respo nsible for the c ost of h er edu cation . Coun sel sub mits th at this
is exactly the kind of Defendant who should be sentenced pursuant
to T.C.A. §40-35-313.
The sentencing option commonly known as judicial diversion is codified at
Tennessee Code Anno tated § 40-35 -313. A defen dant is eligible for judic ial
diversion if he or she (a) “is found guilty or pleads guilty to a misdemeanor which
is punishable by imprisonment or a Class C, D or E felony,” (b) “has not
previo usly been c onvicted of a felony or a Class A misdemeanor,” and (c)
conse nts to the defe rment o f proceedings an d placem ent on proba tion “for a
period of time no t less than the period of the maximum sentence for the
misdemeanor with which the person is charged, or not more than the period of
the maximu m senten ce of the felony with w hich the perso n is charged.” Tenn.
Code Ann. § 4 0-35-31 3(a)(1)(A ).
The fact that the ac cuse d me ets the se pre requis ites do es no t entitle
the accused to judicial diversion as a matter of right. The statute
states that a trial cou rt ‘may’ gra nt judicial dive rsion in ap propriate
case s. . . . Thu s, whe ther the accu sed s hould be gra nted ju dicial
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diversion is a question which addresses itself to the sound discretion
of the trial cou rt.
State v. Bonestel, 871 S.W .2d 163, 168 (Tenn. Crim . App. 1993 ).
Tennessee courts have recognized the similarities between judicial
diversion and pretrial diversion and, thu s, have drawn heavily from the case law
governing pretrial diversion to analyze cases involving judicial diversion. For
instance, in determining whether to grant pretrial diversion, a district attorney
general should consider the defendant’s criminal record, social history, mental
and physical condition, attitude, behavior since arrest, emotional stability, current
drug usage, past employment, home environment, marita l stability, fa mily
responsibility, gene ral repu tation, a nd am enab ility to corr ection; as well as the
circumstances of the offen se, the de terrent effe ct of punishment upon other
criminal activity, a nd the likelihoo d that p retrial d iversion will serve the ends of
justice and best interests of both the public and the defe ndant. See State v.
Washington, 866 S.W .2d 950 , 951 (T enn. 19 93).
A trial court should consider generally the same factors when deciding
whether to grant judicial diversion. See Bonestel, 871 S.W .2d at 168 ; State v.
Anderson, 857 S.W .2d 571 , 572-73 (Tenn . Crim. A pp. 199 2); State v.
Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983). In asses sing a de fenda nt’s
amen ability to correction, a court may consider the defendant’s truthfulness on
the stand . State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. A pp. 199 4); see
Anderson, 857 S.W.2d at 574. If, after assessin g all relevant factors, the trial
court chooses to deny jud icial diversion , the court m ust articula te on the record
both the sp ecific reasons supporting the denial and w hy thos e facto rs app licable
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to the denial of diversion outweigh other factors for consideration. See Bonestel,
871 S.W.2d at 168.
In reviewing the decis ion of a trial court to grant or deny judicial diversion,
this Court applies “th e sam e level of revie w as tha t which is a pplicable to a review
of a district attorney general’s ac tion in denying pre -trial diversion.” State v.
George, 830 S.W .2d 79, 80 (Tenn . Crim. App. 1992); see also Bonestel, 871
S.W.2d at 168; Anderson, 857 S.W.2d at 572. In other words, this Court reviews
the record to determine whether the trial court abused its discretion. See
Bonestel, 871 S.W .2d at 168 ; Anderson, 857 S.W.2d at 572. To find an abuse
of discretion, we must determine tha t no substantial evide nce exists to sup port
the ruling o f the trial court. Id.
In the present case, the trial judge stated that he believed the Defendant
“misrepresented the facts relating to the incide nt.” Specifically, he stated that he
believed she lied first by claiming she never told Dete ctive Johnson that her purse
and wallet were at home at the time of her arrest and second, when she testified
that she never misrepresented Dickson’s identity to police. His belief that she
lied about the se facts, h e state d, also caused him to doubt the sincerity of her
testimony refuting Detective Johnson’s claim of seeing the Defendant and
Dickson at the mall two weeks prior to sentencing. Therefore, he concluded, “I
think she has failed to prove to this Cou rt that she is a n appro priate can didate for
sentencing unde r 40-35 -313. A nd the re is a s ubsta ntial likelih ood th at she is
involved with perso ns who are involve d in crime and tha t may co ntinue.”
Howeve r, he also concluded that because the Defendant was in school at the
time of the crime and at the time of sentencing, “requiring her to serve a sentence
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may be more detrimental to society and the purposes of sentencing” and
therefore elected to suspe nd her s entenc e.
W e simply cannot conclude that the trial court abused its discretion by
denying the Defendant judicial diversion. As this Court noted in Anderson,
the record reflects that the trial court did not consider the defendant
sincere in accepting responsibility for the offense and it w as du ly
concerned with the defendant’s attem pt to divert the blame to
another. These circumstances are relevant to assessing the degree
of rehabilitation potential shown by the defendant. Since the trial
court was in the best position to determine [the defendant’s] attitude
and demeanor, we are not in a position to view the defendant
differently upon the record before us.
857 S.W.2d at 574. In this case, the trial judge stated that in determining the
Defe ndan t’s sentence, he considered the presentence report, the testimony of
witnesses at the sen tencing h earing, the exhibits introduced at the hearing,
argum ents of counsel concerning alternative sentencing, m itigating and
enhancement factors, and “the pu rposes an d sentencing considerations that are
set forth in our statute.” The trial judge found that the Defendant misrepresented
the facts during her testimony at her sentencing hearing causing him to disrega rd
part of her testimony. Based on a thorough review of the record, we see no
reason to overturn the trial court’s decision.
Accordingly, the judgment of the trial court is affirmed.
____________________________________
DAVID H. WELLES, JUDGE
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CONCUR:
___________________________________
JOHN H. PEAY, JUDGE
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
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