### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Februar y 11, 2 003 Session
STATE OF TENN ESSEE v. JERRY W. YANCY, JR.
Direct Appeal from the Circuit Court for Williamson County No. II-499-120 Timothy L. Easter, Judge

No. M2002-01640-CCA-R3-CD - F iled June 13, 2003

On April 12, 1 999, the Wil l iams on County Grand Jury returned a five-count indictment charging Defend ant, Jerry W. Yancy , Jr., with two counts of aggravated assault and thre e counts of felony reckle ss endangerment. The district attorney general denied Defe

ndant’s requ e st for pretrial diversion. In a

writ of c ertiora

ri, Defe ndant ask ed the tr ial court to review the district attorney general’s denial of pretrial diversion. Following a hearing , the trial court denied certiorari. The trial court also deni ed Defe

ndant’s m

otion to fil e an inte

rlocutor y a ppeal pur suant to Rul e 9, Tenn . R. App. P. Defendant applied for an extraordinary appeal pursuant to Rule 10, Tenn. R. App. P., which this Court denied. Defendant entered g uilty pleas to two counts of felony reckless endangerment and
was convicte d by

a jury of two counts of ag grava te d assault

. He was acquitted on the remaining count of f elony reckle ss endang erment. The tria l court se ntenced Defend ant to ser

ve sixty day s in confinem e ntand four ye ars on probation. On direct appeal, this Court affirmed the trial cour t’s judgmen ts. The Tennessee Supreme Court grante d permission to appeal and held that this Court erred by looking to the entire

record in deciding whether the de nial of pretrial diversion was proper. State v. Yancey , 69 S.W.3d 553 (Ten n. 2002). The supr

eme cour t remand ed the ca se back t

o the trial court for application of the proper standard of re view. Id

. On remand from the supreme court, the trial court entered an order aff irming the denial of pretrial dive rsi on. Defendant appeals that decision. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and J OE G. R ILEY , JJ., joined. John S. Colley, II

I, Columbia, Tennessee, for the a ppellant, Jerry W. Yancy , Jr.

Paul G. Summers, Attorney Gene ral and Reporter; Jennifer L. Bledsoe, Assistant Attorney Genera l; Ronald L. Davis, District Attorney Ge neral; and Sharon Guffee, Assistant District A

ttorney Genera l, for the appellee, the State of Tennessee.-2- OPINION

The evidence considered by the district attorney g eneral, as sum mar ized by the Tennessee Supreme Court in State v. Yancey , 69 S.W.3d 55 3 (Tenn. 2002), is a s follows:

On Januar

y 29 , 1999, Te

resa L ovett was driving a Pontiac Grand Prix northbound in the left lane on Interstate 65 in Williamson County, Tennessee. Sandra Martin was
a passenger in Lovett’s car. Yancey , along with his wife, his brother, and another pass enger, was driving a Jeep northbound on Interstate 65 behind Lovett’s car. Yancey ’s vehicle was hauling a trailer containing 1800 to 2000 pounds of mater ial.

At approximately 6:30 a.m., Yancey approached

Lovett’s car from the rear in the left lane. When Lovett slowed down, Yance y remained r

ight behind her back bumper. Yancey moved to the right lane, pulled along side of Lovett’s c ar, and made a profane gesture. Lovett returned the gesture. When L ovett ac celera ted, Yancey

pulled into the le ft lane be hind Lovett’s car and turned on his hig h beam headlights. When Love tt remaine d in the le ft lane, Yancey again d rove into the right lane along side of Lovett’s car. This time Yancey pulled a Colt .45 caliber handgun and pointed it at Lovett’s car. Sandra Martin ducked down in the passeng er seat. Lovett acc elerated and immed

iately heard a gunshot

. Yancey was apprehended by

police later the s ame day a nd was interviewed by Detective David Beard from the Williams on County

Sheriff ’s Depa rtment. Yancey stated that he was driving between 70 and 75 miles per hou r when he approached Lovett’s car in the left lane, which he estimated was going 58 to 64 miles per hour. When Yancey

flashed his lights, the driver of the other car “slammed” on the brakes and “flipped him off.” Yancey said that the drive r of the v ehicle

would not le

t him pass and that this went on for several miles. Yancey told officers that he tried to take
a picture of the other car with a camera. Although Yancey admitted that he fired one shot with his handgun, he maintained that he fired in the air and was n ot try

ing to hit the other vehicle. Michael Yancey , the defendant’s brother, told officers that he ha d thrown a shell c asing out of the car at the defenda nt’s direction after the defendant had fired the gun. According to the pretrial diversion application, Yancey was 34 yea

rs old and married. Yancey has two childr

en, and h is wife wa s pregn ant at the time of the

offense s in question. Yancey

has his G.E.D. and is self-employ ed as a contractor. He has a prior
con victio n for reckless driving in 1996. Yancey ’s mental and physica l conditions
were no rmal, alt hough he was atte nding weekly

sessions f

or contr ol of stre ss.
The district attorney g eneral’s letter of denial indicated

that he c onsidere d the fac ts and circumst

ances of the offe nse, incl uding the grave dange r crea ted to the victim-3-

and numerous other drivers on th e b us y in te rs ta te hi gh wa y, and foun d that the y di d notfavor pretrial diversion. T he den ial letter revealed that the district attorney general considered the defendant’s social history, which he found to be neutral, and the defendant’s criminal history, which he found to be “neutral at best.” The district attorney general considered the defendant’s phy sical andmental condition, but found that neither play ed a sig nifican

t part in hi s decisi on t o deny pretr ial diversion. Fi na ll y, in concluding that pretrial diversion would not meet the ends of justice, the districtattorney g eneral cited the defendant’s prior c onviction, his effort to conceal the facts of

th e offen ses, his f

ailure to take com plete re sponsibilit

y f or his ac tions, and the need for deterring the defendant and others from committing similar crimes in the future.
Yancey , 69 S.W.3d at 555-56.

The pretrial diversion statute allows a district attorney general to suspend the prosecution of
an eligible defendant for a period not to exceed two years. See Tenn. Code Ann. § 40-15- 105(a)(1)(A) (Supp. 2002). There is no presumption that a person eligible for pre trial diversion is entitled to diversion. State v. Curry , 988 S.W.2d 153, 157 (Tenn. 1999). The defendant bears the burden of establishing that pretrial diversion is appropriate and in the interest of justice; theref ore, it is the defendant’s responsibility to submit substantial favora ble evidence for the district attorney general’s consideration. State v. B ell , 69 S.W.3d 171, 179 (Tenn. 2002).

The decision to grant or deny an application for pretrial diversion is within the discretion of the district attorney g eneral. State v. Pinkham , 955 S.W.2d 956, 959 (Tenn. 1997). The district attorney general must focus on the defendant’ s amena bil ity to correc tion and consider any factors which tend to accurately

reflect the defendant’s propensity to become a

repeat offender. Yancey , 69 S.W.3d at 557; State v. Hammersley , 6 50 S.W. 2d 352, 355 (Tenn. 1983). These factors include: (1) the circumstances of the offense; (2) the defendant’s criminal record; (3) the defendant’s social hi st or y; (4) where appropriate, the def enda nt’s physical and mental c ondition; (5) the likelihood pretrial diversio n will ser ve the ends of justic e; and (6 ) the bes tinterest of both the public and the defenda nt. Hammersley , 6 50 S. W. 2d at 35 5. Th e d is tr ic t a tt or ne y sh ou ld cl ea rl y articulat e these factors for the record

to facilitateappellate review. Id . If p retrial diversio n is denie d, the den ial must be written, must list the evidence considered, discuss which factors wer e considered, and discuss the weight accorded to each f actor. Curry , 988 S.W.2d at 157. In reviewing

the prosecutor’s decision, the trial court must consider only the evidence considered

by the district attorney

general and conduc t a hearing only to re solve factual disputes concerning the application. Curry , 988 S.W.2d at 157-58. The trial court is to review the method used by the prosec

utor, but not “the intrinsi c correctness” of the prosecutor’s decision. Yancey , 69 S.W.3d at 558-59. The trial court may not reweigh the evidence or substitute its view for that of the prosecutor. Id . at 559. The trial court must determine whether the prosecutor ha s abused his or her discretion by f

ailing to consider and weig h all the r ele vant fact ors or by re aching a decision not supported by substantial evidence

. Curry , 988 S.W.2d at 158. If the trial court determines the-4-

district attorney’s off

ice considered all relevant factors a nd their weight, it must further determine whether there is substantial evidence to support the decision to deny diversion. Yancey , 69 S.W.3d at 559. This court, like the trial court, is limited to considering only the evidence considered by the district attorney g eneral. Id . at 559-60.

The trial court stated its reasons for affirming the district at tor ney’s denia

l of pretrial diversion in a memorandum of law. The trial court found that there was substantial evidence in the record to support the original two factors considered by the d is trict attorney in deny ing pretrial diversion: (1) the circumstances of the offense did not fa vor pretrial diversion; and (2) therewas a needfor deterrence. The trial

court also found that the State “properly weighed Defendant’s conduct in taking steps to cover up his action by throwing the shell casings out of his window

as well as not stopping until pulled over by law enf orcement officials.” Additionally, the trial court found that the districtattorne

y g eneral properl y “concluded that the Defendant refuse d to accept responsibility for his actions by

refusin g to giv e a rec itation of the fac ts in respo nse to a question on the application [for p retrial div ersion].”The tria

l court a lso found t

hat the di strict at

torney gener al prope rly
co nsideredDefendant’s social history and criminal history and de termined that they we

re bot h neutral factors.

Defendant

argue s that the d

istrict a ttorney gener al should have persona

lly intervie wed him to resolve any

questions the State had regar ding his applic ation for

diversio n rather

than fla tly denying diversion. There is nothing in the pretrial diversion statute that requires the State to conduct
an interview of a defendant before de nying his re quest for

pretrial diversion. See Tenn. Code Ann. § 40-15-105 (1997 & Supp. 2002). The burden is upon the defendant to provide the prosecutor wit

h sufficient background information and data to enable the prosecutor to m ak e a reasoned decision. State v. Herron , 767 S.W.2d 151, 156 (Tenn. 1989). This information may be supplementedby the pretrial investigation, as authorized by Tenn. Code Ann. § 40-15-104, but the investigation does not lessen the defendant’s obligation “to show beforehand he

is an appropriate subject for diversion.” Id

. Defendant

also argues that his 1996 conviction for rec kless driving is not a basis upon which to deny pretria

l diversion. The district

attorney g eneral considered the fact that De fendant did not disclose that he was arrested for DUI and convicted

of the reduce d charge of reckless driving, finding that Defendant had

“already received leniency

in our criminal justice system.” The district attorney general concluded, however, that the defendant’s criminal history was “a neutral factor at best.” The Defendant’s criminal history is an appropriate consideration in determining whether to grant or deny pretrial diversion.

Fi na ll y, Defendant argues that there was no evidence t

o support the State’s denial of pretrial diversion based on a need for deterrenc e. The need for deterrenc e is a proper considera tion in pretrial diversion c ases, and it may be consid

ered in t he same m anner a s in proba tion case s. Hammersley , 650 S.W.2d at 354. To determine whether there is a need for deter rence, the following factors should be con sidered: (1 ) whethe r other in cidents o f the cha

rged o ffense

are inc reasingly present in the community, jurisdiction, or state as a whole; (2) whether

the crime was the r esult of-5-

intentiona

l, knowing , or reckle ss conduc t or was ot herwise motivated

by a desire to profit or gain from criminal behavior; (3) whether the alleg ed offense received substantia

l publicity

beyond that normally expected in a ty

pical case; (4) whether the defenda nt was a member of a criminal enterprise, or substantially encoura ged or assisted

others in achieving the criminal objective; and (5) whether the defe ndant hasprevious ly e

ngag ed in cri minal con duct of th e same type as the

offense in question, irrespective of whether such conduct re sulted in previous arrests or convictions. State
v. Hooper , 29 S.W.3d 1, 10-12 (Tenn. 2000). If de terrence is to be the basis for deny ing diversion, proof must exist in the record of a specific need to dete r similar crimes or the defendant himself. Id

. The record

does not in dicate w

hat spec ific evid

ence of a need f or a dete rrence th e distric t attorney general relied

upon in denying pr

etrial diversion. The district attorney g eneral found that denying pretrial diversion would servethe ends o f justice , stating , “[c]lear ly, this is a situation where the nature and gravity

of the circumstances and

the great interest of the public demand that this ty pe of activity be deter

red.” S tatistics and da ta showing that the in stances of this ty pe of conduct in Williamson County have been inc reasing may

have been helpful and would have supported the districtattorne

y g eneral ’ s fi nding that a need for deterre nce exists. See State

v. W illiam Dav id Marks , No. M2001- 01497-CCA -R9-CO , 2002 Tenn. Crim. App. LEXIS 428 ( filed at Nashville, May 10, 2002) no app. for perm. to appeal filed . Nevertheless, we agre e with the district attorney g eneral and the trial court and conclude that the nature and circ umstances of this offense were so agg ravated in regard to the use of a dea dly weapon in re sponse to minor road problems that the denial of pre-trial diversion in this case is justified.
CONCLUSION The judgment of the trial court is affirmed.

___________________________________ THOMAS T. WOODALL , JUDGE