         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs May 23, 2001

                 STATE OF TENNESSEE v. DAVID K. BROWNE

                Direct Appeal from the Criminal Court for Sullivan County
              No. S40,813  Phyllis H. Miller, Judge and R. Jerry Beck, Judge



                                 No. E2000-01933-CCA-R3-CD
                                        March 11, 2002

        The Defendant, David Kirk Browne, was indicted on one count of public indecency. The
Defendant sought pretrial diversion, which was denied by the State. Following several continuances,
the trial court conducted a hearing on the Defendant’s petition for writ of certiorari. At the
Defendant’s request, the trial judge recused herself from the case. The case was transferred to Judge
Jerry Beck. Judge Beck found that the Assistant District Attorney did not abuse his discretion in
denying pretrial diversion. The Defendant now appeals, alleging numerous defects in the
proceedings which culminated in his conviction. After a review of the evidence, we affirm the
judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
THOMAS T. WOODALL , J., joined.

Leslie Hale, Blountville, Tennessee; Richard Tate, Blountville, Tennessee; attorneys at trial for the
appellant, David K. Browne. Pro Se on appeal.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Peter M. Coughlan, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General;
Barry Staubus, Assistant District Attorney General; for the appellee, State of Tennessee.

                                            OPINION

       The Defendant, David Kirk Browne, was indicted on January 14, 1998 for one count of
“unlawfully and knowingly appear[ing] in a state of nudity and engag[ing] in masturbation in a
public place, in violation of Tennessee Code Annotated, Section 39-13-511" on or about July 17,
1997. The Defendant sought pretrial diversion, which was denied by the State. Following several
continuances, the trial court conducted a hearing on the Defendant’s petition for writ of certiorari.
At the Defendant’s request, the trial judge recused herself from the case. The case was transferred
to Judge Jerry Beck. Judge Beck found that the Assistant District Attorney did not abuse his
discretion in denying pretrial diversion. The Defendant was convicted of public indecency, and the
trial court ordered that he pay a $500.00 fine, with all but $25.00 to be remitted based on the
Defendant’s indigence. The Defendant now appeals, alleging numerous defects in the proceedings
which culminated in his conviction.

                                               FACTS

        Detective David Quillen of the Kingsport Police Department testified that late in the evening
on July 16, 1997, he was working in an area known as Riverfront Park and observed the Defendant
standing on a platform known as “the overlook." According to Quillen, the Defendant walked up
to him, “stood there for just a few minutes looking around and looking at [Quillen]. And then he
walked off the platform, down the steps, made a left, and walked underneath the platform.” Quillen
then observed the Defendant “walk from underneath the platform. His pants were down about to his
knees. He had his penis out in his hand, and he was masturbating.” Quillen testified that the
Defendant was approximately five feet away from him and that with the nearby streetlights, he could
see the Defendant clearly.

        Quillen testified the Defendant stood in front of him for “probably 30 seconds or so” and then
stepped back underneath the platform. Quillen then walked off of the platform and looked
underneath it, where he saw the Defendant continue to masturbate. Quillen testified that he
“illuminated the area” with his flashlight and identified himself. At that point, the Defendant “pulled
his pants back up,” and they walked to Quillen’s car. Quillen testified that he was sure that the
Defendant was not urinating because “he had an erection, and he was moving his hand up and down
on his penis.” On cross-examination, Quillen testified that he could not remember anything
distinguishing about the Defendant’s anatomy.

        The Defendant maintained that he was not masturbating when Defective Quillen found him.
The Defendant stated that at the time of the offense, he had “a physical injury that would prevent
[him] from doing the things that [Detective Quillen] alleged.” According to the Defendant, he had
a “blood blister on his penis” from doing yard work earlier that day. The Defendant testified that
his lawnmower “jammed into [him].” The Defendant admitted that other people were in the park
on the night of the offense and that the area was well lit. The Defendant also admitted that he was
in violation of the park’s curfew. The Defendant presented no other evidence to support his
contention that he was not masturbating in the park.

        The trial court noted that it is undisputed that the Defendant was in the park after hours. The
court also noted that the Defendant testified that other people were in the park during those hours.
The court stated that because some of the Defendant’s explanation was “totally unreasonable,” he
credited the testimony of Detective Quillen over that of the Defendant. Thus, the trial court found
the Defendant guilty of public indecency and ordered that he pay a $500.00 fine, with all but $25.00
to be remitted based on the Defendant’s indigence.



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                                                    ANALYSIS

         On appeal, the Defendant alleges a myriad of defects in the proceedings of this case.
However, we find no basis for relief on any of the Defendant's complaints. Although inartfully
phrased, the Defendant’s brief appears to allege the following: (1) that the trial court erred in finding
that the District Attorney did not abuse his discretion in denying pretrial diversion, (2) that the trial
court erred by failing to dismiss the indictment based on numerous court appearances, (3) that the
trial court erred by failing to dismiss the indictment because of counsel's ineffectiveness during the
proceedings, (4) that the trial court erred in failing to dismiss the indictment based on selective
prosecution, and (5) that the trial judge erred in not recusing himself from the case. The Defendant
also lists several other "miscellaneous" reasons for his appeal.

         Based on the facts and procedural history of the case, we assume that the Defendant argues
that the trial court erred in denying him pretrial diversion. Pretrial diversion allows the district
attorney general to suspend prosecution for a period of up to two years against a defendant who
meets certain statutory requirements. See Tenn. Code Ann. § 40-15-105(a)(1)(A). In order to
qualify for pretrial diversion, the defendant must not have previously been granted diversion under
this statute; must not have a prior misdemeanor conviction for which a sentence of confinement was
served or a prior felony conviction within a five-year period after completing the sentence or
probationary period for such prior conviction; and must not be seeking diversion for a Class A or
B felony, a sexual offense,1 driving under the influence, or vehicular assault. Id. § 40-15-
105(a)(1)(B)(i)(a)-(c). Such eligibility does not presumptively entitle a defendant to pretrial
diversion, but rather places such a decision within the discretion of the district attorney so long as
the defendant is statutorily qualified. State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999).

        It is the defendant's duty to demonstrate suitability for pretrial diversion. State v. Herron,
767 S.W.2d 151, 156 (Tenn. 1989); State v. Winsett, 882 S.W.2d 806, 809-10 (Tenn. Crim. App.
1993). However, this requirement does not relieve the prosecutor of his or her duty to consider and
articulate all the relevant factors. Curry, 988 S.W.2d at 157. The district attorney is required to
consider all relevant factors when determining whether or not to grant pretrial diversion. State v.
Carr, 861 S.W.2d 850, 855 (Tenn. Crim. App. 1993). The Tennessee Supreme Court has outlined
the criteria that should be considered by the prosecutor in granting or denying pretrial diversion:
        When deciding whether to enter into a memorandum of understanding under the
        pretrial diversion statute a prosecutor should focus on 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. Such
        factors must, of course, be clearly articulable and stated in the record in order that
        meaningful appellate review may be had. Among the factors to be considered in


         1
           Statutory rape is not included as a “sexual offense” for which a defendant wo uld be disqualified from seeking
pre-trial dive rsion. See Tenn. Co de An n. § 40-15-1 05(a)(1)(B)(ii)(a)-(h).

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        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 Curry, 988 S.W.2d at 157.

        Where pretrial diversion is denied by the district attorney, the factors and evidence
considered in making the decision must be clearly set forth in writing along with the weight accorded
to each factor. Pinkham, 955 S.W.2d at 960; Winsett, 882 S.W.2d at 806. The district attorney
general must do more than abstractly state that he or she has considered each of the factors. Herron,
767 S.W.2d at 156. Rather, the factors must be "clearly articulable and stated in the record."
Hammersley, 650 S.W.2d at 355. Failure to consider and articulate all of the relevant factors
constitutes an abuse of discretion. See Curry, 988 S.W.2d at 157-58.

        A defendant who has been denied pretrial diversion by the district attorney has the right to
petition for a writ of certiorari to the trial court for an abuse of prosecutorial discretion. Tenn. Code
Ann. § 40-15-105(b)(3). Although presumptively correct, a trial court may overrule a district
attorney's denial of pretrial diversion where there has been an abuse of discretion. However, the trial
judge cannot simply substitute his or her own judgment for that of the district attorney. State v.
Watkins, 607 S.W.2d 486, 488 (Tenn. Crim. App 1980). To show prosecutorial abuse of discretion,
the record must lack any substantial evidence to support the denial of pretrial diversion. Curry, 988
S.W.2d at 158.

         The legislature has vested the authority to prosecute a case or divert it with the prosecutor
rather than the court. See Tenn. Code Ann. § 40-15-105; State v. Carr, 861 S.W.2d 850, 858 (Tenn.
Crim. App. 1993). The trial court “must not re-weigh the evidence, but must consider whether the
district attorney general has weighed and considered all of the relevant factors and whether there is
substantial evidence in the record to support the district attorney general’s reasons for denying
diversion.” State v. Jerry W. Yancey, Jr., No. M1999-02131-SC-R11-CD, 2002 Tenn. LEXIS 45,
at *14-15 (Tenn., Nashville, Feb. 7, 2002). On appeal, this Court is “bound by the factual findings
made by the trial court unless the evidence preponderates against them.” State v. Johnnie Bell, Jr.,
No. E1999-01819-SC-S09-CD, 2002 Tenn. LEXIS 28, at *13 (Tenn., Knoxville, Jan. 28, 2002). An
appellate court should apply the preponderance of the evidence standard of review of the trial court’s
decision regarding a prosecutor’s abuse of discretion. Curry, 988 S.W.2d at 158. “When the facts
are undisputed, the underlying issue that this [C]ourt must determine on appeal remains whether, as
a matter of law, the prosecutor abused his or her discretion in denying pretrial diversion.” State v.
Carriger, No. E2000-00823-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 966, at * 13 (Tenn. Crim.
App., Knoxville, Dec. 20, 2000).

        In the letter denying pretrial diversion, the prosecution noted that it “reviewed the entire
Pretrial Diversion Report prepared by the Tennessee Department of Probation and information and
statements provided by Officer David Quillen." Among the factors that the prosecution considered
were the circumstances of the offense, the Defendant’s social history, physical and mental condition,

                                                  -4-
and the best interest of both the public and the Defendant. The prosecution clearly articulated the
following reasons for denying the Defendant pretrial diversion: (1) that the Defendant “has not been
truthful and candid regarding the information he provided for the preparation of the Pretrial
Diversion Report,” (2) that the Defendant “has not provided a credible explanation of his criminal
activity,” (3) that the Defendant “has a poor employment history,” and (4) “[t]o deter other
individuals from committing similar crimes in a public area frequented by adults and children.”

        The prosecutor also noted certain factors weighing in the Defendant's favor. The prosecutor
acknowledged that the Defendant had no prior record, that he had attended college, and that there
was no reported use of illegal drugs. However, the prosecutor ultimately denied the Defendant
pretrial diversion. Because the prosecutor clearly articulated the relevant factors that were
considered, we conclude that there was no abuse of discretion. Therefore, the trial court properly
ruled that the prosecutor's decision to deny pretrial diversion was not an abuse of prosecutorial
discretion.

        Regarding the remaining issues, the Defendant has failed to cite any authority in support of
his arguments; thus the issues are waived. Tenn. Crim. App. R. 10(b); Tenn. R. App. P. 27(a)(7).
However, notwithstanding the waiver, we have thoroughly reviewed the record and conclude that
the Defendant has no legal basis for relief.

        After a full consideration of the record, the briefs, and the applicable law, we conclude that
the judgment of the trial court should be affirmed.



                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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