State of Tennessee v. Terry Butler

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

March 1, 2016 Session

STATE OF TENNESSEE v. TERRY BUTLER

Appeal from the Criminal Court for Shelby County

No. 13-05121 James M. Lammey, Jr., Judge

No. W2015-00707-CCA-R3-CD - Filed June 6, 2016

The Defendant, Terry Butler, was convicted by a Shelby County Criminal Court jury of

tampering with evidence, a Class C felony, three counts of official misconduct, a Class E

felony, and two counts of official oppression, a Class E felony. See T.C.A. §§ 39-16-503

(2014) (evidence tampering), 39-16-402 (2014) (official misconduct), 39-16-403 (2014)

(official oppression). The trial court merged the three counts of official misconduct and

sentenced the Defendant to an effective four years to be served on five years‟ probation.

On appeal, the Defendant contends that (1) the evidence is insufficient to support his

convictions, (2) the indictment for Count 3, official misconduct, was defective, and (3)

the trial court erred in denying judicial diversion. We affirm the judgments of the trial

court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS

T. WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J. joined.

Joseph A. McClusky and Joseph Massey (on appeal), Leslie Ballin (at trial), Memphis,

Tennessee, for the appellant, Terry Butler.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel;

Amy P. Weirich, District Attorney General; and Jessica Banti and Rachel Russell,

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

This case arises from an incident in which the Defendant, a police officer,

delivered false information to his girlfriend and prompted her to give the information to

the police investigating a burglary of her home and procured the unjustified arrest of two

young men in connection with the burglary.

At the trial, Memphis Police Officer Devin Thompson testified that on July 8,

2013, he responded to a burglary call. He said that fingerprints were taken from the

scene, that no suspects existed at the time, and that no DVD player was listed as stolen.

On cross-examination, Officer Thompson testified that he spoke to the burglary victim,

Jessica Green, that she identified several stolen electronic items, and that a DVD player

was not included in the list.

Memphis Police Officer Jeremy Mackey testified that on July 10, 2013, he

responded to Ms. Green‟s neighborhood to reports by the Defendant and Ms. Green that a

prowler was stealing a ladder from a home. Officer Mackey said that he worked with the

Defendant in the Memphis Police Department but was not previously acquainted with

Ms. Green. He said that he and other officers searched a wooded area into which the

Defendant and Ms. Green said two prowler suspects had gone. Officer Mackey stated

that he and another officer found the ladder in the wooded area but that the suspects were

not found. Officer Mackey stated that later in the day, the Defendant called Officer

Mackey‟s personal cell phone and told Officer Mackey he saw two black men “walking

down the street with possibly stolen items in their hands” and that the Defendant‟s

location was close to the previous prowler call. Officer Mackey said that he obtained

permission from Lieutenant Segrest to investigate, that Officer Mackey called the

Defendant, and that the Defendant said he was following the men. Officer Mackey stated

that he met the Defendant in a parking lot, that the Defendant had parked his truck and

was walking toward two young men between ages sixteen and eighteen, and that Officer

Mackey exited his police cruiser and told the men to come to him. Officer Mackey said

he was in uniform. Officer Mackey stated that when he encountered the men, one of

them was holding a plastic bag with a cord hanging from it. Officer Mackey said that the

men came toward Officer Mackey, that Officer Mackey patted them down, told them

why they were being stopped, and placed them in the rear of the police cruiser, and that

the Defendant took a DVD player from them and placed it on the police cruiser‟s trunk.

Officer Mackey testified that he separated the men by leaving one of them in the

police cruiser and having the other sit handcuffed on a sidewalk about ten or fifteen feet

from the police cruiser. Officer Mackey said that one man told him the DVD player was

his, that Officer Mackey spoke on the telephone to the man‟s mother, that she told

Officer Mackey the man was not supposed to be pawning the DVD player, and that the

man‟s mother began “badmouthing” her son to Officer Mackey. Officer Mackey stated

that Lieutenant Segrest arrived, that the Defendant called Ms. Green in order to obtain the

incident report number from her burglary, and that Lieutenant Segrest asked the

Defendant to ask Ms. Green to come to the scene.

Officer Mackey testified that he saw the Defendant talking on his cell phone but

did not hear the substance of the conversation. Officer Mackey said that he saw the

Defendant lift up the DVD player on the police cruiser‟s trunk. Officer Mackey stated

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that he viewed the burglary incident report and that he did not remember a DVD player

listed among the missing items.

Officer Mackey testified that Ms. Green arrived at the scene and spoke to

Lieutenant Segrest, that Ms. Green identified the DVD player as hers, and that when she

was asked how she knew the DVD player belonged to her, she said, “Well, I know my

property,” but did not give further detail. Officer Mackey said that Lieutenant Segrest

instructed him to hold the men until Lieutenant Segrest had contacted the felony response

division, that after speaking to felony response, Lieutenant Segrest instructed Officer

Mackey to add the men‟s information and the DVD player‟s recovery to the burglary

report, and that the men were arrested and taken to the police station for questioning.

Officer Mackey said that the men were “detained” and not free to leave but were not in

police custody.

On cross-examination, Officer Mackey testified that he responded to the prowler

call about noon, that Ms. Green told him about “activity going on” at the church across

the street from her home, and that he determined the ladder had been taken from the

church. Officer Mackey said that Ms. Green described the prowlers as two young, black

men. He stated that when the Defendant called him, the Defendant thought the two men

were involved with the theft of the ladder and possibly the burglary of Ms. Green‟s house

and that the Defendant would “keep an eye on them.” Officer Mackey said that the

Defendant was in plain clothes and was driving his personal vehicle. Officer Mackey

stated that he handcuffed and patted down the men, that he found no weapons on them,

and that he detained them for further investigation pursuant to Lieutenant Segrest‟s

instructions. Officer Mackey said that he asked the men about the DVD player and the

ladder and that both denied involvement with the thefts. Officer Mackey stated that he

asked the Defendant to call Ms. Green and to obtain the incident report number, that

Officer Mackey noticed a DVD player was not listed as a stolen item in the report, and

that Lieutenant Segrest requested Ms. Green come to the scene.

Officer Mackey testified that Ms. Green identified the DVD player as hers and that

the Defendant repeated the DVD player was hers. Officer Mackey said that the

Defendant did not know independently whether the DVD player belonged to Ms. Green.

Officer Mackey did not remember what Ms. Green said when Lieutenant Segrest asked

whether she had her DVD player‟s serial number. Officer Mackey said that Lieutenant

Segrest took Ms. Green to the DVD player and that Ms. Green pointed at something on

the DVD player. Officer Mackey did not know if Ms. Green showed Lieutenant Segrest

a distinguishing mark on the DVD player.

On redirect examination, Officer Mackey testified that when the Defendant called

him, Officer Mackey was not sure to which theft the Defendant referred and that the

Defendant said he thought the men were responsible for a burglary. Officer Mackey

stated that he detained the men for further investigation because the Defendant told him

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they had possibly stolen property and “it was dealing with a burglary.” Officer Mackey

said that the men were charged with aggravated burglary. On recross-examination,

Officer Mackey stated that the Defendant said the men were possibly involved in the

burglary, that Ms. Green said the DVD player was hers, and that Officer Mackey arrested

the men after Ms. Green identified the DVD player.

Memphis Police Lieutenant Aundra Segrest testified that on July 10, 2013, Officer

Mackey called and told him “he possibly had two burglary suspects detained[.]”

Lieutenant Segrest said that the source of Officer Mackey‟s information was a telephone

call from an off-duty officer. When Lieutenant Segrest arrived, he said he spoke with

Officer Mackey and the Defendant about the men, who were detained in a police cruiser.

Lieutenant Segrest stated that other officers were present. Lieutenant Segrest said that

the Defendant told him “that he called Mackey and told Mackey about the burglary

suspects and that they were in a certain area . . . . He detained them, and he brought them

there.” Lieutenant Segrest stated that he told Officer Mackey to verify the burglary

incident report and that Lieutenant Segrest looked at the report and saw a list of stolen

items. Lieutenant Segrest said that he asked someone to get Ms. Green to the scene and

that he interviewed her. Lieutenant Segrest stated that the Defendant said he knew Ms.

Green “from the neighborhood” and did not mention having a personal relationship with

Ms. Green.

Lieutenant Segrest testified that he spoke to Ms. Green privately and asked her

what led her to believe the items belonged to her. He said that Ms. Green told him “a

Magnavox” and remote control were taken from the house. He did not know whether the

men‟s DVD player was Magnavox brand. He stated that Ms. Green told him “there

might be some things that she might have missed that she needed to add to the report,”

that she identified the DVD player as hers, and that she did not have a serial number for

the DVD player. He did not remember if Ms. Green indicated she had the serial number

in another location. Lieutenant Segrest said that based upon the information he received

from Ms. Green and the Defendant, he arrested the men.

On cross-examination, Lieutenant Segrest testified that he did not inquire as to the

nature of the Defendant‟s relationship with Ms. Green. Lieutenant Segrest did not

remember whether the Defendant identified the DVD player as belonging to Ms. Green.

He said that he made the decision to arrest the men based upon Ms. Green‟s statement

and the need to determine whether Ms. Green was mistaken in identifying the DVD

player. Lieutenant Segrest stated that Ms. Green did not have a serial number for the

DVD player when she identified it as hers. He said that he did not ask Ms. Green about

any identifying marks on the DVD player.

Lieutenant Segrest testified that the Defendant may have said Ms. Green was a

friend from the neighborhood. He later acknowledged that in a previous statement, he

said the Defendant stated Ms. Green was a friend who lived in the neighborhood.

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Jessica Green testified that in July 2013, she was in a romantic relationship with

the Defendant and that she discovered her home had been burglarized. She noticed that

her bedroom window was broken and that multiple televisions and computers were

missing. She stated that she called family members, the Defendant, and the police. She

gave the police a statement regarding the missing items but said she forgot to include or

had not yet discovered all of the missing items. She stated that she did not include a

DVD player in the initial report because she did not know it was missing at the time. She

said that she attempted to add additional items to the police report, that the last copy of

the report she received did not reflect the additional items, and that she did not know if

the additional items were ever added.

Ms. Green testified that on the night she discovered the burglary, the Defendant

told her he would help place boards over the broken window but that he did not come to

her house. She said that she stayed in the house alone. Ms. Green stated that on July 10,

2013, the Defendant was at her house fixing the broken window. She said that she

noticed work being performed on the church across the street from her house, that a man

walked away from a ladder, that a second man emerged and attempted to pick up the

ladder, that the second man returned with a third man, and that the second and third men

carried away the ladder. Ms. Green said that she called the police and reported the men

and that she called the Defendant‟s cell phone and told him she had reported the incident

to the police. She said that she told the responding officers the men were black, in their

twenties, had low or faded haircuts, and wore basketball shorts, white shirts, and tennis

shoes.

Ms. Green testified that after the police left, the Defendant prepared to go to work

and that he told Ms. Green he would check the area to see if he could find the two men

because “he was kind of sure” they were the same people who broke into her house. She

said that within five minutes of his departure, the Defendant called her and told her he

found the men. She stated that in a second telephone call, the Defendant told her the

police were on their way to him and that she would have to come to his location. She

said that in a third telephone call, the Defendant dictated a serial number to her and told

her, “This is your serial number for your stuff; write it down. If anybody asks you, don‟t

tell them I gave it to you.” She said he told her to give the number to the police. Ms.

Green said that the Defendant told her he saw the men walking with a bag, that the

Defendant stopped them, that the Defendant and the men argued, that the Defendant hit

one of the men and showed them his gun, and that the Defendant told the men, “You all

must not know about me out in these streets.”

Ms. Green testified that the Defendant told her to “make [herself] presentable” and

come to the scene, that he said he knew the items belonged to her and she needed to come

look at them, and that the Defendant did not tell her what to say to the police. Ms. Green

said that she did not generally keep serial numbers and that she did not give any serial

numbers to the police in her initial report. She stated that when she arrived at the parking

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lot, she spoke to Lieutenant Segrest and gave him a description of her DVD player. She

said Lieutenant Segrest told her he needed more detail than the DVD player was black.

She stated she looked at the recovered DVD player and said it looked like hers. She said

that an officer asked if she recognized any marks or scratches on the DVD player and that

she replied she did not.

Ms. Green testified that she briefly saw the men when she stood behind the police

cruiser but that she did not see their faces. She said that the men did not look like the

men she saw stealing the ladder because one man‟s hair was different. She stated that she

mentioned the discrepancy to the Defendant but that the Defendant did not acknowledge

her statement and said they were “the ones.” Ms. Green said that she waited in the car

and that the Defendant told her to meet with a person in felony response. She stated that

she spoke to Sergeants Kent and Young, that she told them she did not have any serial

numbers for her items, and that they told her to look for any serial numbers she might

have at home. Ms. Green said that she did not give them the serial number the Defendant

read to her because she did not feel it was the serial number for her DVD player. Ms.

Green stated that she spoke to the Defendant after she went home and the Defendant told

her, “[Y]ou need to give them that serial number. These n------ have done something to

somebody, and they need to be in jail.” She said that the Defendant told her the police

needed the serial number to hold the men and that she returned to the police station to

give the officers the serial number because she was afraid.

Ms. Green testified that when she arrived at the police station, the officers told her

the suspects insisted someone called her from the scene and gave her a serial number and

that the officers asked Ms. Green if that were true. Ms. Green said that she told them it

was true, that the officers told her the police did not need a name, and that she signed a

refusal to prosecute form. Ms. Green said that she thanked the officers because she did

not want to give them the number but knew if she did not, she would have to testify as a

witness. Ms. Green stated that when she left the police station, the Defendant called her

and asked what happened, that she told him she told the truth, and that he responded,

“Well, why? Now I‟ve got to figure out what I‟ve got to tell them when I get to work.”

Ms. Green said the Defendant told her that he was going to tell the police he gave her the

serial number and that he was going to say he told her to check it against her records.

Ms. Green stated, though, that the Defendant did not ask her to check the number against

her records.

Ms. Green testified that she spoke to investigators about this incident on August 6,

2013, and brought with her telephone records reflecting calls between herself and the

Defendant. She said that she marked on the records which calls came from the Defendant

and allowed the officers to copy her text messages from the Defendant. The telephone

records and a photograph of text messages were received as exhibits. Ms. Green stated

that the Defendant sent her three text messages on July 10 and that the last message read,

“Hey, my supervisor is calling me about the serial number. Call me ASAP.”

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On cross-examination, Ms. Green testified that when she discovered the burglary

at her house, she called her cousin, her mother, and the Defendant before calling the

police. She stated that she arrived home around 4:00 p.m. Ms. Green said that her house

had been burglarized three times previously and that she was not afraid for her safety

because she did not hear an intruder in the house.

Ms. Green testified that the description she gave of the two men she saw stealing

the ladder was not very detailed. Ms. Green stated that when she called the Defendant to

tell him she had called the police, the Defendant told her he had seen the same men

loitering in the church parking lot earlier in the day. She said the Defendant told her that

the men were possibly responsible for the burglary of her house and that he was going to

follow them. Ms. Green denied the Defendant told her that he was going to call the

police. She said that when the Defendant called her again, he told her that he had

arrested two men who had Ms. Green‟s belongings and that the police would call her to

come to the scene later. She said that the Defendant did not mention a serial number

initially and that he did not ask if she had a serial number. She said that when he gave

her the number, she wrote it on a piece of paper with no intention of using it. She stated

that she never gave any serial number for a DVD player to the police. She said that after

she told the police someone had called her and had given her a serial number, she showed

them the piece of paper. Ms. Green stated that she gave the police three or four serial

numbers in connection with the burglary and that all the numbers were written on the

same piece of paper.

Ms. Green testified that she arrived at the parking lot and that the DVD player at

the scene looked like her DVD player. She stated that Officer Mackey asked her if she

was familiar with scratches on the DVD player and that she told him she was not. She

said that at the scene, she was unsure whether the DVD player was hers, but that she did

not tell Officer Mackey the DVD player was hers. She did not remember telling anyone

on July 10 that the DVD player probably was not hers. She remembered a felony

response officer‟s telling her the DVD player probably was not hers.

Ms. Green testified that initially, felony response officers asked her to go home

and find any serial numbers she had and that she brought the piece of paper on which she

wrote the serial number the Defendant provided. She said that the officers “told [her] the

situation” and asked to see the paper and that she gave an officer the paper.

Memphis Police Sergeant Steve Kent testified that he worked for the felony

response unit and that on July 10, 2013, he was assigned to Ms. Green‟s burglary case.

He said that when he began investigating, he knew that one man was in custody and “that

an off-duty officer had stopped a guy with a piece of stolen property” and was on his way

to the police station. Sergeant Kent stated that he was curious about how the off-duty

officer knew the item was stolen and “what else was going on there.” He said that he

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informed M.R.1 of his Miranda rights and interviewed him after M.R. signed a rights

waiver. Sergeant Kent stated that M.R. was calm and surprised when Sergeant Kent told

him the DVD player was stolen. Sergeant Kent said that M.R. told him the DVD player

belonged to him and that his mother bought it for him. Sergeant Kent stated that M.R.

said he was going to pawn the DVD player. Sergeant Kent said that he tried to ascertain

whether a serial number was available from the burglary, that he spoke with his partner,

that his partner contacted the victim, and that his partner told Sergeant Kent the victim

had a serial number. Sergeant Kent said that when he told M.R. the police had a serial

number, M.R. told him that “the officer told . . . that woman the serial number” and that

he saw the officer on his cell phone speaking to someone.

Sergeant Kent testified that he stopped the interview and contacted his supervisor

because M.R. accused an officer of wrongdoing. Sergeant Kent said that he spoke to Ms.

Green when she gave her initial statement, that she told him she had paperwork proving

her ownership of the DVD player, and that she went home and returned to the police

station with a piece of paper containing handwritten serial numbers. Sergeant Kent stated

that his partner spoke with her further about the DVD player‟s serial number and that Ms.

Green‟s demeanor changed to “one of relief, I guess that she was finally telling us what

was really going on.”

Memphis Police Sergeant Lorenzo Young testified that he investigated Ms.

Green‟s case with Sergeant Kent. He said that he interviewed M.R. and Ms. Green and

that he spoke with M.R.‟s mother. Sergeant Young stated that M.R. was “adamant about

that property belonging to him” and that M.R.‟s mother confirmed the DVD player

belonged to her and told him she could prove her ownership. Sergeant Young said M.R.

stated that his mother bought three DVD players and that this DVD player was located in

M.R.‟s bedroom. Sergeant Young said M.R.‟s mother corroborated his story.

Sergeant Young testified that during his first conversation with Ms. Green, he

asked her if she had a serial number and that she told him she did. Sergeant Young stated

that Ms. Green gave them a piece of paper containing three handwritten serial numbers.

He stated that he questioned Ms. Green about the numbers being handwritten and that her

demeanor changed. Sergeant Young stated that after Ms. Green “told us what happened,”

he contacted his supervisor, and the two men were released without having been charged.

M.R.‟s mother testified that on July 10, 2013, M.R. was arrested. She said that she

bought a DVD player for M. R., which he kept in his bedroom. M.R.‟s mother stated that

she was told M.R. had been arrested because he broke into a house and had a DVD

player. M.R.‟s mother said that her husband confirmed M.R.‟s DVD player was not in

his bedroom. She stated that she told the police the DVD player belonged to her, that she

1

It is the policy of this court to refer to minors by their initials.

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did not speak to M.R. on the telephone, and that she did not have a serial number because

the DVD player was about ten years old.

M.R. testified that on July 10, 2013, he left home to pawn his DVD player with the

help of his friend, M.W., who was age nineteen. M.R. stated that he noticed a black truck

following them, that the truck pulled up alongside them, and that the Defendant rolled

down the window. M.R. said M.W. asked the Defendant if the Defendant knew them,

and the Defendant responded, “Do you all want to get to . . . know me[?]” M.R. stated

the Defendant exited the truck with a gun in his hand.

M.R. testified that he and M.W. attempted to walk away from the Defendant and

that when the pair reached a parking lot, two police cars pulled up. M.R. said that a

uniformed officer told them to sit down, that the officer spoke with the Defendant, that

the Defendant took the DVD player, and that M.R. and M.W. were handcuffed and patted

down. M.R. stated that the Defendant asked them where they had the “rest of the stuff.”

M.R. said the officer placed him and M.W. in separate police cars.

M.R. testified that he saw the Defendant talking on a cell phone and looking at the

DVD player. M.R. said that after the uniformed police officers arrived, he thought the

Defendant was an undercover police officer. M.R. stated that the officers took him to the

police station.

M.W. testified that on July 10, 2013, M.R. called him and asked for his help

pawning a DVD player. M.W. said that M.R. met him at his house, that M.R. carried the

DVD player in a bag, and that they saw a black truck slowly driving down the street and

later in a restaurant parking lot. M.W. stated that he told M.R. if the truck were still there

when they arrived in the restaurant parking lot, they were going to “see what was going

on.” M.W. said that he approached the truck with his hands up and asked, “What‟s up,

do you know us or something?” He stated the driver exited the truck holding a gun

pointed downward and said, “No, but you can get to know us.” M.W. said that M.R. told

him to keep walking because the driver had a gun, that the pair continued walking to

another parking lot, and that a uniformed police officer pulled up in a police cruiser.

M.W. stated that the black truck pulled in behind the police car, that an officer and the

driver of the truck exited their vehicles, that the officer told the men to come over to him,

that the driver of the truck asked them where the rest of the stuff was, and that the officer

searched them and put them in the back of the police car. M.W. said he realized the

driver of the truck was a police officer when the uniformed officer arrived in the parking

lot.

M.W. testified that he saw the driver of the truck talking on his cell phone near the

back of the police car. M.W. stated that he saw the driver of the truck write something

down and thought the driver was looking at the DVD player because the driver had

opened the bag containing the DVD player. M.W. said that they were transported to the

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police station, that he gave a statement, and that the police released them after calling

their mothers.

The Defendant testified that in July 2013, he was dating Ms. Green and that they

returned from a trip on July 8. He said that she dropped him off at his house, that she

later called and told him her house had been burglarized, and that he told her to call the

police. The Defendant said Ms. Green told him that the burglars had taken laptops,

clothing, jewelry, and televisions. The Defendant stated that he was not involved in the

police investigation of the burglary.

The Defendant testified that on July 10 around noon, he and a man began repairing

Ms. Green‟s broken window, that Ms. Green ran outside around 3:00 or 3:30 p.m. and

told them she called the police about two black men burglarizing “the house,” and that

the Defendant saw two men carrying a ladder and a bag running through the woods next

to a church. The Defendant stated that Officer Mackey and three other officers

responded to Ms. Green‟s house. The Defendant said that Officer Mackey walked

through the wooded area and recovered “the stuff,” which he returned to the homeowner.

The Defendant stated that he asked Officer Mackey whether he would write a report and

that Officer Mackey said he was going to contact his lieutenant. The Defendant said that

later that day, Ms. Green told him a DVD player and pieces of her son‟s clothing were

missing.

The Defendant testified that after he left Ms. Green‟s house around 4:00 p.m., he

saw two men fitting the description of the men he saw stealing the ladder. The Defendant

said he called Officer Mackey and told him it was possible the men had stolen the items

from the church. The Defendant stated the men could have been involved in Ms. Green‟s

burglary. The Defendant said he remained on the phone with Officer Mackey and

followed the men. The Defendant stated that M.W. asked him, “What‟s up?” when M.W.

noticed the Defendant following them, that the Defendant exited his truck with his

service weapon at his side, that the Defendant reentered his truck, and that the Defendant

pulled into the parking lot behind Officer Mackey. The Defendant denied pointing his

service weapon at M.W. and saying, “Do you want to get to know me?”

The Defendant testified that he assisted Officer Mackey in patting down the men,

that the Defendant‟s intent was to identify the men as having taken items from the

church, and that the men were the men the Defendant saw taking the ladder. The

Defendant said he looked inside the bag the men carried to “make sure” the serial number

matched Ms. Green‟s serial number. The Defendant stated that he did not know Ms.

Green did not have a serial number in her possession because he did not know her DVD

player had been stolen.

The Defendant testified that he called Ms. Green from the parking lot, that Ms.

Green told him her black Magnavox DVD player was missing, that Ms. Green had

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received the DVD player from her stepmother, and that her stepmother had the serial

number at her house. The Defendant said that he gave Ms. Green the serial number from

the DVD player because when Officer Mackey spoke to M.R.‟s mother on the telephone,

she insisted she had the serial number. The Defendant stated that he wanted Ms. Green to

compare the serial number he gave her to the serial number her stepmother had and that

he thought if the numbers did not match, Ms. Green would not lie about it because the

DVD player was only worth thirty dollars. The Defendant said that he wanted to make

sure the men were not charged. The Defendant denied telling Ms. Green to lie and say

the serial number was hers.

On cross-examination, the Defendant testified that at the parking lot, he did not

want the men to be charged because the officers had not filed a theft report related to the

theft of the ladder. The Defendant said he stopped the men because of the theft of the

ladder and denied stopping them because he wanted the men charged with the burglary of

Ms. Green‟s house. The Defendant stated that he called Ms. Green to ask if a DVD

player was stolen in the burglary and that Ms. Green told him the DVD player had been

stolen. The Defendant stated that the men who stole the ladder also carried a bag, that the

ladder was recovered, and that the bag was not. The Defendant said that when he stopped

the men, he did not know what was in their bag and that he was positive they were the

men he saw fleeing with the ladder. The Defendant stated that Lieutenant Segrest

advised Officer Mackey not to file a report about the theft of the ladder. The Defendant

agreed that he was off duty during the incident, that he called Officer Mackey on Officer

Mackey‟s personal cell phone, and that he pulled into the restaurant parking lot because

“I guess they noted that I had been trailing them[.]” The Defendant said that he got out

of his truck but denied saying anything more than “What‟s up” to the men. The

Defendant denied asking if the men wanted to get to know him and said his gun remained

secured in a holster, although his hand was on his gun.

The Defendant testified that at the parking lot, he asked the men where the “rest of

the stuff” was located and that the question referred to items taken from the house with

the ladder, not Ms. Green‟s house. The Defendant said Officer Mackey, not he, accessed

Ms. Green‟s burglary report.

The Defendant testified that although Officer Mackey accessed Ms. Green‟s

burglary report, the Defendant did not tell Officer Mackey he suspected the men of

committing the burglary. The Defendant said Officer Mackey accessed the report

because Ms. Green advised him the DVD player belonged to her and because Officer

Mackey had to verify her ownership for Lieutenant Segrest. The Defendant

acknowledged the report was accessed at the beginning of Officer Mackey‟s stopping the

men. The Defendant stated that he called Ms. Green for the report number and that she

told Officer Mackey a DVD player was missing. The Defendant denied, though, that he

suspected the men of committing the burglary. When asked why the Defendant called

Ms. Green if he did not suspect the men of burglarizing her house, the Defendant said he

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called because the officers did not file a report relative to the theft of the ladder and the

officers thought the items possibly belonged to Ms. Green.

The Defendant testified that he told Lieutenant Segrest Ms. Green was a friend

who lived in the neighborhood and that he did not disclose their romantic relationship

because Lieutenant Segrest did not ask. The Defendant said that his first call to Ms.

Green from the parking lot related to the report number, that the second call related to the

DVD player missing from her house, and that the third call related to the serial number.

The Defendant stated that the third call occurred before Officer Mackey called M.R.‟s

mother. The Defendant said, though, that during the third call, he told Ms. Green she

needed to ensure the serial number matched her DVD player because M.R.‟s mother had

told the police M.R.‟s mother had the serial number.

The Defendant testified that he knew an original or a copy of a serial number was

required in order to prosecute a person and said, “You just can‟t have a handwritten serial

number.” He said that he advised Ms. Green to verify the number. He stated that in

order to arrest the men, the police needed a matching serial number. The Defendant

denied knowing a person could be prosecuted with a handwritten serial number. The

Defendant said that after the men were taken to the police station, he asked Ms. Green if

she had gone to her stepmother‟s house. The Defendant stated that Ms. Green was

“adamant” that the DVD player recovered from the men was hers and that the Defendant

told her she needed the serial number in order to get a conviction. The Defendant said

that he spoke with Ms. Green once more, that she said she signed a refusal to prosecute

and the police released the men, and that she began screaming and crying and hung up

the telephone. The Defendant stated that he had not heard from Ms. Green until the day

before the trial. On redirect examination, the Defendant denied telling Ms. Green, “Hey,

I need to get my story together.”

Upon this evidence, the Defendant was convicted of tampering with evidence, three

counts of official misconduct that were merged into one conviction, and two counts of

official oppression. This appeal followed.

I.

Sufficiency of the Evidence

The Defendant contends that the evidence is insufficient to support his

convictions. The State responds that the evidence is sufficient.

a. Evidence Tampering

The Defendant contends that the evidence is insufficient to support his evidence

tampering conviction, arguing that neither he nor Ms. Green presented the serial number

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to law enforcement and that the evidence did not establish an intent to interfere in the

investigation. He does not contest the other elements of the offense. The State responds

that providing the serial number to Ms. Green with instructions to present it to the police

is sufficient evidence to support the conviction.

In determining the sufficiency of the evidence, the standard of review is “whether,

after viewing 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, 319 (1979); see State v. Vasques, 221 S.W.3d 514,

521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence

and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The

appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding

“the credibility of witnesses [and] the weight and value to be given the evidence . . . are

resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see

State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

“A crime may be established by direct evidence, circumstantial evidence, or a

combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.

Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review „is the same whether

the conviction is based upon direct or circumstantial evidence.‟” State v. Dorantes, 331

S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009)).

Tennessee Code Annotated section 39-16-503(a) states, in relevant part,

It is unlawful for any person, knowing that an investigation or official

proceeding is pending or in progress, to . . . . [m]ake, present, or use any

record, document or thing with knowledge of its falsity and with intent to

affect the course or outcome of the investigation or official proceeding.

An official proceeding is defined as “any type of administrative, executive, legislative or

judicial proceeding that may be conducted before a public servant authorized by law to

take statements under oath.” Id. § 39-11-106(a)(25) (Supp. 2011) (amended 2014).

Tennessee courts have not considered whether Code section 39-16-503(a)(2)

requires an individual to present evidence to law enforcement, which is an issue of

statutory interpretation. “The most basic principle of statutory construction is to ascertain

and give effect to legislative intent without broadening the statute beyond its intended

scope.” Carter v. Bell, 279 S.W.3d 560, 564 (Tenn. 2009) (citing State v. Sherman, 266

S.W.3d 395, 401 (Tenn. 2008)). Generally, if the language of a statute is plain in its

meaning, we need only apply the statute without examination of other sources. Id. If the

language of a statute is ambiguous, however, we may consider the legislative intent

underlying the statute, legislative history, and other sources. Powers v. State, 343 S.W.3d

-13-

36, 44 (Tenn. 2011). “Legislative intent is determined „from the natural and ordinary

meaning of the statutory language within the context of the entire statute without any

forced or subtle construction that would extend or limit the statute‟s meaning.‟” State v.

Strode, 232 S.W.3d 1 (Tenn. 2007) (internal citations omitted).

The plain language of section 39-16-503(a)(2) does not specify to whom the false

evidence need be made, presented, or used. However, the interpretation the Defendant

urges us to accept, that an individual must present evidence to law enforcement, is too

narrow given the dual applicability of the statute to investigations and official

proceedings.

State v. Forbes, 918 S.W.2d 431 (Tenn. Crim. App. 1995), is instructive regarding

the issue of whether the evidence tampering statute is limited to presenting false evidence

to law enforcement. In Forbes, even though the conviction was overturned on grounds

related to unanimity of the jury verdict, this court concluded sufficient evidence existed

to convict a defendant of evidence tampering when the defendant, an attorney, presented

a set of falsified calendars to opposing counsel during the discovery process before a civil

trial.2 In the context of jury instructions, this court noted that “it was not necessary that

the evidence be „presented‟ to the trial judge to constitute the offense.” Id. at 447. The

statute turns on the intent of the person presenting the false evidence, not the person to

whom the evidence is presented. As a result, we conclude that presenting false evidence

by providing a serial number to a criminal complainant with instructions to give it to law

enforcement to confirm ownership of the property sufficiently implicates the policies

supporting the evidence tampering statute.

In the light most favorable to the State, the record reflects that the Defendant gave

the serial number to Ms. Green knowing it did not correspond to her DVD player, that he

told her it was her DVD player‟s serial number, and that he instructed her to give the

number to the police to provide evidence the men‟s DVD player was her stolen property.

Ms. Green testified that the Defendant told her not to tell the police from whom she

obtained the number and that he later told her, “[Y]ou need to give them that serial

number. These n------ have done something to somebody, and they need to be in jail.”

The Defendant repeatedly instructed Ms. Green to give the serial number to the police

and told her the men could not be charged without it. The Defendant‟s actions were

circumstantial evidence of his intent to influence the burglary investigation. In addition,

there was proof that Ms. Green gave the number to law enforcement. Sergeant Young

testified that Ms. Green gave him the paper containing the serial number and that she

only admitted the number was given to her after he asked why the number was

handwritten. A rational jury could have found beyond a reasonable doubt that the

2

It is unclear whether the attorney, who eventually sent a letter to opposing counsel advising him the

calendars were prepared as demonstrative exhibits only, knew the calendars were not originals before

sharing them.

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Defendant presented the serial number to Ms. Green with the intention of influencing the

burglary investigation. The Defendant is not entitled to relief on this basis.

b. Official Misconduct

The Defendant contends that the evidence is insufficient to support his three

official misconduct convictions, arguing that (1) relative to Count 2, the Defendant‟s

actions were not an exercise of official power, (2) relative to Count 3, the Defendant‟s

actions were not under color of office or employment, and (3) relative to Count 4, the

Defendant did not violate a law relating to his office or employment. The Defendant

does not contest any other issues related to the sufficiency of these convictions. The

State responds that the evidence is sufficient.

Tennessee Code Annotated section 39-16-402(a) defines official misconduct, in

relevant part, as follows:

A public servant commits [official misconduct] who, with intent to obtain a

benefit or to harm another, intentionally or knowingly . . . [c]ommits an act

relating to the public servant‟s office or employment that constitutes an

unauthorized exercise of official power . . . [c]ommits an act under color of

office or employment that exceeds the public servant‟s official power . . .

[or] [v]iolates a law relating to the public servant‟s office or employment[.]

Id. at §39-16-402(a)(1), (2), and (4). A public servant includes employees and officers of

government. Id. § 39-16-401(3)(A).

The jury instructions in this case defined “under color of office or employment” as

acting or purporting to act in an official capacity or taking advantage of such actual or

purported capacity. The indictment relative to Count 2, official misconduct, alleged that

the Defendant, “a Police Officer . . . with the intent to obtain a benefit or harm another,

did commit an act relating to his employment that constitutes an unauthorized exercise of

official power[.]” Relative to Count 3, official misconduct, the indictment read that the

Defendant committed “an act under color of office or employment that exceeded his

official power[.]” Relative to Count 4, official misconduct, the indictment read that the

Defendant committed an act “that violates a law relating to his office or employment[.]”

During closing arguments, the prosecutor stated that in Counts 2 and 3, the charges

stemmed from the Defendant‟s calling Officer Mackey, and in Count 4, the charge

stemmed from the Defendant‟s tampering with evidence.

Relative to Counts 2 and 3, Officer Mackey testified that the Defendant called his

cell phone and told Officer Mackey he was following two men with “possibly stolen

items” and that the Defendant thought the men were involved in the theft of the ladder

and possibly the burglary of Ms. Green‟s home. The Defendant agreed that he called

-15-

Officer Mackey‟s personal cell phone. Ms. Green testified that M.R. and M.W. did not

look like the men she saw stealing a ladder, specifically that one man‟s hairstyle was

unlike that of either man who stole the ladder. Ms. Green said that after the men were

arrested, the Defendant told her that the men had “done something to somebody” and

should be in jail.

A rational jury could have found beyond a reasonable doubt that the Defendant

took advantage of his status as a police officer to contact his fellow officer, Officer

Mackey, by identifying the men as the individuals who took the ladder and telling him

that the men had possession of stolen items with the expectation that Officer Mackey

would respond and stop the men in order to investigate. We note that that the Defendant

did not have probable cause or reasonable suspicion to stop the men, rendering the

Defendant‟s instigating the stop through Officer Mackey an action relating to his

employment as a police officer that exceeded his official power. The Defendant is not

entitled to relief on this basis.

Relative to Count 4, Officer Mackey, M.R., and M.W. testified that they saw the

Defendant examining the DVD player and speaking to someone on the telephone. As a

police officer, the Defendant had access to the seized DVD player at the scene. Ms.

Green testified that the Defendant instructed her to write down a serial number as being

that of her DVD player and to give the number to the police. Ms. Green said that the

Defendant told her not to tell the police from whom she obtained the number. When she

initially did not give the serial number to the police, the Defendant told her that the men

could not be convicted without the number and that the men needed to be in jail because

they had “done something to somebody.” A rational jury could have found beyond a

reasonable doubt that the Defendant tampered with evidence, which was related to his

employment as a police officer because he instigated the arrest of the men when he

presented Ms. Green with the serial number prior to her viewing the DVD player and

instructed her to claim the DVD player was her property. The Defendant is not entitled

to relief on this basis.

c. Official Oppression

The Defendant contends that the evidence is insufficient to support his two official

oppression convictions, arguing that he did not act under color of employment because he

did not stop M.R. and M.W. or arrest them. The State responds that the evidence is

sufficient.

Tennessee Code Annotated section 39-16-403(a)(1) defines official oppression, in

relevant part, as follows: “A public servant acting under color of office or employment . .

. [who] [i]ntentionally subjects another to . . . arrest, detention, stop, frisk, halt, search,

[or] seizure . . . when the public servant knows the conduct is unlawful[.]” The jury

-16-

instructions defined “under color of office or employment” as acting or purporting to act

in an official capacity or taking advantage of such actual or purported capacity.

In the light most favorable to the State, the record reflects that the Defendant,

Officer Mackey‟s coworker, called Officer Mackey‟s personal cell phone and told Officer

Mackey he was following two men he suspected were involved in a theft and possibly a

burglary. The Defendant did not communicate that he observed any suspicious behavior

other than saying without explanation that the men carried “possibly stolen” items and

identifying the men as the ones who stole the ladder. Officer Mackey stopped the men,

and the Defendant testified that he helped Officer Mackey frisk one of them. While the

Defendant maintained that the men were the same men he saw stealing the ladder, the

jury, by its verdict, discredited the Defendant‟s testimony. Ms. Green testified that the

men were not the men she saw steal the ladder.

The Defendant instigated Officer Mackey‟s stopping the men with the telephone

call. A rational jury could have found beyond a reasonable doubt that the Defendant took

advantage of his capacity as a police officer to contact a fellow officer and summon him

to the Defendant‟s location in order to stop M.R. and M.W. by stating they possibly

carried stolen items and were involved in the theft of the ladder. We note that

information provided by another police officer is one circumstance our courts have

considered when determining whether a stop was supported by reasonable suspicion.

See, e.g., State v. Watkins, 827 S.W.2d 293 (Tenn. 1992) (“In determining whether a

police officer‟s reasonable suspicion is supported by specific and articulable facts, a court

must consider the totality of the circumstances . . . . [including] information obtained

from other police officers or agencies[.]”) (citing United States v. Cortez, 449 U.S. 411,

47-18 (1981)). We also note that when reviewing an arrest for the existence of probable

cause, courts may consider “the collective knowledge that law enforcement possessed at

the time of the arrest, provided that a sufficient nexus of communication existed between

the arresting officer and any other officer . . . . Such a nexus exists when . . . one officer

directs another officer to act.” State v Bishop, 431 S.W.3d 22 (Tenn. 2014) (citing State

v. Echols, 382 S.W.3d266, 278 (Tenn. 2012)); see State v. Ash, 12 S.W.3d 800, 805-06

(Adopting the “police team” doctrine in which an act taking place in the presence of one

officer is, in legal effect, taking place in the presence of cooperating officers). The

evidence is sufficient. The Defendant is not entitled to relief on this basis.

II.

Indictment

The Defendant contends for the first time on appeal that the indictment for Count

3, official misconduct, is defective and requests plain error review. He argues that the

indictment, which stated the Defendant committed “an act that violated the law related to

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his employment” should have specified the law violated. The State responds that the

indictment is not defective.

Five factors are relevant

when deciding whether an error constitutes “plain error” in the absence of

an objection at trial: “(a) the record must clearly establish what occurred in

the trial court; (b) a clear and unequivocal rule of law must have been

breached; (c) a substantial right of the accused must have been adversely

affected; (d) the accused did not waive the issue for tactical reasons; and (e)

consideration of the error is „necessary to do substantial justice.‟”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d

626, 641-42 (Tenn. Crim. App. 1994)). All five factors must exist in order for plain error

to be recognized. Id. at 283. “[C]omplete consideration of all the factors is not necessary

when it is clear from the record that at least one of the factors cannot be established.” Id.

In order for this court to reverse the judgment of a trial court, the error must be “of such a

great magnitude that it probably changed the outcome of the trial.” Id.; Adkisson, 899

S.W.2d at 642.

Our federal and state constitutions require a criminal defendant be provided

information of “the nature and cause of the accusation.” U.S. Const. amend. VI; Tenn.

Const. art. I, § 9. Generally, an indictment is valid if it contains adequate information

“(1) to enable the accused to know the accusation to which answer is required, (2) to

furnish the court adequate basis for the entry of a proper judgment, and (3) to protect the

accused from double jeopardy.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (citing

State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991); VanArsdall v. State, 919 S.W.2d 626,

630 (Tenn. Crim. App. 1995); State v. Smith, 612 S.W.2d 493, 497 (Tenn. Crim. App.

1980)). Furthermore, Tennessee Code Annotated section 40-13-202 requires an

indictment to “state the facts constituting the offense in ordinary and concise language . .

. in a manner so as to enable a person of common understanding to know what is intended

and with that degree of certainty which will enable the court, on conviction, to pronounce

the proper judgment.” T.C.A. § 40-13-202 (2014). “It is generally sufficient for the

indictment to state the offense charged in the words of the statute.” State v. Majors, 318

S.W.3d 850, 864 (Tenn. 2010) (citing State v. Griffis, 964 S.W.2d 577, 591

(Tenn.Crim.App.1997)).

In support of his contention that he received insufficient notice, the Defendant

cites State v. Angela Ayers, No. W2014-00781-CCA-R3-CD, 2015 WL 4366633 (Tenn.

Crim. App. Jul. 16, 2015), perm. app. filed (Tenn. Sept. 15, 2015). In Angela Ayers, this

court held that an indictment for employing a firearm during the commission of a

dangerous felony did not provide sufficient notice where the indictment did not identify

the predicate dangerous felony and no dangerous felony was charged in the remaining

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counts of the indictment.3 The Defendant‟s reliance on Angela Ayers and similar cases is

misplaced. Dangerous felonies are a statutorily designated category of crimes

enumerated in Code section 39-17-1324(i)(1). The risk of confusion to defendants stems

from the existence of the list of dangerous felonies, any of which could be the basis for a

violation of Code section 39-17-1324.

Conversely, Code section 39-16-402(a)(4) states that a public servant must have

violated “a law relating to the public servant‟s office or employment.” Unlike Angela

Ayers, the indictment in the present case did not reference a statutory list of offenses for

which the Defendant had not been charged. The official misconduct charge could have

been based on evidence tampering or official oppression, both of which were charged in

the indictment and were violations of law relating to the Defendant‟s employment as a

police officer. As a result, we conclude that the Defendant was provided adequate notice

relative to the possible theories of prosecution against which he had to prepare a defense

in Count 3, official misconduct.

We note that similar language in Code section 39-16-402(a)(1) has been upheld by

this court as providing constitutionally adequate notice. See State v. Matthew Carfi, No.

M2005-01467-CCA-R3-CD, 2006 WL 2788523, at *19 (Tenn. Crim. App. Sept. 29,

2006) (concluding that the language “an act relating to the servant‟s office or

employment” in the context of the official misconduct statute gave adequate notice of the

proscribed conduct), perm. app. denied (Tenn. Mar. 5, 2007); see also State v. John Paul

Szczepanowski, No. E2000-03124-CCA-R3-CD, 2002 WL 1358681 (Tenn. Crim. App.

Jun. 24, 2002), perm. app. denied (Tenn. Dec. 2, 2002).

Because Count 3 of the indictment tracked the language of Code section 39-16-

402(a)(2), it was sufficient. We note that the Defendant did not request a bill of

particulars in this case and that the prosecution elected the factual basis for the violation

of law during closing arguments. The Defendant has not established a clear and

unequivocal breach of law. The Defendant is not entitled to relief on this basis.

III.

Denial of Diversion

The Defendant contends that the trial court erred in denying him judicial

diversion, arguing without reference to the record that “the trial court abused its

discretion in denying him judicial diversion. The factors, as enumerated above, mitigate

3

The defendant in Angela Ayers was charged with first degree premeditated murder, which is not an

enumerated dangerous felony, but was convicted of the lesser-included offense voluntary manslaughter,

which was used as the dangerous felony to support the firearm conviction.

-19-

in his favor.” See T.R.A.P. 27(g). The State responds that the trial court did not abuse its

discretion.

A trial court may order judicial diversion for certain qualified defendants who are

found guilty of or plead guilty or nolo contendere to a Class C, D, or E felony or a lesser

crime; have not previously been convicted of a felony or a Class A misdemeanor; and are

not seeking deferral for a sexual offense. See T.C.A. § 40-35-313(a)(1)(B)(i) (Supp.

2013) (amended 2014). The grant or denial of judicial diversion is within the discretion

of the trial court. State v. King, 432 S.W.3d 316, 323 (Tenn. 2014) (citing T.C.A. § 40-

35-313(a)(1)(A)). When considering whether to grant judicial diversion, a trial court

must consider (1) the defendant‟s amenability to correction, (2) the circumstances of the

offense, (3) the defendant‟s criminal record, (4) the defendant‟s social history, (5) the

defendant‟s physical and mental health, (6) the deterrence value to the defendant and

others, and (7) whether judicial diversion will serve the ends of justice. State v.

Electroplating, 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998); State v. Parker, 932

S.W.2d 945, 958 (Tenn. Crim. App. 1996); see King, 432 S.W.3d at 326 (stating that

recent case law affecting the standard of review for sentencing determinations “did not

abrogate the requirements set forth in Parker and Electroplating, which are essential

considerations for judicial diversion”). “The record must reflect that the court has

weighed all of the factors in reaching its determination.” Electroplating, 990 S.W.2d at

229. If a trial court refuses to grant judicial diversion, “[T]he court should clearly

articulate and place in the record the specific reasons for its determinations.” Parker, 932

S.W.2d at 958-59. “The truthfulness of a defendant, or lack thereof, is a permissible

factor for a trial judge to consider in ruling on a petition for suspended sentence.” State

v. Neeley, 678 S.W.2d 48, 49 (Tenn. 1984)

On review of a decision to grant or deny judicial diversion, this court will apply a

presumption of reasonableness if the record reflects that the trial court considered the

Parker and Electroplating factors, specifically identified the relevant factors, and placed

on the record the reasons for granting or denying judicial diversion, provided any

substantial evidence exists to support the court‟s decision. King, 432 S.W.3d at 327. If,

however, the trial court failed to weigh and consider the relevant factors, this court may

conduct a de novo review or remand the case for reconsideration. Id. at 328.

At the sentencing hearing, Memphis Police Lieutenant Antoinette Giles testified

that the Defendant was chosen by the police director to work with a community outreach

program due to the Defendant‟s compassion, patience, and desire to work in the

community to combat juvenile violence and that Lieutenant Giles was the Defendant‟s

supervisor in 2011 or 2012. Lieutenant Giles said that the Defendant was “one of the

more mature officers” and that she relied heavily upon him. She stated that the

Defendant created a process by which the officers could survey the community about

juvenile violence. She said that the Defendant organized a number of events to engage

local youth, that the Defendant had personal contact with children in the neighborhood,

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and that some children came to him for help. She stated that the Defendant worked with

children through the program while on duty and on his free time to keep them from

becoming delinquent. She said that the Defendant volunteered at a home for senior

citizens and that the Defendant volunteered his vehicle to transport food for the needy.

Lieutenant Giles testified that the Defendant was an outstanding officer with

whom she enjoyed working and that she had nothing bad to say about him. She said she

thought he would be a good candidate for diversion or probation.

On cross-examination, Lieutenant Giles testified that she did not know the facts

underlying the Defendant‟s convictions. When asked whether the Defendant‟s actions

underlying the convictions were indicative of a good police officer, Lieutenant Giles said

she would need more information about the situation and did not feel comfortable giving

an opinion based on “hypotheticals.” She said, though, that as a twenty-eight-year

veteran of the police department, she did not stop people without probable cause and did

not tell people to lie to the police.

On redirect examination, Lieutenant Giles testified that the actions described by

the prosecutor were inconsistent with her knowledge of the Defendant‟s character and

that she would still recommend the Defendant as a good candidate for diversion or

probation.

Upon examination by the trial court, Lieutenant Giles said that if the men had been

unjustly convicted, it would have been wrong and that in the past, she had proven people

innocent during the course of an investigation. When asked how she reconciled the

Defendant‟s actions and the possible harm that could have come to the men, she stated

that she “would have had to have been there to assess the situation in order to come to a

conclusion” and that she could only comment on her personal experience with the

Defendant.

Memphis Police Officer Chris Price testified that he met the Defendant when the

Defendant was a “rookie” officer, that the Defendant‟s determination made them close

friends, and that the Defendant encouraged Officer Price when Officer Price‟s mother

was ill. Officer Price said the Defendant‟s mother died when the Defendant was young,

that the Defendant‟s brother raised him, and that the Defendant was an honorable person.

Officer Price stated that the Defendant‟s stopping someone he suspected of committing a

crime was “something any of us would do” and that the Defendant‟s telling Ms. Green to

lie did not make sense. Officer Price said he did not believe the Defendant would

commit the crimes for which he was convicted. Officer Price stated that the Defendant

was a good father to his two daughters and that the Defendant would be a good candidate

for diversion and probation. On cross-examination, Officer Price said that he attended

part of the trial but did not hear the Defendant‟s testimony.

-21-

Memphis Police Officer Louis Brown testified that he had worked with the

Defendant for twelve years, that the Defendant‟s character was “great,” that other police

officers and people in the community looked up to him, that he was a good father, and

that he worked to “uplift the community” and was involved in a community outreach

program for juveniles. Officer Brown said that the behavior for which the Defendant was

convicted was out of character. Officer Brown said that the Defendant would be a good

candidate for diversion.

On cross-examination, Officer Brown testified that he did not believe the

Defendant was guilty, that the jury was wrong, that Officer Brown attended the trial, and

that he believed the Defendant‟s version of events. Officer Brown said that the

Defendant followed his training by calling the police.

Memphis Police Officer Gregory Robinson testified that he attended the police

academy with the Defendant, that he and the Defendant were partners for ten years, and

that in 2006 or 2007, the Defendant saved his life during a bank robbery call by

interrupting an altercation between Officer Robinson and a suspect in which the suspect

almost overpowered and attempted to shoot Officer Robinson. Officer Robinson said he

could rely on the Defendant for anything and that the Defendant was dependable and

honest. Officer Robinson stated that the Defendant worked with a youth outreach

program, a boxing program for juveniles, and “all kind[s] of stuff with the community

centers.” Officer Robinson said that the Defendant would be a good candidate for

diversion. On cross-examination, Officer Robinson stated that he did not believe the

Defendant was guilty.

Suzette Quarrels, a former coworker of the Defendant‟s, testified that the

Defendant was “very fond of the youth” in the apartment community for which the

Defendant worked as a security officer, that the Defendant worked with and mentored

children, and that she knew the Defendant to be a law-abiding citizen. She said that the

conduct underlying the Defendant‟s convictions was inconsistent with her experience

with him. She stated that the Defendant was a good candidate for diversion. On cross-

examination, Ms. Quarrels said that she did not believe the Defendant was guilty and that

she did not attend the trial.

Ashley Butler, the Defendant‟s daughter, testified that the Defendant was a strong,

supportive father, that although her parents were divorced, they provided a “great support

system,” and that she did not know what she would do without the Defendant. She said

that she depended on the Defendant for moral and financial support and that they loved

each other. Ms. Butler asked the court for leniency.

The Defendant testified that he had no reason to frame the men for the burglary.

He said that his mother died when he was eight years old, that members of his family

supported him, that he worked in corrections for a number of years after college, and that

-22-

he began working as a police officer. He stated that he did not feel he was guilty of the

charges, that his daughter relied on him, and that he had since started his own business to

support her.

The Defendant‟s presentence report was received as an exhibit. The report

reflected that the Defendant was forty-eight years old, that he had a college degree, that

he had good mental and physical health, that he reported no drug use, and that the

Defendant had opened a lawn care business in January 2014. The report reflected no

previous convictions.

M.W. submitted a victim impact statement and requested the maximum sentence

for the “slander,” intimidation, and “abuse” to which the Defendant subjected him.

The trial court noted that it believed the Defendant had committed perjury in his

trial testimony and that the Defendant‟s conduct would have supported charges for

suborning perjury, aiding and abetting, and false reporting. The court found relative to

the Defendant‟s status as a qualified defendant under Tennessee Code Annotated Section

40-35-313, the Defendant was arguably an appointed person in the executive branch who

used his official capacity to commit the offenses, under which circumstances the

Defendant would not have been eligible for diversion.4 However, the court proceeded to

consider the Electroplating factors.

The trial court found that relative to the Defendant‟s amenability to correction, the

Defendant had “led an exemplary life” and had benefited the community, although “I

don‟t think the two young men . . . nor their parents, nor the young lady that . . . he put up

to giving this false information . . . [would] think so.” The court found relative to the

circumstances of the offense that the offense was “a reprehensible and wicked act,” that

the Defendant, a police officer, tried to frame the men who “obviously didn‟t do anything

wrong,” that the Defendant may have been acting on a “hunch” that turned out to be

incorrect, that the men were “very lucky that [the Defendant] was so brazen,” and that

this factor weighed greatly against diversion. The court found relative to the Defendant‟s

criminal record that he had no prior record and that this factor weighed in the

Defendant‟s favor. The court found that the Defendant‟s social history, physical health,

and mental health weighed in the Defendant‟s favor.

4

A qualified defendant, in relevant part, is defined as a defendant who

(b) Is not seeking deferral of further proceedings for any offense committed by any

elected or appointed person in the executive, legislative or judicial branch of the state or

any political subdivision of the state, which offense was committed in the person‟s

official capacity or involved the duties of the person‟s office;

Tenn. Code Ann. § 40-35-313(a)(1)(B)(i) (Supp. 2012) (amended 2014, 2015).

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The trial court noted the presence of individuals who had come to the hearing in

support of the Defendant and said that “if you sat through this, and you saw his

testimony, you would know that [the Defendant] is guilty of this offense. There‟s just no

way around it.” The court stated that the Defendant might have been better off pleading

guilty and “throwing himself at the mercy of the court.” The court noted that its belief

the Defendant lied under oath was enough to deny diversion.

Relative to the deterrent value to other police officers, the trial court found that the

Defendant perpetuated a negative stereotype about police officers by his conduct and that

giving him judicial diversion when regular citizens “would go straight to jail” would not

deter similarly situated individuals. Relative to the public interest, the court found that

the offenses were “appalling” and that diversion was not in the public interest. The court

found that the factors weighed against diversion and denied it.

The record reflects that the trial court considered the Electroplating factors,

explained its reasoning and the weight it gave each factor, and articulated its reasoning

for denying judicial diversion. Therefore, we review the court‟s denial of diversion with

a presumption of reasonableness. The court placed great weight on the circumstances of

the offense, the court‟s finding the Defendant provided untruthful testimony, and the need

to deter similarly situated individuals. The court acknowledged the Defendant‟s lack of a

criminal record and work in the community but found those favorable factors were

outweighed by the “appalling” circumstances of the offense. The trial court did not abuse

its discretion by denying diversion. The Defendant is not entitled to relief on this basis.

In consideration of the foregoing and the record as a whole, we affirm the

judgments of the trial court.

____________________________________

ROBERT H. MONTGOMERY, JR., JUDGE

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