        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                February 29, 2012 Session

  STATE OF TENNESSEE v. OSCAR E. OCHOA and BEATRIZ OCHOA

              Direct Appeal from the Criminal Court for Bradley County
                      No. M-10-053 & -054    Amy Reedy, Judge


                 No. E2011-01572-CCA-R9-CD - Filed October 2, 2012


Defendants, Oscar E. Ochoa and Beatriz Ochoa, were indicted by the Bradley County Grand
Jury for possession of between 10 and 70 pounds of marijuana with intent to sell.
Defendants filed applications for Rule 9 interlocutory appeal seeking our review of the trial
court’s ruling that the State did not abuse its discretion when the Assistant District Attorney
General denied Defendants’ applications for pretrial diversion. Defendants’ cases were
consolidated on appeal. After a thorough review of the record and relevant authorities, we
conclude that the trial court properly affirmed the State’s denial of pretrial diversion.
Accordingly, we affirm the judgment of the trial court.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which JERRY L. S MITH and
R OGER A. P AGE, JJ., joined.

Andrew M. Freiburg, Cleveland, Tennessee (on appeal), and G. Scott Kanavos, Cleveland,
Tennessee (at trial), for appellant, Oscar E. Ochoa. Matthew C. Rogers, Athens, Tennessee,
for the appellant, Beatriz Ochoa.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Robert Steven Bebb, District Attorney General; and Dallas Scott, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

Facts

       The underlying facts of the case, as summarized from the affidavit of the arresting
officer, are as follows. On the afternoon of November 2, 2009, Drug Task Force Agent Toby
Gregory was observing traffic on I-75 in Bradley County. He saw a white Mitsubishi with
Florida registration traveling north. He noticed that the driver of the vehicle “appeared to
be attempting to hide behind the B post in the vehicle” and that the driver’s arm appeared to
be straight and rigid and he appeared to be nervous. Agent Gregory followed the vehicle.
He observed the vehicle driving approximately one car length behind an 18-wheeler in the
right lane of traffic for approximately one mile. He watched as the vehicle attempted to pass
the 18-wheeler and approached another 18-wheeler, which the vehicle also followed at one-
car length behind. He also observed the vehicle fail to maintain its lane of travel, crossing
the solid yellow line.

       Agent Gregory activated his emergency lights and stopped the vehicle. He
approached the passenger side of the vehicle. The driver, Oscar Ochoa, provided him with
a Connecticut driver’s license and a rental agreement for the vehicle. Agent Gregory asked
Mr. Ochoa to exit the vehicle and walk to the rear of the vehicle, where Agent Gregory
explained the reasons for the stop. Mr. Ochoa apologized for the traffic violations. Agent
Gregory noticed that Mr. Ochoa appeared to be nervous and was speaking rapidly. Mr.
Ochoa explained that his wife, Beatriz Ochoa, the passenger, was sick. Mr. Ochoa explained
that they had been visiting friends in Miami, Florida. Agent Gregory approached the
passenger to check on her. Ms. Ochoa also stated that they had been in Miami, but that they
had stayed with her daughter.

       Another agent, Agent Smith, wrote a warning ticket while Agent Gregory asked Mr.
Ochoa if there were any guns, drugs, or large amounts of cash in the vehicle, which Mr.
Ochoa denied. Mr. Ochoa then gave Agent Gregory consent to search the vehicle. Inside
the trunk, Agent Gregory found approximately 90 pounds of marijuana packaged in one-
gallon zip lock bags placed inside vacuum sealed bags. The packages were coated in an all
spice type food seasoning in an attempt to hide the odor of the marijuana. Agent Gregory
advised Mr. Ochoa of his Miranda rights, and Mr. Ochoa denied any knowledge of the
marijuana.

       As stated in the State’s denial of Defendants’ applications for pretrial diversion,
further investigation revealed that Defendants had rented the vehicle in Florida after the car
they were driving broke down. Defendants had stayed in a hotel for two nights while
attempting to repair their car. When it appeared that repairs would not be immediately
possible, Defendants rented a car and continued on their trip.

      Mr. Ochoa’s application for pretrial diversion reflected that he was married to Ms.
Ochoa, but they were separated, and that he had no children. Mr. Ochoa attended college in
Columbia, South America, and he immigrated to the United States in 1999. He resided in



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Connecticut and had worked at various dental labs since 1999. Other than speeding
violations, Mr. Ochoa had no criminal history.

       Ms. Ochoa’s application for pretrial diversion reflected that she also attended college
in Columbia and immigrated to the United States in 2000. She had been unemployed since
November, 2008. She had two children, and she had no criminal history.

        The State separately denied each Defendant’s application for pretrial diversion;
however, the reasons set forth in the denial of each Defendant’s petition are much the same
and are as follows. Regarding the circumstances of the offense, the State found that
Defendants’ actions were not impulsive or isolated in nature. The State found that
Defendants had no prior criminal history disqualifying them from pretrial diversion;
however, the State noted that Defendants immigrated in 1999 and 2000, and therefore found
that this factor weighed neither for nor against them. The State found that Defendants did
not provide any information regarding their social history or present mental and physical
condition, and therefore, this factor weighed neither for nor against Defendants.

        The State found that the denial of pretrial diversion in this case would provide a strong
deterrent effect on future criminal activity, both for Defendants and for the surrounding
community. The State weighed this factor against granting pretrial diversion, in part because
of the State’s interest in protecting both society and Defendants from trafficking large
amounts of illegal drugs, and in part because of the sustained intent of Defendants to violate
the law. The State also found that the circumstances of the crime showed a sustained intent
to violate the law, and that Defendants’ amenability to correction was a factor that weighed
against them. The State found that pretrial diversion would not serve the ends of justice and
the interests of the public and Defendants. The State noted that Defendants’ actions were
calculated and showed a sustained intent to violate the law and that but for the actions of law
enforcement, almost 50 pounds of marijuana would have reached the streets. The State also
found that the public interest would not be served by granting pretrial diversion because it
would diminish the seriousness of trafficking illegal drugs, and Defendants would not be
served because they would believe that the crime was insignificant.

       The State found that Defendants’ attitudes and behavior since the arrest weighed in
favor of them because they have not had anymore legal trouble. Because Defendants were
separated, the State weighed this factor against them. The State gave no weight to
Defendants’ current drug usage, emotional stability, or general reputation because these
factors were unknown. Mr. Ochoa’s employment history was favorable to granting pretrial
diversion, but Ms. Ochoa’s was not because she had been unemployed. Mr. Ochoa’s family
responsibility weighed against him because he was responsible for only himself; and the



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State weighed this factor in favor of Ms. Ochoa because she had one child living in her
home.

       Finally, the State found that law enforcement was opposed to granting pretrial
diversion and weighed this factor heavily against Defendants. The State found as follows:

        After carefully considering and weighing all the above factors, the State has
        concluded that the interests of justice and the interests of the public far
        outweigh the interests of the Defendant[s]. The Defendant[s] knew that
        [their] conduct was illegal but continued in it until stopped by law
        enforcement. For the forgoing reasons, the State, having completely and
        fully considered the Defendant[s’] application[s] for Pretrial Diversion,
        hereby denies [their] applications pursuant to the laws of the State of
        Tennessee.

       Defendants filed a writ of certiorari with the trial court, and the trial court affirmed
the State’s decision, finding that the Assistant District Attorney did not abuse his discretion.
Defendants appeal the trial court’s ruling to this Court through an interlocutory appeal
pursuant to Tennessee Rules of Appellate Procedure, Rule 9. Defendants’ cases were
consolidated on appeal.

Analysis

       On appeal, Defendants argue that the State abused its discretion by failing to consider
and weigh all of the relevant factors and that the record does not support the State’s finding
that Defendants had a sustained intent to violate the law. The State counters that there is
substantial evidence in the record that supports the denial of both Defendants’ applications
for pretrial diversion and that the State properly considered every applicable factor, making
detailed findings to support its decision.

       The pretrial diversion statute permits a district attorney general to suspend prosecution
of a qualified defendant for a period of up to two years. See Tenn. Code Ann. § 40-15-
105(a)(1)(A) (2006). Before July 1, 2011, a defendant could seek pretrial diversion for an
offense that was not a Class A or Class B felony, certain Class C felonies, a sexual offense,
driving under the influence, or vehicular assault. See id. at 40-15-105(a)(1)(B)(iii) (2006 &
Supp. 2011). Effective July 1, 2011, subsection (a)(1)(B) of Tennessee Code Annotated
section 40-15-105 was amended to limit the availability of pretrial diversion to those in
which “the charged offense for which the prosecution is being suspended is not a felony” or
one of several other offenses specified therein. To qualify for pretrial diversion, the
defendant must not have a disqualifying conviction or have previously been granted pretrial

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diversion for another offense. See id. at 40-15-105(a)(1)(B)(i); see also State v. Bell, 69
S.W.3d 171, 176 (Tenn. 2002). The offenses in this case occurred prior to the new law
taking effect, and therefore, Defendants are statutorily eligible for pretrial diversion.

        Nonetheless, statutory eligibility for pretrial diversion does not entitle a defendant to
diversion. State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999). Rather, the State has the sole
discretion to determine whether to grant pretrial diversion to a defendant who meets the strict
statutory requirements. Tenn. Code Ann. § 40-15-105(b)(3); State v. Pinkham, 955 S.W.2d
956, 959 (Tenn. 1997). The State must focus on the defendant’s amenability to correction
and consider any factors which demonstrate the defendant’s propensity to become a repeat
offender. State v. Yancey, 69 S.W.3d 553, 557 (Tenn. 2002); State v. Hammersley, 650
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 history; (4) where appropriate,
the defendant’s physical and mental condition; (5) the likelihood pretrial diversion will serve
the ends of justice; and (6) the best interest of both the public and the defendant.
Hammersley, 650 S.W.2d at 355. The State may also consider the need for general
deterrence. State v. McKim, 215 S.W.3d 781, 787 (Tenn. 2007).

        If pretrial diversion is denied, the denial must be in writing, listing and discussing the
various factors considered and the weight attributed to each factor. Curry, 988 S.W.2d at
157. Failure to consider and articulate relevant factors will constitute an abuse of discretion.
State v. Bell, 69 S.W.3d 171, 178 (Tenn. 2002). Additionally, a district attorney general must
avoid relying upon irrelevant factors when denying diversion. Id.

        A defendant may appeal to the trial court for a writ of certiorari, if an application for
pretrial diversion is denied, to determine whether the prosecution abused its prosecutorial
discretion. Tenn. Code Ann. § 40-15-105(b)(3). In reviewing the prosecutor’s decision, the
trial court must view the decision of the prosecutor as “presumptively correct and it should
only be set aside on the basis of patent or gross abuse of prosecutorial discretion.” State v.
Watkins, 607 S.W.2d 486, 488 (Tenn. Crim. App. 1980). The discretion to grant or deny
pretrial diversion rests with the prosecution rather than the trial court. Bell, 69 S.W.3d at
179. The trial court must consider only the evidence considered by the prosecution and
conduct a hearing only to resolve factual disputes concerning the application. Curry, 988
S.W.2d at 157-58. The trial court may not reweigh the evidence or substitute its view for that
of the prosecutor. Bell, 69 S.W.3d at 179. Before the trial judge can find an abuse of
discretion, the record must show an absence of any substantial evidence to support the refusal
of the prosecution to enter into a memorandum of understanding. Watkins, 607 S.W.2d at
488.




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       If the trial court does not find an abuse of discretion and affirms the prosecutor’s
denial of the application for pretrial diversion, the defendant may then seek an interlocutory
appeal. Tenn. R. App. P. 9. On appeal, this Court must determine whether the trial court’s
decision is supported by a preponderance of the evidence. Curry, 988 S.W.2d at 158.

       Both Defendants argue that the State failed to consider Defendants’ amenability to
correction and that there is no proof of Defendants’ sustained intent to violate the law. A
defendant’s amenability to correction is the proper focus for a district attorney in granting
or denying pretrial diversion. See Curry, 988 S.W.2d at 157; Hammersley, 650 S.W.2d at
355. In our view, the State properly considered Defendants’ amenability to correction and
concluded that the circumstances of the offense indicate a sustained intent to violate the law.
Specifically, the circumstances of the offenses, as outlined in the State’s written denial, show
that Defendants were found in possession of a large quantity of drugs, packaged in such a
manner as to avoid detection and indicative of drug trafficking. The State contends that the
circumstances of the offense indicate that Defendants’ actions were “part of a sophisticated
and organized interstate drug smuggling operation.” We conclude that the facts and
inferences support the State’s conclusion that Defendants’ actions were not impulsive or
isolated. Because the State properly exercised its discretion as to this factor, Defendants are
not entitled to relief on this issue.

       Both Defendants contend that the State failed to properly consider their lack of
criminal records and favorable social histories. In the written denial, the State acknowledged
both Defendants’ lack of criminal history, but found that this factors weighed neither in favor
nor against Defendants because they both immigrated to the United States as adults. The
State could not assume that Defendants also had no criminal history in their home country.
Therefore, the State appropriately gave no weight to this factor.

        Mr. Ochoa asserts that the State failed to properly consider that he has had no legal
trouble since the incident and weigh that factor in his favor; however, this is incorrect. The
State’s denial clearly states that this factor weighed in favor of both Defendants. Mr. Ochoa
also asserts that the State failed to consider that he “is a college educated, tax paying member
of society with a strong reputation in the community as evidenced in his application for
pretrial diversion.” In fact, the State considered that Defendant had been steadily employed
and weighed that factor in his favor.

        Ms. Ochoa asserts that the State assigned no weight to her lack of drug use. She also
asserts that the State should have favorably weighed her emotional stability; however, she
acknowledges in her brief that there was no evidence regarding her emotional stability or
instability. Therefore, the State correctly assigned no weight to this factor because it was
unknown, as Ms. Ochoa did not include any evidence of it in her application for pretrial

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diversion. There was also no evidence of Ms. Ochoa’s drug use or lack thereof in her
application; therefore, the State assigned no weight, positive or negative, to that factor.

        Similarly, the State assigned no weight, positive or negative, to Mr. Ochoa’s “general
reputation,” finding that it was unknown. Mr. Ochoa asserts that the State failed to consider
his multiple letters of recommendation in support of his good reputation. In its brief, the
State notes that Mr. Ochoa did not include those reference letters in the record; however, we
observe that the State must have overlooked them because they are clearly contained in Mr.
Ochoa’s Rule 9 application as exhibits. Nevertheless, the State could not have considered
these letters in denying diversion because all of the letters were written after Mr. Ochoa’s
application was submitted and denied. The letters are dated in March, 2011; Mr. Ochoa’s
application for pretrial diversion was signed by him on May 27, 2010; and the State’s
response denying pretrial diversion was filed on September 20, 2010. It is not clear whether
the letters were presented to the trial court at the June 20, 2011 hearing. Regardless, the trial
court must consider only the evidence considered by the prosecution in determining whether
the State abused its discretion. The State did not abuse its discretion in finding that Mr.
Ochoa’s general reputation was unknown.

        Ms. Ochoa contends that the State failed to show any criminal actions specifically
attributable to her. However, we conclude that the evidence supports the inference that Ms.
Ochoa had knowledge of the crime. She was traveling across state lines with her husband,
from whom she was separated, in a rental car in which a large quantity of drugs were found.
As the State points out in its brief, it is a reasonable inference that Ms. Ochoa would have
learned of the contents of the trunk when the couple switched out vehicles and that she would
have continued in their journey without awaiting their vehicle’s repair in the interest of
making a scheduled delivery of the drugs. We conclude that the State did not abuse its
discretion in attributing criminal actions to Ms. Ochoa.

       Defendants contend that the State improperly weighed their marital status against
them. Marital stability and home environment are two of the factors set forth in State v.
Washington for consideration in determining whether to grant or deny pretrial diversion. 866
S.W.2d 950, 951 (Tenn. 1993). The State asserts that in this case, the circumstances of the
offense, that Defendants were traveling together while separated might have been an effort
by Defendants to cover their crime, “mak[ing] their trip look more like a benign and innocent
family vacation to the eyes of law enforcement, if stopped.” Regardless of whether we
believe that is a fair inference, Defendants have offered no evidence in support of their
marital stability. In fact, one of the many reference letters provided by Defendant was
written by a woman with whom he had been in a “personal relationship” since prior to the
date on which Mr. Ochoa submitted his application for pretrial diversion, which was on May
27, 2010, while Defendants were married but separated. On March 2, 2011, Sonia Taveras

                                               -7-
wrote, “Maybe my opinion of him can sound bias as for the past year I am in a personal
relationship with [Mr. Ochoa] . . . . He treats my children as if they were his own, and not
as if he were [sic] a step father.” Furthermore, although it is not specifically stated in the
State’s denial, we believe that the weight assigned to this factor was minimal. The written
denial lists factors 1 through 8 that were considered, and number seven includes eight
subheadings (“a” through “h”) for Defendants’ attitude and behavior since arrest; home
environment; current drug usage; emotional stability; past employment; general reputation;
marital stability; and family responsibility. The way in which the factors are categorized
suggests that the sub-factors do not carry as much weight as the factors individually
enumerated.

        Mr. Ochoa asserts that the State’s denial did not explain why unfavorable factors
outweighed favorable factors. We disagree. The State’s written denial addresses each of the
relevant factors and assigns weight either in favor of or against diversion, or gives a factor
no weight. The State clearly relied heavily upon the circumstances of the offense, the need
to create a deterrent effect and not diminish the seriousness of the offense, and the opposition
of law enforcement to pretrial diversion.

        Finally, Mr. Ochoa asserts that the statement by the State in its written denial that
“diversion is an extraordinary relief whose use must be used sparingly” is contrary to
legislative intent. This assertion is incorrect. This Court has long recognized that pretrial
diversion is “extraordinary relief, and prosecutors must scrutinize each applicant carefully.”
State v. Baxter, 868 S.W.2d 679, 681 (Tenn. Crim. App. 1993).

       Despite the numerous reference letters written on behalf of Mr. Ochoa; the lack of
criminal histories for both Defendants; Defendants’ attitude and behavior since the arrest;
and the stable employment history of Mr. Ochoa, all of which weighed in favor of pretrial
diversion, we conclude that the evidence supports the trial court’s decision to deny diversion.
Defendants are not entitled to relief.

                                       CONCLUSION

       On review, we conclude that the trial court’s determination that the Assistant District
Attorney General did not abuse his discretion when he denied the Defendants pretrial
diversion was supported by a preponderance of the evidence. For the reasons stated above,
we affirm the trial court’s judgment.

                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE



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