            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE               FILED
                             JANUARY 1999 SESSION
                                                                May 20, 1999

                                                             Cecil Crowson, Jr.
                                                             Appe llate Court C lerk
STATE OF TENNESSEE,               *   C.C.A. NO. 03-C-01-9801-CC-00034

      APPELLANT,                  *   SULLIVAN COUNTY

VS.                               *   Hon. Phyllis H. Miller, Judge

CHRIS EUGENE ETTERS,              *   (Pretrial Diversion)

      APPELLEE.                   *




For Appellant:                        For Appellee:

John Knox Walkup                      David Overbay
Attorney General and Reporter         1740 Euclid Avenue
450 James Robertson Parkway           Bristol, VA 24203
Nashville, TN 37243-0493
                                      Vincent Sikora
Albert L. Partee, III                 P.O. Box 821
Senior Counsel                        Piney Flats, TN 37686
Enforcement Division
425 Fifth Avenue North, 2nd Floor
Nashville, TN 37243-0494

Lewis Combs, Jr.
Assistant District Attorney General
Blountville, TN 37617



OPINION FILED: ____________________



AFFIRMED



NORMA MCGEE OGLE, JUDGE
                                                 OPINION

                 The defendant, Chris Eugene Etters, w indicted on February 12, 1997, on one
                                                      as

count of vandalism in the amount of $10,000 or more and on one count of violating the Tennessee

Water Quality Act. The defendant applied for pretrial diversion. On June 2, 1997, the District Attorney

General denied the request. On January 7, 1998, the Criminal Court of Sullivan County overruled the

District Attorney General and granted the defendant pretrial diversion. Accordingly, on February 10,

1998, the District Attorney General entered into a memorandumof understanding with the defendant,

setting forth the conditions of the defendant’s pretrial diversion. The State additionally applied for

permission to appeal the interlocutory order of the trial court pursuant to Tenn. R. App. P. 9, which

application was granted by the trial court and by this court. In this appeal, the State asserts that the

trial court incorrectly overruled the District Attorney General's denial of pretrial diversion.



                 Following a review of the record and the parties’ briefs, we affirm the judgm of the
                                                                                              ent

trial court.



                                        I. Factual Background

                 In 1993, the defendant, Chris Eugene Etters, leased a tract of land on Riverport Road

in Kingsport, Tennessee, and began operating AZROK Corporation (AZROK). AZROK processed and

distributed hardw bark generated by the local M Paper facility. Previously, Mead Paper had
                 ood                           ead

been disposing of approximately 75,000 tons of hardw bark per year in landfills. Seizing an
                                                    ood

opportunity to turn what had been M Paper's waste into a viable commercial product, AZROK
                                   ead

began processing the leftover bark into compost landscape mulch for resale. As a result, the two

companies won the 1993-94 Tennessee Association of Business Excellence in Sold Waste

Managem Award for their joint effort to conserve landfill space and find a beneficial use for the bark
       ent

material. At this time, the defendant’s business was thriving, but trouble was looming on the horizon.



                 Problems began for AZROK in August, 1993 when the defendant was informed by the

                                                      2
Tennessee Departm of Environment and Conservation (TDEC Division of Solid Waste
                 ent                                   ),

Managem (DSW that he was engaged in the unauthorized processing of solid waste in violation
       ent  M),

of the Solid Waste Disposal Act. FromAugust, 1993 to August, 1995 the defendant met with various

agents of DSW on numerous occasions and initiated efforts to com with their requirements.
             M                                                  ply

However, he was unable to fully execute the required measures due to the size and unfortunate

location of his business.



                 AZRO was located on a tract of land adjacent to a public road and the Holston Arm
                     K                                                                            y

Ammunition Plant (HAAP) property and near a sluice of the Holston river. Furtherm unknown to
                                                                                 ore,

the defendant at the time he leased the lot, the AZROK business was on or adjacent to a former city

dump site.



                 When AZR m
                         OK ulched its bark and placed the mulch in piles for the purpose of aging,

the piles of mulch would occasionally spontaneously combust. W AZROK employees sprayed the
                                                              hen

mulch with water in an attem to control the fires or w it rained, tannins would leach from the
                            pt                        hen

mulch, and another chemical (TEC would leach fromthe city's old dum site. The defendant built
                                )                                  p

retaining ponds and excavated a ditch in order to control the leachate, but he could not control the flow

of leachate off-site. Personnel from the TD Division of W Pollution Control inspected the site
                                           EC            ater

and witnessed leachate flowing across Riverport Road and draining into the nearby sluice of the

Holston River.



                 Mead Paper conducted tests of the mulch product and concluded that the mulch was

not hazardous to the public using the product or to AZROK employees. Additionally, the Tennessee

Departm of Health, Epidem
       ent               iology Division, concluded that the contaminants in the mulch were not a

hazard to the public and that the contaminants in the leachate were not highly concentrated enough to

warrant public concern. However, the State alleged that between 1994 and 1995, the defendant failed

to contain the leachate, failed to control the outbreaks of fires on the site, failed to comply with the

                                                     3
Permit-by-R requirements of a solid waste processing facility, failed to file adequate financial
           ule

assurance w the C
           ith   ommissioner of TDEC, and failed to pay the annual maintenance fee required of

persons operating an approved solid waste processing facility.



                 Therefore, on August 4, 1995, the Commissioner of TD ordered the defendant to
                                                                     EC

immediately cease accepting waste at his facility and ordered him to close the facility. Closing the

facility entailed the removal of all solid waste and solid waste constituents within thirty days. In

addition, the Commissioner ordered the defendant to pay restitution in the amount of $76,433.27.



                 The defendant ceased operation of AZR but he did not remove the bark materials
                                                      OK,

from the site. As a result of the defendant’s efforts to com with the TDEC requirem
                                                            ply           ’s       ents, his

business had becom insolvent. Moreover, the defendant and M Paper disagreed over who was
                  e                                        ead

responsible for the cleanup of the site. Meanwhile, the leachate continued to flow off-site.



                 Over a period of time, the AZROK operation caused $4,000 damage to a fence on the

Army’s adjacent property. Moreover, the leachate allegedly contaminated soil on the Army’s property,

requiring the removal of the soil. The Army sought restitution from the defendant for these expenses.



                 Mr. Jerry Fulkerson and Mr. Walter Nat Smith, agents of TDEC were responsible for
                                                                             ,

inspecting the AZR site at various tim In affidavits, both M Smith and Mr. Fulkerson alleged
                  OK                  es.                   r.

that the defendant had threatened themwhile they were visiting the AZROK site.



                 However, Mr. Fulkerson submitted two inconsistent versions of the incident in which

he was threatened by the defendant. During an interview with the probation officer who prepared the

pretrial diversion report, Mr. Fulkerson stated that “...during the investigation the defendant threatened

him and ‘pulled a gun’ on him as well as other members of the Tennessee Department of Energy and

Conservation.” In contrast, in his affidavit, Mr. Fulkerson did not allege that the defendant had ever

                                                     4
“pulled a gun” on him. Rather, he stated that he had once seen a gun in the defendant’s truck. Mr.

Fulkerson attested that, on that occasion, the defendant did not threaten any TDECagents. The only

threat by the defendant described in M Fulkerson’s affidavit occurred during a telephone
                                      r.

conversation.



                Mr. Smith stated in his affidavit that, on one occasion when he was inspecting the

AZRO site and discussing compliance measures with the defendant, the defendant expressed
    K

disagreement with the on-going enforcement action and stated that he had something that would take

care of the problem. The defendant then placed his right hand on the sm of his back. Mr. Smith
                                                                       all

inferred that the defendant had a weapon concealed on his person.



                As stated above, the defendant was indicted on one count of vandalism and on one

count of violating the Tennessee W Quality Act. According to the pretrial diversion report, the
                                  ater

defendant was forty-four years old, married, and the father of four children. His family was supportive.

Despite poor grades, the defendant had graduated fromhigh school in 1973 and had since developed

a good work history. His criminal history consisted of three speeding tickets. He had no history of

alcohol or drug abuse as an adult. As a juvenile, the defendant drank alcohol for a short period of time

and experimented with marijuana twice on one day when he was approximately seventeen years old.



                The defendant was apologetic and remorseful for any harm he may have caused to

others as a result of his business. He maintained that Mead Paper w responsible for rem
                                                                   as                  oving the

waste material following the closing of the AZROK facility. Therefore, he contended that any damages

caused by the leftover bark materials and the leachate were not attributable to him. Further, he

asserted that, due to his business’ insolvency, he was unable to pay for the damages. A num of
                                                                                           ber

friends and family members wrote letters vouching for the defendant’s good character and concern for

the environment.



                                                   5
                 In a letter denying the defendant’s request for pretrial diversion, the District Attorney

General stated that he had considered “the pretrial diversion report, a clean-up estimate by Holston

Defense, Affidavits from Mr. Nat Smith and Mr. Jerry Fulkerson, letters sent on behalf of Mr. Etters,

and other information from the file.” The District Attorney General then listed the following grounds

upon which his denial rested:

                 (1) The defendant was ordered by the Commissioner of the
                 Departm of Environment to cease business at his location by order
                          ent
                 dated August 4, 1995. The offenses listed in the Presentment
                 occurred, at least partially, after the Commissioner’s Order. The
                 allegation of water pollution was listed as occurring over eight months
                 after the Order was entered. The Order also states a history of
                 substantial non-compliance with state regulations during the course of
                 the defendant’s mulching operation.

                 (2) Mr. Walter Nat Smith and Mr. Jerry Fulkerson both filed affidavits
                 stating that the defendant threatened them during their work at the
                 defendant’s work site. In both instances, a handgun was the
                 perceived weapon in connection with the threats. The threats
                 occurred over a period of tim and was obviously in response to their
                                               e
                 investigation of the defendant’s facility.

                 (3) The Presentment alleges criminal activity which occurred over an
                 extended period of time and which caused extraordinary dam   ages to
                 the victim’s property.

                 (4) The defendant does not have a criminal history, but does admit to
                 using an illegal drug on at least two occasions.

                 (5) The educational history in the pretrial diversion report shows a
                 poor academic record. However, it was noted that the defendant did
                 graduate high school.



                 The Criminal Court of Sullivan County overruled the District Attorney General and

granted the defendant pretrial diversion. The trial court held that the District Attorney General had

abused his discretion. Specifically, the trial court held that the District Attorney General had failed to

enumerate or assign due significance to all relevant factors and that, in any case, there was no

substantial evidence in the record to support the prosecutor’s denial of pretrial diversion. The trial

court ordered that the State enter into a M orandumof U
                                           em          nderstanding with the defendant, granting

pretrial diversion for a period of two years. In addition the trial court ordered:


                                                      6
                  1. The defendant shall pay restitution to HAAP in the amount of
                  $4,000 to rebuild the fence damaged by the AZROK operation.

                  2. The defendant shall pay TDEC$4,949.55 in past due
                  maintenance fees, interest, and penalties.

                  3. The defendant m perform three hundred hours of community
                                    ust
                  service.

                  4. The defendant must pay a monthly supervision fee of $30 and
                  court costs.



                                                II. Analysis

A. Pretrial Diversion Generally

                  The Pretrial Diversion Act provides a means of avoiding the consequences of a public

prosecution for those who have potential for rehabilitation. See Tenn. Code Ann. § 40-15-105 (1997

and Supp. 1998). The pretrial diversion program allows a district attorney general to suspend

prosecution against a qualified defendant for a period of up to two years. Id. Whether to grant or deny

an application for pretrial diversion is in the discretion of the district attorney general. Id.; State v.

Pinkham, 955 S.W.2d 956, 959 (Tenn. 1997); State v. Hammersley, 650 S.W.2d 352, 353 (Tenn.

1983); State v. Carr, 861 S.W.2d 850, 855 (Tenn. Crim. App. 1993); State v. Freeman, No. 03C01-

9712-CC-00523, 1999 W 96272, at *2 (Tenn. Crim App. at Knoxville, February 22, 1999).
                     L                        .



                  In making the initial determination of whether diverson is warranted, the district

attorney general must consider (1) the circumstances of the offense; (2) the defendant’s criminal

record; (3) the defendant’s social history; (4) the defendant’s physical and mental condition; (5) the

deterrent effect of punishm upon other criminal activity; (6) the defendant’s am
                           ent                                                  enability to

correction; (7) the likelihood that pretrial diversion will “serve the ends of justice” and the best interests

of the defendant and the public; and (8) the defendant’s “attitude, behavior since arrest, prior record,

home environment, current drug usage, emotional stability, past employm general reputation,
                                                                       ent,

marital stability, fam responsibility, and attitude of law enforcem
                      ily                                          ent.” State v. Washington, 866

S.W.2d 950, 951 (Tenn. 1993) (citing State v. Markham, 755 S.W.2d 850, 852-53 (Tenn. Crim. App.

                                                       7
1988)).



                The nature and circumstances of the alleged offenses are not the only appropriate

factors to be considered upon application for diversion but m alone provide a sufficient basis for
                                                             ay

denial. Carr, 861 S.W.2d at 855; State v. Sutton, 668 S.W.2d 678, 680 (Tenn. Crim. App. 1984); State

v. Cavnor, No. 02C01-9704-CR-00155, 1998 WL 148320, at *3 (Tenn. Crim. App. at Jackson, March

31, 1998), perm to appeal denied, (Tenn. 1999). However, the circumstances of the case and a

generalized need for deterrence “cannot be given controlling weight unless they are ‘of such

overwhelming significance that they [necessarily] outweigh all other factors.’” Washington, 866 S.W.2d

at 951 (emphasis in original) (quoting Markham, 755 S.W.2d at 853). Where there are no “such

exceptional circumstances, ‘the district attorney general must consider evidence which tends to show

that the applicant is amenable to correction by diversion and is not likely to com further criminal
                                                                                  mit

acts.’” Id.; see also State v. Winsett, 882 S.W 806, 810 (Tenn. Crim App. 1993).
                                               .2d                  .



                When deciding whether to enter into a m orandumof understanding under the
                                                       em

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 articulated and stated in the

record in order that a meaningful appellate review may be had. Pinkham, 955 S.W.2d at 959-960

(quoting Hammersley, 650 S.W.2d 355); see also State v. Curry, No. 02S01-9709-CC-00079, 1999 WL

115113 (Tenn. at Dyersburg, March 8, 1999).



                Furthermore, if the district attorney general denies pretrial diversion, the denial must

be in writing and must include “an enumeration of the evidence that was considered and a discussion

of the factors considered and weight accorded each.” Pinkham, 955 S.W.2d at 960. This “requirement

entails more than an abstract statem in the record that the district attorney general has considered
                                    ent

these factors.” State v. Herron, 767 S.W 151, 156 (Tenn. 1989). Instead, the factors considered
                                        .2d

                                                    8
“must be clearly articulable and stated in the record... .” Id. The fact that a defendant bears the

burden of demonstrating suitability for diversion does not relieve the prosecutor’s obligation to examine

all of the relevant factors and set forth the required findings. Pinkham, 955 S.W.2d at 960; see also

Curry, No. 02S01-9709-CC-00079, 1999 WL 115113, at *3.



                 If the application for pretrial diversion is denied, the defendant may appeal by

petitioning the trial court for a writ of certiorari. Tenn. Code Ann. § 40-15-105(b)(3) (1997 and Supp.

1998). On a petition for certiorari, the hearing conducted by the trial judge is limited to two issues: (1)

whether the accused is eligible for diversion; and (2) whether the district attorney general abused his

discretion in refusing to divert the accused. State v. Watkins, 607 S.W.2d 486, 488-89 (Tenn. Crim.

App. 1980); State v. Cavnor, No. 02C01-9704-CR-00155, 1998 W 148320, at *3. Moreover, the only
                                                            L

evidence that may be considered by the trial court is the evidence that was considered by the district

attorney general. Winsett, 882 S.W.2d at 810. The trial court may conduct a hearing only to resolve

any factual disputes raised by the prosecutor or the defendant concerning the application, but not to

hear additional evidence that was not considered by the prosecutor. See Pinkham, 955 S.W.2d at

960.



                 In State v. Curry, our supreme court announced the standard of review that an

appellate court m apply in pretrial diversion cases:
                 ust

                 The action of the prosecutor is presumptively correct, and is subject
                 to review by the trial court only for an abuse of discretion. The record
                 in this regard m show an absence of any substantial evidence to
                                 ust
                 support the refusal of the district attorney general to enter into a
                 mem   orandumof understanding before a reviewing court can find an
                 abuse of discretion. The appellate court must determine
                 whether the trial court’s decision is supported by a
                 preponderance of the evidence.

No. 02S01-9709-CC-00079, 1999 W 115113, at *4 (em
                               L                 phasis added); see also Pinkham, 955 S.W.2d

at 960.




                                                     9
B. Application of the Law

                    On appeal, the State argues that the trial court erred by overruling the District Attorney

General’s denial of pretrial diversion.1 The State contends that the trial court erred by tacitly re-

weighing the relevant factors and deciding that the defendant was amenable to correction.



                    Initially, we concur in the trial court’s finding that the District Attorney General failed to

enumerate or assign weight to all of the factors relevant in pretrial diversion cases. Although the

District Attorney General stated in his denial letter that he considered the pretrial diversion report and

the letters sent on behalf of the defendant, the prosecutor did not discuss the defendant’s favorable

social history, lack of criminal record, and potential for rehabilitation. The failure of the District Attorney

General to consider and articulate all of the relevant factors constituted an abuse of discretion. See

Curry, No. 02S01-9709-CC-00079, 1999 W 115113, at *6.
                                      L



                    Moreover, a preponderance of the evidence supports the trial court’s determination

that the circumstances of the case were not “‘of such overwhelming significance that they [necessarily]

outweigh[ed] all other factors.’” Washington, 866 S.W.2d at 951 (citation omitted). The District

Attorney General denied pretrial diversion on five grounds. On appeal, the State contends that three

of the five grounds were each a sufficient and independent ground to deny diversion:

                    (1) The defendant was ordered by the Commissioner of the
                    Departm of Environment to cease business at his location by order
                             ent
                    dated August 4, 1995. The offenses listed in the Presentment
                    occurred, at least partially, after the Commissioner’s Order. The
                    allegation of water pollution was listed as occurring over eight months
                    after the Order was entered. The Order also states a history of
                    substantial non-compliance with state regulations during the course of
                    the defendant’s mulching operation.

                    (2) Mr. Walter Nat Smith and Mr. Jerry Fulkerson both filed affidavits
                    stating that the defendant threatened them during their work at the
                    defendant’s work site. In both instances, a handgun was the
                    perceived weapon in connection with the threats. The threats


         1
          The defendant proceeded pro se on appeal with only the advice of attorneys Vince Sikora and David Overbay.
The case was submitted for a decision on the record and the appellant’s brief, with oral argument.

                                                           10
                 occurred over a period of tim and was obviously in response to their
                                              e
                 investigation of the defendant’s facility.

                 (3) The Presentment alleges criminal activity which occurred over an
                 extended period of time and which caused extraordinary dam   ages to
                 the victim’s property.



                 With respect to the first ground, the State cites four separate instances of discharge of

pollutants by AZROK after the State had warned the defendant and prescribed curative measures.

The Commissioner of TD described these instances in his August 4, 1995, order closing the
                      EC

AZROK facility. The State asserts that these episodes demonstrate the defendant’s willful violation of

state laws and regulations. Moreover, the State argues that a grand jury subsequently found that the

defendant wilfully and knowingly polluted the Holsten River on April 21, 1996. According to the State,

the prosecutor was entitled to rely upon the Commissioner’s order and the finding of the grand jury in

denying the defendant pretrial diversion.



                 The trial court found no substantial evidence to suggest that the defendant willfully

ignored the TDEC requirem
                ’s       ents. The court observed that the record is replete with the defendant’s

efforts to comply with the requirements, including spraying mulch piles to control fires, building ditches

and ponds to catch runoff, and testing the toxicity of the mulch and leachate. In conclusion, the trial

court stated, “The Court does not accept the premise that because the defendant’s efforts were

unsuccessful, he willfully failed to comply with TDEC rules and regulations.”
                                                     ’s



                 Furthermore, the trial court concluded that it could find no evidence that the defendant

continued his mulching business after August 4, 1995. The trial court noted that the record was devoid

of any officer’s report or other docum indicating that the pollution of the river which is alleged to
                                      ent

have occurred on April 21, 1996, was caused by anything other than leftover bark materials and

leachate fromthe city dump site.




                                                    11
                As to the second ground for denial of pretrial diversion, the State argues that the

threats m by the defendant were significant enough to w
         ade                                           arrant the prosecutor’s denial of pretrial

diversion. The State contends that these threats were clearly designed to chill the regulatory zeal of

Mr. Fulkerson and M Smith by placing them in fear of bodily harm should they continue their
                   r.

enforcem efforts.
        ent



                The trial court found no substantial evidence to support the State’s belief that the

defendant threatened TD em
                       EC ployees with a handgun. As explained earlier, Mr. Fulkerson’s affidavit

differs materially froman interview he gave to the probation officer who prepared the pretrial diversion

report. In his affidavit, Mr. Fulkerson related only one actual threat by the defendant which occurred

during a telephone conversation. Additionally, Mr. Smith did not relate any explicit threat by the

defendant, nor did he ever witness the defendant in possession of a handgun.



                As to the third ground that the defendant’s vandalism occurred over an extended

period of tim the State argues that the defendant’s vandalism continued even after the August 4,
             e,

1995, administrative order closing the AZROK facility. With respect to the amount of damage to the

Army’s property, the State concedes that the damage estimates contained in the record reflect a

discrepancy.



                The trial court found that any damage caused by the defendant’s operation of his

business occurred between April 20, 1995, and the closing of the AZROK facility on August 4, 1995.

The trial court reasoned that from August 4, 1995, to October 31, 1996, any dam was attributable
                                                                               age

to runoff fromthe materials remaining on the property and leachate fromthe city dump site. The trial

court concluded, “There is no evidence that the defendant actively caused any dam during this
                                                                                 age

period but that, instead, he was embroiled in a dispute with M Corporation over cleanup of the site;
                                                              ead

and his company was insolvent.”



                                                   12
                 As to the extent of damage to the Arm property, the trial court noted that the record
                                                      y’s

reveals a preliminary assessment of damages on July 22, 1996, of only $24,000. Yet, on May 27,

1997, with no explanation or itemization of damages, the dam assessment rose to “2.1M
                                                            age                      .”

Moreover, the trial court reasoned that the legislature has provided that a person who commits a Class

C felony is eligible for pretrial diversion; therefore, the District Attorney erred in relying upon the fact

that the damages exceeded $ 10,000.



                 We conclude that the record contains am evidence to support the trial court’s
                                                        ple

decision to overrule the District Attorney General’s denial of pretrial diversion. Accordingly, the

judgment of the trial court is affirmed.




                                                     __________________________________
                                                     Norma McGee Ogle, Judge


CONCUR:



______________________________
James Curwood Witt, Jr., Judge




_______________________________
John K. Byers, Senior Judge




                                                      13
