# FILED
July 16, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1998 SES

SION

STATE OF TENN ESSEE, ) ) C.C.A. No. 03C01-9706- CR-00227 Appellant, ) ) Sevier County V. ) ) Honorable Ben W. Hoope r, II, Judge ) DEWEY L. CLARK, ) (Rule 9) ) Appellee. )

FOR THE APPELLEE: FOR THE APPE LLANT: Jeff D. Rader John Knox Walkup Ogle, Wynn & Rader Attorney General & Reporter Attorneys at Law 103 E. Bruce Street Timothy F. Behan P.O. Box 5365 Assistant Attorney Gener al Sevierville, TN 3

7864 Criminal Justice Div ision Cordell Hull Buildi ng, 2nd Floor James H. Ripley 425 Fifth Avenue North Sharp & Ripley Nashville, TN 37243-0493 Attorneys at Law P.O. Box 4630 Alfred C. Schmutzer, Jr. Sevierville, TN 3

7864 District Attorney General

Charles E. Atchley, Jr. Assistant District A

ttorney General 125 Court Avenue, Room 301 E Sevierville, TN 3

7862

OPINION FILED: ___________________
AFFIRMED PAUL G. SUMM ERS, Judge

O P I N I O N-2- The Sevier County Grand Jury indicted the appell ee, Dewey L. Clark, on four counts of illegally dispensing controlled substances while employed as a pharmacist and one count of theft of property (controlled substances) over $500. The state denied Clark’s appl ication for pretrial div ersion. He filed a petition for certiorari in the tri al court challenging the state’s decision. The tr ial court found that the prosecutor had abused his discretion in denying diversion. This Court granted the state’s applic ation for an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Proc edure. The issue is whether the trial court’s decision is s upported by a prepondera nce of the evi dence. We affirm.
Clark filed a request w

ith the district attorney

general to suspend prosecution and to be placed on di version pursuant to Tennessee Code Annotated § 40-15-105 (Supp. 1994). This statute provides that certain qualified offenders may enter into a memorandum of unders tanding with the state t o suspend prosecution for a period of time during which a def endant must comply with the terms of the agree ment. Upon the successful completi on of the program, all pending ch arges must be dismissed. In enacting the statute, the legislature thought that society would be better off if certain off enders were placed on diversion as op posed to imprisonment. State v. Herron , 767 S.W.2d 151, 156 (Tenn. 1989).
The parties stipulated to the facts. The app ellee was forty-three years old when he applied for diver sion. He has no prior cr iminal record. He gr

aduated from Hiwassee Colleg e in 1972 and the Universi ty of Tennessee School of Pharmacy in 1975. Before the pr esent allegations, he had w orked for Revco as a pharmacist since 1975. He h as been married for twenty -four years and has two teenage children.
The appellee submitted evidence i n support of his application for p retrial diversion. Clark has lived in East Tennessee all of his life, as did his pa rents. In-3- 1991, the appellee suffered a back injury while duck hunting. The appellee’s physician, Dr. Alan Whiton, stated in a letter that the appellee’s back condition was a painful condition that required prescripti on pain medication. The appellee had continuous problems with his back until he underwent surgery to fuse his spine in 1995. Clark is a devoted and loving husband and father. He is an active member in his chur ch. Many members of the community , including persons in the medical and pharmaceutical profe ssion, wrote letters on Clark’s behalf. The letters establish that he has been a respected member of his community.
The prosecutor is vested with the discretion to evaluate and decide which applications for pretrial diversion should be g ranted. Id. ; See State v. Carr , 861 S.W.2d 850, 855 (Tenn. Crim. App. 1993). The follow ing factors should be considered in determining whether diversion

is appropriate: (1) the circumstances of the offense; (2) the criminal record, social history and present condition of the defendant, includ ing his mental and physical conditions where appropr iate; (3) the dete rrent ef fect of punishm ent upon other crim inal acti vity; (4) defendant's amenability t o correction; (5) the l ikelihood that pretrial diversion will serve the en ds of justice and the best inter ests of both the public and defendant; and (6) the applicant's attitude, behavior since arrest, prior record , home environment, current dr ug usage, emotional stabil ity, past employment, general reputation, marita l stability, family responsibility and at

titude of law enforcement. State v. Washington , 866 S.W.2d 950, 951 (Tenn. 1993) (citing State v. Markham , 755 S.W.2d 850, 852-53 (Tenn. Crim. App. 1988)).

In his written denial

of diversion, the prosecut or states that he has “reviewed the materi als sent and considered all of the factors.” He states that the denial is based on the nature of the offense, an abuse of a position of trust, deterrence, and the appellee’s failure to answer certai n questions on the application for diversi on. The prosecutor stated that C lark’s activity was an ongoing criminal enter

prise and not merely aberr ant behavior. He said th at-4- 1,150 pills were seized when a search warrant was executed at the Clark residence; that the appellee w as caught on videotape taki ng controlled substances from Revco; that an inventory of the bay i n which the appellee worked showed a shor tage of 11,907 pills; and that the state had a witness w ho had purchased illegal drugs from the appellee. The prosecuto r’s second basis was that as a professional pharmacist, Clark abused hi s position of trust with Revco and the community. The prosecutor’s third basis was that the illegal sale of controlled substances is an escalating problem in Sev ier County, and the need for general and specific deter rence is great. Fin ally, the prosecutor s aid that Clark’s failure to res pond to two questions on the state’s application for di version reflected adversely on his attitude. The questions were whether Clar k was under the influence of drugs or alcohol when the offense(s) occurred and a request for a recitation of the facts of the offense(s) fr om his standpoint.

Clark filed a writ of certiorari with th e trial court. The court may overturn a denial of an application for div ersion upon a finding of an abuse of dis cretion. Tenn. Code Ann. § 40-15-105(b)(3) . The trial court must defer to the prosecutor’s discreti on when the record contains any substantial evi dence to support the prosecutor’s dec ision. Carr , 861 S.W.2d at 856.

The record before the court was the appellee’s application for pretrial diversion, the state’s

response denying div

ersion, and the appellee’s peti tion for certiorari. Althoug h the appellee disputes the facts r elied upon by the state, no evidentiary hearing

was held to resolv

e the disputes. See State v. Pinkham , 955 S.W.2d 956 (Tenn. 1997). The court heard arguments of co unsel and took the matter under advisement. In its very thoughtful and thorough order, the court found that the prosecutor failed to cons ider the appellee’s amenabili ty to correction and factors that fav ored granting dive rsion. The prosecutor also failed to explain why the factors favoring diversion were outweighed by those factors relied upon to deny div ersion. The court found that the stat e abused its discretion and that there w as no substantial evidence to support the denial of-5- diversion. The court found that there are no adverse ci rcumstances relative t o the appellee’s history,attitude, behavior sinc e arrest, home environment, c urrent drug use, current alcohol use, emotional stability , employment history, g eneral reputation in the community, marital stability, famil y responsibility , or attitude toward law enforcement. The court found the that appellee’s back ground and character were “absol utely exemplary” and “especially compel ling.”
The court found that the prosecutor had failed to articulate facts or details to support general or spec ific deterrence as a basis for denying diversi on. The court found that the appellee’s failure to an swer the questions on the state’s form for pretrial diversi on did not reflect adversel y on the appellee’s suitab ility for diversion. The court sai d that the appellee was not r equired to admit guilt to apply for or receive diversion. See State v. King , 640 S.W.2d 30 (Tenn.Crim. App. 1982). The court did not addr ess the state’s position tha t the appellee violated a position of trus t. The court said that, in thi s case, the offenses and the facts surrounding the offenses w ere insufficient, standing al one, to deny pretrial diversion.
On appeal, the state argues tha t the evidence in the recor d preponderates against the trial cour

t’s finding of an abuse of discreti on. The state concedes that it denied pretrial di version mainly on the “overwhelming nat ure and circumstances of the offense.” The state ar gues that the circumstances alone may be the sole basis for deny ing diversion. The st

ate further argues that amenability to correction only comes into play if the circumstances of the of fense are not overwhelming . The appellee argues that the t rial court correctl y held that the prosecutor abused his discretion because (1) he did not articulate the factors and particularize the reasons upon which his denial was based and (2) because the prosecutor failed to consi der evidence which t ends to show that the appellee is amenable to correction and not likely to commit further acts.1 In State v. Carr , 861 S.W.2d 850, 856 (Tenn. Crim. App. 1993),the Court stated that the presumption of correctness applies to the trial court’s f actual findings; and , that when the record calls for no factual findi ngs, then the issue on appeal is whether, as a matter of law, th e prosecutor abused his discretion in denying diversion. There were no factual finding s in either Pinkham or Carr so there seems to be a conflict in the appropriate st andard of review in such cases. -6- On appeal, we review the record to determine whether the trial court’s decision is supported by a preponderance of the evidence. 1 State v. Pinkham , 955 S.W.2d 956, 96 0 (Tenn. 1997). First, the prosecutor should have stated in his written denial al l factors that he considered i n denying diversi on. “If the district attorney deni es pretrial divers ion, the denial must include both an enumeration of the evidence that was considered and a discu ssion of the factors considered and weight accorded to each.” Id. at 960. Although this may seem unnecessary and time consuming to the prosecutor, it is necessary for trial court and appellate review.In this case, the prosecuto r was allowed to ad dress the court. However, the record still does not establish that the prosecutor considered the factors favori ng amenability to rehabi litation. At the hearing , the prosecutor said that there w as no need to discuss the factors which were not the basis of the denial in his let ter to the appellee. Indeed on appeal , the state argues that the prosecutor does not have to consider s uch factors if the nature of the offense is particularly significant or flagrant. W e disagree. While the nature of the offense alone can support a denial of div ersion in certain cases,the prosecutor must consider al l relevant factors in mak ing his or her decisi on to grant or deny dive rsion. Id. at 959-60; Carr , 861 S.W.2d at 855. Amenability to correction is definitely

an important and relevant factor

. See Carr , 861 S.W.2d at 855. Therefore, the evidence does not prepon derate against the trial court’s finding of an abuse of discretion bas ed on the failure to consider the appropriate factors.
The evidence supports the tri al court’s finding that the re is no evidence of a need for general or specific deterrence. The prosecuto r offers no specific fact or detail to support his conclusion that the illegal sale of controlled substan ces is an escalating problem in Se vier County. We agree that the appel lee’s failure to “tell his side of the stor y” and admit whether or not he was on drugs at the time of-7- the offense, as requested by the s tate, is not indicativ

e of a failure to cooperate. Both questions can be read to ask for admissions of guilt. Refusing to answer these types of questions sho uld not reflect poorly on the appellee’s attitude or amenability to correcti on especially when he was instructed by h is attorney not to answer. The trial cour

t did not address the abuse of a position of trust. “‘The determination of the existence o f a position of trust does not depend on the length or formality of the r elationship, but upon the nature of the relationship. Thus, the court should look to see whether the off ender formally or informally stood in a relationship to the victim that promoted confidenc e, reliability, or

faith. If the evidence supports that findi ng, then the court must determi ne whether the position occupied was abused by the commission of the of fense.‘” State v. Leggs , 955 S.W .2d 845, 849 (T enn. Crim. App. 1997) (quoting State v. Kissinger , 922 S.W.2d 482, 488 (Tenn.1996)). This factor is not applicable to the appellant’s position as a pharmacist on the facts of this cas e. Finally, the evidence does not preponderate against the trial court’s finding that the nature of the offense alone is insufficient in this case to support a denial of div ersion.
The state notes that during oral argument, the court said that th e evidence could support either a denial or a grant of diversion. W hen the evidence will support either a grant or denial, then the prosecutor has not abused his or her discretion. Carr , 861 S.W.2d at 855. However, the court took the matter under advisement and wrote a tho rough explanation of the law and findings of fact. We believe that the trial court’s or der controls.
The judgment of the trial court i s affirmed.

_______________________ PAUL G. SUMMERS, Ju dge
CONCUR:-8- _______________________________ JOHN H. PEAY, Judge

_______________________________ CORNELIA A. CLARK , Special Judge