        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                              FILED
                          AT KNOXVILLE                       June 3, 1999

                                                           Cecil Crowson, Jr.
                     FEBRUARY SESS ION, 1999               Appellate C ourt
                                                               Clerk



STATE OF TENNESSEE,       )    C.C.A. NO. 03C01-9805-CR-00169
                          )
      Appellee,           )
                          )
                          )    HAMILTON COUNTY
VS.                       )
                          )    HON . STEP HEN M. BE VIL
DEDRA A. LANE,            )    JUDGE
                          )
      Appe llant.         )    (Direct Ap peal)




FOR THE APPELLANT:             FOR THE APPELLEE:

DON W . POOLE                  JOHN KNOX WALKUP
732 Cherry Street              Attorney General and Reporter
Chattanooga, TN 37402
                               ELLEN H. POLLACK
                               Assistant Attorney General
                               425 Fifth Avenu e North
                               Nashville, TN 37243-0493

                               BILL COX
                               District Attorney General

                               H. C. BRIGHT
                               Assistant District Attorney
                               Third F loor Ham ilton Cou nty-City
                                     Court’s Building
                               Chattanooga, TN 37402



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION

         On November 19, 1997, the Hamilton County Grand Jury indicted

Appellant Dedra A. Lane for aggravated assault and for unlawfully carrying a

weapon with intent to go armed.          O n January 12, 1998, Appellant filed an

application for pretrial diversion with the district attorney general. The district

attorney general denied the application. On April 1, 1998, Appellant filed a

petition for writ of certiorari in the Hamilton County Criminal Court, alleging that

the district attorney general had abused his discre tion when he denied her

petition. After a h earing on Ap ril 6, 199 8, the tria l court fo und th at the d istrict

attorney gene ral did not ab use h is discretion when he denied Appellant’s petition.

On April 23, 1998, Appellant filed a motion to appeal the interlocutory order. The

trial court initially denied the motion, but the trial court subsequently rescinded its

original order an d grante d perm ission to ap peal. O n June 18, 1998 , this Court

granted Appellant an interlocutory appeal pursuant to Tenn. R. App. P. 9.

Appellant challenges the denial of her petition for pretrial diversion, raising the

following issue: whethe r the trial court correctly found that the district attorney

general did not abuse his discretion when he denied Appellant’s petition for

pretrial diversion. After a review o f the record, we a ffirm the judgment of the trial

court.



                                        FACTS




         The record indicates that Appellant married James (Jim) M. Lane, Jr., on

August 14, 1996. O n May 20, 19 97, Appellan t gave birth to their son, Ethan

Lane. Appellant and Ethan Lane moved out of the home they shared with Mr.


                                           -2-
Lane on June 13, 1997.         On July 1, 1997, Mr. Lane asked to see Ethan.

Appellant took E than to Mr. La ne’s home on July 2, 1997, with the understanding

that Mr. La ne wou ld return E than on July 4, 199 7.



       On July 4, 1997, Mr. Lane called Appellant at her place of employment at

appro ximate ly 11:30 a.m. Appellant then called the police statio n and left a

message for Detective Chris Chambers.            Appellant then reported to her

supervisor that Mr. La ne was not going to return Ethan and she was going to try

to get Ethan bac k. The sup ervisor then offered to drive Appellant to M r. Lane ’s

home, but Appellant refused and told her supervisor that he did not need to get

involved in th e situation .



       Shortly thereafter, Appe llant stopped at a g as station to fill up her car.

Detective Chambers then paged Appellant and when Appellant called him back,

Cham bers told Appellant to meet him and some other officers at another location.

When Appe llant told Cham bers th at Mr. L ane w ould n ot give Ethan back,

Cham bers told Appellant that unless there was a court order, the police could not

take Ethan from M r. Lane . Appe llant did no t tell Cha mbe rs that E than w as in

dange r.



       Appellant then drove for approximately forty-five minutes to a location

where she met Officer Porter McKamey. McKamey then told Appellant that

because she and Mr. Lane were not divorced, the police could not take Ethan

from Mr. Lane if he did not wan t to give u p cus tody.      M cKam ey then told

Appellant that he wanted her to wait until another officer arrived. Appellant then

responded that she would go and get Eth an he rself be caus e “she could proba bly

                                        -3-
get more a ccom plished w ithout a ca r being the re at that pa rticular time .”

Appe llant did no t tell McKa mey tha t Ethan w as in dan ger.



        Appellant then left that location and traveled to Mr. Lane’s home. Appellant

subs eque ntly entered the home and pointed a .380 automatic handgun at M r.

Lane ’s head.    Appe llant then forced Mr. Lane to sit down and she began

screaming and yelling. At this time, E than Lane was upstairs w ith Mr. Lane’s

twelve-yea r-old son from a p revious m arriage, E ric Lane.



        After Office r McK ame y met O fficer Sh arkie Adams at the gas station, the

two officers traveled to Mr. Lane’s home. Upon arriving at the scene, McKamey

could see that App ellant was pointing a gun at M r. Lane’s h ead. When McKam ey

ordered Appellant to drop the gun, Appellant turned around and said “no” and

then turned and pointed the gun at Mr. Lane’s head again. McKamey considered

shooting Appella nt, but dec ided no t to because he would ha ve had to fire through

a glass d oor and the bullet p robably w ould ha ve been deflected .



        Shor tly thereafter, Detec tive Chambers entered Mr. Lane’s home and saw

that Appellant had cocked the gun and was pointing it at Mr. Lane’s head.

Cham bers then heard Appellant say “You’re going to sign this child over to me.

I’m not ‘F’ Lori Lane. You’re not going to mess with me . I’m [sic ] kill you.”

Cham bers then snuck up behind Appellant and tackled her and took the gun

away.



        According to Appellant’s version of events, she had suffered through a

difficult pregnancy and subsequent delivery and she had never receive d any h elp

                                         -4-
from Mr. Lane. Further, Mr. Lane had told her during the telephone call that she

would not get Ethan back unless she made a dea l with him about payment of

child support. Mr. Lane then stated that he was going to take Ethan on a “road

trip.” Appellant testified that she only p ointed the gun at Mr. Lane so that she

could get Ethan back and because she believed that Mr. Lane would kill Ethan

if she did not take action. Appellant also testified that although she did not

remember everything she said during the incident, she did not say that sh e wou ld

kill Mr. Lane. Appellant further testified that while she acknowledged that what

she had done was criminally wrong, she believed that what she had done was

morally rig ht.



       According to Mr. Lane’s version of events, he and Appellant had agreed

during the telephone call to meet at his home to discuss Ethan’s care. Mr. Lane

denied telling Appellant that he would take Ethan away so that she would never

see him again. Mr. Lane stated that he had been w orking for th e city for twen ty

years an d he wa s raising tw o boys, th us, he w ould no t go anyw here else .



       Mr. Lane te stified that wh en he let A ppellant in to his home, she cocked the

gun and held it to the back of his head. Appellant then made some “abu sive

remarks” that were “quite vulga r.” Appella nt then told Mr. Lane that she was

going to kill him and she would only receive an eighteen month sentence

because it would be her first offense. At that time, Appellant heard Eric Lane

make a noise a nd she stated tha t she wa s “not go ing to leave any witne sses.”



       Mr. Lane also testified that when Officer McKamey told Appellant to put the

gun down, she told Mr. Lane, “G et ready to meet your F’ing maker.” Mr. Lane

                                         -5-
stated that as a result of Appellant’s actions, he and Eric Lane had both lost a lot

of weigh t and Eric had to un dergo th erapy.



      According to Eric Lane, he was at Mr. Lane’s home when Appellant

entered the home with a gun. When Appe llant heard Eric walking up the stairs,

she made some “very violent” remarks.               Eric stated that Appellant also

threatened to kill Mr. Lane and said that she would only receive an eighteen

month sentence for doing so. Eric also stated th at as a result o f Appe llant’s

actions, he could not sleep at night, he ha d bee n una ble to m aintain a stab le

weight, an d he ha d been taking m edication .



      Numerous individuals either testified at the hearing or submitted

statem ents with the petition for pretrial diversion indicating that they believed that

Appellant was a good person and that her actions during the events in question

were inc onsisten t with her pre vious be havior.



      The district attorney general denied Appellant’s petition for pretrial

diversion based on the following reasons:

             5. The Defendant’s “social history” is generally good. The
      information about the Defendant’s past comes mainly from her filings with
      her diversion application and with the Court. It appears that she has no
      past criminal h istory; that she is emp loyed in a well-p aid, res pons ible
      position; and has no history of drug or alcohol abuse which has resulted
      in arrest. Her educational attainments and “contribu tions to society” are
      unremarkable. Seve ral peo ple including law enforce ment o fficers attest to
      her otherwise g ood chara cter.
             6. The D efend ant m arried on he r twent ieth birthday and was
      divorced less than two years later. She married the victim of this crime
      three years later, and bore a child nine months afterward. She committed
      this crime a few weeks after the birth.
             7. The Defendant claims no physical or psychological impairm ent.
      She has continued to function well both before and after the crime.



                                          -6-
         8. Information surrounding the circumstances of the crime comes
from the Defendant’s version as well as the reports of the victim and law
enforcement officers. These witnesses will be available for testimony at
the hearing in this matter. The undisputed facts are that the Defendant
and the victim had disagreements and had separated. No divorce or other
proceedings had begun. They shared child care duties. Following a
dispatch to the victim’s home, Sheriff’s deputies found the Defendant
holding the victim a t the point of a loaded pistol. The infant and the
victim’s child from a previous marriage were in the house. She refu sed to
drop or point a way th e gun , and w as eve ntually ta ckled by De tective
Chambers.
         9. The Defendant claims that she was telephoned earlier by the
victim and that he told h er that he would not relinquish the child. She
claims that she believed that the victim intended to harm the infant. She
told a co-worker about this, and the co-worker offered to assist. The
Defendant rejected this offer. She then, after the passage of time, called
deputie s and m et them at a market. She was told tha t the offic ers wo uld
deal with the situation. She refused this help, left, and went to the victim ’s
house.
         10. The victim, a se nior Firefighter, denies h aving refused to turn
over the ch ild. He says that he expected the Defendant to remove the
child, and that the child’s traveling bag was packed and waiting.
         11. Detective Chambers explains that there had been a previous
call to the Lanes’ house, and tha t he had explained to the Defendant the
help available to her in case of violence or danger. Chambers is a long
time acquaintance of the victim . Imm ediate ly before going to the vic tim’s
house, Cham bers told the D efenda nt to wait an d that h e wou ld com e help
with the problem. At that time, the Defendant referred to the gun she had.
         12. Witn esse s will testify that they believe the Defendant intended
to kill the victim, and that only Chambers’ physical intervention prevented
her.
         13. The State believes that the Defe ndan t’s pre-o ffense history is
not inconsistent with the idea of rehabilitation. She was an honest citizen
of good app arent charac ter. There appears at this time n othing to in dicate
that she will re-offend. However, there was nothing in tha t history to
indicate that she w ould offend the first time, either.
         14. The State believes that the Defendant’s actions even as she
explains them indicate that she is a poor candidate for rehabilitation and
that she must be specifically deterred and punished. This is a succ essfu l,
articulate person wh o is used to solving problems every day. The
Defen dant, already experienced with the process of divorce, rejected the
lawful path to deal with the situation she claims existed. Although she
claims that she w as con cerned for the infan t’s safety, she did not
imm ediate ly call for help. The Defendant repeatedly, over a period of
hours, actively rejected the assistance of a co-worker and the police. Even
after the officers arrived, she continued to menace and terrorize the victim.
Even if the Defendant’s claims are true, they provide neither defense nor
justification. S he con tinues to b lame th e victim for h er cond uct.
         15. There is no reason to believe that the Def enda nt’s vers ion is
accurate. Her actions are inconsistent with a parent fearing for her in fant’s
safety. They are more consistent with a woman who chose, after

                                  -7-
      deliberation and premeditation, to take a gun in hand to settle a score.
      The victim maintains that the Defendant’s story is a fabrica tion. At th is
      point, the State agrees.
               16. The Defendant trivializes and depreciates the harm she did—“
      . . . (she) cau sed no harm o r difficulty to Mr. L ane wh atsoeve r.” Mr. Lane
      and his son have suffered h arm as the y will testify.
               17. In add ition to s pecific deterr ence , the D efend ant’s a ctions call
      for general deterrence and diversion would depreciate the seriousness of
      the crimes. The Defendant’s conduct is the fruit of two crim es, the assa ult
      and the unlawful carrying of the pistol, which began some time previously.
               18. The Defendant’s conduct threatened harm to 7 [later amended
      to nine] p eople —the Defen dant, the v ictim, the thr ee [later am ended to
      five] officers, the victim’s son, and the infant child. Two of these were
      espe cially vulnerable due to age. Detective Chambers and the other
      Deputies chose not to shoot the Defendant, but increased their risk by
      exposing thems elves to he r fire. The S tate com mend s their restra int. That
      restraint continue d in the C ourts, wh en the D efenda nt was ch arged w ith
      these offenses rather than additional Felony Reckless Endangerments or
      Especially Agg ravated Kidna pping, a class A felony.
               19. Homicide is the most serious crime. This is a case in which the
      Defendant may well have killed if the Deputies had not intervened.
               20. Th is is a “dom estic” crim e. In recogn ition of the ha rm don e to
      our community by this sort of crime, the justice system and legislature have
      acknowledged our responsibility to treat these ca ses serio usly and to
      provide assistance to prev ent the m. Th ese e fforts ar e und er way in this
      Coun ty and a re suc ceed ing, in part du e to a p ublic perception that these
      crimes will be taken seriously. The Defendant should not be rewarded for
      rejecting assistance.
               21. On balance, the State believes that the factors against diversion
      far outweigh those in favor. The interests of justice demand that this case
      procee d to a dete rminatio n of guilt.


                                     ANALY SIS




      Appellant contends tha t the trial court erred when it found that the district

attorney gene ral did n ot abu se his d iscretion when he denied her petition for

pretrial diversion. We disagree.



      The decision to grant pre-trial diversion rests within the discretion of the

district attorney general. Tenn. Code Ann. § 40-15-1 05(b)(3) (Supp . 1998); State

v. Pinkham, 955 S.W.2d 956, 959 (T enn. 19 97); State v. Lutry, 938 S.W.2d 431,


                                          -8-
433 (Tenn. Crim. App. 1996). The district attorney general must consider the

following factors when making that determination:

         the circumstances of the offense; the criminal record, social history, and
         present cond ition of the defendant, including his mental and physical
         conditions where app ropriate; the deterrent effect of punishment upon
         other criminal activity; the defendant’s amenability to correction; the
         likelihood that pre-tria l diversio n will serve the ends of justice and the best
         interests of both the public and the de fenda nt; and the ap plican t’s attitude,
         behavior since arrest, prior record, home environment, current drug usage,
         emotional stability, past employm ent, general rep utation, marital stability,
         family resp onsibility, and attitude of law enforce ment.

State v. Morgan, 934 S.W.2d 77, 81 (Tenn. Crim. App. 1996). “If the district

attorney general denies pretrial diversion, that denial must be written and must

include both an enume ration of the evidence that was considered and a

discussion of the factors considered and weight accorded each.” Pinkham, 955

S.W.2d at 960.1



         If pretrial diversion is denied by the district attorney general, a defendant

may petition for a writ of certiorari to the trial court. Tenn. Code Ann. § 40-15-

105(b)(3) (Supp. 199 8). However, the decisio n of the district a ttorney gene ral “is

presu mptive ly correc t and s hall be revers ed on ly when the appellant establishes

that there has been a patent or gross abu se of prosecu torial discretion.” State

v. Houston, 900 S.W.2d 712, 714 (Tenn. Crim. App. 1995). “In order to establish

abuse of discretion, the record must show an absence of any substantial

evidence to support the district attorney[ general’s] refusal to grant pretrial

diversion .” Id. (citation and internal quotations omitted). “The trial court may only

consider evidenc e cons idered b y the distric t attorney general in the decision


         1
           The d istrict attorney g eneral is n ot required to include in th e record all the eviden ce relied u pon to
deny divers ion. Pinkham, 955 S.W.2d at 960. Instead, the district attorney general must identify the
factual basis and rationale for the decision to deny pretrial diversion and that information should be
sufficien tly detailed so tha t the defen dant ca n asce rtain the ex istence o f any factu al disputes . Id.



                                                       -9-
denying pre-trial diversion, and the trial court may not substitute its judgment for

that of the district attorney general when his decision is supported by the

evidenc e.” Lutry, 938 S.W.2d at 433 (citations omitted). For purposes of review,

the findings of the trial court are binding on this Court unless the evidence

prepon derates against s uch findin gs. Houston, 900 S.W .2d at 715 .



         Contrary to Appe llant’s asse rtions, the re cord indic ates that the district

attorney general evaluated each of the relevant factors in making the

determination to deny the requ est for pretrial diversion. Further, the record

indicates that the district attorne y gene ral’s conclusions are generally supported

by the evidence in the record.



         The district attorney general recognized that there were several factors that

would suppo rt a grant o f pretrial diversion.                          The district attorney general

recognized that Appellant had no previous criminal record, that her social history

was generally good, and that she had a g ood rep utation in th e com munity. The

district attorney general also recognized that Appellant had a good employment

history and she had no history of drug or alcohol abuse.2 However, the district

attorney general determ ined that these fac tors were outweighed by other factors

which indicated that pretrial diversion was not appropriate.



         The district attorne y genera l determ ined that th e circum stances of the

offenses indica ted tha t pretria l diversion was not appropriate.                                  The district

         2
         It is not clear what the district attorney general was referring to when he indicated that Appellant
had not c laim ed an y physic al or m enta l imp airm ent. In dee d, the reco rd ind icate s tha t App ellant did cla im
that she suffered through a difficult pregnancy and subsequent delivery shortly before the offenses at
issue here. However, we conclude that under the circumstances of this case, this factor does not affect
the ultimate determination of whether the district attorney general abused his discretion when he denied
the request for pretrial diversion.

                                                        -10-
attorney general noted that during the incident at Mr. Lane’s home, Appellant

endangered the lives of Mr. Lane, two minor children, and several police officers.

The district attorney general also relied on the fact that App ellant had refused to

put the gun down even when ordered to do so by police. The district attorney

general also relied on eviden ce wh ich ind icated that Ap pellan t would have killed

Mr. Lane if the police ha d not intervened. Indeed, J im and Eric Lan e both

testified that Appellant stated that she was going to kill Mr. L ane a nd sh e wou ld

only receive an eighteen month sentence for doing so. Chambers also testified

that he he ard Ap pellant tell M r. Lane th at she w as going to kill him.



       The district attorney general also based his decision to deny the request

for pretrial diversion on Ap pellant’s poor pote ntial for rehabilitation. First, the

district attorney general found that Appellant’s version of the events was a

fabrication.   The d istrict attorney general based that determination on the

Appellant’s acting in a way that was inconsistent with a belief that Eth an wa s in

danger. Indeed, the reco rd indicates that Ap pellant did not tell either Ch ambers

or McKamey that Ethan was in danger and that she refused to put the gun away

when the police officers arrived at Mr. Lane’s home. The district attorney general

also based his determination that Appellant had poor potential for rehabilitation

on the fact that Appellant had refused the help of law enforcement officers and

had decided to take matters into her own hands. In fact, Appellant testified that

she purposefully took th e gun with he r to Mr. Lane’s ho me for use in retrieving

Ethan. The district attorney general also determined that Appellant had poor

potential for rehab ilitation beca use sh e had fa iled to accept responsibility for her

actions. Indeed, Appellant testified at the hearing, “I unders tand that, criminally,

I did wro ng; bu t, as far a s my c hild still br eathin g, I did right, morally.” Further,

                                           -11-
after observing Appella nt’s demeanor and listening to her testimony, the trial

court found that Appellant had shown that she was not capable of handling anger

and sh e was like ly to becom e volatile ag ain in sim ilar situations .



        The district attorney general also based his decision to deny the request

for pretrial diversion on Appellant’s attitude. Specifically, the district attorney

general found that Appellant had continued to trivialize the harm she had done

while committing the offenses in this case. Indeed, Appellant testified that other

than scaring him, she did not harm Mr. Lane during the incident in question.

Appellant also placed the blame on the victim by testifying that the only reason

the incident happened was because of the actions of Mr. Lane. In addition, after

observing Appellant’s demea nor and listening to her testimony, the trial court

stated that Appellant was “very bitter,” “very vindictive,” “filled with anger,” and

“filled with resentmen t and hostility.”



        Finally, the district attorney general determined that justice would not be

served by granting pretrial diversion in this case. First, the district attorney

general determined that if pretrial d iversion was g ranted in this ca se, it wo uld

create the impression that crimes involving domestic violence are not treated

seriously. Second, the district attorney general determined that justice would not

be served by rewarding a defendant who was given information about how to use

lawful means to resolve a problem and then rejected those lawful means and

resorted to violence.3


        3
         The district attorney general also based his decision to deny the request for pretrial diversion on
the need for deterrence. While Appellant is correct that the record does not contain any evidence about
the need for general deterrence, we conclude that under the circumstances of this case, this factor does
not affect the ultimate determination of whether the district attorney general abused his discretion when he
denied the request for pretrial diversion.

                                                 -12-
        As previously stated, the district attorney general’s decision regarding the

grant or denial or pretrial diversion is presumed to be correct and that decision

will only be reversed when there has been “a patent or gross abuse of

prosecutorial discretion.”            Houston, 900 S.W .2d at 714 . The record indicates

that the district attorney general considered the relevant factors when making the

decision to deny the request for pretrial diversion. Further, the district attorney

gene ral’s reasoning is supported by evidence in the record.4                                Under these

circumstances, we con clude tha t the trial court p roperly de termined that the

district attorney general did not abuse his discretion when he denied the request

for pretrial diversion. Accordingly, the judgment of the trial court is AFFIRMED.



                                            ____________________________________
                                            JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
NORMA MCGEE OGLE, JUDGE


___________________________________
L. T. LAFFERTY, SENIOR JUDGE




        4
          Appellant relies on State v. Kirk, 868 S.W.2d 739 (Tenn. Crim. App. 1993), for the proposition
that the distric t attorney ge neral abu sed his d iscretion w hen he denied th e reque st for pretria l diversion.
Although this Court held in Kirk that the district attorney general in that case had abused his discretion
when he denied the request for pretrial diversion, this Court stated that the holding was based on the fact
that there was no evidence in the record that suppo rted the district attorney general’s conclusory
allegations . Id. at 742–43. As previously stated, that is not the case here.

                                                     -13-
