         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs May 4, 2004

               STATE OF TENNESSEE v. TONYA LYNN JOWERS

                     Appeal from the Circuit Court for Henderson County
                              No. 02-047   Donald Allen, Judge



                     No. W2003-01697-CCA-R9-CD - Filed June 4, 2004


The defendant, Tonya Lynn Jowers, appeals the Henderson County Circuit Court’s order upholding
the prosecutor’s denial of pretrial diversion for the charge of theft of property valued more than
$10,000 but less than $60,000, a Class C felony. She claims that the prosecutor abused his discretion
by failing to consider all the relevant factors. We affirm the trial court’s order denying pretrial
diversion.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES
CURWOOD WITT , JR., JJ., joined.

Carthel L. Smith, Jr., Lexington, Tennessee, for the appellant, Tonya Lynn Jowers.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James
G. Woodall, District Attorney General; and William R. Martin, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

        This case relates to the defendant’s stealing money from her employer, Hayes Small Engine,
Inc. (“Hayes”), in July and August 2002. The defendant requested pretrial diversion, and the trial
court ordered the Tennessee Board of Probation and Parole to conduct a background investigation
of the defendant. In a February 4, 2003 letter, the prosecutor denied the defendant’s application for
pretrial diversion based on the following reasons:

                      [1] I place no weight on the defendant’s age. Tonya is forty-
               one years of age and has sufficient experience in life to appreciate the
               wrongfulness of her conduct and conform her conduct to society’s
               expectations.
        [2] I place very slight weight in favor of diversion on Tonya’s
academic record. She is apparently enrolled in college but her past
history of dropping out together with the lack of specific information
as to actual course work, grades and other dates causes me to place
minimal weight on this factor.

       [3] I weigh Tonya’s employment history against diversion.
Tonya has a history of being terminated or resigning and the present
charge was committed against her employer.

        [4] I place significant weight on the fact that Tonya
committed a breach of confidence in committing this crime. Her
employer trusted her with certain financial obligations and she used
this trust to commit theft.

       [5] Tonya was on bond or other form of release when she
committed this crime. Tonya had two worthless check charges
pending in General Sessions Court when she committed this crime.
I weigh this factor heavily against diversion.

       [6] Tonya’s crime was not a crime of impulse but required
considerable effort of planning and took place over a period of several
months. I weigh this against diversion.

        [7] It is apparent from the record that Tonya used stolen
money to pay off two pending worthless checks. . . . The record
demonstrates that both checks were paid off during the time period
Tonya was stealing from her employer. I weigh [this] factor heavily
against diversion.

        [8] It is apparent that lesser means than full prosecution have
failed to correct Tonya’s criminal behavior. The General Sessions
Court passed two worthless checks in order for Tonya to pay off the
checks and court costs. . . . While this type of “informal diversion”
in no way disqualifies Tonya from seeking pretrial diversion, it does
demonstrate that . . . methods other than full criminal prosecution are
not likely to succeed in Tonya’s case and I weigh this against
diversion.

        Having therefore considered and weighed the foregoing, I
have concluded . . . that it would not be in the best interests of society
to allow her to participate in pretrial diversion.



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         In response to the prosecutor’s denying diversion, the defendant sent the prosecutor a letter,
proof of enrollment at Union University, and a transcript showing her coursework and grades. In
the letter, the defendant claimed that she had only one worthless check charge pending against her
at the time of the crime in question and that the charge had been dismissed because she had paid the
check. The defendant also noted that the crime in question occurred over a two-month period, not
over several months as the prosecutor had stated in his February 4 letter. In a written response, the
prosecutor stated that he had considered the defendant’s new information but that he still believed
pretrial diversion should be denied. Specifically, he stated that the defendant’s education weighed
against her request for pretrial diversion because she had used special skills learned through her
business and accounting courses to commit the crime.

         In response to the prosecutor’s second denial, the defendant sent him ten letters written by
her counselor, high school teacher, and friends in support of her receiving pretrial diversion. The
prosecutor denied diversion for a third time, stating that the letters had not addressed the defendant’s
legal troubles and had not realistically assessed her true character. The defendant petitioned the trial
court for a writ of certiorari to review the prosecutor’s denial of pretrial diversion and submitted a
copy of the record upon which the prosecutor based his denial, including the Board of Probation and
Parole’s pretrial diversion report; the defendant’s written statement, victim impact statements, the
defendant’s academic records from Union University, and the letters written on her behalf.

        According to the defendant’s diversion report, the defendant graduated from high school in
1979 and attended Vanderbilt University for a couple of years before dropping out. In the report,
the defendant stated that she enrolled in Union University in 1998 to study accounting but dropped
out after only one semester. She then re-enrolled in the fall of 2001 and was still enrolled at the time
of the report in December 2002. The defendant stated in the report that she used alcohol
occasionally, did not use illegal drugs, and took prescribed medicine for depression. The report
shows that before going to work for Hayes, the defendant worked as a bookkeeper for Miller CPA
and as a general office manager for Jackson Hewitt Tax Service. According to the report, both
employers fired the defendant for her poor job performance. The report also shows that the
defendant worked in the real estate business and as a florist. According to the report, the defendant
was charged in December 2001 with violating the bad check law but the charge was dismissed in
July 2002 when she paid $922.68 to Wal-Mart. The report shows that in June 2002, the defendant
again was charged with violating the bad check law and that the second charge was dismissed in
October 2002 when she paid Heritage Auctions $1,592.90. The report reveals that the defendant
paid $9,000 to the circuit court for restitution in the present case.

        In the defendant’s typed statement, she stated that she took full responsibility for her actions
but that she took the money from Hayes in order to alleviate a financial crisis in her family. She said
that she “viewed the funds as an unapproved loan,” that she planned to use the money for her
family’s business, and that she had intended to replace the stolen money. She admitted to filling out
inaccurate deposit slips and keeping an inaccurate account balance in Hayes’ checkbook but said that
she kept an accurate tally of how much money she needed to return to the company. She said that



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she felt tremendous shame and guilt for what she had done and that she had not intended to hurt
Hayes.

        The trial court determined that the prosecutor did not abuse his discretion by denying the
defendant’s request for pretrial diversion. The trial court noted that the prosecutor considered the
circumstances of the offense and the defendant’s criminal record, social history, age, and educational
and employment background. The trial court also noted that the prosecutor considered and gave
great weight to the fact that the defendant had committed the crime after she paid the two bad
checks, indicating to the prosecutor that the defendant lacked an amenability for rehabilitation and
that granting diversion would not deter her from criminal activity. The trial court noted that the
prosecutor also had considered the letters written in support of her receiving pretrial diversion and
had determined that diversion would not serve the ends of justice or be in the best interests of the
defendant and the public. The trial court concluded that substantial evidence in the record supported
the prosecutor’s denial of pretrial diversion.

        In order to be eligible for pretrial diversion, a defendant must not have been previously
granted diversion; must not have a prior misdemeanor conviction in which the defendant served a
sentence of confinement or a prior felony conviction within a five-year period after completing the
sentence or probationary period for the prior conviction; and must not be seeking diversion for a
Class A or B felony, a sexual offense, driving under the influence, or vehicular assault. T.C.A. §
40-15-105(a)(1)(B)(i)(a)-(c). The decision to grant or deny an application for pretrial diversion is
within the discretion of the prosecuting attorney. T.C.A § 40-15-105; State v. Curry, 988 S.W.2d
153, 157 (Tenn. 1999). In making this determination, the 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 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.”

Curry, 988 S.W.2d at 157 (quoting State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983)). The
prosecutor’s response must be in writing, must list the evidence considered, and must point out any
factual discrepancies between the evidence upon which the prosecutor relied and that presented in
the defendant’s application. Curry, 988 S.W.2d at 157. The response must discuss the factors
considered by the prosecutor and the weight given to each factor. Id. The fact that a defendant has
the burden of showing suitability for diversion does not relieve the prosecutor from the obligation
to examine all of the relevant factors and to set forth the required findings. Id.



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         The decision of the prosecutor to grant or deny pretrial diversion is presumptively correct and
will not be set aside absent an abuse of discretion. Id. at 158; Hammersley, 650 S.W.2d at 356. In
reviewing the prosecutor’s denial of pretrial diversion, the trial court may consider only that evidence
considered by the prosecutor. Curry, 988 S.W.2d at 158. In order to find an abuse of discretion, the
trial court must conclude that the record lacks substantial evidence supporting the prosecutor’s
determination. Id. 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. Yancey, 69 S.W.3d 553, 559 (Tenn. 2002). “On appeal, the appellate court is
bound by factual findings made by the trial court unless the evidence preponderates against them.”
State v. Bell, 69 S.W.3d 171, 177 (Tenn. 2002) (citing Curry, 988 S.W.2d at 158). If the facts are
undisputed, the underlying issue for determination on appeal remains whether or not, as a matter of
law, the prosecutor abused his or her discretion in denying pretrial diversion. State v. Carr, 861
S.W.2d 850, 856 (Tenn. Crim. App. 1993). Moreover, “upon review of a denial or grant of pretrial
diversion, the Court of Criminal Appeals is limited to considering only the evidence that was
considered by the district attorney general.” Yancey, 69 S.W.3d at 559-60.

        The defendant contends that the prosecutor abused his discretion by denying her application
for pretrial diversion because he failed to consider all of the relevant factors. Specifically, she argues
that the prosecutor failed to consider her amenability to correction, that pretrial diversion would
serve the ends of justice, and that pretrial diversion was in her and the public’s best interests. She
also contends that the prosecutor improperly gave little weight to her academic status and
disregarded the fact that she is planning to graduate from Union University and has a 3.25 grade
point average. She also claims that nothing in the record supports the prosecutor’s concluding that
she used her education in accounting to commit the crime, that she used any elaborate scheme or
considerable planning to steal from Hayes, or that she used the money from Hayes to pay off her bad
checks to Wal-Mart and Heritage Auctions. Moreover, she points out that the crime was committed
over a two-month period, not over several months as the prosecutor stated in his original denial.
Finally, she contends that the letters submitted on her behalf, the payment of restitution, and her
accepting responsibility for the crime support granting her request for pretrial diversion. The state
claims that substantial evidence supports the prosecutor’s denying pretrial diversion. We agree with
the state.

        In the prosecutor’s initial denial of pretrial diversion, he concluded that her academic record
was entitled to slight weight. After the defendant gave the prosecutor her academic records, he
stated that her education weighed against diversion because she had used it to commit the crime.
The defendant disputes this, claiming that nothing in the record supports his conclusion. She also
disputes the prosecutor’s concluding that she used an elaborate scheme and considerable planning
to commit the crime and that she committed the crime over several months. However, in the
defendant’s written statement, she described the crime as follows:

                Yes, deposit slips and the checking balance in the checkbook were
                inaccurate, but when making entries into the daily sales records, I


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               posted the accurate cash amounts so that I could compare them to my
               deposits in order to ascertain how much money needed to be returned.

Financial records submitted by Hayes support the defendant’s claim that she committed the theft
during July and August 2002. However, using the method she described, the defendant was able to
steal over $10,000 during that brief period of time. Also, records reveal that she began stealing from
the business after having worked there only one month and stopped taking money only when the
company’s owner discovered the theft.

        Regarding the defendant’s prior criminal history, the prosecutor determined that the two bad
check charges also supported denying her request for pretrial diversion. The pretrial diversion report
shows that the defendant wrote a bad check to Wal-Mart on December 15, 2001, and that she wrote
a second bad check to Heritage Auctions on June 29, 2002. On July 30, 2002, while she was
working for Hayes, the defendant paid Wal-Mart $922.68 for the first bad check. Despite her claim
to the contrary, the prosecutor made a logical assumption that the defendant used money she took
from Hayes to pay off the Wal-Mart debt. Moreover, despite having just resolved the bad check
charge at Wal-Mart, the defendant continued stealing from Hayes.

        Although the defendant claims that the prosecutor failed to consider her amenability to
correction, the prosecutor’s statements in his first letter of denial demonstrate that he believed that
the defendant’s stealing from Hayes while having two bad check charges pending against her
demonstrated that she lacked an amenability to rehabilitation. We agree. Finally, the defendant
argues that the prosecutor failed to consider that the likelihood of pretrial diversion would serve the
ends of justice and that pretrial diversion was in the best interests of her and the public. However,
in the prosecutor’s second letter denying diversion, he stated that diversion would not meet the
interests of society in this case. In light of the record, we conclude that the prosecutor and the trial
court were justified in denying the defendant’s request for pretrial diversion.

       Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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