         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE         FILED
                        MARCH 1998 SESSION
                                                      April 7, 1998

                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
STATE OF TENNESSEE,                )
                                   )    NO. 01C01-9703-CC-00117
      Appellee,                    )
                                   )    RUTHERFORD COUNTY
VS.                                )
                                   )    HON. J. S. DANIEL,
MARK F. MAYBREY,                   )    JUDGE
                                   )
      Appellant.                   )    (Pretrial Diversion)



FOR THE APPELLANT:                      FOR THE APPELLEE:

R. STEVEN WALDRON                       JOHN KNOX WALKUP
TERRY A. FANN                           Attorney General and Reporter
Waldron and Fann
202 West Main Street                    DARYL J. BRAND
Murfreesboro, TN 37130-3581             Assistant Attorney General
                                        Cordell Hull Building, 2nd Floor
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        WILLIAM C. WHITESELL, JR.
                                        District Attorney General
                                        303 Rutherford Co. Judicial Bldg.
                                        Murfreesboro, TN 37130




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION



       The Rutherford County grand jury returned indictments charging the

defendant, Mark F. Maybrey, with three (3) counts of telephone harassment. The

defendant applied for pretrial diversion, which was denied by the District Attorney

General. Defendant filed a petition for writ of certiorari in the Rutherford County

Circuit Court, seeking to overturn the District Attorney’s denial of diversion. After a

hearing, the trial court found that the District Attorney had not abused his discretion.

Pursuant to Tenn. R. App. P. 9, defendant brings this interlocutory appeal, claiming

the trial court erred in finding that the District Attorney General had not abused his

discretion in denying diversion. We find no error; therefore, the judgment of the trial

court is AFFIRMED.



                                           I



       In September 1996, an officer with the Murfreesboro Police Department was

dispatched to Uncle Sandy’s Fireworks in response to a complaint that someone

was making harassing phone calls from a pay phone at that location. Defendant

was observed using a pay phone, and when the officer turned his spotlight on him,

defendant hung up the phone. At the same time, the officer was advised by the

dispatcher that the perpetrator hung up with the victim. Defendant was arrested and

subsequently indicted on two (2) counts of making harassing phone calls to Patty

Levy, and one (1) count of making harassing phone calls to Patsy McClure.

       At the time of the alleged offenses, defendant was a lieutenant with the

Smyrna Police Department. He was 33 years old, had never been married and had

no prior criminal history. He was six (6) classes short of attaining a degree from

Middle Tennessee State University and had a stable work history. During his

employment with the Smyrna Police Department, defendant received numerous

awards and letters of commendation.

       After he was arrested, defendant resigned from the police department and



                                           2
underwent psychological counseling on both an in-patient and out-patient basis.

Two psychologists submitted letters detailing their evaluations of defendant’s mental

health. Terry A. Casey, Ph.D., diagnosed defendant with paraphilia, specifically

“telephone scatologia.” Phillip G. Wright, Ph.D., found defendant to be suffering

from acute depression. Both noted defendant’s cooperation and willingness to

participate in treatment. Both gave defendant a good prognosis, subject to further

psychotherapeutic treatment. Neither gave any indication as to the length of time

required for further treatment.

       Attached to defendant’s application for pretrial diversion were letters written

by various friends, business associates and church officials extolling his good

character and positive attributes.

       In his letter denying pretrial diversion, District Attorney General William C.

Whitesell, Jr. listed eight (8) reasons to support his denial, including:

       (1) defendant should be held to a higher standard of conduct due to
       his status as a police officer;

       (2) defendant abused a public position of trust in that he used his
       position as a police officer to gain access to information regarding the
       victims;

       (3) the conduct was committed against several victims and occurred
       on numerous occasions over a period of years, thereby indicating a
       pattern of “continued abuse” and not merely an isolated incident;

       (4) as a police officer, defendant had access to resources to correct
       his psychological condition, but took no action until after he was
       arrested;

       (5) the charged conduct was aimed to gratify his desire for pleasure
       or excitement;

       (6) “defendant’s conduct was directed to at least one victim that was
       particularly vulnerable due to health circumstances that existed in her
       family and the defendant was aware of these circumstances”;

       (7) the offense was committed in such a way as to avoid detection;
       therefore, there exists a need to deter others inclined to commit this
       type of offense; and

       (8) the victims suffered psychological and emotional trauma.

General Whitesell concluded that these factors outweighed the factors in

defendant’s favor and denied pretrial diversion.

       The trial court found that the district attorney sufficiently weighed both the



                                          3
positive and negative factors for diversion. Therefore, the court found no abuse of

discretion in denying pretrial diversion. It is from this ruling that defendant brings

this appeal.



                                           II



       The Pretrial Diversion Act provides a means of avoiding the consequences

of a public prosecution for those who have the potential to be rehabilitated and

avoid future criminal charges. See Tenn. Code Ann. § 40-15-105. Pretrial diversion

is extraordinary relief for which the defendant bears the burden of proof. State v.

Baxter, 868 S.W.2d 679, 681 (Tenn. Crim. App. 1993); State v. Poplar, 612 S.W.2d

498, 501 (Tenn. Crim. App. 1980).

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

discretion of the district attorney general. Tenn. Code Ann. § 40-15-105(b)(3); see

also State v. Pinkham, 955 S.W.2d 956, 959 (Tenn. 1997); State v. Houston, 900

S.W.2d 712, 714 (Tenn. Crim. App. 1995); State v. Carr, 861 S.W.2d 850, 855

(Tenn. Crim. App. 1993). In making the determination, the district attorney general

must consider

       the defendant's amenability to correction. Any factors which tend to
       accurately reflect whether a particular defendant will or will not
       become a repeat offender should be considered . . . . Among the
       factors to be considered in addition to the circumstances of the
       offense are the defendant's criminal record, social history, the
       physical and mental condition of a defendant where appropriate, and
       the likelihood that pretrial diversion will serve the ends of justice and
       the best interest of both the public and the defendant.

State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983); see also State v.

Washington, 866 S.W.2d 950, 951 (Tenn. 1993); State v. Parker, 932 S.W.2d 945,

958 (Tenn. Crim. App. 1996).

       Deterrence, of both the defendant and others, is a factor the importance of

which varies according to the individual circumstances of each case. Hammersley,

650 S.W.2d at 354. The circumstances of the crime and the need for deterrence

may, in the appropriate case, outweigh the other relevant factors and justify a denial

of pretrial diversion. Carr, 861 S.W.2d at 855.

                                           4
       A prosecutor's decision to deny diversion is presumptively correct, and the

trial court should only reverse that decision when the defendant establishes a patent

or gross abuse of discretion. State v. Lutry, 938 S.W.2d 431, 434 (Tenn. Crim. App.

1996); Houston, 900 S.W.2d at 714. The record must be lacking in any substantial

evidence to support the district attorney general’s decision before an abuse of

discretion can be found. State v. Pinkham, 955 S.W.2d at 960; State v. Carr, 861

S.W.2d at 856. The hearing court must consider only the evidence made available

to and considered by the prosecutor. Poplar, 612 S.W.2d at 500. The trial court

may not substitute its judgment for that of the district attorney general when the

decision of the district attorney general is supported by the evidence. State v.

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

       Our review on appeal focuses on whether the trial court’s decision is

supported by a preponderance of the evidence. Pinkham, 955 S.W.2d at 960. The

underlying issue for determination on appeal is whether or not, as a matter of law,

the prosecutor abused his or her discretion in denying pretrial diversion. State v.

Brooks, 943 S.W.2d 411, 413 (Tenn. Crim. App. 1997).



                                           III



       Defendant principally contends that the district attorney did not consider his

amenability to correction, but rather focused on his status as a police officer at the

time the offenses were committed. He asserts that he promptly resigned from the

Smyrna Police Department and sought psychological counseling, thereby

evidencing his rehabilitation potential. Furthermore, he argues that the district

attorney relied upon deterrence as a reason for denying diversion; however, there

is no evidence of the specific need for deterrence in the record. Therefore, he

insists that he is a suitable candidate for pretrial diversion, and the district attorney

abused his discretion in denying diversion.

       When making his determination whether to approve pretrial diversion in this

case, the district attorney considered defendant’s lack of a prior criminal record and



                                           5
his exemplary work history.        He noted that defendant voluntarily sought

psychological treatment and was candid and cooperative in pursuing treatment. He

commended defendant’s positive attitude and behavior since his arrest. General

Whitesell also noted that defendant appeared to be motivated to correct his

behavior by pursuing psychological treatment.

       However, General Whitesell found, upon reviewing information provided by

the victims and law enforcement officers, the factors disfavoring diversion

outweighed those in favor of diversion. He was concerned with defendant’s position

as a law enforcement officer which defendant used to gain access to information

about the victims. The husband of one of the victims was confined to a wheelchair,

and defendant made some offensive comments to that victim concerning her

husband’s handicap. He was troubled that the conduct had occurred over a period

of years, which indicated that this was not merely an isolated incident. Compare

State v. Washington, 866 S.W.2d at 951 (allowing pretrial diversion where

defendant’s offenses were “apparently aberrant”). Notwithstanding defendant’s

“good” psychological prognosis, the district attorney found the psychologists’

diagnoses to be qualified and subject to further counseling. Furthermore, because

the crime was committed in such a way as to avoid detection and prosecution, the

district attorney found that the need for deterrence of others likely to commit such

a crime weighed against diversion. The need for deterrence and the circumstances

of the crime may outweigh the other relevant factors and justify a denial of pretrial

diversion. State v. Carr, 861 S.W.2d at 855.

       Moreover, in his application for pretrial diversion, defendant maintained that

the phone calls were not annoying or harassing, and instead suggested that the

victims were willing participants. Lack of candor and the failure to accept full

responsibility for the offense can reflect negatively on defendant’s rehabilitation

potential. See State v. Nease, 713 S.W.2d 90, 92 (Tenn. Crim. App. 1986).

       The trial court found that the district attorney had carefully considered all

factors, favorable and unfavorable. Although the district attorney focused upon the

need for deterrence and the circumstances of the crime, he also considered



                                         6
defendant’s positive factors, including his amenability to rehabilitation.         The

evidence does not preponderate against the trial court’s finding. Neither the trial

court nor this Court is at liberty to merely substitute its judgment for that of the

District Attorney General. State v. Watkins, 607 S.W.2d at 488. Under this Court’s

standard of review, we must conclude, as did the trial court, that the district attorney

did not abuse his discretion in denying pretrial diversion.



       The judgment of the trial court is affirmed.




                                                   JOE G. RILEY, JUDGE



CONCUR:




JOSEPH M. TIPTON, JUDGE




DAVID H. WELLES, JUDGE




                                           7
