IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

November 28, 2006 Session

STATE OF TENNESSEE v. RUSSELL L. TIPTON

Direct Appeal from the Circuit Court for Franklin County

No. 15084 J. Curtis Smith, Judge

No. M2006-00260-CCA-R9-CO - Filed August 9, 2007

The appellant, Russell L. Tipton, was charged with reckless operation of a motor vessel and failure

to observe the motor vessel light law. The appellant applied for pretrial diversion and has twice been

denied. In the instant appeal, the appellant challenges the prosecutor’s second denial of his

application for pretrial diversion. Upon our review of the record and the parties’ briefs, we reverse

the judgment of the trial court upholding the prosecutor’s denial of diversion and remand to the trial

court for further proceedings consistent with this opinion.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court is Reversed; Case

Remanded.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR., J.,

joined. DAVID G. HAYES, J., filed a separate concurring opinion. 

Robert T. Carter, Tullahoma, Tennessee, for the appellant, Russell L. Tipton.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;

Mike Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General,

for the appellee, State of Tennessee. 

OPINION

A Franklin County Grand Jury indicted the appellant for one count of reckless or negligent

operation of a motorboat or vessel, a Class A misdemeanor, and one count of failing to exhibit

proper lights on a boat or vessel, a Class C misdemeanor. On May 23, 2002, the appellant applied

for pretrial diversion, which application was denied. The appellant filed in the trial court a petition

for a writ of certiorari, and the petition was denied on September 23, 2003. Through an interlocutory

appeal to this court, the appellant challenged the denial of pretrial diversion. 

The record of this case reflects that on July 4, 2002, the appellant and his wife were on their

pontoon boat on Tim’s Ford Lake. They had stopped the boat on the south side of a channel to
 Forensic testing indicates that the ski boat operator’s blood alcohol level was .08 percent and that he tested 1

positive for tetrahydrocannabinoid. The eighteen-year-old victim’s blood alcohol level was .12 percent. 

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watch fireworks. At approximately 9:00 p.m., a ski boat containing several young men struck the

back of the pontoon boat. One of the passengers of the ski boat, James Eric Jones, was thrown from 1

the ski boat, and he ultimately drowned. The State claimed that the appellant’s pontoon boat was

operating without proper lights and charged the appellant with reckless operation of a motor vessel

and failure to observe the motor vessel light law. 

This court’s opinion remanding the original denial of pretrial diversion explains:

On May 23, 2003, the [appellant] submitted an application for

pretrial diversion. In a letter denying the [appellant’s] application, the

District Attorney General noted the seriousness of the offense, the

need for deterrence, and the [appellant’s] failure to accept

responsibility or feel remorse for his actions. In support of his

position, the District Attorney General indicated that the [appellant]

failed to answer “question # 32,” which asked for the [appellant’s]

recitation of the events in question. However, the [appellant]

contends that he did not refuse to respond, but rather attached a copy

of his statement to authorities following the incident. The letter

denying diversion also noted several factors which were favorable to

the [appellant], such as his lack of a criminal record, his social

history, his amenability to correction, and his “attitude and behavior

since arrest and attitude of law enforcement.” However, the District

Attorney General ultimately summarily concluded that the “other

factors considered herein outweigh[ed]” these factors and denied

diversion.

Following the District Attorney General’s denial of pretrial

diversion, the [appellant] filed a petition for writ of certiorari. In an

order denying the petition, the trial court found that the District

Attorney General considered and weighed all relevant factors as set

out in case law and that substantial evidence existed in the record to

support the decision. Accordingly, the trial court found that there was

no abuse of discretion on the part of the District Attorney General and

denied the writ of certiorari.

State v. Russell L. Tipton, No. M2003-03030-CCA-R9-CO, 2005 WL 1240174, at **1-2 (Tenn.

Crim. App. at Nashville, May 24, 2005). 

On appeal, this court concluded that the District Attorney General “based the denial primarily

on a general need for deterrence and the seriousness of the alleged offense, while failing to
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emphasize the [appellant’s] amenability to correction.” Id. at *3. Further, this court noted that the

denial “letter fail[ed] to state why the former are of ‘such overwhelming significance’ as to be given

controlling weight.” Id. Thus, we concluded that “the denial is contrary to the applicable precedent

and, therefore, remand[ed] the matter to the District Attorney General for further consideration of

these factors, the evidence supporting their application, and the appropriate weight to be given

them.” Id. 

Upon remand, the prosecutor once again denied the application. In the denial letter, the

prosecutor stated that he considered 

(1) the circumstances of the offense; (2) the [appellant’s] criminal

record; (3) the [appellant’s] social history; (4) the [appellant’s]

physical and mental condition; (5) the deterrent effect of punishment

upon other criminal activity; (6) the [appellant’s] amenability to

correction; (7) the likelihood that pretrial diversion will “serve the

ends of justice” and the best interests of the defendant and the public;

and (8) the [appellant’s] “attitude, behavior since arrest, home

environment, emotional stability, and attitude of law enforcement.”

Regarding the circumstances of the offense, the prosecutor maintained that “[a]lthough the

[appellant] was indicted for misdemeanor charges (A and B misdemeanors), his actions and the

results of his actions (the death of a young person) makes this a very serious case. The

circumstances of the offense certainly weigh against diversion.” The prosecutor noted that the

appellant lacked a criminal record but opined that “nearly every applicant for pre-trial diversion has

no criminal record, as a record usually precludes an individual from being eligible to file an

application for diversion.” The prosecutor found that the appellant’s lack of a criminal record

weighed in favor of diversion. 

The prosecutor considered the appellant’s social history and noted that the appellant 

is a retired law enforcement officer with 25 years service. His

application contained numerous references, including letters from

politicians and lawyers. We noted the [appellant] has been married

three times and has very few financial debts. We also noted he has

been involved in two police organizations and the American Legion.

Except for the [appellant’s] issues with multiple spouses, it would

appear that this factor weighs in favor of the [appellant]. 

However, the prosecutor expressed displeasure that the appellant, a retired law enforcement officer

who spent his career enforcing the laws, “violated Tennessee’s laws, with disastrous results. One

might expect more from a 25 year veteran of law enforcement.” 
Question 11 on the application asks for the applicant to check a box to indicate the level of his or her IQ, if

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such is known. 

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The prosecutor noted that the appellant’s physical and mental condition appear to weigh in

favor of pretrial diversion. Regardless, the prosecutor noted that the appellant failed to answer

question 11 on the application regarding intelligence level. The prosecutor also referenced the 2

petitioner’s response of no to the question of whether he had ever had a psychological evaluation,

remarking that the petitioner’s history as an officer indicates that “he was subjected to psychological

testing in order to be a certified officer.” 

The prosecutor next stated that deterrence was a “serious issue” weighing against diversion.

The prosecutor asserted that “[i]n the past several years there have been numerous boating crashes

and several deaths and injuries. There exists a strong public policy regardingwater safety, especially

in Franklin County.” The prosecutor stated that the appellant’s “actions directly resulted in a boating

collision and the death of a young man. Although the [appellant] was not indicted for being

criminally responsible for the young man’s death, criminal violations that can (and do) lead to such

consequences must be deterred.” Therefore, “[g]ranting him pre-trial diversion would not serve as

a deterrent to this type of behavior, either to the [appellant], or others who might be inclined to

commit such acts.” 

The prosecutor acknowledged that the appellant’s “lack of a criminal record and social

background seem to support the position that he would likely be amenable to correction.” However,

the prosecutor opined that the appellant “has shown no remorse or responsibility for his actions.”

The prosecutor believed that the appellant was evasive in providing details about the incident, and,

thus, this factor weighed against diversion. The prosecutor’s belief stemmed almost entirely from

the appellant’s failure to admit his guilt. 

The prosecutor maintained that the appellant “avoiding responsibility for his conduct” would

not serve the ends of justice or the best interests of the victim, the victim’s family, or the public. The

prosecutor opined that because the appellant is a veteran law enforcement officer, “[t]here is a

concern that the public may perceive that the [appellant] has avoided prosecution and responsibility

for his criminal conduct because of his position and his political connections.” This factor weighed

against diversion. Finally, the prosecutor found that the appellant’s “‘attitude and behavior since

arrest, home environment, stability, and attitude of law enforcement’” weighed in favor of diversion.

Specifically, the State observed that the appellant had not been charged with any offenses since his

instant arrest, and he appeared to have a stable home environment. 

The prosecutor weighed the factors and “unequivocally conclude[d] that this is not an

appropriate case for diversion.” The prosecutor concluded that pretrial diversion “will not serve the

ends of justice and will not serve the best interests of the deceased, the deceased’s family, or the

public.” Following the denial, the appellant again filed in the trial court a petition for a writ of

certiorari, which was summarily denied. The appellant then appealed to this court, challenging the

denial of pretrial diversion. 
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II. Analysis

The pretrial diversion program permits a prosecutor to suspend prosecution against a

qualified defendant for up to two years. Tenn. Code Ann. § 40-15-105(a)(1)(A) (2003); State v. Bell,

69 S.W.3d 171, 176 (Tenn. 2002). A defendant is eligible for pretrial diversion when he or she 

(1) has not previously been granted diversion; (2) has no prior

misdemeanor conviction for which confinement was served; (3) has

no prior felony conviction within a five-year period after completing

the sentence or probationary period for the conviction; and (4) is not

charged with a class A felony, a class B felony, certain class C

felonies, a sexual offense, driving under the influence, or vehicular

assault. 

Bell, 69 S.W.3d at 176; see also Tenn. Code Ann. § 40-15-105(a)(1)(B)(i)(a)-(c) (2003). 

Statutory eligibility for pretrial diversion does not entitle a defendant to diversion. State v.

Curry, 988 S.W.2d 153, 157 (Tenn. 1999). A prosecutor, in his or her discretion, must make the

determination whether to grant diversion. Id. In determining whether to grant a defendant pretrial

diversion, the prosecutor “should focus on the defendant’s amenability to correction.” Bell, 69

S.W.3d at 176. Thus, “[a]ny factors which tend to accurately reflect whether a particular defendant

will or will not become a repeat offender should be considered.” State v. Hammersley, 650 S.W.2d

352, 355 (Tenn. 1983). Our supreme court has explained that 

[a]mong 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 the 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. 

Id. 

If a prosecutor denies pretrial diversion, the denial must be written and must elucidate the

factors considered as well as the weight attributed to each factor. Curry, 988 S.W.2d at 157. In the

event pretrial diversion is denied, a defendant may appeal by filing in the trial court a petition for a

writ of certiorari. Tenn. Code Ann. § 40-15-105(b)(3) (2003). The trial court must consider the

evidence considered by the prosecutor and may overturn the decision only if the prosecutor has

abused his or her discretion. Bell, 69 S.W.3d at 177. On appeal, this court “must determine whether

the trial court’s decision is supported by a preponderance of the evidence.” Curry, 988 S.W.2d at

158. 

Recently, our supreme court cautioned that “a district attorney general is bound to consider

and weigh all relevant factors in determining whether to grant pretrial diversion. The obvious
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corollary to this requirement is that the district attorney general must avoid relying upon irrelevant

factors in denying diversion.” State v. McKim, 215 S.W.3d 781, 787 (Tenn. 2007). Failing in this

task constitutes an abuse of discretion. Id. at 788. Moreover, an abuse of discretion exists “where

the prosecutor fails to consider all the relevant factors or reaches a decision not supported by

substantial evidence.” State v. Thompson, 189 S.W.3d 260, 266 (Tenn. Crim. App. 2005). Our case

law has made it patently clear that in determining whether a defendant is suitable for pretrial

diversion, a prosecutor’s duty is to focus on that defendant’s amenability to correction and to

consider all relevant factors, including those favorable to the defendant. Bell, 69 S.W.3d at 178. 

In our first opinion on this matter, we noted that the prosecutor based the denial of pretrial

diversion on a “general need for deterrence and the seriousness of the alleged offense while failing

to emphasize the [appellant’s] amenabilityto correction.” Tipton, No. M2003-03030-CCA-R9-CO,

2005 WL 1240174, at *3. We remanded the matter for “further consideration of the pertinent

factors, a discussion of those factors and the evidence supporting their application, and an

explanation of the weight accorded to each.” Id. at *4. Upon remand, the prosecutor stated that “[i]t

seems apparent to us that [in the original denial] we properly listed the evidence considered, we

discussed which factors were considered, and the weight accorded each factor. . . . The C.C.A.

obviously disagreed. We will now attempt to articulate a response that more adequately complies

with the C.C.A.’s decision.” Ultimately, the prosecutor ignored the dictates of our original opinion

and again denied pretrial diversion, finding that the “circumstances/facts of this case, the deterrence

issue, the [appellant’s] non-amenability to correction, and the fact that justice would not be served

by diversion all combine to give controlling weight [against diversion] in this case.” 

Initially, we note that in the denial letter the prosecutor stated that the charged offenses were

a Class A misdemeanor and a Class B misdemeanor. However, the offenses are a Class A

misdemeanor and a Class C misdemeanor. See Tenn. Code Ann. § 69-9-219(a) (2006). Moreover,

in the instant case, the prosecutor originally found the appellant amenable to correction.

Inexplicably, upon remand the prosecutor, based upon the same facts as before, found that the

appellant was not amenable to correction. As support for this position, the prosecutor again noted

that the appellant did not answer question 32 on the application which asked for the appellant’s

version of events. The prosecutor acknowledged that the appellant included with his application his

statement to police regarding events, which statement was made immediately following the incident.

However, the prosecutor labeled the appellant’s behavior in attaching the statement “evasive,”

indicating that he was not amenable to correction. Regardless, the prosecutor admitted that the

appellant’s lack of a criminal record and his social background, despite his three marriages, “seem

to support” that he would be amenable to correction. 

Although the prosecutor claimed that the second denial would attempt to comply with our

decision following the original denial of pretrial diversion, he again failed to follow the law as to the

applicability of pretrial diversion. For example, we fail to see that the appellant was “evasive” about

providing details regarding the incident. Shortly after the accident, the appellant gave a statement

to police. The appellant included a copy of that statement with his application for diversion. In the

statement, the appellant said that he believed that the lights on his boat were in operation at the time
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of the accident. The prosecutor opined that the evidence in the case did not support that assertion.

This court has repeatedly held that a prosecutor may not essentially require a defendant to admit his

or her guilt to obtain pretrial diversion. Thompson, 189 S.W.3d at 268. Despite our case law to the

contrary, the tenor of the prosecutor’s denial in the instant case is clear: absent an unqualified mea

culpa from the appellant, the prosecutor will not find the appellant suitable for pretrial diversion.

To require a complete admission of guilt before granting pretrial diversion is improper and

constitutes an abuse of discretion. Id. We conclude that substantial evidence does not exist to

support denying pretrial diversion on this basis. 

Moreover, in considering the appellant’s amenability to correction, the prosecutor favorably

acknowledged the sixty-year-old appellant’s lack of a criminal history but afforded it minimal

weight, reasoning that almost all pretrial diversion applicants have no criminal record. This court

has previously stated that 

a defendant’s criminal history – especially a lack thereof – is an

important signifier of whether the defendant is likely to offend again.

That is, a defendant’s criminal history is a critical factor to consider

in evaluating his or her amenability to correction: the primary focus

required in evaluating a request for pretrial diversion. 

Thompson, 189 S.W.3d at 267 (emphasis added). A “refusal to give any favorable weight to this

factor is a refusal to accord any significance to a factor repeatedly stressed by Tennessee’s appellate

courts as crucial to the comprehensive analysis required of district attorneys in assessing a request

for pretrial diversion.” Id. Thus, the prosecutor abused his discretion by refusing to properly

consider this factor. Id. We conclude that this factor weighs heavily in favor of the grant of pretrial

diversion, specifically because it indicates favorably towards the appellant’s amenability to

correction. 

In denying diversion, the prosecutor noted several times that the appellant was a former law

enforcement officer; therefore, the appellant’s violation of the law was a disappointment. The

prosecutor also noted his concern that if the appellant were granted pretrial diversion, the public

would believe that the appellant’s status as former law enforcement allowed him to avoid

prosecution. The prosecutor weighed this factor heavily against the grant of diversion. This court

has previously cautioned that acts that are committed off-duty and do not relate to an offender’s

public employment should not impose a higher standard of conduct justifying a denial of diversion.

State v. Lane, 56 S.W.3d 20, 27 (Tenn. Crim. App. 2000); see also McKim, 215 S.W.3d at 787.

Therefore, the prosecutor impermissibly relied upon this irrelevant factor in denying diversion. 

Finally, the prosecutor noted that the facts and circumstances of the case and deterrence

weighed against the grant of pretrial diversion. In making that determination, the prosecutor relied

heavily on the fact that a death occurred. “[W]hile the circumstances of the case and the need for

deterrence may be considered as two of many factors, they cannot be given controlling weight unless

they are ‘of such overwhelming significance that they [necessarily] outweigh all other factors.’”
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State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993) (quoting State v. Markham, 755 S.W.2d

850, 853 (Tenn. Crim. App. 1988)). Absent such exceptional circumstances, the prosecutor must

consider the defendant’s amenability to correction and the likelihood that the defendant will not

commit further crimes. Id. 

Although the prosecutor acknowledged that the offenses for which the appellant was indicted

were misdemeanors, he nevertheless stated that the fact that a death occurred made the case a “very

serious” one. However, “[t]he facts and circumstances of nearly all criminal offenses are by

definition serious”; thus, all factors must be examined to identify those suitable for pretrial diversion.

Curry, 988 S.W.2d at 158. All factors must be considered because when “the facts and

circumstances are given conclusive weight against a defendant’s potential for correction, rare is the

defendant who would qualify for pretrial diversion.” Id. at 159.

The prosecutor opined that “criminal violations that can (and do) lead to [death] must be

deterred.” In other words, the prosecutor implied that pretrial diversion is not appropriate in any case

in which a death occurred. Respectfully, our legislature has deemed differently. Our law is clear that

diversion may not be denied simply because an offender is charged with a particular type of offense.

Thompson, 189 S.W.3d at 268. We are cognizant of the tragic events underlying the case at bar;

however, “[t]o deny the appellant diversion because his crime involved death would be insert into

our pretrial diversion statute a prerequisite which the legislature chose to omit.” State v. Jackie L.

Blankenship, No. 02C01-9210-CC-00236, 1993 WL 379193, at *3 (Tenn. Crim. App. at Jackson,

Sept. 29, 1993). As our supreme court recently stated:

Contrary to established precedent, the [prosecutor] in this case

focused not on the [appellant’s] amenability to correction but rather

on his own opinion of what should and should not be a divertible

offense. In so doing, the [prosecutor] considered a factor not relevant

to his determination of whether to grant pretrial diversion to the

defendant in this matter. The prosecutor’s consideration of, and

emphasis upon, an irrelevant factor so tainted his decision-making

process as to constitute an abuse of discretion.

McKim, 215 S.W.3d at 788. Thus, substantial evidence did not exist to support denying pretrial

diversion on this basis. 

We note that when the appellant filed a petition for a writ of certiorari, the trial court should

have informed the prosecutor that he had abused his discretion because the denial of pretrial

diversion was obviously based upon irrelevant factors. Id. at 788-89. Ordinarily, the proper remedy

would be to remand to the prosecutor for further consideration. Bell, 69 S.W.3d at 180. However,

following this court’s remand, the prosecutor and the trial court again failed to correctly focus the

inquiry upon the appellant’s suitability for pretrial diversion. Upon remand, the prosecutor found

that certain factors weighed in favor of diversion. However, the prosecutor again ruled, based upon

irrelevant considerations and factors, that the evidence weighed against diversion. Additionally, the
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prosecutor staunchly refused to focus on the appellant’s lack of a criminal history and his positive

social history, which indicate the appellant’s amenability for correction, as weighty factors favoring

diversion. Because there is no substantial evidence to support the decision of the prosecutor, we are

compelled to reverse the prosecutor’s denial of pretrial diversion and remand to the trial court with

an instruction that pretrial diversion is to be granted.

III. Conclusion

Based upon the foregoing, we reverse the prosecutor’s denial and remand to the trial court

for the entry of an order granting pretrial diversion. 

___________________________________ 

NORMA McGEE OGLE, JUDGE