### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE May 22, 2001 Session
STATE OF TENNESSEE v. STEVE HILLIARD
Direct Appeal from the Criminal Court for Hamilton County No. 224113 and 224114 Douglas A. Meyer, Judge

No. E2000-02819-CCA-R9-CD August 17, 2001

The Defendant was indicted for one count of extor

tion and one count o

f theft of proper

ty over $1000, bothClass D felonies. The Defendant requested pretrial diversion, which the prosecutor denied. The Defendant then filed a writ of certiorari to the t rial court al leging an abuse of prosecutorial discretion. The trial court affirmed the prosecutor’s decision. The Defendant now appeals, arguing that the trial court erred in ruling that the prosecutor did not abuse his discretion in denying pretrial diversion. Finding no error, we affirm the judgment of the trial court.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which GARY R. W ADE , P.J., and T HOMAS T. W OODALL , J., joined.
Jerry H. Summers, Chattanooga, Tennessee; and Gary D. Gerbitz, Chattanooga, Tennessee, for the appellant, Steve Hilliard.

Paul G . Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant At torney General ; William H. Cox, III, District Attorney General; C. Parke Masterson, Jr., Assistant DistrictAttorney General; and Rodney C. Strong , Assistant Dist rict At torney General; for the appellee, State of Tennessee.

OPINION

FACTS

The victim, Dixon Gilber t Brackett, testif

ied that on July

21, 1998 someone broke into her car and stole various items, including alaptop computer. Brackett reported the theft to police and described her computer by typ e, model and serial number. Brackett testified that on August 21,1 Brackett made notes regarding t he conversation, which she gave t o the police.
-2- 1 998, the Defendant called her. 1 The Defendant was the manager of Household Pawns hop

. According to Brackett, the Defendant claimed that he had a laptop computer that belonged to her. The Defendant to

ld Brackett that he

would return the computer if she would pay him one hundred and forty dollars. Bra

ckett testified th

at the Defendan

t told her that she c

ould go through the court sy ste m to get the computer back, but that would be “inefficient.” Brackett testified that she was suspicious of the Defendant because of hi s “tone of conversation” which she described as “aggressive.” After telling the Defendant that she used the computer for

her work, the Defendant told her that she could come down to the pawn shop and c opy the file s off of the computer. Following her conversation with the De fenda nt, Brackett spoke to a police officer friend who advised her not to go to the pawn shop. Instead, Brackett contacted Ser geant Alan Chance of the Chattanooga

Police Department and they went to the pawn shop togethe r. Once there, Chance signed a document indicating that he had received the computer and then gave it to Brackett.
Sergeant Chance testified that he is the detective in ch arge of the pawn shop unit for the Chattanooga

Police Department. According to Chance, he became involved in this case when Brackett made a report regarding the phone conversation she had with the Defendant. As requested by the State, Chance wrote a memo in which he discussed his past experiences with the Defendant and Household

Pawn. In the memo, Chance indicated that he had previously had co

nversations with
a man named Anthony Brislin who was a manager at Value Plus Pawn Number 1, a si ster store owned by Standon, Incor porated. According to Chance, Brislin provided him with information regarding Brackett’s computer, as wel l as other stolen property involving the Defendant. One other instance noted in the memo involved an out-of-town company that paid the Defendant to hav

e their property returned. Chance testified that Barbara Lawson, manager of the sister store to the one the Defendant

managed, told him that the Defen dant asked h er to “clear the memory of the laptop computer in an effort to hide the identity of the owner.” Chance stated that the Defendant had been repeatedly war

ned about settling t

he recovery of

stolen property w

ith victims.

The Defendant testified that he had been the store man ager for Household Pawn for nine years

. The Defe ndant testified tha t Household Pawn pur

chased Bracket

t’s computer for f

orty dollars. According to the D efendant, the c

omputer was held in

storage for the r

equisite twenty days; it was the n set aside because the Defendant wanted to consult with another employee, Anthony Brislin, about pricing. The Defendant testified that he never had any contact with Brackett during the twenty days that the

computer was in

storage. The Defendant stated that Brislin told him that the computer was worth much more than fort y dollars, so he, along with his supervisor and the owner of the company, decided to do “the right thing” and “return it to the rightful owner.”

The Defend ant testified that he asked Brislin to determine who the owner was by g oin g through the computer. Brislin complied and found Dixon Brackett’s name. The Defendant testified that he could not find Brackett’s number in the phone book. Realizing from the files contained on the computer that Brackett used the computer for business, the Defendant testified that he contacted2 Statutory rape is not included as

a “sexual of

fense” for

which a defendant

would be disqual

ified f rom seeking pre-trial dive rsion. See Tenn. Code An n. § 40-15-105(a)(1)(B)(ii)(a)-(h).
-3- the Hamilton County Clerk’s Office and the Chattanooga City Clerk’s Office to see if Brackett had
a business license. Having no success at locating Brackett, the Defendant then called the Tennessee Department

of Revenue, the c

le rks’ o ffices in Catoosa County, Georgia and Walker County, Georgia

. Still unable to locate Brackett, the Defendant testified that contacted David Rodery , a Hamilton County detective, and Tommy Kennedy, a Chattano oga City detective. The Defendant testified that he was finall y able to locate Brackett by searching through the computer, finding her company name, Southern Surveyors, and looking that name up in the phone book. According to the Defendant,

he called Brackett and

left a message, and she called him back. The Defendant testified that he told Brackett th

at she could bring a

detective with he

r to retrieve the

comp uter. Th e Defendant stated that he never requested any money for the computer.

At the conclusion of t

he hearing, the tr

ial court ruled th

at the decis ion of the prosecutor denying the Defendant pretrial diversion was not an abuse of prosecutorial discretion. The trial court noted that the Defendant contacted the victim, asked another employee to remove the vict

im’s name from the computer, and

demanded money f

rom the victim befo

re he would

give her computer

back. The trial court went on to state the following: Well, there’s no questi

on that . . . [the De

fendant] is p robably a good man, has an excellent reputation, he’s got many favorable letters and all in there, but [the Defendant] d id not handle this situation right and he did not tell the truth on the witness stand in the

manner in which he

handled this.

ANALYSIS

The Defendant argues that the trial court erred in ruling that the prosecutor did not abuse his discreti on i n denying him pretrial diversion. Specifically, the Defendant argues that the District Attorney General acted arbitrarily and capriciously in denying the Defendant pretrial diversion.

Pretrial diversion allows a districtattorney general to suspend prosecution for a period of up to two years against a defendant who meets certain statutory requirements. See

Tenn. Code Ann. § 40-15-105(a)(1)(A). In order to qualify for pretrial diversion, the defendant must not have previously

been granted diversion under this statute; must not have a prior misdemeanor conviction for which a sentence of conf inement was served or a prior felony conviction within a five-year period after completing the sentence or probationary period for such prior conviction; and must not be seeking diversion

for a Class A or B fe

lony, a se xual offen se, 2 driving under the influence, or vehicular assault. Id. § 40-15-105(a)( 1)(B)(i)(a)-( c). Such eligibility

does not presumptiv

ely entitle
a defendant to pretrial diversion, but rather places such a decision within the discretion of

the district attorney general so long as the defendant is statutorily qualified. State v. Curry , 988 S.W.2d 153, 157 (Tenn. 1999).-4-

It is the defendant' s duty to demonstrat e suitabili ty for p retrial diversion. State v. Herron , 767 S.W.2d 151, 156 (Tenn. 1989); State v. Winsett , 882 S.W.2d 806, 809-10 (Tenn. Crim. App. 1993). However, this requirement does not relieve the prosecutor of his or her duty to consider and articulate all the relevant fa ctors

. Curry , 988 S.W.2d at 157. T he district attorn

ey is required to consider all relevant factors when determining whether or not to g rant p retrial diversion. State v. Carr , 861 S.W.2d 850, 855 ( Tenn. Crim. App. 1993). The Tennessee Supreme Court has outlined the criteria that should be considered by the prosecutor in granting or denying pretrial diversion: When deciding whether to e nter into a memorandum of understanding under the pretrial diversion statute a prosecutor should

focus on the defe

ndant's amenabili

ty to correction. A ny fact ors which tend to accurately reflect whether a particular defendant will or wil l n ot become a repeat offender should be considered. Such factors must, of course, be clearly articulable and stated in the re cord in order that meaningful appellate review may be had. Among the factors to b e considered in addition to the circumstances of the offense are the defendant's cri minal re cord, social history, the physical and mental condition of a defendant where appropriate, and the likelihood that pretrial diversion w ill 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); see also Curry , 988 S.W.2d at 157.

Where pr etrial diversion i s denied by the distr

ict attorney, the

factors and evid

enc e considered

in making the decision must be clearly set forth in writing along with the weight accorded to eac h factor. Pinkh am , 955 S.W.2d at 960; Winsett , 882 S.W.2d at 806. The district attorney general must do more than abstractly state that he or she has considered each of the factors. Herron , 767 S.W.2d at 156. Rathe r, the factors mu

st be "clearly

articul able and stated in the record." Hammersley , 650 S.W.2d at 355. Failure to consider and articulate all of the relevant factors constitutes an abuse of discretion. See Curry , 988 S.W.2d at 157-58.

A defendant who has been denied pretrial diversion by the district attorney has the right to petition for a

writ of certiorari to the trial court for an abuse of prosecutorial discretion. Tenn. Code Ann. § 40-15-105(b)(

3). Although presu

mptively correc

t, a trial c ourt may ove rrule a district attorney's denial of pretrial diversion where there has been an abuse of discretion. However, the trial judge ca nnot s imply substitute his or her own judgment for that of the district attorney. State v. Watkins , 607 S.W.2d 486, 488 (Tenn. Crim. App 1980). To show prosecutorial abuse of discretion, the record must lack any substantial evidence to support the denial of pretrial diversion. Curry , 988 S.W.2d at 158.

The legislature has vested the authority to prosecute a case or divert it with the prosecutor rather than the court. See Tenn. Code Ann. § 40-15-105; Carr , 861 S.W.2d at 858. In reviewing the prosecutor’s denial of diversion, the trial co urt must look at all the relevant factors to determine whether the prosecutor c

onsidered them, a

nd if he or she did n

ot, to determi

ne whether pretrial diversion is appropriate. Herron , 767 S.W.2d at 156; Carr , 861 S.W.2d at 858. In reviewing whether the prosecutor has abused his or her discretion regarding diversion, the trial court must undertake-5-

the same process required of the prosecutor in considering and weighing the r elevant fa ctors. Herron , 767 S.W.2d at 156.

In determining whether to grant the Defendant pretrial diversion in this case, the prosecutor stated that he reviewed and considered the following: (1) the fact s of this particular case, (2) the Pawnbrokers Act

of 1988, (3) the Defendant’s pretrial diversion application, (4) letters of support from frien ds and acquaintances of the Defendant, (5) information provided by Detective Alan Chance regarding prior dealings with the Defendant and his employer, Household Pawn, and (6) an interview with the victim.

The district attorney general clearly articulated t he following reasons for denying the Defendant

pretrial diversi

on: (1) that the De

fendant should be

held to ahigher standard of conduct because the pawn shop business “has a direct impact on th

e ability of the poli

ce and community to control theft and burglary by the quick recovery of stolen property,” (2) that the Defendant was not amenable to rehabilitation,

as evidenced by h

is failure to heed

prior warnings re

garding his conduc

t, (3) the interest of the public in preventing the illegal trafficking in stolen goods, (4) the deter ren t factor to the Defendant and others in the pawn shop business from profiting from the crimes of others, and (5 ) that the granting of diversion would hamper law enforcement because pawnshop employees must be willing to assist police in finding and identifying stolen property.

The district attorney

general also note

d certa in f actors weighing in the Defendant’s favor. The prosecutor acknowledged that the Defendant had no prior record, stable employm ent and a stable marital history. The prosecutor stated that the Defendant received positive reports from his fr iends and acquaintances. However, the prosecutor ultimately denied the Defendant pretri a l diversion. Because the prosecutor clearly articulated the relevant factors that were considered, we conclude that ther e was n o abuse of discretion. As such, the trial court properly ruled that the prosecutor’s decision to deny pretrial diversion was not an abuse of prosecutorial discretion.
Accordingly, the judgment of the trial court is AFFIRMED.

___________________________________ ROBERT W. WEDEMEYER, JUDGE