       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE             FILED
                     DECEMB ER SESSION, 1998       January 28, 1999

                                               Cecil Crowson, Jr.
                                                Appellate C ourt Clerk
STATE OF TENNESSEE,    )       C.C.A. NO. 03C01-9801-CC-00035
                       )
    Appellee,          )
                       )
                       )       SEVIER COUNTY
VS.                    )
                       )       HON. RICHARD R. VANCE
PATRICIA BOHNENSTIEHL, )       JUDGE
                       )
    Appe llant.        )       (Direct Appeal - Theft over $10,000)




FOR THE APPELLANT:             FOR THE APPELLEE:

DAVID W. WEBB                  JOHN KNOX WALKUP
1415 Middle Creek Road         Attorney General and Reporter
Sevierville, TN 37862
                               MICH AEL J . FAHE Y, II
                               Assistant Attorney General
                               425 Fifth Avenu e North
                               Nashville, TN 37243

                               AL SCHMUTZER, JR.
                               District Attorney General

                               CHUCK ATCHLEY
                               Assistant District Attorney
                               Sevier County Courthouse
                               Sevierville, TN 37862



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION

       On Octo ber 15 , 1997 , Appe llant Pa tricia Bohnenstiehl pleaded guilty to one

count of theft of pro perty worth more than $10,00 0. Appe llant’s agre emen t with

the State involved a suspended sentence of six years with supervised probation

and it allowed Appella nt to request judicial diversion. On November 18, 1997, the

trial court de nied Ap pellant’s re quest for judicial divers ion. Appellant challenges

that denial. After a review of the record, we affirm the judgm ent of the tria l court.



                                       FACTS




       Appellant was employed by Burchfield-Overbay & Associates in Sevier

County, Tennessee from December 1993 to March 1995. Appellant began

embezzling money from the company during the first month she was employed

and she continued until she resigned her position and took another job in Sevier

County. During her employment with Burchfield-Overbay, Appellant embezzled

a total of $22,347.89 by keeping a portion of cash deposits, forging at least one

check, and making false entries into the account books. Appellant claimed that

she took th e mo ney in o rder to pay off c redit card b ills and to support herself and

her three children.



                                     ANALY SIS




       Appellant contends that the trial court erred when it denied her request for

judicial diversion.   At the time of Appellant’s guilty plea, Tennessee Code

Anno tated sec tion 40-3 5-313 p rovided, in re levant pa rt:


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       If any person who has not previously been convicted of a felony or a Class
       A misdemeanor is found guilty or pleads guilty to . . . a Class C, D or E
       felony, the court may, without entering a judgment of guilty and with the
       consent of such person, defer further proceedings and place the person on
       probation upon such reasonable conditions as it may require, and for a
       period of time not less than the period of the maximum sentence . . . of the
       felony with w hich the p erson is c harged . . . .

Tenn. Code Ann . § 40-35-313 (a)(1)(A) (1997). 1                     The pr ocedu re unde r this

provision is comm only referre d to as jud icial diversion . It is subs tantially similar

to pretrial diversion; however, judicial diversio n follows a guilty plea and the

decision to grant diversion rests with the court, not the prosecutor. State v.

Anderson, 857 S.W .2d 571, 572 (Tenn. Crim . App. 1992 ).



       The trial cou rt’s denial of judicial diversion is subject to appellate reversal

only if that court abused its discretion. State v. Hammersley, 650 S.W.2d 352,

356 (Tenn. 198 3). When a defendant challenges the denial of judicial diversion,

we are con strained n ot to revisit the issue if the record contains any substantial

evidenc e supp orting the tria l court’s de cision. Id.



       This Court has stated that in determining whether to grant judicial

diversion, the trial court must consider

       (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 status of the accused’s physical and men tal health, (f) the
       deterrence value to the accused as well as others, and (g) whether
       diversion will serve the pu blic’s an d the a ccus ed’s in terests in the ends of
       justice.

State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993). Moreover, the

record must reflect tha t the court h as weig hed all of th e factors in reaching its

determination. Id. The c ourt m ust exp lain on the record why the defendant does



       1
           This sta tute has s ince bee n am ended . See Tenn. Code A nn. § 40-35-313 (Supp. 199 8).

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not qualify und er its analysis, and if the court has based its dete rmina tion on only

some of the facto rs, it must e xplain wh y these fa ctors outw eigh the o thers. Id.



      The record indicates that the trial court conside red and ba lanced the ab ove

factors when it denied Appellant’s request for judicial diversion. The trial cou rt

examined the pre-sentence report and noted that Appellant’s lack of a criminal

record was an important factor in its decision. The trial court also recognized that

Appellant had “skills, talents, [and] abilities.” In addition, the court noted that

Appellant had a “good background in her church, community, work activities,” and

with her children. In fact, the court considered Appellant’s family circumstances

in mak ing its decis ion to gran t probation rather tha n impo se incarc eration.



       Although the trial court recognized these favorable factors, the court

concluded that they were outweighed by concerns about the interest of the p ublic

and the nee d for dete rrence. The cou rt noted that Appellant had stolen $22,000

from an employer who had put her in a position of trust. Thus, other potential

employers had a clear interest in knowing that Appellant had been convicted of

this offense. In addition, the court was concerned that diversion would send a

message to the p ublic th at bein g con victed o f emb ezzle men t mere ly results in

having to repay the amount that was stolen. Thus, the deterrent effect on the

public was of great concern.



       W e conclude that the trial court’s de termina tion to deny judicial diversion

is supported by substantial evidence. Of particular importance is proof that

Appellant began embezzling money almost as soon as she was hired by

Burchfield-Overbay, that she e mbez zled m oney thro ughou t the fifteen m onth

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period of her employment, that she utilized different means of embezzling the

money, and tha t she falsified documents in order to keep her wrongdoing from

being detected . Under th ese circu mstan ces, we cannot say that the trial court

abuse d its discretio n when it denied A ppellant’s reques t for judicial dive rsion.



      Accordingly, the judgment of the trial court is AFFIRMED.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
JAMES CURWOOD WITT, JR., JUDGE




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