         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     April 29, 2003 Session

                    STATE OF TENNESSEE v. RHONDA CLOER

               Interlocutory Appeal from the Criminal Court for Polk County
                            No. 00-065   R. Steven Bebb, Judge



                                  No. E2002-02252-CCA-R9-CD
                                        September 4, 2003

The Polk County Grand Jury indicted the Defendant for three counts of vehicular homicide, four
counts of aggravated assault, and twelve counts of failure to stop a school bus at a railroad crossing.
The Defendant filed an application for pretrial diversion, and the trial court ordered that a pretrial
diversion report be completed. Upon completion of the report, the Assistant District Attorney
General denied the application, and the Defendant appealed to the District Attorney General, who
also denied the application. The trial court granted a writ of certiorari and, thereafter, affirmed the
District Attorney General’s decision. The Defendant sought, and was granted, permission to take
an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. We
granted the Defendant’s application for interlocutory review to address the Defendant’s contention
that the State abused its discretion by denying her application for pretrial diversion. After a thorough
consideration of the record, we affirm the judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
JERRY L. SMITH, JJ., joined.

Conrad Finnell, Cleveland, Tennessee, for the appellant, Rhonda Cloer.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kathy D.
Aslinger, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Sandra N.
Donaghy, Assistant District Attorney General, for the appellee, State of Tennessee.


                                              OPINION
                                               I. Facts

        This case arises from a tragic set of circumstances. The Defendant, Rhonda Cloer, was
driving a school bus in Polk County when it collided with a freight train, killing three children and
seriously injuring four others. The Defendant was indicted for three counts of vehicular homicide,
four counts of aggravated assault, and twelve counts of violating Tennessee Code Annotated section
55-8-147, which requires a school bus driver to come to a stop between fifteen and fifty feet from
the nearest rail of a railroad crossing.

         The Defendant filed an application for pretrial diversion, and the trial court ordered that a
pretrial diversion report be completed. After reviewing the pretrial diversion report, the Defendant’s
application for pretrial diversion, and the Tennessee Highway Patrol file, an Assistant District
Attorney General denied the Defendant’s request for diversion. In its letter denying pretrial
diversion, the prosecution stated:

       The loss of life of the three children killed as a result of the crash, and the serious
       injuries suffered by the others, their families, and all involved, is tragic. Alone, this
       serves as a basis to deny diversion. When coupled with the fact that [the Defendant]
       flippantly disregarded the safety of the children in her care by repeatedly and
       recklessly cross[ing] the track without stopping begets a question of when would a
       collision occur rather than if it would occur.

The prosecution noted that, although she did not have any prior convictions, the Defendant was
arrested for aggravated assault and simple battery on November 8, 1986, and for forgery on March
5, 1994. The prosecution stated that “the contact [the Defendant] has had with the law, and the
nature of that contact, suggests an inability to practice good citizenship in the future without the
deterrent effect of criminal prosecution.”

        The prosecution noted that some of the factors that it considered favored judicial diversion.
The Defendant completed high school and had no problems as a juvenile. Further, the Defendant
married her current husband in 1994, and they have a seven-year-old daughter who was injured in
the bus accident. The Defendant had been employed relatively consistently from 1995 until the date
of the accident and she was currently working at Mohawk Industries. In the Defendant’s report to
the Board of Probation and Parole, she characterized her physical condition as “good” and her mental
condition as “fair.”

        While some factors considered by the prosecution favored judicial diversion, the prosecution
maintained that pretrial diversion should be denied based on the deterrent effect. It stated that the
Defendant “shows no remorse in her statements and has not accepted any responsibility for her
conduct.” In addition, the prosecution noted that “[t]he State also has an interest in deterring all
others having a position of trust in the care and transport of children, from reckless or wanton
disregard in their duties.” “[The Defendant’s] statements and conduct suggest an unwillingness to
appreciate and accept personal responsibility for the deaths and injuries. Instead, she blames others
and claims to be suffering from what appears to be self-diagnosed ‘traumatic amnesia.’” The
prosecution noted, “By virtue of videotaped evidence, it can be seen that [the Defendant] failed to
stop at the railroad crossing on ten separate dates between March 13 and March 28, 2000.” The
prosecution also noted that the Tennessee Highway Patrol and the victims expressed opposition to



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the grant of pretrial diversion and that the Defendant was unable to pay restitution. Therefore, the
Assistant District Attorney General denied the Defendant’s application for pretrial diversion.

         Following Assistant District Attorney General’s denial, apparently pursuant to the procedure
used in the Tenth Judicial District, the Defendant appealed this decision to the District Attorney
General. On appeal, the District Attorney General considered the original letter of denial, the
Defendant’s application and additional information she submitted, the Tennessee Highway Patrol’s
investigatory report (“THP Report”) and the National Transportation and Safety Board Report
(“NTSB Report”). From these, the District Attorney General indicated that the original denial of the
Defendant’s pretrial diversion application was based on the following: (1) the nature and
circumstances of the offense; (2) the inability of the Defendant to practice good citizenship without
the deterrent effect of criminal prosecution based upon prior episodes with the criminal justice
system; (3) the Defendant’s physical and mental condition, which included no mention of having
“traumatic amnesia” in any of her medical records until the filing of her application for pre-trial
diversion; (4) the State’s interest in deterring others having a position of trust in the care and
transport of children from the reckless and wanton disregard of their duties; (5) the fact that the
offenses were not committed impulsively because the Defendant failed to stop at the railroad
crossing on ten separate occasions between March 13, 2000 and March 28, 2000; (6) a conclusion
that the Defendant would be eligible for probation under the sentencing statutes; and (7) the inability
of the Defendant to make restitution and the strong opposition of the victims’ families and the
prosecuting agency to pre-trial diversion.

        In addition to these factors, the District Attorney General addressed several additional
arguments that the Defendant made on appeal. In her appeal, the Defendant contended that she was
remorseful, and the District Attorney General agreed, stating that such remorse weighed in the
Defendant’s favor. However, the District Attorney General concluded that “[a]ny remorsefulness
the [D]efendant may have is out-weighed by her social history, a demonstrated inability to undertake
and carry through on the ordinary obligations of society, the likeliness that she would be a repeat
offender and a present inability and incentive to act within the law without the deterrent effect of a
public trial.” To support this opinion, the District Attorney General noted that, although the
Defendant claimed the parents knew she loved the victims and some invited her to memorial
services, “the overwhelming information in the file indicates that both victims’ family members and
investigating officers have strong feelings that pretrial diversion should not be granted . . . .”
Further, in regard to the Defendant’s social history, the District Attorney General stated that the
Defendant was arrested for shooting a prior boyfriend. Additionally, the District Attorney General
highlighted the videotaped evidence that showed the Defendant repeatedly failing to stop at the
railroad crossing.

        The District Attorney General also addressed, but was not persuaded by, the Defendants
contention that she repressed the events surrounding the offenses due to “traumatic amnesia.” The
District Attorney General noted that the Defendant’s suppression of events was not indicated until
she filed her application for pre-trial diversion in which she stated that she had this disorder. He
stated that the emergency room records indicated that the Defendant had no confusion or


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disorientation at the hospital. Further, the Defendant told an investigator a short time after the
accident that she came to a complete stop, looked both ways, opened and closed the door, looked in
the rearview mirror, and then looked both ways again. According to the prosecution, the NTSB
Report concluded that if the Defendant had stopped at least fifteen feet from the nearest rail, turned
off her radio, and opened the door and window, she would have seen and heard the approaching
train. The NTSB report determined “that the probable cause of the collision was the school bus
driver’s failure to stop before traversing the railroad/highway crossing.” The District Attorney
General stated, “The overwhelming evidence in the file indicates the [D]efendant has not been
truthful about the events leading to the offense or her ‘traumatic amnesia,’ and that she has failed
to accept full responsibility for her actions.”

       Next, the District Attorney General addressed the Defendant’s contention that she did not
have the requisite state of mind to be criminally culpable by stating that a person commits an offense
who acts intentionally, knowingly, recklessly, or with criminal negligence. The Defendant was “well
aware of the law requiring her to stop a school bus, open the door and look as well as listen for
oncoming trains.” However, the Defendant intentionally drove the bus over the tracks without
stopping, looking, and listening for an oncoming train; therefore, she had a criminally-culpable
mental state.

        Lastly, the District Attorney General addressed the Defendant’s assertion that this case is a
proper case for a jury in a civil trial to determine the issues of negligence and comparative fault. In
dismissing this argument, the District Attorney General stated that although the Defendant claims
that the crossing was “blind and unprotected,” this is not supported by the weight of information
contained in the file. The District Attorney General noted that “[d]ocumentation in the file and [his]
personal observations further indicate there were crossbucks and adequate signage in advance of the
crossing to warn any vehicle approaching the crossing.” Accordingly, the District Attorney General
denied the Defendant’s appeal for pre-trial diversion.

         The Defendant filed a petition to the trial court for a writ of certiorari, alleging that the denial
of pretrial diversion by the District Attorney General was an abuse of discretion. Thereafter, the trial
court ruled that the District Attorney General did not abuse his discretion in denying the Defendant’s
application for pretrial diversion. The Defendant sought interlocutory appeal, which the trial court
granted. We accepted the Defendant’s request for interlocutory appeal pursuant to Rule 9 of the
Tennessee Rules of Appellate Procedure to address the Defendant’s contention that the State abused
its discretion by denying her application for pretrial diversion.

                                               II. Analysis

         The Defendant argues that the trial court erred by ruling that the prosecution did not abuse
its discretion by denying her 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


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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,
driving under the influence, or vehicular assault. Tenn. Code Ann. § 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. 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
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
        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. State v. Pinkham, 955 S.W.2d 956, 960 (Tenn. 1997); Winsett, 882 S.W.2d at 810.
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 a district attorney’s decision to grant or deny pretrial diversion
is presumptively correct, a trial court may overrule a district attorney’s denial of pretrial diversion
where there has been an abuse of discretion See Hammersley, 650 S.W.2d at 356. 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


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must lack any substantial evidence to support the denial of pretrial diversion. Curry, 988 S.W.2d
at 158.

        The legislature vested the authority to prosecute a case or divert it with the prosecutor rather
than the court. See Tenn. Code Ann. § 40-15-105; Carr, 861 S.W.2d at 858. 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, this Court is “bound by the factual findings made by the trial
court unless the evidence preponderates against them.” State v. Bell, 69 S.W.3d 171, 177 (Tenn.
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. Dec. 20, 2000).

        We conclude that the prosecution clearly articulated in the letter its reasons for denying the
Defendant pretrial diversion, and the reasons articulated were relevant and supported by substantial
evidence in the record. The prosecution noted and considered several factors in the Defendant’s
favor, however, it ultimately denied the Defendant pretrial diversion. The prosecution clearly
articulated the factors that he considered in a lengthy and detailed letter. Because those factors were
relevant and supported by substantial evidence in the record, we conclude that there was no abuse
of prosecutorial discretion. Therefore, the trial court properly ruled that the prosecutor’s decision
to deny pretrial diversion was not an abuse of prosecutorial discretion.

       Accordingly, the judgment of the trial court is AFFIRMED.




                                                        ___________________________________
                                                        ROBERT W. WEDEMEYER, JUDGE




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