         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                      April 9, 2002 Session

                   STATE OF TENNESSEE v. WENDY STEVENS

                 Direct Appeal from the Circuit Court for Williamson County
                         No. II-401-124    Timothy L. Easter, Judge



                   No. M2001-02464-CCA-R3-CD - Filed September 5, 2002


The appellant, Wendy Stevens, pled guilty in the Williamson County Circuit Court to one count of
forgery involving a value of more than $500 but less than $1,000, and one count of fraudulent use
of a credit card involving a value of more than $500 but less than $1,000, both Class E felonies. The
trial court sentenced the appellant to eighteen months incarceration in the Tennessee Department of
Correction for each offense, but immediately suspended the sentence in favor of supervised
probation. On appeal, the appellant complains that the trial court erred by failing to grant her judicial
diversion. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial
court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E.
GLENN, JJ., joined.

Judson Wheeler Phillips, Franklin, Tennessee, for the appellant, Wendy Stevens.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Lee Dryer, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                              OPINION

                                      I. Factual Background
                On December 6, 2000, Joan Benton invited the appellant to a prayer meeting at her
home. The meeting lasted from 8:00 a.m. until 9:30 a.m. Approximately one and one-half hours
after the conclusion of the prayer meeting, Benton noticed that her credit card was missing from the
kitchen. Benton assumed she had lost the card until, two weeks later, she received a credit card bill
which reflected unauthorized charges totaling almost five thousand dollars. All of the unauthorized
charges were made after Benton discovered the card was missing. An investigation determined that
the appellant had taken the credit card and incurred the charges. There were fifteen different
unauthorized charges on the bill; however, only one of the charges occurred in Williamson County.
All other charges occurred in Davidson County. The Williamson County offense resulted from the
appellant’s charges of $768.46 worth of merchandise at Cool Springs Target in Franklin.

                As a result of the charges, the appellant pled guilty in the Williamson County Circuit
Court to forgery involving a value of more than $500 but less than $1,000, and to fraudulent use of
a credit card involving a value of more than $500 but less than $1,000.1 The plea agreement left all
sentencing determinations up to the discretion of the trial court.

                At the sentencing hearing, Benton testified to the facts underlying the offenses.
Benton related that the appellant was the only individual to go into her kitchen during the prayer
meeting, after which meeting she discovered the credit card missing. Additionally, a security camera
at Target recorded the appellant using the card. Benton told the court that she felt “extremely
betrayed and violated” as a result of the offenses. She also observed that the appellant did not seem
destitute at the time of the offenses. Notably, the appellant lived in a “lovely home” with a
swimming pool, drove a nice vehicle, and sent her children to private school. Benton informed the
court that the appellant’s previous attorney, John Nefflin, had contacted Benton and her husband in
an effort to resolve the case “out of court.” One week prior to trial, the Bentons received a letter
which the appellant denoted as her “attempt to apologize.” Benton further related that the appellant
had not been prosecuted for the Davidson County offenses and she thought it unlikely that the
Davidson County District Attorney General’s office would initiate charges against the appellant.

                Kim Camp testified on behalf of the appellant. Camp related that she had known the
appellant for eight or nine years and considered her to be a “faithful, loving friend.” Camp indicated
that the appellant had a troubled marriage which ended in a bitter divorce. Nevertheless, she stated
that the appellant remained concerned about providing a “stable environment” for her two children.
Camp also knew that, prior to these offenses, the appellant’s mother had passed away and the
appellant had witnessed a horrendous car accident in which the appellant’s daughter, Haley; the
appellant’s best friend, Alice Freeman; and Freeman’s son, Will, were involved. The crash
ultimately claimed the life of Freeman. Camp asserted that these events were “traumatic” for the
appellant, rendering her “emotionally devastated.” Camp theorized that the trauma of these events
compelled the appellant to return to past patterns of unwise behavior. Regardless, Camp asserted
that the appellant recognized her wrongdoing and was seeking help from friends, doctors, and
counselors. She maintained that the appellant had recently obtained a “dream” job and had moved
into a good neighborhood. Camp conceded that, at the time of the offenses, the appellant was not
destitute and was living beyond her means. Camp further admitted that the appellant had also
previously stolen her credit card and made unauthorized charges on two occasions.

              Next, the appellant called David Pratt, the probation officer who prepared her
presentence report. Pratt related that the appellant owed $768.46 restitution to Citibank for the



       1
           W e note that there is no guilty plea transcript in the record before this court.

                                                           -2-
Williamson County case. In response, the appellant immediately tendered to Pratt a certified check
for the full restitution amount.

                 The appellant also presented the testimony of Joe Chilberg, a long-time friend of the
appellant. Chilberg testified that the appellant’s life had been tumultuous for two to three years prior
to the incident, and the appellant was “more than remorseful.” He had recommended to the appellant
that she seek counseling and soon thereafter the appellant followed Chilberg’s advice.

                The appellant testified on her own behalf. She related that she was a thirty-eight-year-
old mother of two children. She explained that she had recently accepted a position as the
development director for the Nature Conservancy of Tennessee. The appellant indicated that she had
been through a difficult divorce and lost her mother and her best friend, all within the last few years.
She stated that she considered Benton to be a friend and, on December 6, 2000, went to Benton’s
house to pray. She claimed that, during the meeting, she began to feel “anxious” and “pressured”
and took Benton’s credit card. She used the card to purchase necessities and Christmas presents for
her family and other friends. The appellant admitted that her behavior was “ridiculous” and “over
the top.” She further acknowledged that she was sorry and was seeking help. Contrary to Benton’s
testimony, the appellant contended that the reason her previous attorney, Nefflin, contacted the
Bentons was to explain that the appellant was responsible for all of the unauthorized charges on the
credit card. Moreover, the appellant maintained that she had been diagnosed with bipolar disorder
and had previously taken anti-depressant medication. She also asserted that she wanted to get
involved in a mental health inpatient program to help her understand why she committed these acts.
Finally, she expressed her desire to make full restitution.

               On cross-examination, the appellant told the court that, prior to her death, Freeman
had obtained a credit card account in Freeman’s name with an additional card issued to the appellant
so the appellant could use the card in an emergency. However, the appellant confessed that, after
Freeman was killed in the car accident, the appellant used the card to make “irrational” purchases,
including the purchase of a chair for Freeman’s husband. The appellant quickly asserted that
Freeman’s husband was reimbursed for the charges. The appellant further admitted that, while living
in Maryland several years before these offenses, she took a credit card from “Mr. and Mrs.
Chamberlain” and used the card without their prior approval. Additionally, she acknowledged that
she had used the credit cards of two other friends, Camp and “Mr. and Mrs. Bach,” without obtaining
their permission.

                Based upon the foregoing evidence, the trial court denied the appellant judicial
diversion, noting that the appellant had an extensive history of this type of crime. The trial court
then imposed a sentence of eighteen months supervised probation. The appellant now appeals the
trial court’s denial of judicial diversion.

                                            II. Analysis
                The appellant claims that the trial court erred by denying her judicial diversion. With
respect to judicial diversion, Tennessee Code Annotated section 40-35-313(a)(1)(A) (1997) provides:


                                                  -3-
                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 more than the period of
                the maximum sentence of the felony with which the person is
                charged.
We observe that “judicial diversion is similar in purpose to pretrial diversion and is to be imposed
within the discretion of the trial court subject only to the same constraints applicable to prosecutors
in applying pretrial diversion under [Tennessee Code Annotated section] 40-15-105.” State v.
Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992).

                On appeal, “[t]he lower court’s denial of judicial diversion is subject to reversal on
appeal only if that court abused its discretion.” State v. Electroplating, Inc., 990 S.W.2d 211, 229
(Tenn. Crim. App. 1998). As a consequence, “we may not revisit the issue if the record contains any
substantial evidence supporting the trial court’s decision.” Id. Moreover, “[t]he same guidelines are
applicable in diversion cases as are applicable in probation cases, but they are more stringently
applied to those seeking diversion.” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App.
1995), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).

                The trial court must consider all of the following factors in determining whether to
grant the appellant judicial diversion:
                (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 mental health, and
                (f) the deterrence value to the accused as well as others. The trial
                court should also consider whether judicial diversion will serve the
                ends of justice – the interests of the public as well as the accused.
State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997). Additionally, the trial court may
consider the appellant’s “attitude, . . . behavior since arrest, . . . home environment, current drug
usage, emotional stability, past employment, general reputation, family responsibilities, and the
attitude of law enforcement.” Id. The record must reflect that the trial court has taken all of the
preceding factors into consideration. Electroplating, 990 S.W.2d at 229. Furthermore, “[t]he court
must explain on the record why the [appellant] does not qualify under its analysis, and if the court
has based its determination on only some of the factors, it must explain why these factors outweigh
the others.” Id.

               The trial court thoroughly considered the factors concerning judicial diversion,
remarking that, “at first blush,” the appellant appeared to be an appropriate candidate for diversion.
The court noted the following factors weighing in favor of the granting of judicial diversion: the
appellant’s amenability to correction, her social history, her lack of prior criminal convictions, her
good attitude toward dealing with her problems, her family responsibilities, the attitude of law


                                                 -4-
enforcement, her acknowledgment of responsibility, and her remorse. See Lewis, 978 S.W.2d at
566. Furthermore, the court noted that the appellant’s “[g]eneral reputation seems to be good, other
than she steals from her friends.” The court also observed that the appellant’s mental and physical
health “weighs both ways,” and concluded that the appellant’s emotional stability was questionable.
In turning to the factors weighing against the grant of judicial diversion, the trial court placed
significant weight on the fact that the appellant abused a position of private trust and also recognized
the need for deterrence, specifically noting that the appellant had previously committed acts similar
to the instant offenses. Ultimately, the trial court found that to allow the appellant to continue this
type of behavior without sanction would not serve the ends of justice for the appellant or society.

                The appellant complains that the majority of the factors to be considered in
determining whether to grant judicial diversion weigh in her favor; therefore, the trial court abused
its discretion by denying diversion. Specifically, the appellant argues that
                [a]t the hearing, proof was introduced th[at] the Appellant’s name
                was on [Freeman’s] card . . . and she was a joint card holder. As far
                as the other incidents [of unauthorized credit card usage] are
                concerned, the record is mostly silent. What is obvious from the
                record is that no criminal charges were ever filed. Perhaps the other
                parties forgave her for what she allegedly did or perhaps gave her
                permission after the fact. The record is silent in this regard and the
                Court can not draw facts out of thin [air].

                We acknowledge that much of the appellant’s history is positive and, at first blush,
indicates her favorable candidacy for judicial diversion. However, we agree with the trial court that
the need for deterrence is a significant factor in this case. Our supreme court recently outlined
several factors to be considered in determining when deterrence is correctly employed to deny
probation. State v. Hooper, 29 S.W.3d 1, 10-12 (Tenn. 2000). We note that “[d]eterrence in judicial
diversion cases is to be considered in the same manner as it is in probation cases.” State v. Parker,
932 S.W.2d 945, 959 (Tenn. Crim. App. 1996). However, the applicable guidelines “are more
stringently applied to diversion applicants.” State v. Holland, 661 S.W.2d 91, 93 (Tenn. Crim. App.
1983). The following factors may indicate a need for deterrence:
                (1) the defendant’s crime was the result of intentional, knowing, or
                reckless conduct or was otherwise motivated by a desire to profit or
                gain from the criminal behavior [and]

                (2) 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.2
Hooper, 29 S.W.3d at 11-12. From the appellant’s own testimony, it is clear that she committed the
instant offenses intentionally, admitting that she was concerned about providing Christmas presents.


        2
            These are not the only factors applicable in deterrence cases. See Hooper, 29 S.W.3d at 10-12. However,
these are the only factors applicable in the instant case.

                                                       -5-
Additionally, at the sentencing hearing, Camp conceded that the appellant took her credit card and
used it on two occasions without Camp’s permission. Moreover, the appellant confessed that she
used the credit cards of Mr. and Mrs. Chamberlain, Mr. and Mrs. Bach, and Camp without their
permission.3 Furthermore, the appellant testified that Freeman obtained a credit card in Freeman’s
name with an additional card for the appellant to use only in case of emergency. After Freeman’s
death, the appellant admitted that she made “irrational” and “wrong” purchases, specifically buying
a chair for Freeman’s husband. Like the trial court, we find disturbing the appellant’s frequent return
to this same criminal behavior. Our supreme court has noted:
                Repeated occurrences of the same type of criminal conduct by a
                defendant generally warrant a more emphatic reminder that criminal
                actions carry consequences. Although the [probation] statute speaks
                in terms of general deterrence, it has been recognized that general
                deterrence is possible only after specific deterrence has first been
                achieved.
Hooper, 29 S.W.3d at 12.

                Additionally, the trial court found particularly “offensive” the appellant’s abuse of
a position of private trust when, under the guise of a friend seeking “spiritual healing,” the appellant
entered Benton’s home as a guest and stole from her friend. An abuse of private trust is a valid
concern in determining an appellant’s suitability for judicial diversion. See State v. Marsha L.
McClellan, No. E2000-02373-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 292, at *20 (Knoxville,
Apr. 19, 2001); State v. Danielle L. Walker, No. E2000-00578-CCA-R3-CD, 2001 Tenn. Crim. App.
LEXIS 235, at *11 (Knoxville, Mar. 29, 2001). Thus, we conclude that the trial court did not abuse
its discretion by denying judicial diversion.

                                            III. Conclusion
                  Finding no error, we affirm the judgment of the trial court.




                                                                ___________________________________
                                                                NORMA McGEE OGLE, JUDGE



         3
           See Tenn. Code Ann. § 39-14-118(a) (1997) (“[a] person com mits the crime o f illegal possession of a credit
or debit card who, knowing the person does not have the consent of the owner or issuer, takes, exercises control over
or otherwise uses such card or information from such card.”)

                                                         -6-
