          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE             FILED
                        MARCH 1998 SESSION            July 16, 1998

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk

STATE OF TENNESSEE,         )
                            ) C.C.A. No. 03C01-9706-CR-00227
      Appellant,            )
                            ) Sevier County
V.                          )
                            ) Honorable Ben W. Hooper, II, Judge
                            )
DEWEY L. CLARK,             ) (Rule 9)
                            )
      Appellee.             )




FOR THE APPELLEE:              FOR THE APPELLANT:

Jeff D. Rader                  John Knox Walkup
Ogle, Wynn & Rader             Attorney General & Reporter
Attorneys at Law
103 E. Bruce Street            Timothy F. Behan
P.O. Box 5365                  Assistant Attorney General
Sevierville, TN 37864          Criminal Justice Division
                               Cordell Hull Building, 2nd Floor
James H. Ripley                425 Fifth Avenue North
Sharp & Ripley                 Nashville, TN 37243-0493
Attorneys at Law
P.O. Box 4630                  Alfred C. Schmutzer, Jr.
Sevierville, TN 37864          District Attorney General

                               Charles E. Atchley, Jr.
                               Assistant District Attorney General
                               125 Court Avenue, Room 301 E
                               Sevierville, TN 37862




OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge




                           OPINION
       The Sevier County Grand Jury indicted the appellee, Dewey L. Clark, on

four counts of illegally dispensing controlled substances while employed as a

pharmacist and one count of theft of property (controlled substances) over $500.

The state denied Clark’s application for pretrial diversion. He filed a petition for

certiorari in the trial court challenging the state’s decision. The trial court found

that the prosecutor had abused his discretion in denying diversion. This Court

granted the state’s application for an interlocutory appeal pursuant to Rule 9 of

the Tennessee Rules of Appellate Procedure. The issue is whether the trial

court’s decision is supported by a preponderance of the evidence. We affirm.



       Clark filed a request with the district attorney general to suspend

prosecution and to be placed on diversion pursuant to Tennessee Code

Annotated § 40-15-105 (Supp. 1994). This statute provides that certain qualified

offenders may enter into a memorandum of understanding with the state to

suspend prosecution for a period of time during which a defendant must comply

with the terms of the agreement. Upon the successful completion of the

program, all pending charges must be dismissed. In enacting the statute, the

legislature thought that society would be better off if certain offenders were

placed on diversion as opposed to imprisonment. State v. Herron, 767 S.W.2d

151, 156 (Tenn. 1989).



       The parties stipulated to the facts. The appellee was forty-three years old

when he applied for diversion. He has no prior criminal record. He graduated

from Hiwassee College in 1972 and the University of Tennessee School of

Pharmacy in 1975. Before the present allegations, he had worked for Revco as

a pharmacist since 1975. He has been married for twenty-four years and has

two teenage children.



       The appellee submitted evidence in support of his application for pretrial

diversion. Clark has lived in East Tennessee all of his life, as did his parents. In


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1991, the appellee suffered a back injury while duck hunting. The appellee’s

physician, Dr. Alan Whiton, stated in a letter that the appellee’s back condition

was a painful condition that required prescription pain medication. The appellee

had continuous problems with his back until he underwent surgery to fuse his

spine in 1995. Clark is a devoted and loving husband and father. He is an

active member in his church. Many members of the community, including

persons in the medical and pharmaceutical profession, wrote letters on Clark’s

behalf. The letters establish that he has been a respected member of his

community.



       The prosecutor is vested with the discretion to evaluate and decide which

applications for pretrial diversion should be granted. Id.; See State v. Carr, 861

S.W.2d 850, 855 (Tenn. Crim. App. 1993). The following factors should be

considered in determining whether diversion is appropriate: (1) the

circumstances of the offense; (2) the criminal record, social history and present

condition of the defendant, including his mental and physical conditions where

appropriate; (3) the deterrent effect of punishment upon other criminal activity;

(4) defendant's amenability to correction; (5) the likelihood that pretrial diversion

will serve the ends of justice and the best interests of both the public and

defendant; and (6) the applicant's attitude, behavior since arrest, prior record,

home environment, current drug usage, emotional stability, past employment,

general reputation, marital stability, family responsibility and attitude of law

enforcement. State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993) (citing

State v. Markham, 755 S.W.2d 850, 852-53 (Tenn. Crim. App. 1988)).



       In his written denial of diversion, the prosecutor states that he has

“reviewed the materials sent and considered all of the factors.” He states that

the denial is based on the nature of the offense, an abuse of a position of trust,

deterrence, and the appellee’s failure to answer certain questions on the

application for diversion. The prosecutor stated that Clark’s activity was an

ongoing criminal enterprise and not merely aberrant behavior. He said that


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1,150 pills were seized when a search warrant was executed at the Clark

residence; that the appellee was caught on videotape taking controlled

substances from Revco; that an inventory of the bay in which the appellee

worked showed a shortage of 11,907 pills; and that the state had a witness who

had purchased illegal drugs from the appellee. The prosecutor’s second basis

was that as a professional pharmacist, Clark abused his position of trust with

Revco and the community. The prosecutor’s third basis was that the illegal sale

of controlled substances is an escalating problem in Sevier County, and the need

for general and specific deterrence is great. Finally, the prosecutor said that

Clark’s failure to respond to two questions on the state’s application for diversion

reflected adversely on his attitude. The questions were whether Clark was under

the influence of drugs or alcohol when the offense(s) occurred and a request for

a recitation of the facts of the offense(s) from his standpoint.



       Clark filed a writ of certiorari with the trial court. The court may overturn a

denial of an application for diversion upon a finding of an abuse of discretion.

Tenn. Code Ann. § 40-15-105(b)(3). The trial court must defer to the

prosecutor’s discretion when the record contains any substantial evidence to

support the prosecutor’s decision. Carr, 861 S.W.2d at 856.



       The record before the court was the appellee’s application for pretrial

diversion, the state’s response denying diversion, and the appellee’s petition for

certiorari. Although the appellee disputes the facts relied upon by the state, no

evidentiary hearing was held to resolve the disputes. See State v. Pinkham, 955

S.W.2d 956 (Tenn. 1997). The court heard arguments of counsel and took the

matter under advisement. In its very thoughtful and thorough order, the court

found that the prosecutor failed to consider the appellee’s amenability to

correction and factors that favored granting diversion. The prosecutor also failed

to explain why the factors favoring diversion were outweighed by those factors

relied upon to deny diversion. The court found that the state abused its

discretion and that there was no substantial evidence to support the denial of


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diversion. The court found that there are no adverse circumstances relative to

the appellee’s history, attitude, behavior since arrest, home environment, current

drug use, current alcohol use, emotional stability, employment history, general

reputation in the community, marital stability, family responsibility, or attitude

toward law enforcement. The court found the that appellee’s background and

character were “absolutely exemplary” and “especially compelling.”



       The court found that the prosecutor had failed to articulate facts or details

to support general or specific deterrence as a basis for denying diversion. The

court found that the appellee’s failure to answer the questions on the state’s form

for pretrial diversion did not reflect adversely on the appellee’s suitability for

diversion. The court said that the appellee was not required to admit guilt to

apply for or receive diversion. See State v. King, 640 S.W.2d 30 (Tenn. Crim.

App. 1982). The court did not address the state’s position that the appellee

violated a position of trust. The court said that, in this case, the offenses and the

facts surrounding the offenses were insufficient, standing alone, to deny pretrial

diversion.



       On appeal, the state argues that the evidence in the record preponderates

against the trial court’s finding of an abuse of discretion. The state concedes

that it denied pretrial diversion mainly on the “overwhelming nature and

circumstances of the offense.” The state argues that the circumstances alone

may be the sole basis for denying diversion. The state further argues that

amenability to correction only comes into play if the circumstances of the offense

are not overwhelming. The appellee argues that the trial court correctly held that

the prosecutor abused his discretion because (1) he did not articulate the factors

and particularize the reasons upon which his denial was based and (2) because

the prosecutor failed to consider evidence which tends to show that the appellee

is amenable to correction and not likely to commit further acts.




                                          -5-
         On appeal, we review the record to determine whether the trial court’s

decision is supported by a preponderance of the evidence.1 State v. Pinkham,

955 S.W.2d 956, 960 (Tenn. 1997). First, the prosecutor should have stated in

his written denial all factors that he considered in denying diversion. “If the

district attorney denies pretrial diversion, the denial must include both an

enumeration of the evidence that was considered and a discussion of the factors

considered and weight accorded to each.” Id. at 960. Although this may seem

unnecessary and time consuming to the prosecutor, it is necessary for trial court

and appellate review. In this case, the prosecutor was allowed to address the

court. However, the record still does not establish that the prosecutor

considered the factors favoring amenability to rehabilitation. At the hearing, the

prosecutor said that there was no need to discuss the factors which were not the

basis of the denial in his letter to the appellee. Indeed on appeal, the state

argues that the prosecutor does not have to consider such factors if the nature of

the offense is particularly significant or flagrant. We disagree. While the nature

of the offense alone can support a denial of diversion in certain cases, the

prosecutor must consider all relevant factors in making his or her decision to

grant or deny diversion. Id. at 959-60; Carr, 861 S.W.2d at 855. Amenability to

correction is definitely an important and relevant factor. See Carr, 861 S.W.2d at

855. Therefore, the evidence does not preponderate against the trial court’s

finding of an abuse of discretion based on the failure to consider the appropriate

factors.



         The evidence supports the trial court’s finding that there is no evidence of

a need for general or specific deterrence. The prosecutor offers no specific fact

or detail to support his conclusion that the illegal sale of controlled substances is

an escalating problem in Sevier County. We agree that the appellee’s failure to

“tell his side of the story” and admit whether or not he was on drugs at the time of



         1
          In State v. Carr, 861 S.W.2d 850, 856 (Tenn. Crim. App. 1993), the Court stated that the
presumption of correctness applies to the trial court’s f actual findings; and , that when the record calls
for no factual findings, then the issue on appeal is whether, as a matter of law, the prosecutor abused
his discretion in denying diversion. There were no factual findings in either Pinkham or Carr so there
seems to be a conflict in the appropriate standard of review in such cases.

                                                    -6-
the offense, as requested by the state, is not indicative of a failure to cooperate.

Both questions can be read to ask for admissions of guilt. Refusing to answer

these types of questions should not reflect poorly on the appellee’s attitude or

amenability to correction especially when he was instructed by his attorney not to

answer. The trial court did not address the abuse of a position of trust. “‘The

determination of the existence of a position of trust does not depend on the

length or formality of the relationship, but upon the nature of the relationship.

Thus, the court should look to see whether the offender formally or informally

stood in a relationship to the victim that promoted confidence, reliability, or faith.

If the evidence supports that finding, then the court must determine whether the

position occupied was abused by the commission of the offense.‘” State v.

Leggs, 955 S.W.2d 845, 849 (Tenn. Crim. App. 1997) (quoting State v.

Kissinger, 922 S.W.2d 482, 488 (Tenn.1996)). This factor is not applicable to

the appellant’s position as a pharmacist on the facts of this case. Finally, the

evidence does not preponderate against the trial court’s finding that the nature

of the offense alone is insufficient in this case to support a denial of diversion.



       The state notes that during oral argument, the court said that the evidence

could support either a denial or a grant of diversion. When the evidence will

support either a grant or denial, then the prosecutor has not abused his or her

discretion. Carr, 861 S.W.2d at 855. However, the court took the matter under

advisement and wrote a thorough explanation of the law and findings of fact.

We believe that the trial court’s order controls.



       The judgment of the trial court is affirmed.




                                                _______________________
                                                PAUL G. SUMMERS, Judge


CONCUR:

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_______________________________
JOHN H. PEAY, Judge




_______________________________
CORNELIA A. CLARK, Special Judge




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