           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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
T HOMAS T. W OODALL, 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,1 and from which Sorah had regularly been selling marijuana. The
search uncovered, among other things: a total of 11.2 pounds of marijuana located


       1
           This individual’s last name is spelled “Sora” in the trial transcript, but “Sorah” in the indictment.
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 that she 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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