         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   February 11, 2003 Session

               STATE OF TENNESSEE v. JERRY W. YANCY, JR.

                 Direct Appeal from the Circuit Court for Williamson County
                         No. II-499-120    Timothy L. Easter, Judge



                      No. M2002-01640-CCA-R3-CD - Filed June 13, 2003


On April 12, 1999, the Williamson County Grand Jury returned a five-count indictment charging
Defendant, Jerry W. Yancy, Jr., with two counts of aggravated assault and three counts of felony
reckless endangerment. The district attorney general denied Defendant’s request for pretrial
diversion. In a writ of certiorari, Defendant asked the trial court to review the district attorney
general’s denial of pretrial diversion. Following a hearing, the trial court denied certiorari. The trial
court also denied Defendant’s motion to file an interlocutory appeal pursuant to Rule 9, Tenn. R.
App. P. Defendant applied for an extraordinary appeal pursuant to Rule 10, Tenn. R. App. P., which
this Court denied. Defendant entered guilty pleas to two counts of felony reckless endangerment and
was convicted by a jury of two counts of aggravated assault. He was acquitted on the remaining
count of felony reckless endangerment. The trial court sentenced Defendant to serve sixty days in
confinement and four years on probation. On direct appeal, this Court affirmed the trial court’s
judgments. The Tennessee Supreme Court granted permission to appeal and held that this Court
erred by looking to the entire record in deciding whether the denial of pretrial diversion was proper.
State v. Yancey, 69 S.W.3d 553 (Tenn. 2002). The supreme court remanded the case back to the trial
court for application of the proper standard of review. Id. On remand from the supreme court, the
trial court entered an order affirming the denial of pretrial diversion. Defendant appeals that
decision.

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

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOE
G. RILEY, JJ., joined.

John S. Colley, III, Columbia, Tennessee, for the appellant, Jerry W. Yancy, Jr.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Sharon Guffee, Assistant District Attorney General,
for the appellee, the State of Tennessee.
                                            OPINION

      The evidence considered by the district attorney general, as summarized by the Tennessee
Supreme Court in State v. Yancey, 69 S.W.3d 553 (Tenn. 2002), is as follows:

        On January 29, 1999, Teresa Lovett was driving a Pontiac Grand Prix northbound
       in the left lane on Interstate 65 in Williamson County, Tennessee. Sandra Martin was
       a passenger in Lovett’s car. Yancey, along with his wife, his brother, and another
       passenger, was driving a Jeep northbound on Interstate 65 behind Lovett’s car.
       Yancey’s vehicle was hauling a trailer containing 1800 to 2000 pounds of material.

       At approximately 6:30 a.m., Yancey approached Lovett’s car from the rear in the left
       lane. When Lovett slowed down, Yancey remained right behind her back bumper.
       Yancey moved to the right lane, pulled along side of Lovett’s car, and made a profane
       gesture. Lovett returned the gesture. When Lovett accelerated, Yancey pulled into
       the left lane behind Lovett’s car and turned on his high beam headlights. When
       Lovett remained in the left lane, Yancey again drove into the right lane along side of
       Lovett’s car. This time Yancey pulled a Colt .45 caliber handgun and pointed it at
       Lovett’s car. Sandra Martin ducked down in the passenger seat. Lovett accelerated
       and immediately heard a gunshot.

       Yancey was apprehended by police later the same day and was interviewed by
       Detective David Beard from the Williamson County Sheriff’s Department. Yancey
       stated that he was driving between 70 and 75 miles per hour when he approached
       Lovett’s car in the left lane, which he estimated was going 58 to 64 miles per hour.
       When Yancey flashed his lights, the driver of the other car “slammed” on the brakes
       and “flipped him off.” Yancey said that the driver of the vehicle would not let him
       pass and that this went on for several miles. Yancey told officers that he tried to take
       a picture of the other car with a camera. Although Yancey admitted that he fired one
       shot with his handgun, he maintained that he fired in the air and was not trying to hit
       the other vehicle. Michael Yancey, the defendant’s brother, told officers that he had
       thrown a shell casing out of the car at the defendant’s direction after the defendant
       had fired the gun.

       According to the pretrial diversion application, Yancey was 34 years old and married.
       Yancey has two children, and his wife was pregnant at the time of the offenses in
       question. Yancey has his G.E.D. and is self-employed as a contractor. He has a prior
       conviction for reckless driving in 1996. Yancey’s mental and physical conditions
       were normal, although he was attending weekly sessions for control of stress.

       The district attorney general’s letter of denial indicated that he considered the facts
       and circumstances of the offense, including the grave danger created to the victim


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        and numerous other drivers on the busy interstate highway, and found that they did
        not favor pretrial diversion. The denial letter revealed that the district attorney
        general considered the defendant’s social history, which he found to be neutral, and
        the defendant’s criminal history, which he found to be “neutral at best.” The district
        attorney general considered the defendant’s physical and mental condition, but found
        that neither played a significant part in his decision to deny pretrial diversion.
        Finally, in concluding that pretrial diversion would not meet the ends of justice, the
        district attorney general cited the defendant’s prior conviction, his effort to conceal
        the facts of the offenses, his failure to take complete responsibility for his actions,
        and the need for deterring the defendant and others from committing similar crimes
        in the future.

Yancey, 69 S.W.3d at 555-56.

         The pretrial diversion statute allows a district attorney general to suspend the prosecution of
an eligible defendant for a period not to exceed two years. See Tenn. Code Ann. § 40-15-
105(a)(1)(A) (Supp. 2002). There is no presumption that a person eligible for pretrial diversion is
entitled to diversion. State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999). The defendant bears the
burden of establishing that pretrial diversion is appropriate and in the interest of justice; therefore,
it is the defendant’s responsibility to submit substantial favorable evidence for the district attorney
general’s consideration. State v. Bell, 69 S.W.3d 171, 179 (Tenn. 2002).

        The decision to grant or deny an application for pretrial diversion is within the discretion of
the district attorney general. State v. Pinkham, 955 S.W.2d 956, 959 (Tenn. 1997). The district
attorney general must focus on the defendant’s amenability to correction and consider any factors
which tend to accurately reflect the defendant’s propensity to become a repeat offender. Yancey, 69
S.W.3d at 557; State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983). These factors include:
(1) the circumstances of the offense; (2) the defendant’s criminal record; (3) the defendant’s social
history; (4) where appropriate, the defendant’s physical and mental condition; (5) the likelihood
pretrial diversion will serve the ends of justice; and (6) the best interest of both the public and the
defendant. Hammersley, 650 S.W.2d at 355. The district attorney should clearly articulate these
factors for the record to facilitate appellate review. Id. If pretrial diversion is denied, the denial must
be written, must list the evidence considered, discuss which factors were considered, and discuss the
weight accorded to each factor. Curry, 988 S.W.2d at 157.

         In reviewing the prosecutor’s decision, the trial court must consider only the evidence
considered by the district attorney general and conduct a hearing only to resolve factual disputes
concerning the application. Curry, 988 S.W.2d at 157-58. The trial court is to review the method
used by the prosecutor, but not “the intrinsic correctness” of the prosecutor’s decision. Yancey, 69
S.W.3d at 558-59. The trial court may not reweigh the evidence or substitute its view for that of the
prosecutor. Id. at 559. The trial court must determine whether the prosecutor has abused his or her
discretion by failing to consider and weigh all the relevant factors or by reaching a decision not
supported by substantial evidence. Curry, 988 S.W.2d at 158. If the trial court determines the


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district attorney’s office considered all relevant factors and their weight, it must further determine
whether there is substantial evidence to support the decision to deny diversion. Yancey, 69 S.W.3d
at 559. This court, like the trial court, is limited to considering only the evidence considered by the
district attorney general. Id. at 559-60.

         The trial court stated its reasons for affirming the district attorney’s denial of pretrial
diversion in a memorandum of law. The trial court found that there was substantial evidence in the
record to support the original two factors considered by the district attorney in denying pretrial
diversion: (1) the circumstances of the offense did not favor pretrial diversion; and (2) there was a
need for deterrence. The trial court also found that the State “properly weighed Defendant’s conduct
in taking steps to cover up his action by throwing the shell casings out of his window as well as not
stopping until pulled over by law enforcement officials.” Additionally, the trial court found that the
district attorney general properly “concluded that the Defendant refused to accept responsibility for
his actions by refusing to give a recitation of the facts in response to a question on the application
[for pretrial diversion].” The trial court also found that the district attorney general properly
considered Defendant’s social history and criminal history and determined that they were both
neutral factors.

         Defendant argues that the district attorney general should have personally interviewed him
to resolve any questions the State had regarding his application for diversion rather than flatly
denying diversion. There is nothing in the pretrial diversion statute that requires the State to conduct
an interview of a defendant before denying his request for pretrial diversion. See Tenn. Code Ann.
§ 40-15-105 (1997 & Supp. 2002). The burden is upon the defendant to provide the prosecutor with
sufficient background information and data to enable the prosecutor to make a reasoned decision.
State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989). This information may be supplemented by the
pretrial investigation, as authorized by Tenn. Code Ann. § 40-15-104, but the investigation does not
lessen the defendant’s obligation “to show beforehand he is an appropriate subject for diversion.”
Id.

        Defendant also argues that his 1996 conviction for reckless driving is not a basis upon which
to deny pretrial diversion. The district attorney general considered the fact that Defendant did not
disclose that he was arrested for DUI and convicted of the reduced charge of reckless driving, finding
that Defendant had “already received leniency in our criminal justice system.” The district attorney
general concluded, however, that the defendant’s criminal history was “a neutral factor at best.” The
Defendant’s criminal history is an appropriate consideration in determining whether to grant or deny
pretrial diversion.

        Finally, Defendant argues that there was no evidence to support the State’s denial of pretrial
diversion based on a need for deterrence. The need for deterrence is a proper consideration in
pretrial diversion cases, and it may be considered in the same manner as in probation cases.
Hammersley, 650 S.W.2d at 354. To determine whether there is a need for deterrence, the following
factors should be considered: (1) whether other incidents of the charged offense are increasingly
present in the community, jurisdiction, or state as a whole; (2) whether the crime was the result of


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intentional, knowing, or reckless conduct or was otherwise motivated by a desire to profit or gain
from criminal behavior; (3) whether the alleged offense received substantial publicity beyond that
normally expected in a typical case; (4) whether the defendant was a member of a criminal
enterprise, or substantially encouraged or assisted others in achieving the criminal objective; and (5)
whether the defendant has previously engaged in criminal conduct of the same type as the offense
in question, irrespective of whether such conduct resulted in previous arrests or convictions. State
v. Hooper, 29 S.W.3d 1, 10-12 (Tenn. 2000). If deterrence is to be the basis for denying diversion,
proof must exist in the record of a specific need to deter similar crimes or the defendant himself. Id.

         The record does not indicate what specific evidence of a need for a deterrence the district
attorney general relied upon in denying pretrial diversion. The district attorney general found that
denying pretrial diversion would serve the ends of justice, stating, “[c]learly, this is a situation where
the nature and gravity of the circumstances and the great interest of the public demand that this type
of activity be deterred.” Statistics and data showing that the instances of this type of conduct in
Williamson County have been increasing may have been helpful and would have supported the
district attorney general’s finding that a need for deterrence exists. See State v. William David
Marks, No. M2001-01497-CCA-R9-CO, 2002 Tenn. Crim. App. LEXIS 428 (filed at Nashville, May
10, 2002) no app. for perm. to appeal filed. Nevertheless, we agree with the district attorney general
and the trial court and conclude that the nature and circumstances of this offense were so aggravated
in regard to the use of a deadly weapon in response to minor road problems that the denial of pre-trial
diversion in this case is justified.

                                           CONCLUSION

        The judgment of the trial court is affirmed.


                                                         ___________________________________
                                                         THOMAS T. WOODALL, JUDGE




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