FILED

July 30, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

MAY SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9804-CR-00159

)

Appellant, )

)

) DAVIDSON COUNTY

VS. )

) HON. SETH NORMAN

JOSEPHINE SKIDMORE, ) JUDGE

)

Appellee. ) (Pretrial Diversion)

FOR THE APPELLANT: FOR THE APPELLEE:

JOHN KNOX WALKUP CHARLES R. RAY

Attorney General and Reporter JEFFERY S. FRENSLEY

211 Third Avenue North

DARYL J. BRAND P. O. Box 198288

Associate Solicitor General Nashville, TN 37219-8288

425 Fifth Avenue North

Nashville, TN 37243

VICTOR S. JOHNSON

District Attorney General

KATRIN MILLER

Assistant District Attorney

222 Second Avenue North

Nashville, TN 37201-1649

OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
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OPINION

The appellee, Josephine Skidmore, was indicted by the Sumner County

grand jury with one (1) count of forgery and one (1) count of making, presenting

or using a false document with the intent that it be taken as a genuine

governmental record. She applied for pretrial diversion, which was denied by the

district attorney. Skidmore subsequently filed a petition for writ of certiorari with

the trial court to review the district attorney’s denial of pretrial diversion. The trial

court found that the assistant district attorney abused her discretion and placed

the appellee on pretrial diversion for a period of one (1) year, which would run

retroactively from the date of the indictment. The state appeals, claiming that the

trial court erred in (1) reversing the district attorney’s decision to deny pretrial

diversion, and (2) ordering a retroac tive diversionary period. After a thorough

review of the record before this Court, we conclude that the trial court erred in

finding that the district attorney abused her discretion and, accordingly, reverse

the judgm ent of the trial court.

I.

The appellee is an alderman for the City of Hendersonville, as well as a

Sumner County commissioner. In June 1996, Karen Martin obtained a petition

from the appellee in support of Ray Rollins to be appointed to a vacant seat on

the county commission. Skidmore prepared the petition by photocopying seven

(7) pages from an earlier petition which opposed a zoning change. She then

changed the heading of the petition to support Rollins as county commissioner.
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Initials were added in the margins alongside several names, according to

Skidmore, to indicate those individuals who assented to use their names in

support of Rollins’ nomination. Martin presented this petition to the county

commission on June 17.

Subsequently, District Attorney General Lawrence Ray Whitley requested

that the Tennessee Bureau of Investigation conduct an investigation into the

matter. TBI Agent Richard Stout contacted many of the individuals listed on the

Rollins petition to verify whether these individuals agreed to support Rollins in the

petition. Nearly all of the individuals contacted denied signing or initialing the

Rollins petition and could not recall being contacted in regards to the Rollins

petition. 

General Whitley recused himself and his office from the matter, and Victor

S. Johnson, III was appointed as special prosecutor in this case. The Sumner

County grand jury indicted the appellee with one (1) count of forgery and one (1)

count of making, presenting, or using a false document with the intent that it be

taken as a genuine governmental record. The appellee subsequently applied for

pretrial diversion.

At the time of her application, the appellee was sixty-seven (67) years old

with no prior criminal record. She is a widow and has two (2) living children. She

worked in her daughter’s law office and has held positions as an alderman for the

city of Hendersonville and a Sumner County commissioner. In support of her

application, the appellee submitted approximately fifty (50) letters from neighbors,

colleagues and friends attesting to her good moral character and active

comm unity involvem ent.

The appellee also intimated that her prosecution was initiated as part of a

“political vendetta” against her. In support of this position, defense counsel
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subsequently submitted a letter which detailed other instances of falsification of

governmental documents which were not prosecuted by the District Attorney’s

Office for the Eighteenth Judicial District. 

In her letter denying pretrial diversion, Assistant District Attorney Katrin

Novak Miller recognized the factors favorable to the appellee, including her lack

of a criminal record. Miller stated, “Ms. Skidm ore appears to be an emotionally

stable and responsible individual. She has no history of substance abuse. She

is a responsible and respected member of her community. The likelihood of her

ever becom ing involved in a criminal matter again seems unlikely.” 

However, General Miller denied diversion based upon: (1) the

circumstances of the offense; (2) the deterrent effect of punishment on other

criminal activity; and (3) the likelihood that pretrial diversion will serve the best

interests of the public and the appellee. Miller determined that the reasons for

denying diversion “far outweigh[ed]” the relevant factors in the appellee’s favor.

Specifically, she stated:

This office finds that her actions in altering and causing a fraudulent

document to be submitted to a public office undermines the public

confidence in the governmental process. Petitions supporting

whatever view submitted to whatever body are the public speaking

in its purest form next to the actual live voice. If the integrity of a

public petition is not maintained, what assurance do any citizens

have in the future of knowing if a signature they willingly give to

support one cause won’t be used to espouse another cause? What

Ms. Skidmore did was to manufacture a petition which falsely

indicated a public position. Because she is an elected official, she

is in a position of leadership and trust. As she is an example of

good works in her comm unity, she must also be an example of the

consequences of misconduct. In reviewing cases of pre-trial

diversion denial, the appellate courts have repeatedly held that the

deterrent effect of punishment upon other criminal activity is a factor

which the district attorney should consider, . . . Cases in which fraud

is involved, including forgery cases, seem to compose such a

category of offense which by their very nature, need no extrinsic

proof to establish the deterrent value of punishment.
1

 All judges from the Eighteenth Judicial District recused themselves from the matter. The

Honorable Seth Norman, Criminal Court Judge, Division Four, for the Twentieth Judicial District was

appointed to hear the matter by interchange.

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Miller noted that even though the appellee admitted altering the petition, “she did

not seem to appreciate the wrongfulness of her actions.” In addition, Miller

rejected the appellee’s allegations that the prosecution was politically motivated

in light of the fact that the Davidson County District Attorney’s Office, rather than

the local district attorney, decided to submit the matter to the grand jury. 

The appellee filed a petition for writ of certiorari to the trial court1 to review

the district attorney’s denial of pretrial diversion. At the hearing, Assistant District

Attorney Miller testified as to her reasons for denying diversion. When defense

counsel intimated that ADA Miller was influenced by the Mayor of Hendersonville

in her decision to deny diversion, the trial court interjected, “I will tell you, the

Court knows General Miller [well] enough to know that nobody is going to

influence her decision. I full well understand General Miller. Both as judge and

as a former trial lawyer, I know how General Miler is about her opinion in

matters.” 

The trial court took the matter under advisement, but subsequently

released an opinion expressing its concern that the prosecution was politically

motivated. The trial court further stated that it was “aware of the requirements”

of State v. Hammersley, 650 S.W.2d 352 (Tenn. 1983), “however the Court is

concerned that a criminal prosecution might have been motivated by local

politics. This the Court cannot allow. This Court believes that this is an

appropriate case for diversion.” In a subsequent order, the trial court found that

the prosecutor had abused her discretion in denying diversion and, therefore,

ruled that the appellee be placed on diversion for a period of one (1) year. The

trial court further determined that “[d]ue to [the appellant’s] cooperation with law
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enforcement and her conduct during the pendency of this matter, . . . the

diversionary period shall be retroactive to the filing of the indictm ent,”

approximately one (1) year prior to the filing of the order. Therefore, the trial

court ordered that the prosecution against the appellee be dismissed, contingent

upon her payment of court costs. 

From the trial court’s order, the State of Tennessee brings this appeal.

II.

The Pretrial Diversion Act provides a means of avoiding the consequences

of a public prosecution for those who have the potential to be rehabilitated and

avoid future criminal charges. Tenn. Code Ann. § 40-15-105. Pretrial diversion

is extraordinary relief for which the defendant bears the burden of proof. State

v. Baxter, 868 S.W.2d 679, 681 (Tenn. Crim. App. 1993).

The decision to grant pretrial diversion rests within the discretion of the

district attorney. Tenn. Code Ann. § 40-15-105(b)(3); see State v. Curry, 988

S.W.2d 153, 157 (Tenn. 1999). In exercising that discretion, the Tennessee

Supreme Court has offered this guidance: 

When deciding whether to enter into a memorandum of

understanding under the pretrial diversion statute a prosecutor

should focus on the defendant’s amenability to correction. Any

factors which tend to accurately reflect whether a particular

defendant will or will not become a repeat offender should be

considered. . . . Among the factors to be considered in addition to

the circumstances of the offense are the defendant’s criminal

record, social history, the physical and mental condition of a

defendant where appropriate, and the likelihood that pretrial

diversion will serve the ends of justice and the best interest of both

the public and the defendant.

State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983). However, “the focus

on amenability to correction is not an exclusive one.” State v. Carr, 861 S.W.2d
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850, 855 (Tenn. Crim. App. 1993). Deterrence of the defendant and others is

also a proper factor to consider. Hammersley, 650 S.W.2d at 354. In fact, the

circumstances of the crime and the need for deterrence may outweigh other

applicable factors and justify the denial of pretrial diversion. State v. Lutry, 938

S.W.2d 431, 434 (Tenn. Crim. App. 1996).

When deciding whether to grant pretrial diversion, the district attorney

should consider the following factors: (1) the circumstances of the offense; (2) the

defendant’s criminal record, social history, and present condition, including

mental and physical conditions if appropriate; (3) the deterrent effect of

punishment on other criminal activity; (4) the defendant’s amenability to

correction; and (5) the likelihood that pretrial diversion will serve the ends of

justice and the best interests of both the public and the defendant. State v.

Washington, 866 S.W.2d 950, 951 (Tenn. 1993).

When denying an application for pretrial diversion, the District Attorney

must clearly articulate the specific reasons for denial in the record in order to

provide for meaningful appellate review. State v. Hammersley, 650 S.W.2d at

355. As stated by the Tennessee Supreme Court, the requirement that the

district attorney consider all relevant factors:

entails more than an abstract statement in the record that the district

attorney general has considered these factors. He must articulate

why he believes a defendant in a particular case does not meet the

test. If the attorney general bases his decision on less than the full

complement of factors enumerated in this opinion he must, for the

record, state why he considers that those he relies on outweigh the

other submitted for his consideration.

State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989). The failure of the record to

reflect that the District Attorney considered all of the applicable factors would

allow a reviewing court to find an abuse of discretion. See State v. Carr, 861

S.W.2d at 858.
-8-

The district attorney’s decision to grant or deny pretrial diversion is

presumptively correct and shall be reversed only when the appellant establishes

that there has been an abuse of prosecutorial discretion. State v. Curry, 988

S.W.2d at 158. In order to establish such an abuse of discretion, the record must

show an absence of any substantial evidence to support the district attorney’s

refusal to grant pretrial diversion. Id. Therefore, in a close case where the

District Attorney could have legitimately granted or denied the application, the

trial judge must defer to the judgment of the District Attorney. State v. Carr, 861

S.W.2d at 856.

On appellate review of the judgment of the trial court in diversion cases the

trial court’s findings of fact are binding on an appellate court unless the evidence

preponderates against those findings. State v. Lutry, 938 S.W.2d at 434.

Therefore, we review to determine whether the trial court’s decision is supported

by a preponderance of the evidence. State v. Curry, 988 S.W .2d at 158; State

v. Pinkham, 955 S.W.2d 956, 960 (Tenn. 1997). When reviewing a denial of

pretrial diversion, this Court may not substitute its judgment for that of the district

attorney’s even if we would have preferred a different result. State v. Houston,

900 S.W .2d 712, 714 (Tenn. Crim. App. 1995).

III.

In her letter denying diversion, the assistant district attorney recognized

that the appellee was “an emotionally stable and responsible individual. She has

no history of substance abuse. She is a responsible and respected member of

her community. The likelihood of her ever becoming involved in a criminal matter

again seems unlikely.” However, the assistant district attorney determined that
2

 This Cou rt doe s not find th at such alle gations were e stab lished in this r ecord. The on ly

“evidence” that this prosecution was politically motivated consists of a letter submitted by defense counsel

alleging various instances of unprosecuted fraudulent conduct committed by other individuals within the

Eighteen th Judicial D istrict.

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pretrial diversion should be denied based upon (1) the circumstances of the

offense, (2) the deterrent effect of punishment on other criminal activity, and (3)

the likelihood that pretrial diversion will serve the best interests of the public and

the appellee. Miller determined that the reasons for denying diversion “far

outweigh[ed]” the relevant factors in the appellee’s favor. She expressed concern

over the fact that the appellee is a public official, and her actions served to

“undermine[] the public confidence in the governmental process.” Further, the

assistant district attorney found that because this case involved fraud, the

deterrent effect of punishment upon other criminal activity was a significant factor

weighing against pretrial diversion. Moreover, she observed that even though the

appellee admitted altering the petition, “she did not seem to appreciate the

wrongfulness of her actions.”

In its written opinion and subsequent order, the trial court found that the

assistant district attorney abused her discretion in denying pretrial diversion. The

trial court based its decision solely on its determination that the subject

prosecution “might have been motivated by local politics.” We believe that the

evidence in the record preponderates against the trial court’s findings.

First, even if the record fully supported the appellee’s allegations that

District Attorney General Lawrence Ray Whitley was “politically motivated” in

initiating the investigation and subsequent charges against the appellee,2

 the

subjective motivations of the prosecution are irrelevant if, in fact, there is

probable cause to believe that the appellee committed the criminal acts as

charged. 
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Secondly, once the TBI had concluded its investigation into these matters,

the entire case was transferred to the Davidson County District Attorney’s Office

who decided to submit the case to the Sumner County grand jury. The grand jury

then returned an indictment charging the appellee with one (1) count of forgery

and one (1) count of making, presenting or using a false document with the intent

that it be taken as a genuine governmental record.

Finally and, most importantly, there is no evidence in the record to support

the allegation that the decision to deny pretrial diversion was politically motivated.

During his examination of Assistant District Attorney Miller, defense counsel

questioned her about phone calls she had received from the Mayor of

Hendersonville in connection with this matter. When defense counsel implied

that Miller might have been influenced by the m ayor in her decision to deny

diversion, the trial court interjected, “I will tell you, the Court knows General Miller

[well] enough to know that nobody is going to influence her decision. I full well

understand General Miller. Both as judge and as a former trial lawyer, I know

how General Miler is about her opinion in matters.” Thus, the trial court made a

specific finding of fact that the decision to deny diversion was not politically

motivated.

Allegations of prosecutorial vindictiveness or selective prosecution in the

institution of a prosecution, have constitutional implications that, if proven, may

warrant dismissal of the indictment. See Blackledge v. Perry, 417 U.S. 21, 27,

94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974) (due process may be implicated if

a prosecutor vindictively increases a charge to a felony after a misdemeanant has

invoked an appellate remedy); Wayte v. United States, 470 U.S. 598, 608, 105

S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985) (equal protection standards prevent

selective prosecution on the basis of race, religion, or other arbitrary
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classification). However, as long as the prosecutor has probable cause to

believe that an accused committed an offense, the determ ination whether to

prosecute rests entirely within the prosecutor’s discretion, subject to these

constitutional limitations. State v. Superior Oil, Inc., 875 S.W.2d 658, 660 (Tenn.

1994); Quillen v. Crockett, 928 S.W .2d 47, 51 (Tenn. Crim. App. 1995). 

In any event, the trial court’s review under Tenn. Code Ann. § 40-15-

105(b)(3) is limited to the question of abuse of discretion concerning the pretrial

diversion decision, not subjective motives concerning the institution of the

prosecution. The trial court must find an abuse of discretion with regard to the

denial of diversion. On this point the trial court specifically found that political

motivations played no part in Assistant District Attorney Miller’s decision to deny

diversion.

The trial court found that this case was “an appropriate case for diversion”

and granted diversion on this basis. The trial court is not at liberty to substitute

its own judgment for that of the district attorney in its review for an abuse of

discretion. See State v. Houston, 900 S.W .2d at 714. In this case, the assistant

district attorney outlined her reasons for denying diversion in a detailed, four (4)

page letter. She recognized the appellee’s lack of criminal record, her favorable

social and work history and her amenability to rehabilitation. However, she

determined that the unfavorable factors outweighed the favorable ones and gave

a detailed explanation as to why the unfavorable factors were given more weight.

See State v. Curry, 988 S.W.2d at 158.

Although we believe the question of the appellant’s suitability for diversion

is a close call, we conclude that the trial court should have deferred to the

discretion of the prosecutor in her refusal to divert. As stated by this Court in

State v. Carr,
3

 Because this Court m ust reverse the trial court’s decision, the issue regarding the propriety of a

retroactive diversionary period is pretermitted.

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It is not the trial court’s function to disapprove the denial whenever

it disagrees with the prosecutor. It is obligated to defer to the

prosecutor’s discretion when the record contains any substantial

evidence to support the decision. Thus, if the record would support

either a grant or a denial of pretrial diversion, the trial court must

defer to the prosecutor’s discretionary decision. As our Supreme

Court has previously stated regarding a discretionary decision in

another context, if “the evidence would support either conclusion .

. . it cannot be an abuse of discretion to decide the case either way.”

861 S.W.2d at 856 (quoting State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978)).

IV.

The evidence in the record preponderates against the trial court’s findings

that the district attorney abused her discretion in denying pretrial diversion.3

Accordingly, the judgment of the trial court is reversed, and the case is remanded

for further proceedings consistent with this opinion.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

DAVID G. HAYES, JUDGE

___________________________________

NORMA MCGEE OGLE, JUDGE