          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                             Assigned on Briefs February 3, 2009

                 STATE OF TENNESSEE v. HALBERT B. DODD, II

                      Direct Appeal from the Circuit Court for Gibson County
                                  No. 17758 Jerry Scott, Judge



                      No. W2008-01484-CCA-R9-CD - Filed August 17, 2009


The defendant, Halbert B. Dodd, II, was indicted on two counts of reckless endangerment with a

deadly weapon and two counts of aggravated assault. The defendant applied for pretrial diversion

and the prosecutor denied the defendant’s application. The trial court granted the defendant’s writ

of certiorari and determined that the prosecutor had not abused his discretion in denying pretrial

diversion. The defendant’s motion for an interlocutory appeal was granted. On appeal, the

defendant asserts that the trial court erred in finding that the prosecutor had not abused his discretion

in denying pretrial diversion and that the prosecutor’s abuse of discretion was evidenced by his: (1)

characterization of the defendant’s past behavior as a “history of criminal behavior”; (2) failure to

consider evidence which tended to show that the defendant was amenable to correction; (3) reliance

on the defendant’s failure to admit guilt; and (4) failure to consider all factors favorable to diversion.

Following our review of the parties’ briefs, the record, and the applicable law, we affirm the order

of the trial court.


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

J.C. MCLIN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and CAMILLE
R. MCMULLEN , JJ., joined.
Bruce Conley, Union City, Tennessee, for the appellant, Halbert B. Dodd, II.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;
Garry G. Brown, District Attorney General; and Matthew Hooper, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

                                        BACKGROUND

       The defendant, Halbert B. Dodd, II, was indicted on two counts of reckless endangerment

with a deadly weapon and two counts of aggravated assault. The defendant submitted an application

for pretrial diversion to the prosecutor and supplemented his application with three affidavits in

support of diversion. The affidavits provided statements of individuals attesting to the defendant’s

service to the community as a physician, his participation in a medical missionary trip, his service

as a member of the Union City School Board, and his cooperation with law enforcement officers in

his role as the Obion County Medical Examiner.



       A pretrial diversion investigation was conducted by the board of probation and parole.

According to the report generated during the investigation, on February 13, 2007, Loretta Atkins and

her daughter were traveling on Highway 5 when a truck, flashing its lights, approached her vehicle

from behind. The truck passed Ms. Atkins’s vehicle, pulled in front of her, and slowed down. Ms.

Atkins pulled over to determine what the driver of the truck wanted. The driver of the truck exited

his vehicle and pointed a gun towards her vehicle. Ms. Atkins immediately called 911 and reported

the incident. Union City Police later stopped the defendant and found he was in possession of a Colt

.45 handgun.



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       According to a statement given by the defendant regarding the events of February 13, 2007,

he was driving on Highway 5 when he noticed that the interior dashboard lights of his truck were

malfunctioning. The defendant pulled to the side of the road to check his dashboard lights and

another vehicle pulled off of the road behind him. When the defendant walked to the rear of his

truck, the other vehicle drove back onto the highway and headed north. The defendant returned to

his vehicle and drove to Union City. The defendant denied that he pointed a gun at the other vehicle

and claimed, “I am sixty-one years old and have owned guns all of my adult life, I have never

pointed a gun at anyone.” (I, 14).



       The investigation report indicated that the defendant was unemployed and last worked in

sales at an automobile dealership in Jackson, Tennessee. The report also included a history of the

defendant’s medical career. According to the report, in 1973, the defendant was licensed to practice

medicine in Tennessee. In 1999, the Board of Medical Examiners reviewed complaints lodged

against the defendant and issued findings of fact after a hearing. According to the board’s findings,

on May 5, 1998, the defendant threatened a patient with a gun. On the day following the incident,

hospital administrators suspended the defendant’s hospital privileges. Action by the medical board

included the suspension of the defendant’s license for six months. The defendant was placed on

administrative probation for three years, ordered to undergo periodic drug screens, and ordered to

submit to physical and psychiatric examinations. The defendant was also permanently prohibited

from prescribing any controlled substances to family members or to himself and from carrying a

weapon during any activity related to the practice of medicine. (18) In November of 2003, the


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defendant’s medical license was again suspended upon a finding by the medical board that he had

several probation violations including a positive drug screen. On March 17, 2004, the medical board

found that the defendant had practiced medicine in violation of the terms of his suspension and his

medical license was revoked.



       The investigation report also stated that the defendant considered his physical condition to

be fair and provided the defendant’s current medical issues and medications. Personal and family

information revealed that the defendant was married and had five children, the youngest of whom

was attending college. According to the report, the defendant had no criminal convictions.



       The prosecutor denied the defendant pretrial diversion. In support of his denial, the

prosecutor filed a document entitled “Denial of Diversion,” incorporating by reference the pretrial

diversion report and stating the basis for denial of pretrial diversion. The prosecutor also filed a

“Supplement To The State’s Denial of Diversion,” providing a list of sources reviewed and

designating the weight assigned to each factor considered in denying the pretrial diversion.

According to the supplement, factors were considered and weighed as follows:



       1. The defendant’s history of criminality weighed very heavily in the State’s decision.

       2. The defendant’s lack of candor in the presentence investigation is a significant
       factor weighing against diversion.

       3. The defendant’s employment status weighs against diversion because a conviction,
       while harmful to the defendant’s future employment prospects, would do relatively
       little harm to those prospects when compared to what the defendant’s previous
       behavior has done to them.


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       4. The defendant’s use of a firearm weighs as heavily as his criminal history, but
       either factor standing alone would result in a denial of diversion.

       5. The harm to the victims also weighs as heavily as the criminal history.

       6. The defendant’s failure to accept responsibility for the charged offense weighs
       somewhat against granting diversion because admission of fault is the first step in
       correction one’s behavior. (29)


The prosecutor weighed the defendant’s past performance with administrative probation as a “very

significant factor in the denial.” According to the supplement, the factors, “when combined, make

diversion extremely inappropriate because they reveal an abnormal and dangerous lack of concern

for the welfare of others.” (29-30) “The defendant’s career of saving lives as a doctor and his record

of performance as a public official” were considered by the prosecutor. The prosecutor found that

the defendant’s loss of his medical license as a result of disciplinary action by the medical board

weighed against diversion. The defendant’s marriage, children, friends willing to submit affidavits,

medical difficulties, and age “weigh[ed] very little in the equation, particularly when compared to

the other factors involved, both pro and con.” (30) The defendant’s religious and community service

were substantial factors in favor of diversion but were “far outweighed by the factors weighing

against diversion.” (31)



       The defendant filed a writ of certiorari alleging that the prosecutor abused his discretion in

denying pretrial diversion by relying on a DUI arrest. While admitting the defendant was arrested

and charged with DUI, the defendant asserted that the prosecutor’s reliance on the arrest in denying

diversion was improper because the charge was dismissed. The trial court granted defendant’s writ

of certiorari. At a subsequent hearing, parties agreed that the defendant qualified under the statute


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for diversion and defense counsel announced that the defendant did not dispute any relevant facts.

However, defense counsel objected to the prosecutor’s mischaracterization of the defendant’s past

behavior as “criminal.” Specifically, defense counsel asserted that the defendant had not been

convicted on any charges in connection with events relied upon by the prosecutor in denying

diversion including the defendant’s 1997 DUI arrest, an incident in 1998 involving the defendant’s

use of a gun, and the defendant’s alleged use of illegal drugs. The sole issue before the trial court

was whether the prosecutor abused his discretion in denying the defendant’s pretrial diversion. (5,

6,)



       The trial court found that illegal drug use by the defendant was not supported by the record

and that the defendant’s DUI arrest should not have been considered by the state in denying pretrial

diversion. However, the court found the weight of the evidence in the record supported the denial

of diversion. The court ruled that the prosecutor had not abused his discretion in denying diversion.

Accordingly, the trial court denied defendant’s petition for certiorari. The defendant applied for and

was granted permission for an interlocutory appeal to this court.



                                            ANALYSIS



       To be eligible for pretrial diversion, a defendant must not have been previously granted

diversion; 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 the conviction; and must not have been charged with a Class A felony, a


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Class B felony, certain Class C felonies, a sexual offense, driving under the influence, or vehicular

assault. See Tenn. Code Ann. § 40-15-105(a)(1)(B)(i)(a)-(c). However, statutory qualification for

pretrial diversion does not give rise to automatic entitlement. See State v. Bell, 69 S.W.3d 171, 176

(Tenn. 2002); State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999). Rather, the decision to grant or

deny pretrial diversion rests within the sound discretion of the prosecuting attorney. Bell, 69 S.W.3d

at 176. When making a determination of eligibility for pretrial diversion, the prosecutor should

focus on the defendant’s amenability to correction. Id. In other words, the prosecutor should focus

on any factors which accurately reflect the likelihood that a particular defendant will or will not

become a repeat offender. Id. Among the factors the prosecutor should consider when making this

decision are: (1) the likelihood that pretrial diversion will serve the ends of justice, as well as both

the defendant’s and the public’s interest; (2) the circumstances of the offense; and (3) the defendant’s

criminal record, social history, and physical and mental condition where appropriate. See id. (citing

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



        Although it is the defendant’s responsibility to demonstrate suitability for pretrial diversion,

the prosecutor is not relieved from the obligation to examine and consider all relevant factors. Id.

at 177. In fact, when denying pretrial diversion the prosecutor must discuss in writing all relevant

factors considered and the weight attributed to each factor. Id.; Curry, 988 S.W.2d at 157.

Moreover, the prosecutor’s written denial statement must identify any factual discrepancies between

the evidence relied upon by the prosecutor and the evidence presented by the defendant. Curry, 988

S.W.2d at 157. Failure to consider and articulate all of the relevant factors constitutes an abuse of

discretion. See id.


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       If the defendant’s application for pretrial diversion is denied, the defendant may appeal to

the trial court for a writ of certiorari. See Tenn. Code Ann. § 40-15-105(b)(3). However, the

decision of the prosecutor to grant or deny pretrial diversion is presumptively correct and will not

be set aside absent abuse of discretion. Curry, 988 S.W.2d at 158. When reviewing for abuse of

discretion, the trial court must consider only the evidence considered by the prosecutor. Id. In

evaluating whether there has been an abuse of discretion, the trial court must determine whether the

prosecutor has weighed and considered all of the relevant factors or whether the prosecutor reached

a decision not supported by substantial evidence in the record. Bell, 69 S.W.3d at 179; see also State

v. Yancey, 69 S.W.3d 553, 559 (Tenn. 2002). The trial court may not re-weigh the evidence or

substitute its view for that of the prosecutor. Yancey, 69 S.W.3d at 559. The trial court cannot

reasonably conclude that there exists substantial evidence supporting the prosecutor’s decision if the

prosecutor failed to consider all of the relevant factors and their relative weight. Bell, 69 S.W.3d at

179. Moreover, the prosecutor’s “failure to consider all relevant factors, including evidence

favorable to the defendant, cannot be cured by the trial court’s review.” Id. The record as a whole

cannot support the prosecutor’s denial of diversion if the prosecutor failed to consider and weigh all

of the relevant factors including evidence favorable to the defendant. Id. at 178. A certiorari review

by the trial court requires a review of the method used by the prosecutor but not the intrinsic

correctness of the prosecutor’s denial decision. See id. at 558-59. The trial court may conduct a

hearing, but only to resolve any factual disputes raised by the prosecutor or the defendant. Curry,

988 S.W.2d at 158. The trial court may not discuss new or additional considerations regarding the




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denial of diversion absent appropriate findings by the prosecutor. Yancey, 69 S.W.3d at 559; Curry,

988 S.W.2d at 158.



       On appeal, this court must determine whether the trial court’s determination is supported by

a preponderance of the evidence. Id. We are “bound by factual findings made by the trial court

unless the evidence preponderates against them.” Bell, 69 S.W.3d at 177. “However, if the evidence

of record is undisputed and calls for no finding of fact to resolve the issue, a trial court’s

determinations constitute conclusions of law to which an appellate court is not bound.” State v.

Carr, 861 S.W.2d 850, 856 (Tenn. Crim. App. 1993). Therefore, when the facts are undisputed, the

underlying issue on appeal remains whether, as a matter of law, the prosecutor’s denial of pretrial

diversion was an abuse of discretion. See State v. Brooks, 943 S.W.2d 411, 413 (Tenn. Crim. App.

1997); State v. Carr, 861 S.W.2d 850, 856 (Tenn. Crim. App. 1993).



                                 I. Consideration of Past Behavior



       On appeal, the defendant asserts that the trial court’s finding that the prosecutor improperly

considered the defendant’s DUI arrest and the court’s finding that the record did not support illegal

drug use by the defendant showed that the prosecutor considered irrelevant factors. The defendant

argues that because the prosecutor considered irrelevant factors in denying diversion, the trial court

should have found that the prosecutor abused his discretion.




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       Our review of the record reveals that the trial court did not err in finding substantial evidence

in the record to support the prosecutor’s denial of diversion. However, we note that while the

prosecutor clearly acknowledged that the DUI arrest did not lead to a conviction, the classification

of the arrest as evidence of the defendant’s “history of criminal behavior” could be misunderstood

to indicate that the defendant had a criminal record. Notwithstanding any danger of confusion with

regard to defendant’s history, we cannot conclude that the prosecutor abused his discretion in

considering the defendant’s DUI arrest as a factor relevant to his amenability for correction. See

Hammersely, 650 S.W.2d 355 (holding a prosecutor should consider any factors which accurately

reflect a defendant’s amenability to correction including the defendant’s social history, mental

condition and the best interest of the public); see also Pinkham, 955 S.W.2d at 959-60. However,

even if we consider the defendant’s DUI arrest irrelevant to the prosecutor’s consideration of pretrial

diversion, the record establishes that all relevant factors were considered and weighed and that the

remaining factors supported denial of pretrial diversion.



       The prosecutor’s consideration of the defendant’s drug use was supported by uncontested

facts included in the investigation report. The report indicates that as a condition of probation

imposed by the Tennessee Board of Medical Examiners, the defendant underwent “periodic drug

screens, and he was permanently prohibited from prescribing any controlled substance for himself[.]”

The report further stated that, “[o]n at least one occasion drug screen results provided to the

[Tennessee Medical Foundation] were positive for prohibited drugs.” While we cannot wholly

approve of the prosecutor’s word choice in referring to the defendant’s “illegal drug use” in support

of a “history of criminal behavior,” we note that the prosecutor did not assert that the defendant had


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a criminal conviction. Moreover, the record contains evidence of a positive drug screen indicating

that the defendant violated the terms of his administrative probation which included that he was

prohibited from prescribing controlled substances for himself. Therefore, the record contains

evidence of a violation of administrative probation and of the unauthorized use of a controlled

substance relevant to the defendant’s social history and the public’s interest. Additionally,

circumstances preceding the revocation of the defendant’s medical license which included a violation

of his administrative probation were relevant in making a determination regarding the defendant’s

amenability to correction. See Pinkham, 955 S.W.2d at 960 (holding the circumstances related to

the surrender of the defendant’s law license relevant to the defendant’s amenability to correction and

the public’s best interest). Accordingly, we conclude that the prosecutor’s consideration of evidence

of the defendant’s prohibited drug use was not an abuse of discretion.



       The defendant also asserts that the prosecutor’s reference to an incident involving the

defendant’s past use of a gun in support of a “history of criminal behavior” was an abuse of

discretion. The record reveals that in 1998, while the defendant was working in the Baptist

Memorial Hospital emergency room, he became involved in an altercation and threatened a patient

with a gun. A police officer present in the emergency room instructed the defendant to put the gun

away. The police officer later reported that the patient was in shock and appeared to be afraid that

the defendant would shoot him. The defendant does not deny the incident or that the incident

resulted in administrative action by the Board of Medical Examiners. Instead, the defendant asserts

that his conduct was not criminal and argues that the absence of an arrest and conviction, the incident

should not have been considered as a factor weighing against diversion. We disagree. The


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defendant’s behavior in connection with the 1998 incident was relevant to the defendant’s social

history and to the public’s interests. Additionally, the defendant’s past use of a gun was relevant to

the issue of the defendant’s amenability to correction. See State v. Robert L. Gibson, No.

M2005-00100-CCA-R9-CO, 2005 WL 2477529, at *5 (Tenn. Crim. App., at Nashville, Oct. 7,

2005) perm. app. denied (Tenn. Jan. 30, 2006). Furthermore, a review of the record reveals that

while the conduct did not result in an arrest and conviction, it was not without reprimand or

consequences. As a result of the defendant’s pulling a gun on a patient, he lost hospital privileges.

Additionally, the incident contributed to the medical board’s decision to place the defendant on

administrative probation. We conclude that the prosecutor did not abuse his discretion in weighing

the incident as a factor against diversion.



       We further note that the defendant’s reliance on State v. McKim, 215 S.W.3d 781 (Tenn.

2007), is misplaced. In McKim, the defendant was charged with criminally negligent homicide, a

crime which the prosecutor thought should not be subject to diversion. Id. at 788-89. The McKim

court found that the prosecutor abused his discretion by considering the egregious nature of the

charged crime and by failing to focus his analysis on the proper issue or to consider factors weighing

in favor of diversion. Id. at 789. In the instant case, the record supports that the prosecutor properly

focused on the defendant’s amenability to correction and considered all factors weighing in favor

of diversion. See Hammersley, 650 S.W.2d at 355. Accordingly, we conclude that the evidence does

not preponderate against the prosecutor’s consideration of the defendant’s past behavior.



                                    II. Amenability to Correction


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       The defendant asserts that his lack of criminal conduct in the eighteen months since he was

charged demonstrated his amenability to correction. He further asserts that his good conduct was

not considered by the prosecutor. The record reveals that the prosecutor considered the conduct of

the defendant since the time of the charge and determined that the defendant’s lack of candor with

the probation officer conducting the investigation weighed against diversion. In our view, the

prosecutor’s assessment of the defendant’s conduct since his arrest was supported by the record. The

record reflects that the defendant told the investigating officer that he was no longer practicing

medicine because he had voluntarily given up his practice. He failed to reveal that his medical

license had been revoked or suspended while the record indicates that his license had been suspended

and revoked. The defendant also claimed that he had never pointed a gun at anyone. His claim is

not supported by the record which includes a report of the defendant’s past use of a gun in a

threatening manner.



       As previously stated, it appears that the prosecutor considered other factors relevant to the

defendant’s amenability to correction including evidence of the defendant’s violation of his

administrative probation, which involved his use of prohibited drugs, and of the defendant’s past use

of a gun in light of the current charges. We conclude that the prosecutor did not abuse his discretion

in considering the defendant’s amenability to correction.



                                      III. Lack of Confession




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       The defendant also asserts that the prosecutor’s consideration of his lack of confession was

an abuse of discretion. A defendant is not required to admit guilt, neither can the prosecutor make

an admission of guilt a prerequisite to favorable consideration for pretrial diversion. See State v.

Lane, 56 S.W.3d 20, 29 (Tenn. Crim. App. 2000). If the record is silent concerning the state’s

potential proof against the defendant, the defendant’s alleged refusal to take responsibility for his

actions is not a proper consideration in determining pretrial diversion. See State v. William Lee

Clifton, No. W2002-00661-CCA-R9-CD, 2002 WL 31852864, *4 (Tenn. Crim. App., at Jackson,

Dec. 20, 2002) (finding the record did not support that the defendant had been dishonest or indicate

that the state had proof against the defendant other than what was contained in the indictment).

“However, a defendant’s denial of guilt which exposes the defendant as being untruthful with the

court is a proper basis for denying diversion.”                State v. Billy Joe Elliot, No.

E2007-00486-CCA-R3-CD, 2008 WL 440441, at *5 (Tenn. Crim. App., at Knoxville, Feb. 19, 2008)

(finding substantial evidence to support the denial of judicial diversion where the defendant claimed

he was innocent of the charged offense and the state demonstrated strong evidence contrary to the

defendant’s denial); see also State v. Anderson, 857 S.W.2d 571, 573-74 (Tenn. Crim. App. 1992).



       In the instant case, the record reveals that the defendant’s denial of the charged offense was

contrary to the statements of the victim. Furthermore, the defendant’s statement contained other

assertions which were contradicted by the investigation report and indicated that the defendant had

been untruthful with the probation officer in providing information during the pretrial diversion

investigation. We conclude that the prosecutor’s consideration of the defendant’s denial of the

charged offense was proper in light of countervailing statements in the record by potential witnesses


                                                -14-
and a lack of candor by the defendant in making other assertions contained in his statement.

Additionally, we note that the defendant’s lack of confession was not the prosecutor’s single basis

for denial of diversion. We conclude that the prosecutor did not abuse his discretion in considering

the defendant’s lack of confession.



                        IV. Consideration of Factors in Favor of Diversion



       Finally, the defendant asserts that the prosecutor failed to consider all factors weighing in

favor of diversion. We disagree. Factors listed by the prosecutor as weighing in favor of diversion

included the defendant’s marriage, children, medical problems, and age. The prosecutor addressed

these factors and found that when compared with other relevant factors, both for and against

diversion, these factors “weighed very little in the equation.” The prosecutor also considered the

defendant’s community and religious service as a substantial factor weighing in favor of diversion

but found the defendant’s service work was outweighed by other factors. It is not the function of this

court to re-weigh the evidence, nor does the evidence weigh against the prosecutor’s decision in this

instance. We conclude that the prosecutor properly identified and weighed all relevant factors.



                                             Conclusion



       We concluded that the prosecutor’s denial of pretrial diversion is supported by the record and

that the trial court did not err in finding that the attorney general did not abuse his discretion in

denying pretrial diversion. Based on the foregoing, we affirm the order of the trial court.


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___________________________________
J.C. McLIN, JUDGE




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