             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE                   FILED
                             FEBRUARY 1997 SESSION
                                                               October 21, 1997

                                                              Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk
STATE OF TENNESSEE,              )
                                 )
             Appellee,           )    No. 03C01-9511-CC-00344
                                 )
                                 )    Sullivan County
v.                               )
                                 )    Honorable R. Jerry Beck, Judge
                                 )
RANDY SCOTT MORRELL,             )    (Denial of Pretrial Diversion)
                                 )
             Appellant.          )


For the Appellant:                    For the Appellee:

Stephen M. Wallace                    Charles W. Burson
District Public Defender              Attorney General of Tennessee
   and                                       and
Terry Jordan                          Darian B. Taylor
Assistant Public Defender             Assistant Attorney General of Tennessee
P. O. Box 839                         450 James Robertson Parkway
Blountville, TN 37617-0839            Nashville, TN 37243-0493

                                      H. Greeley Wells, Jr.
                                      District Attorney General
                                              and
                                      Gene Perrin
                                      Nancy S. Harr
                                      Assistant District AttorneysGeneral
                                      P.O. Box 526
                                      Blountville, TN 37617-025




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The defendant, Randy Scott Morrell, is before us in an extraordinary

appeal, T.R.A.P. 10, from the order of the Sullivan County Criminal Court affirming the

prosecuting attorney’s denial of his application for pretrial diversion. The sole issue for

our review is whether the trial court erred by affirming the denial.



              The defendant was indicted on one count of statutory rape, a Class E

felony, and two counts of contributing to the unruly behavior of a minor, a Class A

misdemeanor. The defendant requested pretrial diversion, and pursuant to a stipulation

of the parties, the trial court ordered the Department of Correction to conduct a

background investigation on the defendant. In a letter dated January 19, 1995, the

prosecuting attorney denied the defendant’s application for pretrial diversion for the

following reasons:

              1. The defendant is charged under T.C.A. 39-13-506. As of
              January 1, 1995 this statute is one of those enumerated in
              T.C.A. 40-39-102, “Definitions” (Sex Offender Registration and
              Monitoring Act) as constituting a sex offense requiring
              registration under the act. It would be against the public policy
              of the statute to grant pretrial diversion and thus evade the
              registration requirement of that statute.

              2. The two victims of these offenses were troubled youths in
              State custody. This factor is not an element of any charge
              against the defendant. The defendant took advantage of this
              particular vulnerability.

              3. The defendant has expressed no regret regarding the
              incident, nor any acknowledgment of a realization that his
              actions were improper. On the contrary, the defendant
              indicated to Detective Russell that he knew his actions were
              wrong but did it anyway. This indicates no inclination toward
              rehabilitation.

              4. The defendant is charged with a total of three charges,
              involving two victims. Further, the defendant is approximately
              ten years older than the victims far in excess of the statutory
              requirement of four years.




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                 The defendant petitioned the trial court for a writ of certiorari to review the

denial of pretrial diversion. The state submitted a copy of the record it relied upon to

deny pretrial diversion to the court. The record included the investigative report that

was prepared by the Department of Correction, a statement the defendant gave police,

a victim impact statement,1 two Tennessee Bureau of Investigation missing child

reports, the indictment, and an affidavit of complaint. No further evidence was

presented at the certiorari hearing.



                 In the statement he gave police, the twenty-four-year-old defendant

admitted that the victim called him after she and a friend had run away from the Sullivan

County Youth Center. The defendant said that he knew the girls were runaways and

that he tried to convince the victim to return to the youth center. He admitted that he

drove the girls to Kingsport where he dropped one of them off. He said that he and the

victim eventually went to a barn where they had sexual intercourse. He admitted that

he penetrated her digitally and performed oral sex on her later that day. The sexual

conduct was consensual, and the defendant admitted that he knew the victim was

fourteen at the time.



                 In the victim impact statement, the victim stated that the defendant hurt

her mentally. She accused the defendant of playing with her mind and said that he

convinced her to run away and to have sex with him.



                 According to the investigative report, the defendant dropped out of school

in the eleventh grade to work to help support his family. He is in good health mentally

and physically and does not drink alcohol or use illegal drugs. He has no prior criminal



                 1
                   The trial court granted a petition to rehear in this case because it concluded that it erred
by consid ering the vic tim im pact sta teme nt when it denied the defend ant’s petition fo r writ of certior ari.
However, consideration of the victim impact statement was proper in so far as the statement was
conside red by the p rosecu tor and re flects the c ircum stance s of the o ffense . See State v. Carr, 861
S.W .2d 850, 855 (Tenn. Crim . App. 1993).

                                                        3
record and is presently employed doing farm labor. The report states that the

defendant told a detective that he knew what he did was wrong but that he did it

anyway.



              The trial court held that there was no abuse of discretion in the prosecutor

declining to grant the defendant pretrial diversion because the circumstances of the

offense sufficiently support the denial of pretrial diversion. The court stated that the

girls were evidently troubled and that the defendant knew that the girls had run away

from state custody at the time of the offenses. In reaching its decision, though, the

court rejected the prosecutor’s claim that the defendant should not receive diversion

because he was charged with an offense requiring registration under the Sex Offender

Registration and Monitoring Act. The court also concluded that based on the record

before it, the factor about the defendant’s lack of remorse was not entitled to much

weight.



              The decision to grant or deny an application for pretrial diversion is in the

discretion of the prosecuting attorney. T.C.A. § 40-15-105; State v. Hammersley, 650

S.W.2d 352, 353 (Tenn. 1983); Carr, 861 S.W.2d at 855. On a petition for certiorari,

the hearing conducted by the trial court is limited to two issues:

              (1) whether the accused is eligible for diversion; and

              (2) whether there was an abuse of discretion by the
              prosecuting attorney in refusing to divert the accused.

State v. Watkins, 607 S.W.2d 486, 488 (Tenn. Crim. App. 1980).



              In making the initial determination, the prosecuting attorney must consider

(1) the circumstances of the offense, (2) the accused’s criminal record, (3) the

accused’s social history, (4) the accused’s physical and mental condition, (5) the

deterrent effect of punishment upon other criminal activity, (6) the accused’s

amenability to correction, (7) the likelihood that pretrial diversion will serve the ends of


                                              4
justice and the best interests of the accused and the public, (8) the accused’s attitude,

behavior since arrest, home environment, current drug usage, emotional stability, past

employment, general reputation, family stability and attitude of law enforcement. State

v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993). Thus, the nature and

circumstances of the alleged offenses are not the only appropriate factors to be

considered upon application for diversion, but they may provide a sufficient basis for

denial. Carr, 861 S.W.2d at 855; State v. Sutton, 668 S.W.2d 678, 680 (Tenn. Crim.

App. 1984).



              The decision of a prosecuting attorney to grant or deny pretrial diversion is

presumptively correct and it will not be set aside absent a “patent or gross abuse of

prosecutorial discretion.” Hammersley, 650 S.W.2d at 356 (quoting Pace v. State, 566

S.W.2d 861, 870 (Tenn. 1978) (Henry, C.J., concurring)). Thus, on appeal, the record

must be void of any substantial evidence in support of the decision before this court

may find an abuse of discretion by the prosecuting attorney. Hammersley, 650 S.W.2d

at 356; Carr, 861 S.W.2d at 856.



              The defendant contends that the prosecutor abused her discretion by

denying his request for pretrial diversion because she failed to state in the letter of

denial that she considered evidence showing that the defendant is amenable to

correction. The defendant argues that his lack of a criminal record and his admissions

of his acts indicate that he is not likely to offend again. He correctly points out that the

denial letter does not specify that any of his favorable traits were considered. Instead,

the letter summarily states, “In making this decision we have considered all of the

factors set forth by the Tennessee Supreme Court in [State v. Herron, 767 S.W.2d 151

(Tenn. 1989)] and subsequent cases.”




                                              5
              We agree with the defendant that the summary statement is an

inadequate explanation on the record of the prosecutor’s consideration of all the

relevant factors. However, we also note that the defendant had the initial burden of

submitting information in support of his request for diversion.

              The burden is on the [defendant], in the first instance, to
              provide the prosecuting attorney with sufficient background
              information and data to enable that officer to make a reasoned
              decision to grant or deny the relief sought. Of course this
              information may be supplemented by the pretrial investigation
              authorized by T.C.A. § 40-15-104, but the investigation does
              not lessen the obligation of an applicant to endeavor to show
              beforehand he is an appropriate subject for diversion.

Herron, 767 S.W.2d at 156; see also State v. Baxter, 868 S.W.2d 679 (Tenn Crim. App.

1993). The record before us does not contain the defendant’s request for pretrial

diversion and does not reflect that the defendant submitted any evidence in support of

his request. Thus, we could question the sufficiency of the record to support the

defendant’s entitlement to diversion regardless of the prosecutor’s level of compliance.



              In any event, the record the prosecuting attorney considered in denying

the defendant’s request for pretrial diversion contains the defendant’s statement

admitting his actions and the investigative report that shows that the defendant has no

criminal record. The trial court considered these facts but concluded that sufficient

evidence in the record supported the prosecuting attorney’s decision to deny pretrial

diversion. We agree with the trial court’s conclusion.



              The record before us demonstrates that the defendant knew that the

fourteen-year-old victim had run away from state custody at the time of the offense.

Although the defendant claimed in his statement that he tried to convince the victim to

return to the youth center, the victim stated that the defendant played with her mind and

convinced her to run away. The defendant is ten years older than the victim and

penetrated the victim three different ways. Based upon the circumstances of this case,




                                             6
we conclude that the prosecutor did not abuse his discretion by denying the defendant’s

request for pretrial diversion.



              The trial court’s judgment is affirmed.


                                                 ______________________________
                                                 Joseph M. Tipton, Judge



CONCUR:




Jerry L. Smith, Judge




Thomas T. Woodall, Judge




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