### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs A ugus t 26 , 200 8
STA TE OF TENNES SEE v . BRIAN A. LOW MAN

Direc t Appeal from the Cr iminal Cou rt f or Hamilton County No. 258379 Rebec ca Ster n, Jud ge

No. E2007-02343-CC A-R10- CD - Filed Fe bruary 12, 2009

The de fenda nt, Brian A. Lowman, w as denie d pretria l diversion by t he district attorne y gener al for Hamilton County and requeste d revie w of the de nial by the trial court. After r eview, the trial court
reve rsed the denial of pretria l dive rsion by the district attorney gener al. The State then appea led the decision of the trial court to this court for revie w. After caref

ul revie w, we conclude that the district attorney ge nera l did not abuse his discretion in denying pretrial diversion and r ever se the de cision of the trial c ourt granting pre trial diversion.
Tenn. R. App . P. 10 Extraor din ary Appeal; Judgment of the C riminal Court Reve rsed and Rem anded

J OHN E VERET T W I L L I AMS , J., delivere d the opinion of the court, in which R OBER T W. W EDEMEYER
a ndJ. C. M C L IN , JJ., joined.
Robert E. Cooper, Jr ., Attorney Ge nera l and Reporter ; Jennifer L. Bledsoe, Assistant Attorney Gene ral; William L

. Gibbons, District Attorney Gene ral; and Bates Bryan, Assistant Di s t rict Attorney Ge nera l, for the a ppellant, State of Te nnessee

. John R. Morgan, Chattanooga, Te nnessee , for the a ppellee, Bria n A. Lowman.

OP IN ION

The de fenda

nt was indicted on Apr il 12, 2006 for the offe nse of solicitation of a minor. The fac ts c ontained in the indictment alleg ed that the de fenda nt contacte d the fiftee n-y ear -old intended victim to enga g e in conduc t that, if completed, would have constituted the offe nse of statutory rape or sexual battery

. On August 1 4 , 2006, the def endant a pplied with the district attorney g ener al for pr etrial diversion, which the district attorney g ener al denied on N ovember 2 8 , 2006. The wr itten denial contains the a dditional facts: (1) the defe ndant met the intended vic tim while she was a pa tient at the de nta l c lin ic wh e re he wa s a den ta l hy g ie nis t; ( 2) the de fe nd ant b e g an c on ta c tin g the int e nd e d v ic tim throug h email and made comments to her a bout having fun with an o l d er m an and mentioned-2-

differ ent sexual positions; and (3) the defendant arra ng ed a meeting on October 15, 2005, in a low traff ic ar ea f or the purpose of eng ag ing in se x ual ac tivity

.
On Dec ember

5, 2006, the defendant filed a petiti on for writ of certiorar i with the trial court to r eview the denial of diversion. The trial court petition g rante d the petition f or writ of ce rtiorar i on Aug ust 1, 2007, and re v er s ed t he district attorne y g ener al’s denia l of pretr ial diversion. The

m at t er wa s re m an d ed t o t h e di s t ri ct at t o rn ey gen er al fo r e n t ry

o f am em o ra n d

u m o f u n d er s t an d i n g. The State filed a

motion to pursue an interlocutory appea l, whi ch wa s denied by the trial cour

t on September 19, 2007. The State applied for an extraordinar

y appea l pursuant to Tenne ssee Rule of Appellate Proc edure 10, which wa s g rante d by this court on November

28, 2007.

The State a

rg ues on appe al that the trial c ourt err ed in conc luding that the district attorney g ener al abuse d his discretion in denying pr etrial diver sion. Spec ifically , the State contends that the dis tr ic t atto rn e y

g e ne ra l c on sid e re d e a c h o f t he re le va nt fa c tor s in

de nyingthe de fe nd ant’ s r e qu e st for diver sion and in no way abused his discre tion. The State argues that th e t ri al cour t rewe ighe d the evidenc e and substituted i ts view for that of the State, whic h should result in a reve rsal of the trial court’s or der.

Pursuant to T en n es s ee C o d e A n n o t at eds ec t i o n4 0 -1 5 -1 0 5 (a )( 1 )( A) (2 0 0 6 ), a d i s t rict attorne y g ener al and a defe ndant may enter into a n ag ree ment to suspe nd prosec ution of the def endant f or a period not to exceed two y ear s. To qualify for diversion, the defe ndant must meet three c riteria: ( 1) h e m u s t n o t h ave pr eviously been grante d diversion; (2) he must not have a prior misdemeanor conviction for which a sentenc e of confine ment was serve d or a pr ior felony within a five-year

period afte r completingthe sentenc e or pr obationary period for

such convic tion; an d (3) he must not be prese ntly char g ed with one of an enumer ated list of offe nses. T.C.A. § 40-15-105( a)( 1)(B )(ii). A defe ndant elig ible for consideration f or pretria l diversion is not presumptively entitled to a g rant of pretria l diversion. Sta te v . M c Kim , 2 1 5 S

. W

. 3 d 7 8 1 , 7 8 6 (T en n

. 2 0 0 7 ) ( ci t i n g Sta te v . Cu rry , 988 S.W .2d 153, 157 (Tenn. 1999) ). The de fenda nt has the burde n of establishing that pretria l diversion is appropriate. Sta te v . B e ll , 69 S.W .3d 171, 179 (Tenn. 2002)

.
Tenne ssee Code A nnotated sec tion 40-15-105(b)( 3) conve y s the discre tion to gra nt or deny an application for pre trial diversion upon the district attorne y g ener al. The district attorney g ener al’s analy sis must be conduc ted on a c ase- by -ca se basis. State v. Mark ham , 755 S.W .2d 850, 853 (Tenn. Crim. App. 1988). He m u s t consider se vera l fac tors when r eviewingan application for pre trial diversion, inclu d i n g: t h e cir cumstance s of the off ense; the de fenda

nt’s criminal re cord a

nd social history ; the phy sical and mental conditi on of the de fenda nt; and the likelihood that pretrial diver sion will serve the e nds of justice and the best i n t er est of both the public and the defe ndant. State v. Hamme rsley , 650 S.W .2d 352, 3 5 5 (Tenn. 1983) . “In deter mining whe ther to g rant pre trial diversion, the district attorne y g ener al ‘ha s a duty

to exercise his or her

discretion by focusingon a defe ndant’s ame nability

for c orre ction a nd by

consideringall of the re levant fa ctors, including evidenc e that is f

avora ble to a def

endant.’ ” Mc

Kim , 2 1 5 S

. W

. 3 d

at 7 8 6 (q u o t i n g Be ll , 69 S.W .3d at 178).-3-

I f the district attorne y

g ener al denies the application for pretria l diversion, “the f actor s upon which the denial is ba sed must be clea rly articula

ble and stated in the re cord.” Mc Kim , 215 S.W .3d at 787. The denial must be written and must list the evidenc e conside red a nd discuss which fa ctors
wer e considered and the weight accor ded to each. State v. Pinkham , 955 S.W .2d 956, 960 (Tenn. 1997). I f the district attorne y g ener al denies the application, the de fenda nt may seek r eview in the trial court pur suant to Tennesse e Code Annotated sec tion 40-15-105(b)( 3).

The trial c ourt may

only revie w t he evidence considere d by the di strict attorney g ener al, and the cour t’s role is to deter

mine whether t h e district attorney g ener al abuse d his or her discr etion. Be ll , 69 S.W .3d at 177. The trial court may conduct a hear ing only to resolve fac tual disputes raised by either the defe ndant or the di strict attorney g ener al. Id . The trial c ourt may not hear additional evidenc e not consider ed by the prosec utor. Cur

ry , 988 S.W .2d at 157-58. The decis i o n of the district attorney g ener al to de ny pretria l dive rsion is c onsidered “ presumptively corr ect.” Id. The trial court c annot set aside the denial unless it finds a g ross and patent abuse of discretion. State v. Hamme rsley , 650 S.W .2d at 356. The trial court should e x amine eac h rele vant fac tor in the pretria l diversion proc ess to deter mine whether

the district attorney

g ener al has considere d that fac tor and whether the di strict attorney g ener al’s finding with respec t to that factor is supporte d by substantial evidenc e. State v. Y

ancey , 69 S.W .3d 553, 559 (Tenn. 2002). A district attorney g ener al’s fa ilure to consider a

nd articulate all re levant factors in denying the application may constitute an abuse of discretion. Mc

Kim , 2 1 5 S

. W

. 3 d

at 7 8 7 (c i t i n g Be ll , 69 S.W. 3d a t 17 8; Cur ry , 988 S.W .2d at 159). The unde rlying issue that this court must determine on appe al is whether , as a matter of law , the district attorney

g ener al abuse d his or her discretion in deny ing pr etrial diver sion. State v. Carr, 861 S.W .2d 850, 856 (Tenn. Crim. App. 1993)

.
I n this case, the district attorney g ener al issued a wr it t en d en i al of the r equest for pretria l diversion, which state d:

After car eful c onsideration and ba lancingof all fa ctors pre sent in the above sty led ca se, this office must deny y our clients re quest for pr e-tria l diversion.

The de fenda

nt has repr esente d his own c h a r a c te r th r o u gh h is Ps y cholog ist and friends. His Psy cholog ist ha s been treating him a s a result of “

. . . em o t i o n al and leg al difficulties seconda

ry to his arr est.” There is no detail of problems ha d by the defe ndant or treatment, so it is impossibl e to know the weig ht to give his c onclusion that th e de fe nd ant “ a

pp e ars to h a ve g oo d c on sc ie nc e de ve lop me nt a nd a pp ro pr iate g uilt.”

The de fenda

nt’s friends have pr ovided six letters on beha lf of the de fenda nt which ra ng es fr om what a fine, Christian, f amily man he ha s alway s been, to the g ood job he has done as a y outh counselor. (I must say that the y outh counselor por tions of the letter s have a

fewflag s waiving in my

head g iven the pre sent cha rg es).-4- Th e de fe nd ant’ s w or

k his tor y se e ms to h a ve be e n s te a dy thr ou g ho ut h is a du lt lif e . T he de fe nd ant a

pp e ars to h a ve no dis qu a lif yingc on vic tio ns

.
Th e fa c ts of thi s c a se are that the 33 y e ar o ld d e fe nd ant m e t th e 15 y e ar o ld intended victim wh i l e s h e wa s a patient at the dental clinic whe re he was a dental hy g ienist. He b eg an e- mailing he r in May of 2005, and be g an a longroad of attempted seduc tion making c omments about her having fun with an older ma n, differ ent sexual positi ons etc. until he finally was a ble to arr ang e a me et i n g on O c t o b e r 1 5 , 2 0 0 5 , i n a

l o w t r a f f i c ar e a f o r t h e p u r p o s e o f c o m m i t t i n g s e x u a l b a t t e r y, rape , or statutory

rape

. The potential damag e to society , in particul ar y o u ng g irls on whom the defe ndant bec omes focuse d, is imm ense.

Th is w a s n ot t

he “ on e tim e sl ip up ” sort of c a se or “ e ve ryon e make s a mis take ” so rt

of e ve nt t hat th e pr e tr ia l di ve rs ion

statut e is dir e c te d to wa

rd . T his is the ca se of a

predator slowly

setting his tra

p, waiting for months, exhibi ting c unning and patienc e for

his y oung quarr

y . Fo rt u n ately

in this case the police showed up ins te a d o f t

he int e nd e d v ic tim

.
Th e fa c tor s th a t he a

bu se d a po sit ion of tr us t, t hat th e vic timwa s p art ic ula rl y
vu lne ra ble be c a us e of a g e , or that the de fe nd ant’ s pla n wa s an e xten de d f

ive mon th scheme eac h individually would be suff icient to outweig h the cha

rac ter shown by

the defe ndant in reg ard to a

pretria l diversion considera tion, b u t i n this case a ll three combined make the dec ision to deny the obvious one.

The trial c ourt issued a memora ndum in support of its order that over ruled the district attorney g ener al’s denia l of pretr ial diversion, whi c h s ta te d : “ Co n s id e r in g

b o th a pplication and denia l and findingthat, though the prosec utor did consider a ll releva nt fac tors, substantial evidence does not support the denial, the Court dec ides that the prose cutor’s de cision should be reve rsed.”

Howeve r, the trial court found a n abuse of discretion with re spect to the e videntiary basis for the prosec utor’s dec ision. S pecif ically , the trial cour

t disag ree d with t h e we ight the pr osecutor place d on th e a g e o f th e v ic ti m b e c a u s e “ it is o n ly th e c ir c u ms ta n c e o f th e v ic ti m’ s mi n o r it y that

m ak es t h e d ef

en d an t ’s co n d

u ct cr i m i n al

. ” T h e t ri al co u rt al s o fo u n d t h at t h er e w as n o ten o u gh evidenc e to support the district attorne y g ener al’s conc lusions wit h re gar d to the defe ndant’s prepa ration for the offe nse.

The State a

rg ues that the re cord r efle cts that the di strict attorney g ener al prope rly weig hed the fa ctors both for a

nd ag ainst a g rant of pretrial diver sion. The district attorney g ener al deter

mined t h at t h e facts of the off

ense, that the defe ndant abuse d a position of trust, that the victim was

vu lne ra ble be c a us e of her ag e , a

nd that th e de fe nd ant’ s p lan w a s a fi ve -m on th, e xten de d s c he me wer e suff ici en t t o o u t weigh the f

actor s in favor of

g rantingdiversion. The State points to the-5-

decisions in Cur

ry and Car r to demonstrate that “ the circ umstances of the offense and the nee d for deter renc e may

alone justify

a denia l of d i v er s i o n , b u t only if all the re levant fa ctors have been considere d.” Cur

ry , 9 88 S.W. 2d

a t 15 8; se e als o Sta te v . Ca rr , 8 61 S.W. 2d 85 0, 85 5 ( Te nn . Cr im. App. 1993).

Her e, ther e we re no f

actua l disputes to be resolved by the trial cour

t. The issue wa s whether the district attorney g ener al abused his discretion when he denied the de fenda nt pretrial diver sion. The trial c ourt may

not simpl y

substitut e it s judgme nt for that of t he district attorne y g ener al. Car

r , 861 S.W .2d at 856. I f the re cord w ould support either a g rant or a

denial of pretrial diver sion, the trial co u rt m u s t d efe r to the prose cutor’s discr etionary decision. Id . Our supre me cour t has p reviously

stated re g ardinga discre tionary decision, in a diff

ere nt context, t hat if “the evidenc e would support either conclusion . . . it cannot be an abuse of discre tion to decide the c ase e ither way .” Id. (c i t i n g State v. Gre er , 568 S.W .2d 285, 286 (1978))

. Her e, the tria l court found that the district attorney

g ener al had co n s i d ere d all rele vant fa ctors but disag ree d with the conclusion that the fa ctors ag ainst diversion outweig hed the f actor s considere d in favor of diversion.

We conclude that the district attorney g ener al did not abuse his discre tion by denying pr etrial diversion. He considere d the re levant fa ctors in favor of diver sion, such as the de fenda nt’s lack of criminal convic tions and the positive le tters submitt ed on his behalf. The district attorney g ener al simply conclude d that the pos itives wer e outweighe d by the neg atives, which inc luded the leng th of time he attempted to seduc e the victim, the potential impact on the community , the vulnera bility of the vic timdu e to h e r a g e , a nd the de fe nd ant’ s a

bu se of a po sit ion of tr us t a s a n a uth or ity fi g ur e to the victim. We conclude that such a decision was within the district attorney g ener al’s discre tion. Acc ording ly , the judg ment of the trial c ourt order ing the district att o rn ey general to g rant pre trial diversion t o th e d e f

e n d an t i s r e v e r s e d , an d

th e c a s e is r e ma

n d e d to th e tr ia l c o u rt f

o r f u rth er proce eding s.

___________________________________ JOHN EVE RETT WILL IAMS, JUDGE