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 extortion and one count of theft of property over $1000,

both Class D felonies. The Defendant requested pretrial diversion, which the prosecutor denied.

The Defendant then filed a writ of certiorari to the trial court alleging 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

ROBERT W. WEDEMEYER,J., delivered the opinion of the court, in which GARY R. WADE, P.J., and

THOMAS T. WOODALL, J., joined.

Jerry H. Summers, Chattanooga, Tennessee; and Gary D. Gerbitz, Chattanooga, Tennessee, for the

appellant, Steve Hilliard.

PaulG. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant AttorneyGeneral;

William H. Cox, III, District Attorney General; C. Parke Masterson, Jr., Assistant District Attorney

General; and Rodney C. Strong, Assistant District Attorney General; for the appellee, State of

Tennessee.

OPINION

FACTS

The victim, Dixon Gilbert Brackett, testified that on July 21, 1998 someone broke into her

car and stole various items, including a laptop computer. Brackett reported the theft to police and

described her computer by type, model and serial number. Brackett testified that on August 21,
1

Brackett made notes regarding the conversation, which she gave to the police.

-2-

1998, the Defendant called her.1 The Defendant was the manager of Household Pawnshop.

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

The Defendant told Brackett that he would return the computer if she would pay him one hundred

and forty dollars. Brackett testified that the Defendant told her that she could go through the court

system to get the computer back, but that would be “inefficient.” Brackett testified that she was

suspicious of the Defendant because of his “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 copy the files off of the computer.

Following her conversation with the Defendant, Brackett spoke to a police officer friend who

advised her not to go to the pawn shop. Instead, Brackett contacted Sergeant Alan Chance of the

Chattanooga Police Department and they went to the pawn shop together. 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 charge 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 conversations with

a man named Anthony Brislin who was a manager at Value Plus Pawn Number 1, a sister store

owned by Standon, Incorporated. According to Chance, Brislin provided him with information

regarding Brackett’s computer, as well 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 have their

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

Defendant managed, told him that the Defendant asked her 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 warned about settling the recovery of stolen property with victims.

The Defendant testified that he had been the store manager for Household Pawn for nine

years. The Defendant testified that Household Pawn purchased Brackett’s computer for forty

dollars. According to the Defendant, the computer was held in storage for the requisite twenty days;

it was then 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 forty 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 Defendant testified that he asked Brislin to determine who the owner was by going

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 contacted
2

Statutory rape is not included as a “sexual offense” for which a defendant would be disqualified from 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 clerks’ offices 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 Chattanooga City detective. The Defendant

testified that he was finally 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 that she could bring a detective with her to retrieve the computer. The

Defendant stated that he never requested any money for the computer. 

At the conclusion of the hearing, the trial court ruled that the decision 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 victim’s name

from the computer, and demanded money from the victim before he would give her computer back.

The trial court went on to state the following:

Well, there’s no question that . . . [the Defendant] is probably a good man, has an

excellent reputation, he’s got many favorable letters and all in there, but [the

Defendant] did 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

discretion in 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 district attorney 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 confinement 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 felony, a sexual offense,2

 driving under the influence, or

vehicular assault. Id. § 40-15-105(a)(1)(B)(i)(a)-(c). Such eligibility does not presumptively 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 demonstrate suitability for pretrial 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 factors. Curry, 988 S.W.2d at 157. The district attorney is required to

consider all relevant factors when determining whether or not to grant pretrial 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 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. Such

factors must, of course, be clearly articulable and stated in the record in order that

meaningful appellate review may be had. 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); see also Curry, 988 S.W.2d at 157.

Where pretrial diversion is denied by the district attorney, the factors and evidence

considered in making the decision must be clearly set forth in writing along with the weight accorded

to each factor. Pinkham, 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. Rather, the factors must be "clearly articulable 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 presumptively correct, a trial court may overrule a district

attorney's denial of pretrial diversion where there has been an abuse of discretion. However, the trial

judge cannot simply 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 court must look at all the relevant factors to determine

whether the prosecutor considered them, and if he or she did not, to determine 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 relevant factors.

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 facts of this particular case, (2) the

Pawnbrokers Act of 1988, (3) the Defendant’s pretrial diversion application, (4) letters of support

from friends 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 the following reasons for denying the

Defendant pretrial diversion: (1) that the Defendant should be held to a higher standard of conduct

because the pawn shop business “has a direct impact on the ability of the police 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 his failure to heed prior warnings regarding his conduct,

(3) the interest of the public in preventing the illegal trafficking in stolen goods, (4) the deterrent

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 noted certain factors weighing in the Defendant’s favor.

The prosecutor acknowledged that the Defendant had no prior record, stable employment and a

stable marital history. The prosecutor stated that the Defendant received positive reports from his

friends and acquaintances. However, the prosecutor ultimately denied the Defendant pretrial

diversion. Because the prosecutor clearly articulated the relevant factors that were considered, we

conclude that there was no 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