IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs August 24, 2010

STATE OF TENNESSEE v. ANGELA MILHORN 

Direct Appeal from the Criminal Court for Sullivan County

No. S56,755 Robert H. Montgomery, Jr., Judge

No. E2010-00458-CCA-R3-CD - Filed October 15, 2010

The defendant, Angela Milhorn, appeals the denial of her request for judicial diversion,

arguing that the trial court abused its discretion by placing undue emphasis on the

circumstances of her offense while ignoring positive factors in favor of diversion. Following

our review, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN,J., delivered the opinion of the Court, in which JOSEPH M. TIPTON, P.J., and

THOMAS T. WOODALL, J., joined.

Steve McEwen, Mountain City, Tennessee (on appeal); and William A. Kennedy, Assistant

Public Defender (at trial), for the appellant, Angela Milhorn.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant

Attorney General; H. Greeley Wells, Jr., District Attorney General; and Kent Chitwood,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

On June 13, 2009, officers with the Street Crimes Unit of the Bristol Police

Department executed a search warrant at the Bristol home that the defendant shared with her

fiancé, James Sorah, and from which Sorah had regularly been selling marijuana. The

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search uncovered, among other things: a total of 11.2 pounds of marijuana located

This individual’s last name is spelled “Sora” in the trial transcript, but “Sorah” in the indictment. 1
throughout the residence, including some in a safe that had been divided for resale into one

ounce ziplock baggies; marijuana pipes; marijuana cigarettes; numerous containers of

“roaches,” or remnants of smoked marijuana cigarettes; two sets of scales; and almost

$27,000 in cash. On August 25, 2009, the Sullivan County Grand Jury indicted both the

defendant and Sorah for possession with the intent to deliver or sell ten pounds or more of

marijuana, a Class D felony; possession of drug paraphernalia, a Class A misdemeanor; and

maintaining a dwelling where controlled substances are used or sold, a Class D felony.

On December 10, 2009, the defendant entered a best interest Alford guilty plea to the

possession of marijuana count of the indictment and standard guilty pleas to the possession

of drug paraphernalia and maintaining a dwelling where drugs are sold counts of the

indictment in exchange for concurrent sentences of two years for each of the felony

convictions and eleven months, twenty-nine days for the misdemeanor conviction, with the

manner of service left to the trial court’s determination.

At the sentencing hearing, defense counsel introduced into evidence a letter that the

defendant had written to the trial court in which she expressed her remorse for “the poor

judgments” she had made “concerning these charges.” In the letter, the defendant stated that

after having spent two weeks in jail, she had returned to her job as an administrative assistant

at Northeast State College, where she had remained for two months until she secured a better

paying job as office manager of a car dealership. She further stated that she had continued

to attend college full-time via online courses, had not had anything to do with marijuana or

with anyone who used marijuana, and had no desire “to ever break the law again in any

manner.” The defendant concluded by expressing her fear that a felony conviction would

jeopardize her current and future employment and would prevent her from receiving financial

assistance at college.

Upon direct examination by the trial court, the defendant acknowledged thatshe knew

that Sorah had been selling marijuana from the residence but insisted that she had no idea of

the extent of his enterprise or the quantity of cash he had in the home. Later in her testimony,

however, she said that she saw large amounts of cash in the home but had assumed it was the

proceeds of the “large amounts of financial aid, student loans, and assistance for vocational

rehab” that Sorah had received while he was enrolled in college from 2007 to 2009. She

testified that she and Sorah did not live extravagantly, paid $750 per month for rent on their

house, and drove fifteen and sixteen-year-old vehicles.

The defendant denied that she ever sold any marijuana herself and explained that she

was usually at school or work during the daytime hours when Sorah, who was on disability,

sold the marijuana. She admitted, however, that she was at home during some of the drug

transactions and had on occasion smoked marijuana with Sorah’s customers. She stated that

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the dryer in the garage where a large portion of the marijuana was found was not plugged in

and that there was a working dryer in the house that she used. She testified that she met the

fifty-two-year-old Sorah five years earlier when she was twenty-five years old, lived with

him for approximately three and a half years, and, up until her arrest, smoked marijuana with

him “every day or every other day.”

The defendant explained the telephone harassment charge on her presentence report,

which had been dismissed after her completion of a sixteen-week anger management course,

as the result of her jealousy over a friend’s having dated a “boy” that the defendant had been

dating. She said that she had called the friend “twice in one night,” using “bad language,”

and a week later “was given a paper to appear in court.” Since that episode, which had

occurred over seven years previously, she had not seen or spoken to either her former friend

or her former boyfriend.

On cross-examination, the defendant testified that she was unaware that Sorah, by his

own admission to police, had been selling one to two pounds of marijuana each week and had

been in the business of selling marijuana for thirty years.

Investigator Daniel Graham of the Bristol Police Department testified that he obtained

a search warrant for the home after the Street Crimes Unit made three controlled buys of

marijuana at the residence. He said that none of the buys were from the defendant and he had

no knowledge of whether she was present during the transactions. He stated that he was able

to detect the “strong odor” of both burnt and raw marijuana while still standing on the porch

and that the odor of marijuana inside the residence was “overwhelming.” He said the scales

were lying in the open in the den; that a box with “numerous bottles of roaches” was found

in the living room; that an Altoid can full of marijuana cigarettes was lying on the floor in

the hallway; that another Altoid can of marijuana cigarettes was located in the living room;

that a bag of marijuana was found in a dresser drawer in the den; and that drug paraphernalia,

consisting of forceps, a pipe grinder, and rolling papers, were found throughout the house.

In addition, officers found $12,000 in cash in a safe in the den; “12 zip lock bags inside of

the safe that contained 4 bags of marijuana and a Walmart bag that contained individually

wrapped bundles of marijuana”; two Walmart bags of marijuana inside a dryer in the garage;

$12,000 in a toolbox in the garage; and three large bags of marijuana located in a box

underneath a work bench in the garage. On cross-examination, Investigator Graham

acknowledged that the search warrant did not mention the defendant’s name and that it was

Sorah who gave the officers the combination to the safe.

At the conclusion of the hearing, the trial court denied the defendant’s request for

judicial diversion and instead sentenced her to three years of supervised probation with the

requirement that she complete fifty hours of community service, undergo a drug and alcohol

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evaluation, and submit to regular drug screening. This appeal followed.

ANALYSIS

The defendant argues on appeal that the trial court abused its discretion in denying her

request for judicial diversion by focusing too heavily on the circumstances of her offense

while giving insufficient weight to the positive factors in favor of diversion, including her

stable work history, continuing college enrollment, expressions of remorse for her

involvement in the crimes, and disassociation with Sorah since the time of her arrest. In

addition, the defendant points out that she was not a principal actor in the criminal activity

and received no monetary gain from the enterprise. The State argues that there is substantial

evidence in the record to support the trial court’s denial of diversion. We agree with the

State.

Following a determination of guilt by plea or by trial, a trial court may, in its

discretion, defer further proceedings and place a qualified defendant on probation without

entering a judgment of guilt. Tenn. Code Ann. § 40-35-313(a)(1)(A) (Supp. 2009). A

qualified defendant is one who is found guilty or pleads guilty or nolo contendere to the

offense for which deferral of further proceedings is sought, is not seeking deferral of further

proceedings for a sexual offense, a violation of section 71-6-117 or section 71-6-119, or a

Class A or Class B felony, and who has not been previously convicted of a felony or a Class

A misdemeanor. Id. § 40-35-313(a)(1)(B)(i). If the defendant successfully completes the

period of probation, the trial court is required to dismiss the proceedings against him, and the

defendant may have the records of the proceedings expunged. Id. § 40-35-313(a)(2), (b).

The decision to grant or deny a qualified defendant judicial diversion lies within the

sound discretion of the trial court. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn.

Crim. App. 1998); State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997); State

v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993). As such, it will not be disturbed

on appeal absent an abuse of discretion. Electroplating, 990 S.W.2d at 229; Cutshaw, 967

S.W.2d at 344; Bonestel, 871 S.W.2d at 168. To constitute an abuse of discretion, the record

must be devoid of any substantial evidence in support of the trial court’s decision. Cutshaw,

967 S.W.2d at 344; Bonestel, 871 S.W.2d at 168; State v. Anderson, 857 S.W.2d 571, 572

(Tenn .Crim. App. 1992).

In determining whether to grant diversion, the trial court must consider all of the

following factors: (a) the accused’s amenability to correction, (b) the circumstances of the

offense, (c) the accused’s criminal record, (d) the accused’s social history, (e) the accused’s

physical and mental health, (f) the deterrence value to the accused as well as others, and (g)

whether judicial diversion will serve the interests of the public as well as the accused.

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Electroplating, 990 S.W.2d at 229; Bonestel, 871 S.W.2d at 168. A trial court should not

deny judicial diversion without explaining the factors in support of its denial and how those

factors outweigh other factors in favor of diversion. Id.

The trial court considered and explained its weighing of all of the above factors in its

decision to deny the defendant’s request for judicial diversion. The trial court first found that

the defendant’s amenability to correction, as well as the circumstances of the offenses, both

weighed against the granting of diversion. The court based these findings, in large part, on

the large amount of drugs and drug paraphernalia found in the home and the amount of time

the defendant lived with Sorah, concluding that the defendant, who was not as naive as she

attempted to portray herself, had been aware of the extent of Sorah’s drug enterprise and had

chosen to live with him to reap the benefits of having a readily available supply of marijuana

for her own use, as well as someone to share in her household expenses.

The trial court also found that the defendant’s criminal record and social history

weighed against the granting of diversion, noting the defendant’s long history of regular

marijuana use and the fact that she chose to live with someone twenty-two years her senior

“basically for the purpose of . . . using marijuana.”

The court found that the defendant’s mental and physical health was not an issue in

the case and therefore weighed neither for nor against the granting of diversion.

The court found that the last two factors – the deterrence value to the defendant and

to others and whether diversion would serve the interests of the public and the defendant –

also weighed against the granting of diversion. In making this determination, the court

focused on the fact that the defendant’s offenses were not the result of a single instance of

poor judgment on her part, but instead represented her continuing choice to share in and

contribute to a household where marijuana was regularly sold. The trial court concluded its

ruling as follows:

And, again, in my opinion there is deterrence value to you and to others. I

mean if we were talking about just a very short period of time I might look at

this differently but based upon the fact that you’re in college, the fact that you

had been employed, the fact that -- I mean, you know, it’s not just a poor

choice one time, which I think primarily is what judicial diversion or deferral

of judgment is all about. I mean it’s a long term repeated period of bad

choices. . . . And in my opinion there is deterrence value to you as well as

others that, you know, you can’t just contribute to a household where you

know that somebody is selling and for a long period of time and there’s no

consequences from that so I do find that there is deterrence value and as a

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result of those things I don’t find that judicial diversion in this case would

serve the interest of the public as well as you weighing all those things in

consideration.

The record supports the findings of the trial court. Accordingly, we conclude that the

trial court did not abuse its discretion in denying the defendant’s request for judicial

diversion.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the trial

court.

_________________________________

ALAN E. GLENN, JUDGE

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