State v. Cutshaw

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED
JULY SESSION, 1997 December 9, 1997

Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9611-CR-00419
)
Appellee, )
)
) SULLIVAN COUNTY
VS. )
) HON. FRANK L. SLAUGHTER
JASON BRADLEY ) JUDGE
CUTSHAW, )
)
Appe llant. ) (Aggravated Perjury)

ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF SULLIVAN COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

LESLIE S. HALE JOHN KNOX WALKUP
Assistant Public Defender Attorney General and Reporter
P.O. Box 839
Blountville, TN 37617 TIMOTHY F. BEHAN
Assistant Attorney General
GERALD L. GULLEY, JR. 425 5th Avenu e North
Assistant Public Defender Nashville, TN 37243
P.O. Box 1708
Knoxville, TN 37901-1708 GREELEY W ELLS
District Attorney General

EDWARD E. WILSON
Assistant District Attorney General
Sullivan County Justice Center
Blountville, TN 37617

OPINION FILED ________________________

CONVICTION REVERSED; PRESENTMENT DISMISSED

DAVID H. WELLES, JUDGE
 OPINION

The Defendant, Jason Bradley Cutshaw, appeals as of right purs uant to

Rule 3 of the Ten nessee R ules of Appe llate Procedure . He was co nvicted by a

Sullivan Coun ty jury of aggravated perjury. 1 The trial court sentenced him as a

Range I standard offender offender to four years, th e first two of w hich we re to

be served on community corrections followed by two yea rs of probation. The trial

court also imposed a two thousand dollar ($2,000) fine and ordered the

Defendant to perform two hundred (200) hours of community service per year

while on community corrections. In this appeal, the Defendant raises four

issues:2

(1) That the presentment charging him with aggravated perjury was
fatally defective;
(2) that the evidenc e was leg ally insufficien t to suppo rt the verdict;
(3) that the trial court erred by refusing to instruct the jury on the
lesser included offense of perjury; and,
(4) that the trial court erred in failing to grant judicial diversion.

After carefully reviewing the record, we conclude that the first issue has merit.

According ly, we reverse the Defendant’s conviction for aggravated perjury and

dismiss the presentment against him. W e also believe the trial ju dge a buse d his

discretion by not considering the defendant’s eligibility for judicial diversion.

We begin with a sum mary of the pe rtinent facts. The rec ord revea ls that

on the night of March 27, 1993, the ho me o f Rob ert and Mary M elissa Hatfie ld

located at 2547 Bay Street in Bristol, Tennessee was burglarized. Ralph

1
Tenn. Code Ann. § 39-16-703.

2
We have chosen to address the issues in a different order than they appear in the
Defendant’s brief.

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Callahan, an officer with the Bristol Police Department, was on a routine patrol

that night when he observed an individual near the home at 2547 Bay Street

carrying a blanket wrapped around what appeared to be rifles. The barrels of the

guns were protruding from one end of the blanket. Officer C allahan d ecided to

investigate the situation and e xited his vehicle. As he did so, the individual

carrying the blanket dropped the guns and fled. Callahan lost the individual after

a short chase.

Officer Callahan then returned to where the individual had discarded the

guns. He began to ask questions of the occupants of the homes near the scene.

One of these occupants was the Defendant. Callahan asked the Defendant and

another occupant of the home, Katherine Leonard, if they had seen the individual

carrying the guns and if they knew the identity of that individual. Both the

Defendant and Leonard stated that they did not know who the perpetrator was.

Callahan then asked them if they wou ld mind traveling to the police station to give

statements to the detectives working the case. Leonard and the Defendant

agreed to go to the station to give statements.

The Defendant gave a sworn statement in the early morning hours of

March 28, 1993, to Bill Smith, a lieutenant with the Br istol Police D epartm ent.

The statement reads as follows:

I have known Robert Miller for about four (4) years.. I use [sic] to
date his cous in. Late in the night of 3/27/93 I was with this girl that
I had met tonight and we were in her car and we picked up R obert
Miller at 421 Shopping Cent er. W e were [sic] ba ck to th e girl’s
apartment to party. The girl was d riving. W e drov e to the girl’s
apartment and we all wen t inside . We were in the apartme nt for a
few minutes an d Robert said that he would be back in a few minutes
and he left the apartment. After Robert left the girl found that her
car keys we re missin g. About 10 or 15 minutes after Robert left the

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 apartment I looked out the window and saw R obert going to the g irl’s
car and he was ca rrying a bla nket with some thing in it but I could not
tell what was in the blanket. I saw the trun k of the car raise and I
went outside and asked Robert what he was doing and he sa id
“Shut up and go on.” I went on into the house at that time. Just as
I was going into the house I saw blue lights and I stayed in the
house. Lt. Smith showed me six (6) photos and the photo of Robert
Miller is the o ne that I pu t my initials on the back of.

The Defendant signed the statement and it was notarized. Lieutenant Smith and

Detective George Eden, who was taking the statement of Katherine Leonard,

both testified that the Defe ndan t was c ohere nt, did not appear to be intoxicated,

and was willing to give a statement. In addition, Lieutenant Smith stated that,

prior to takin g the s tatem ent, he spec ifically asked the Defendant if he was under

the influence of alcohol or drugs. According to Smith, the Defendant responded

negatively.

Subsequent to the taking of the state ments, po lice officers searched

Katherine Leona rd’s car with her permission. Becau se she was un able to loc ate

her keys, officers gained access to the trunk by taking out the back seat. The

officers recovered jewelry and other items from the trunk. These items and the

guns dropped by the perpetrator as he fled were identified by the Hatfields as

having been stolen from their home at 2547 Bay Street. In addition, Mary Melissa

Hatfie ld testified that in the early morning hours of March 28, 1993, the Defendant

approached her and stated , “I didn’t brea k into your hou se, Rob ert Miller did it.”

On April 1, 1993, the Defendant gave a second statement to Captain Don

Wh ite of the Bristo l Police D epartm ent. The Defendant’s second statement reads

as follows:

On Sat. night 3/27/93, I was with Albert Miller and a girl by the name
of Kathy. I don’t know Kathy’s last name, but I know she lived out

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 near Skate Fun in Bristol, TN. We all had been drinking and after
a while we left Kathy’s house to go get more to drink. While we
were out in Kathy’s car we picked up Robert Miller and he went back
to Kathy’s h ouse w ith us. Rob ert Miller wa s with us fo r about 1 0 to
15 mins and then left. After Robe rt Miller left, Kathy missed her car
keys and could not find them. On Sunday morning 3 /28/93, Albert
Miller called Robert Miller over at Robert’s girlfriends [sic] house and
ask [sic] him if he had taken Kathy’s car keys and Robert said he
had the car keys. Me and Albert Miller rode over to se e Robert
Miller. He was still at his girlfriends [sic] house. When we walked
up to Robert Miller, he ha d Kath y’s car ke ys in his hand , and th at is
when he gave the keys to Albert Miller and then we left and went
back to Kathy’s house.

Wh ite testified that he detected no odor of alcohol about the Defendant at the

time of the secon d statem ent.

With this information, Robert Miller was charged with the burglary of the

Hatfie ld residence and tried in the Sullivan County C riminal Court in case

numbe rs S33,609 and S33,610. The Defendant was called as a witness at that

trial by the State and testified on July 15, 1993. The Defendant’s testimony at

Robert Miller’s trial was substantially the same as his two statements to the

police. He testified that he was with Katherine L eonard, R obert Miller and A lbert

Miller (Robert Miller’s brother) on the evening of March 27, 1993. They had a

cons iderab le amount of liquor to drink and eventually went to Leonard’s house.

The keys to Leo nard’s car were on to p of a television in the ho use. After a sho rt

time there, Robert Miller left the residence. Shortly thereafter, the Defendant saw

someone carrying some thing stan ding at Le onard’s car. The Defendant denied

goin g outsid e and spea king w ith the in dividua l at the c ar. He then s aw po lice

officers, and the individual at Leonard’s car fled. The next day, when he and

Albert Miller wen t to Robe rt Miller’s girlfriend ’s hom e, the De fendant initia lly

testified that Albe rt Miller walke d into the re sidence alone an d returne d with

Leonard’s keys and that he (the Defendant) did not see Robert Miller. On

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redirect examination, however, the Defendant admitted that he had seen Ro bert

Miller that morn ing, bu t walke d out o f the ho me im med iately upon see ing Miller.

There were, however, some noteworthy differences between the

Defe ndan t’s statements to police officers and his testimon y at Ro bert M iller’s trial.

For instance , in his first statem ent, the sw orn state ment given to Lieutenant

Smith, the Defendant stated that upon seeing Robert Miller carrying something

to Leonard’s car, he went ou tside and spoke with Miller, wh o told him to “[s]hut

up and go on.” At Robert Miller’s trial, the Defendant denied leaving Leon ard’s

home. The pr incipal difference between the Defendant’s statements to police

and his testimony at Robert Miller’s trial was that he identified Robert Miller as the

individual standing at Leonard’s car in his first statement but testified at trial that

he could no t identify the individual standing at Leonard’s c ar.

When confronted with these difference s during his testim ony at Rob ert

Miller’s trial, the Defendant did not deny making the statements to police.

Instead, he testified that he was so drunk at the time that he could not remember

what he had said to the police officers. When asked about the statement made

to Captain White on April 1, 1993, four days after the first statement, the

Defe ndan t testified that he was d runk o n that o ccas ion as well.

Given these circumstances, on August 23, 1993, the Sullivan County grand

jury returned a prese ntment ch arging the De fendant with ag gravated pe rjury,

alleged to have been committed while testifying at the trial of Robert Miller. The

presentment reads as follows:

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 The Grand J urors o f Sulliva n Cou nty, Te nnes see, d uly
empaneled and s worn, upon their oath, present that Jason Bradley
Cutshaw on the 15th day of July, 1993, in Sullivan C ounty,
Tennessee, and before the finding of this P resen tmen t, did
unlawfully, feloniously and knowingly while under oath as a witness
in a trial in the Criminal Cou rt for Sullivan County, Tennessee, in a
case styled State of Tennessee versus Robert B. Miller bearing
Sullivan Coun ty Crimina l Court case numbers S33,609 and S33,610
with intent to deceive, mad e ma terial fals e state men ts in violation of
T.C.A. 39-16 -703, a ll of whic h is [a]gainst the peace and dignity of
the State of Tennessee.

The Defendant was tried and convicted as charged on March 8, 1995. He now

appeals to this Court, challenging both his conviction and his sentence.

In his first issue on appeal, the Defendant contends that the presentment

charging him with aggravated perjury was fatally defective. Prior to trial, the

Defendant filed a motion to dismiss the presentment for duplicity. The essence

of his argument was that the lan guag e of the prese ntme nt did n ot suffic iently

specify which statements made by the Defenda nt at Robert M iller’s trial were

false, and thus the presentment improperly charged more than one offense in a

single count. The trial court denied the motion. The Defendant now raises this

issue on appeal, arguing that the presentment was defective in that it did not

specify which statements made by the Defendant were allegedly false.

Initially, we note that the State argues on appeal that the Defendant failed

to file his m otion fo r new tr ial in a tim ely fashion, thereby waiving consideration

of the first, third an d fourth iss ues. See Tenn. R. App . P. 3(e). We disagree.

Rule 33 of the Tennessee Rules of Criminal Procedure indicates tha t a motion

for new trial sh ould be made in writing, or if m ade ora lly, reduced to writing, w ithin

thirty days o f the da te the o rder of sente nce is entered. Te nn. R. Crim . P. 33(b).

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Rule 45 of the Tennessee Rules of Criminal Procedure describes the principles

governing the computation of time. It provides that

the day of the act or event from which the designated period of time
begins to run sha ll not be inclu ded. T he last day of the period so
computed shall be included unless it is a Saturd ay, a Sun day, a
legal holiday, or a day w hen th e clerk ’s office for filing is closed , in
which event the period runs until the end of the next day which is not
a Saturday, a Sunday, a legal holiday, or a da y when the cle rk’s
office for filing is closed.

Tenn. R . Crim. P. 45(a).

In the case sub judice, the order of sentence was entered on April 28,

1995. Thus, the first d ay of the thirty-da y perio d in wh ich to file a motion for new

trial was April 29, 1995. As a result, the thirtieth day of the period was May 28,

1995. May 28, 1995, was a Sunday. Accordingly, under Rule 45(a) of the

Tennessee Rules of Criminal Procedure, the last day of the period was extended

to Monday, May 29, 1995. May 29, 1995, how ever, was Me morial Day, a legal

holida y. Thu s, Rule 45(a) extended the last day of the period to Tuesday, May

30, 1995. The Defendant filed his motion for new trial on May 30, 1995. W e

therefore conclude that the Defe ndan t timely file d his motion for new trial and has

not wa ived co nside ration o f his first, th ird and fourth is sues on ap peal.

W e now turn to the merits of the first issue. The la w is well-es tablish ed in

Tennessee that an indictment or presentment must provide notice of the offense

charged, an adequate basis for the entry of a proper judgment, and s uitable

protection against double jeopard y. State v. T rusty, 919 S.W.2d 305, 310 (Tenn.

1996); State v. Byrd, 820 S.W.2d 739, 741 (Tenn . 1991); State v. Lindsay, 637

S.W.2d 886, 890 (Tenn. Crim. App. 1982). The indictment or presentment “must

state th e facts in ordina ry and conc ise lan guag e in a m anne r that wo uld en able

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a person of common understanding to know what is intended, and with a degree

of certainty which would enable the court upon conviction, to pronounce the

proper judgmen t.” Wa rden v. Sta te, 214 Tenn. 391, 381 S .W.2d 244, 245 (19 64);

see also Tenn. Code Ann. § 40-13-202.

A lawful acc usation is an esse ntial jurisdictiona l elemen t, and thus , a

prosecution cannot proceed without an indictment or presentment that su fficiently

informs the accu sed of the essen tial eleme nts of the o ffense. State v. Perkinson,

867 S.W .2d 1, 5 (T enn. C rim. App . 1992); State v. Morgan, 598 S.W.2d 796, 797

(Tenn. Crim. App. 1979). A judgment based on an indictment or presentment

that does not allege all the esse ntial elem ents of the offense is a nullity. Warden,

381 S.W .2d at 245 ; McCra cken v. S tate, 489 S.W.2d 48, 53 (Tenn. Crim. App.

1972).

Aside from the general principles governing indictments and presen tments ,

there is also a statutory provision dea ling specifically with allegations o f perjury.

See Tenn . Code Ann. § 4 0-13-21 3. This provision provides that in an indictment

or presentment for perjury, it is not necessary to set forth the records or

proceedings with wh ich the oath is connected or the commission or authority of

the court or perso n before whom the perjury was co mm itted. Tenn. Code Ann.

§ 40-13-213(a). The provision continues as follows:

It is sufficient in such case to give the substance of the
controversy or ma tter in respect to which the offense was
committed, in what court or before whom the oath alleged to be
false was take n, and that the court or person before whom it was
taken had authority to administer it, with proper allegations of the
falsity of the matter on which the perjury is assigned.

Tenn. C ode Ann . § 40-13-213 (b).

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 Applying these precepts to the case sub judice, we conclude that the

presentment charging the Defe ndant w ith aggra vated perjury was d efective in

that it did not sufficiently state the facts constituting the alleged offense. As we

set forth above, the presentment alleged only that while under oath as a witness

in the trial of Robert Miller, the Defendant knowingly, “with intent to deceiv e,

made material false statements in violation of T.C.A. 39-1 6-703.” This language

esse ntially tracks the statutory elements of the offense of aggravated p erjury.

See Tenn. Code Ann. § 39-16-703, -702(a)(1). The presentm ent, however, must

not only allege the essence of the criminal offense, but also state which of the

Defe ndan t’s actions bring him within the statute so as to give him sufficient notice

of the facts s ought to be prove d again st him an d of wha t offense he is called

upon to answ er. See Church v. State, 206 Tenn. 336, 333 S.W.2d 799, 809

(1960) (stating that the desc ription o f the offe nse c harge d mu st be s ufficien t in

distinctness, certainty and precision to enable the accused to know what offense

he or she is charged with and to understand the special nature of the charge he

or she is called up on to an swer); see g enera lly David L. Raybin, Tennessee

Criminal Practice and Procedure, § 16.19; 14 Tennessee Jurisprudence,

Indictme nts, Informations and Presen tments , § 19. In other words, the

presentment must sta te sufficient facts and circumstances as will constitute the

offense and not m erely a lega l result or co nclusion . See Warden, 381 S.W .2d

at 245; Raybin, Indictme nts, Informations and Pre sentm ents, supra. We b elieve

that the pres entme nt in the case at bar did n ot allege s ufficient facts to identify

the offense for which the Defendant was being prosecuted.

The present case is similar to McLe more v . State, 215 Te nn. 332, 385

S.W.2d 756 (1965). In McLem ore, the indictm ent charged the acc used w ith

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“unlaw fully engag[ing] in the business of real estate salesman, without first

obtaining a license issued b y the Te nness ee Re al Estate Com mission .”

McLem ore, 385 S.W.2d at 756. Our supreme court held that the indictment was

deficient because, rather than containing a description of such facts and

circumstances as would constitute the offense, it merely stated a legal

conc lusion. Id. at 757-5 8. The c ourt con cluded that the ind ictmen t was no t a

sufficient charge to place the accused upon notice as to the facts he was called

upon to defend . Id.

Likewise, the pre sentm ent in the case at bar stated only that the Defendant

had made materia l false statem ents with the inte nt to dece ive while un der oath

as a witness at the trial of Rob ert Miller. We do not believe that this presentment

sufficie ntly identifies “the matter on which the perjury is assigne d.” Tenn. Code

Ann. § 40-13-2 13(b). By not identifying the alleg edly false statem ents with mo re

certainty, the presentment did not sufficiently place the Defendant upon notice as

to the fac ts aga inst wh ich he was c alled u pon to defen d. Acc ording ly, we can

only conclude that the presen tment was fatally defective in that it did not allege

sufficient facts to iden tify the offens e for which the Defendant was being

prosecuted. As a result, we must reverse the Defendant’s conviction and dismiss

the presentment against him.3

In the interest of complete appellate review, we will briefly consider the

Defe ndan t’s remaining issues even though the first issue is dispositive. In h is

3
Although the issue is not before us, we note that it does not appear that double jeopardy
principles w ould bar th e State fro m re- indicting an d re-trying the Defen dant. See Mon tana v. Ha ll, 481
U.S. 400, 402-04, 107 S.Ct. 1825, 1826-27, 95 L.Ed.2d 354 (1987) (double jeopardy does not prevent
retrial after a c onviction is re versed becau se of a d efect in the charging instrum ent); see gene rally
Raybin, Tennessee Criminal Practice and Procedure, § 16.117.

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second issue, the Defen dant arg ues tha t the eviden ce was legally insufficie nt to

support the verdict. He challenges the sufficiency of the evidence in three ways:

(1) that the eviden ce wa s insuf ficient to prove that he know ingly tes tified fals ely

at Robert Miller’s trial; (2) that the evidence was insufficient to prove that any

false statemen ts he mad e at Robe rt Miller’s trial were material; and, (3) that the

evidence was insufficient in that it did not negate the defense of retraction.

When an accused challenges the sufficiency of the convicting evidence,

the standard is whether, after reviewing the evidence in the light m ost favo rable

to the pros ecution, a ny rationa l trier of fact cou ld have found the essential

eleme nts of the crime beyond a reaso nable d oubt. Jack son v. V irginia, 443 U.S.

307, 319 (1 979). Q uestio ns co ncern ing the credib ility of the w itnesses, the

weight and value to be given the evidence, as well as all factual issues raised by

the evidence, are resolved by the trier of fa ct, not this co urt. State v. Pappas, 754

S.W .2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or

reevalua te the evide nce. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).

A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973). On appeal, the State is entitled to the stronges t legitimate

view of the evidence and all infere nces the refrom. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a p resum ption o f guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

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trier of fact. State v. Tug gle, 639 S.W.2d 913, 914 (Ten n. 1982 ); Grace, 493

S.W.2d at 476.

The Defendant was charged with aggravated perjury. Aggravate d perjury

is defined as follows: “A person commits an offense who, with intent to deceive:

(1) [c]ommits perjury as defined in § 39-16-702; (2) [t]he false statement is made

during or in connection with an official proceeding; and (3) [t]he false statement

is materia l.” Tenn. C ode An n. § 39-1 6-703(a ). Tennessee Code Annotated

section 39-16-702 defines perjury, in pertinent part, as follows: “A person

comm its an offens e who, w ith intent to de ceive: (1) M akes a false state ment,

under oath . . . .” Tenn. Code Ann. § 39-1 6-702 (a)(1). “S tatem ent” is defined as

“any represe ntation of fa ct.” Tenn . Code Ann. § 39-16-701(4). “Official

proceeding” is defined as “any type of administrative, executive, judicial, or

legislative proceeding that is conducted before a public servant authorized by law

to take statements under oath in that proceeding.” Tenn. Code Ann. § 39-16-

701(3).

After reviewing the record, we believe that had the pre sentm ent pro perly

alleged that the Defendant falsely stated that he could not identify the individual

standing next to Katherine Leonard’s car as Robert Miller, the evidence

presented was legally sufficient to support his con viction. At the trial of Robert

Miller, the Defend ant testified that he saw “somebo dy” at Leonard ’s car.

According to the Defendant’s testimony, police officers asked him if that individual

was Robert Miller, and he replied that he could not be sure because it was dark.

In his sworn statement given to Lieutenant Smith in the early morning hours of

March 28, 1993, immediately after the incident, the Defendant stated that he did

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recognize the individual at Leonard’s car as Robe rt Miller. Furthermore, the

Defendant stated that he exited Leona rd’s home , approache d Robert M iller, and

actua lly spoke with him. M oreover , the State offered the testimon y of Mary

Melissa Hatfield at the Defendant’s trial. Hatfield testified that the Defendant

approached her and told her that Robert Miller had burglarized her home.

Of course, the Defendant claimed that he was so drunk at the time of the

sworn statement to Lieutenant Smith that he could not remember what he had

said. In fact, at his trial he presented testimony from Roy O’Neal, who stated that

he observed the Defendant and Robert Miller on the night of March 27, 1993, and

that they were highly intoxicated. Yet the State offered testimony from police

officers that the Defen dant was co herent and cooperative and d id not app ear to

be intoxicated. The resolu tion of th is conflicting testimony was a question for the

jury. We believe that a rational juror c ould h ave re jected the De fenda nt’s

explanation for the state ments that contra dicted his test imon y at Ro bert M iller’s

trial and found that the Defendant knowingly testified falsely regarding whether

he had seen Robert Miller at Leonard’s car on the night in question. Thus, we

conclude that the evidence would have been legally sufficient to support the

conviction for aggravated perjury had the presentment properly charged the

Defen dant.

The Defendant also contends that the evidence was insufficient to prove

that any false statements he made at Rob ert Miller’s trial were material. He

asserts that any discrepancies between his testimony at trial and his statem ents

to police w ere insign ificant. In addition, he argues that the evidence presented

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at his trial did n ot dem onstra te that “b ut for” a chan ge in his test imon y, the re sult

of Rob ert Miller’s trial wo uld have been d ifferent. 4

A conviction for aggra vated pe rjury require s that the fa lse statement be

mate rial. See Tenn. Code Ann. § 39-16-703(a)(3). The statutory language

concerning perjury defines “material” as meaning that “the statement, irrespective

of its admissibility under the rules of evidence, could have affected the course or

outcome of the official proceeding.” Tenn. Code Ann. § 39-16-701(1) (emp hasis

added). The alle gedly false represe ntation m ade by th e Defe ndant at Robe rt

Miller’s trial concerned the identification of Miller as the perpe trator of the burglary

of the Hatfield residence. Aside from the Defendant’s identification of Miller, the

State had no evide nce directly linking Miller to the crime . In fact, Detective

George Eden s pecifically sta ted that it wa s the De fendan t’s initial statem ents to

police that developed the case against Miller. Given these circumstances, we

believe that the Defendant’s failure to identify Rob ert Mille r at trial co uld ea sily

have affected the outcome of the procee ding. We therefore conc lude that there

was sufficie nt evidence presented at the Defendant’s trial to establish the

materia lity of his allegedly false representation that he could not identify the

individual at Katherine Leonard’s ca r.

The Defendant also argues that the evidence was legally insufficient in that

it did not negate the defense of retraction. He contends that his testimony at

Robert Miller’s trial constituted a retraction of a previous false s tatement, na mely,

his initial statements to police. Thus, he asserts that his conviction cannot stand

4
It app ears from the re cord that R obe rt Mille r was acqu itted o f the b urgla ry of th e Ha tfield
residence and the theft of their personal possessions.

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given the retraction defense available at Tennessee Code Annotated section 39-

16-704.

Tennessee Code Annotated section 39-16-704 provides that it “is a

defense to prosecution for aggravated perjury that the person retracted the false

statement before completion of the testimony at the official proceeding during

which the ag grava ted pe rjury wa s com mitted.” Tenn. Code Ann. § 39-16-704

(emp hasis added). By its own terms, the retraction defense applies where the

aggravated perjury and the retraction occur in the same official procee ding. W e

do not believe that this defense applies to the situation raised by the Defendant

in the present case, that he initially made a false statement to police by

identifying Robert Miller and then retracted that statement months later a t Robert

Miller’s trial. Given that we have concluded that the retraction defense was not

applic able to the Defendant’s case, we need not address whether there was

sufficient evidence to negate the defense.

In his third issue, the Defendant argues that the trial court erred by refusing

to instruct the jury on the less er included offen se of perjury. 5 The r ecord revea ls

that the trial court instructed the jury only on aggravated perjury. The trial judg e’s

proposed instructions were made available to counsel prior to his giving the

charge. Pursuant to Rule 30 of the Tennessee Rules of Criminal Procedure, the

Defendant subm itted a s pecia l reque st rega rding s evera l definitio ns invo lved in

the aggravated perjury instruction. He did not submit a request for an instruction

on perjury.

5
See Tenn. Code Ann. § 39-16-702.

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 After the trial court had instructed the jury, the prosecutor mentioned the

lack of an in structio n on s imple perjury. In response, the trial judge commented

that “[t]he Court charged that there’s one offense indicted and one for which they

could hear.” Defense co unse l then noted an objection under Rule 30(b) of the

Tennessee Rules of Criminal Procedure and submitted a handwritten request for

an instruc tion on pe rjury. The trial court de nied the re quest.

The Defendant now contends that the trial court’s refusal to give an

instruction on perjury was error. He argue s that an instruction o n perjury was

warranted in that the jury could have concluded that his false statement was the

one given to police officers rather than his testimony at Robert Miller’s trial. In

that case, the false statement would not have been made “during or in connection

with an official proceeding” and would therefore not qualify as agg ravated perjury.

See Tenn. C ode Ann . § 39-16-703 (a)(2). In addition, he argue s that a perjury

instruction was warranted because the jury could have concluded that any false

statement made at Robert Miller’s trial was not “material” and therefore did not

qualify as a ggravate d perjury. See Tenn. C ode Ann . § 39-16-703 (a)(3).

It is well-established in Tennessee that the trial court has the duty of giving

a correct an d com plete cha rge of the law app licable to the facts of the case and

the defendant has the right to have every issue of fact raised by the evidence and

material to the defense submitted to the jury upon proper instructions by the trial

court. State v. Teel, 793 S.W .2d 236 , 249 (T enn. 19 90), cert. denied, 498 U.S.

1007, 111 S.Ct. 57 1, 112 L .Ed.2d 5 77 (199 0); State v. Bryant, 654 S.W.2d 389,

390 (Tenn . 1983); State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975) (citing

Poe v. State, 212 Tenn. 413, 370 S.W.2d 488 (1963)). Moreover, a defendant

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has a right to a jury instruction on lesser grades or classes or the charged offense

as well as all lesser included offenses, if the facts are susceptible of an inference

of guilt on any of those offe nses. State v. T rusty, 919 S.W.2d 305, 310 (Tenn.

1996); see Tenn. Code Ann. § 40-18 -110( a). Ho weve r, “[w]he re the e videnc e in

a record clearly shows the defendant was guilty of the g reater offens e and is

devoid of any evidence permitting an inference of guilt of the lesser offense, the

trial court’s failure to charge on a lesser offense is not error.” State v.

Stephenson, 878 S.W .2d 530 , 550 (T enn. 19 94); see also State v. Boyd , 797

S.W.2d 589, 59 3 (Ten n. 1990 ), cert. denied, 498 U.S. 1074, 111 S.Ct. 800, 112

L.Ed.2d 86 1 (1991).

The Defendant’s first contention is that an instruction on perjury was

warranted because the jury could have concluded that his false statement was

one given to po lice officers ra ther than his testim ony at R obert Miller’s trial.

Under the circ ums tance s of this case , we do not be lieve that this poss ibility

entitled the Defendant to an instruction on perjury. The Defendant’s argument

ignores the fact that the presentment specifically c harged him with making false

statem ents during the trial of Robert Miller. Moreover, the trial court instructed

the jury that the “official proceeding” contemplated by the charge of aggravated

perjury in this cas e was the trial o f Rob ert Mille r. Thu s, if the jury concluded that

the Defe ndan t’s false statement was one given to police and that he was being

truthful at Robert Miller’s trial, the jury would have to find him not guilty, given the

specific ch arge in the presen tment.

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 The Defenda nt’s argume nt would be m ore persu asive if the presentment

had charge d him in a ccorda nce with Tennessee Code Annotated section 39-16-

707. That section provides as follows:

Inconsistent statements -- Except as provided in § 39-16-704 [the
retraction defense], a ch arge of perjury that alleges the person
charged has made two (2) or more statements under oath, any two
(2) of which cannot both be true, need not allege which statement
is false if both statements were made within the period of the statu te
of limitations. A t trial, the prosecution need not prove which
statement is false.

Tenn. Code Ann. § 39-16-707. If the presentment had alleged that the Defendant

identified Robert Miller in his initial statement to Lieutenant Smith but during

Miller’s trial represe nted tha t he could not identify the individual standing at

Katherine Leonard’s car, a jury instruction on perjury might very well have been

required. In such a case, if the jury concluded that the testimony at Miller’s trial

was false and that the false statement was material, the offense would be

aggravated perjury because the false statement occurred during an official

proceeding. On the other ha nd, if the jury co nclude d that the in itial stateme nt to

police was false, the offense would be perjury because the false statement did

not occur during a n official proceeding . Thus, given sim ilar facts and

circumstances, an instruction on perjury would have been warranted had the

presentment followed Tennessee Code Annotated section 39-16-707. Of course,

the presentment in the present case did not follow section 39-16-707.

The Defen dant’s se cond c ontention is that a perjury instruction was

warranted in that the jury could have concluded that any false statement made

at Robert Miller’s trial was not “material.” We agree that if the jury concluded that

any false statement made by the Defendant at Robert Miller’s trial was not

“materia l,” the Defendant would have been guilty of perjury rather than

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aggravated perjury. See Tenn. Code Ann. § 39-16-703(a)(3), -702(a)(1). Thus,

an instruction on perjury might or dinarily have been w arranted . Under th e facts

of this cas e, how ever, w e do n ot belie ve that th e trial co urt’s failure to instruct the

jury on perjury was error.

As we stated above , we are mind ful of the princip le that where the re cord

clearly shows that the defendant was guilty of the greater offense and is devoid

of any evidence permitting an inference of guilt of the lesser offense, the trial

court’s failure to charge on the lesser offense is not error. Stephenson, 878

S.W.2d at 550; Boyd, 797 S.W.2d at 593. In the case sub judice, we believe that

the record is devoid of any ev idenc e perm itting an inferen ce tha t the D efend ant’s

alleged false statement at Robert Miller’s trial was immaterial for purposes of the

offense of aggravated perjury. 6 The a lleged false st atem ent invo lved the

identification of the accuse d, Robert M iller, as the perpetrator of the burglary of

the Hatfield re sidence . The Defendant’s identification of Robert Miller in his initial

statement was a highly sign ificant part of the State’s cas e against Miller and,

according to police, played a key role in the development of the cas e overall. It

appears that the Defendant’s identification of Miller w as the only ev idenc e direc tly

linking Miller to the crime. For p urposes o f the offense of ag gravated pe rjury,

“mate rial” means “the statement, irrespective of its admissibility under the rules

of evidence, could have affected the course or outcome of the official

procee ding.” Tenn. Co de Ann. § 3 9-16-701(1 ). From these facts, we can only

conclude that no rational juror could have found the Defendant’s alleged false

6
As with the second issue, we are addressing this argument with the assumption that the
presentment properly charged the Defendant. We are assuming that the false statement of which the
Defendant stands accused was his representation that he could not identify the individual standing at
Katherine Leonard’s car as R obert Miller.

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statement to be imm aterial. Accordingly, because the record was devoid of any

evidence permitting an inference that the Defendant’s alleged false statement at

Miller’s trial was immaterial and therefore constituted only simple perjury, we

believe that the trial co urt did not err in refusing to instruct the jury on that

offense.

Even though we have concluded that the trial judge did not err by fa iling to

charge the jury on the lesser included offense, the better practice when the

question is close is to cha rge the lesser includ ed offe nses . “How ever p lain it may

be to the mind of the Court that one certain offense has been committed and

none other, he m ust no t confin e him self in his charge to that offense. When he

does so he invades the province of the jury, whose peculiar duty it is to asce rtain

the grade of the offense. However clear it may be, the Court should never decide

the facts, but must leave them unembarrasse d to the jury.” Poole v. S tate, 61

Tenn. 28 8, 294 (1872 ).

In his fourth issue, the Defendant argues that the trial court erred in failing

to grant him judicial divers ion. The Defendant was convicted of aggravated

perjury, a class D felony. Tenn. Code Ann. § 39-16-703(c). He was classified as

a Range I standard offender and, thus, the applicable sentencing range was two

to four years . Tenn. C ode An n. § 40-35-112(a)(4). The trial cou rt sente nced him

to the ma ximum of four yea rs, the first two of w hich were to be served on

community corrections followed by two years of probation. The trial court also

imposed a fine of two thousa nd dollars ($2,000 ) and ord ered the Defen dant to

perform 200 hours of comm unity service per year wh ile on com munity

corrections.

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 The record indicates that at the sentencing hearing, conducted on April 28,

1995, the Defendant requested that the trial court place him on judicial diversion.

The trial judge commented as follows:

W ell, what do you say to the proposition that if persons come
here and se arch the records to find out how many people have ever
been convicted that lied in court and came up with the conclusion
none? I don’t grant judicial dive rsion. I think it’s . . . co ntrary to
good order and efficient function of the judicial system.

Defense couns el stated that she wished to file the motion for judicial diversion

anyway. The trial judge then denied the motion, briefly noting the pernicious

effect of perjury on the criminal justice system and making a vague reference that

he “observe[d] from the probation rep ort that this defendant hasn’t exactly been

a Sund ay Scho ol teache r.”

The sentencing option commonly known as “judicial diversion” is codified

at Tennes see Cod e Annotate d section 40-3 5-313. Tennessee co urts have

recognized the similarities between judicial diversion and pretrial diversion and,

thus, have dra wn hea vily from the case law governin g pretrial dive rsion to

analyze cases involving judicial diversion. For instance, in determining whether

to grant pretrial diversion, a district attorney general should consider the

defen dant’s crimin al reco rd, soc ial histo ry, me ntal an d phys ical condition,

attitude, beha vior sinc e arres t, emo tional s tability, current drug usage, past

emplo ymen t, home environm ent, ma rital stability, family responsibility, general

reputation and amenab ility to correction, as well as the circumstances of the

offense, the deterrent effect of punishment upon other criminal activity, and the

likelihood that pretrial d iversion w ill serve the e nds of jus tice and b est interes ts

of both the public and the defend ant. See State v. Washington, 866 S.W.2d 950,

951 (Tenn . 1993); State v. Hammersley, 650 S.W .2d 352 , 355 (T enn. 19 83). A

-22-
trial court should consider the same factors when deciding whether to grant

judicial diversion. See State v. Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App.

1993); State v. Anderson, 857 S.W .2d 571, 57 2-573 (Te nn. Crim. Ap p. 1992).

Moreover, a trial court should not deny judicial diversion without ex plaining b oth

the spec ific reason s supp orting the d enial and why thos e factors a pplicable to the

denial of diversion outweig h other fa ctors for co nsidera tion. See Bonestel, 871

S.W.2d at 168.

In addition, this Court applies “the same level of review as tha t which is

applic able to a review of a district attorney general’s action in denying pre-trial

diversion .” State v. George, 830 S.W .2d 79, 80 (Tenn. Crim . App. 19 92); see

also, Bonestel, 871 S.W .2d at 168 ; Anderson, 857 S.W.2d at 572. In other

words, this Court reviews th e 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 that no substantial evidence

exists to su pport the ruling of the trial court. See Bonestel, 871 S.W.2d at 168;

Anderson, 857 S.W.2d at 572.

In the case sub judice, the trial judge did not sufficien tly expla in his

reasoning in denying judicial diversion. His curs ory de nial of th e Def enda nt’s

request was inadequate in light of the requirements set forth in Bonestel and

Anderson. Even m ore troub ling, howe ver, are his initial statements that h e did

not grant judicial diversion in perjury cases because it was contrary to good order

and the efficient functioning of the ju dicial sy stem . This language is reminiscent

of the situation involved in Hammersley.

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 In Hammersley, the defendant was denied pretrial diversion. 650 S.W.2d

at 353. The record revealed that, although the defendant met the statutory

eligibility requirements for pretrial diversion, the district attorney general did not

consider his individual characteristics in arriving at the decision to deny diversion.

Instead, the district attorney general based the denial on the fact that the

defendant stood accused of larceny and that larceny was a serious crime in the

county. Id. at 356. In essence, the district attorney general had a blanket policy

to deny diversio n to tho se de fenda nts ac cuse d of larc eny, re gardle ss of th eir

personal charac teristics. Id. Our supreme court held that, by failing even to

consider the defendant’s personal eligibility for pretrial diversion, the district

attorney g eneral h ad abu sed his d iscretion. Id. at 356-57.

In the present ca se, it appears that the trial court denied the Defe ndan t’s

request for judicial diversion solely because he had been convicted of aggravated

perjury. We believe that the trial court failed to consider the personal

characteristics of the Defendant. Certainly aggravated perjury is a serious

offense that strikes at the heart of the judicial syste m. See, e.g., State v. Perry,

882 S.W .2d 357 , 360 (T enn. Crim. A pp. 1994). As such, a conviction for

aggravated perjury would in and of itself ordinarily weigh against the granting of

judicial diversion. The statutory provisions governing judicial diversion, howe ver,

do not exclude defendants convicted of aggravated perjury from consideration.

See Tenn. Code Ann. § 40-35-313. As a result, we must conclude that the trial

judge abused his discretion by failing even to consider the De fenda nt’s personal

eligibility for judicial dive rsion. Cf. Hamm ersley, 650 S.W.2d at 356-57. Thus,

were we not reversing the Defendant’s conviction based on the defe ctive

presentment, we would remand this case for a new sentencing hearing.

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 For the reasons set forth in the discussion above, we conclude that the

Defe ndan t’s first and fourth issues on appeal have merit. We therefore reverse

the Defendant’s conviction and dismiss th e prese ntmen t charging him with

aggravated perjury.

____________________________________
DAVID H. WELLES, JUDGE

CONCUR:

___________________________________
THOMAS T. WOODALL, JUDGE

___________________________________
JOHN K. BYERS, SENIOR JUDGE

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