         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs December 2, 2008

                      STATE OF TENNESSEE v. KELLY HILL

                       Appeal from the Circuit Court for Maury County
                            No. 16869    Robert L. Jones, Judge



                    No. M2008-01344-CCA-R10-CD - Filed March 30, 2009


The defendant, Kelly Hill, by means of a Rule 10 interlocutory appeal, seeks review of the Maury
County Circuit Court’s ruling that the assistant district attorney general did not abuse his discretion
in denying her application for pretrial diversion. Following review of the record, we conclude that
the relevant factors were properly considered by the assistant district attorney general and that no
abuse of discretion occurred. Accordingly, we affirm the trial court’s denial of the defendant’s
application for diversion.

   Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which J.C. MCLIN and CAMILLE
R. MCMULLEN , JJ., joined.

Claudia S. Jack, District Public Defender, and Sharon D. Aizer, Assistant Public Defender, for the
appellant, Kelly Hill.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; T.
Michel Bottoms, District Attorney General; and Brent Cooper, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

                                       Factual Background

       The underlying facts of the case, as stated in the State’s Response to Application for Pretrial
Diversion, are as follows:

               In late January, 2006, Todd Crowell who is employed by CVS Pharmacies as
       a loss prevention investigator, noticed that the CVS Pharmacy located in Columbia,
       TN was showing a “loss” in their amounts of Hydrocodone (commonly called
       Lortab). Lortab is a powerful pain reliever, a schedule III controlled substance that
       is commonly abused and sold illegally on the streets of Columbia. After further
       investigation at the CVS Pharmacy in Columbia (hereinafter referred to as CVS) Mr.
       Crowell received information that Kelly Hill (defendant), the lead pharmacy
       technician, may have [had] something to do with the shortage of Lortab. On 3-28-06,
       Mr. Crowell interviewed Ms. Hill. During the interview, Ms. Hill did admit to
       forging prescriptions for Lortab and Promethazine. Ms. Hill admitted to faking
       Doctor call-ins for prescriptions under her grandmother’s (Marjorie Potts) and her
       cousin’s (Ashley Gregory) names, then having the prescriptions filled. Ms. Hill
       stated that she would commonly “call in” a large amount, have that amount filled,
       then edit the amount in the computer to a much smaller amount so that the
       prescription would be cheaper. Ms. Hill evidently did pay for the prescriptions. At
       least the co-pay amounts for the reduced number of pills. Ms. Hill also admitted to
       stealing full bottles of Lortab from the shelves of the pharmacy. Ultimately, Ms. Hill
       admitted to passing one-hundred twenty-two (122) fraudulent prescriptions and
       stealing bottles of Lortab, with these actions resulting in the fraudulent receipt of
       approximately 10,400 Lortabs. The amount of Lortabs that the pharmacy records
       show as taken through the fraudulent prescriptions is 4,565. Of course, this number
       would be the “reduced” number after being edited by Ms. Hill. When asked if any
       of the pills were sold, Ms. Hill stated that she gave approximately 200-250 to her
       boyfriend who would sell them. If the admitted amount of 10,400 is correct, that
       translates to an average of 452 illegally obtained Lortabs per month, that Ms. Hill
       released into our community either for her illegal use or, more likely, for sale.

Based upon these facts, a Maury County grand jury returned an indictment charging the defendant
with 122 counts of fraudulently obtaining prescription drugs. Subsequently, the defendant filed an
application for pretrial diversion, which the State denied. The defendant then filed a writ of
certiorari with the trial court, and the trial court affirmed the decision of the State. The defendant
then filed a Rule 3 appeal with this court. This court, in a written order, held that the appeal was not
properly before the court, but granted a Rule 10 application for extraordinary appeal.

                                               Analysis

        On appeal, the defendant contends that the trial court erred in its determination that the
district attorney general did not abuse his discretion in denying her request for diversion.
Specifically, she contends that the district attorney general failed to consider all relevant factors,
failed to enumerate the evidence considered, and focused on the nature and circumstances of the
offenses rather than the defendant’s amenability to correction.

       A defendant is statutorily eligible for pretrial diversion if the defendant has not previously
been granted diversion, does not have a disqualifying prior conviction, and is seeking pretrial
diversion for an offense that is not a Class A or Class B felony, certain Class C Felonies, a sexual
offense, driving under the influence, or vehicular assault. T.C.A. § 40-15-105(a)(1)(B)(i) (2006);
State v. McKim, 215 S.W.3d 781, 786 (Tenn. 2007); State v. Bell, 69 S.W.3d 171, 176 (Tenn. 2002).


                                                  -2-
Nonetheless, statutory eligibility for pretrial diversion does not entitle a defendant to diversion. State
v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999). Rather, the district attorney general has the sole
discretion to determine whether to grant pretrial diversion to one who meets the strict statutory
requirements. Id. at 176 (citing Curry, 988 S.W.2d at 157). In determining whether to grant pretrial
diversion, the district attorney general “has a duty to exercise his or her discretion by focusing on a
defendant’s amenability for correction and by considering all of the relevant factors, including
evidence that is favorable to a defendant.” Bell, 69 S.W.3d at 178; see also State v. Hammersley,
650 S.W.2d 352, 355 (Tenn. 1983). Any factors tending to reflect accurately upon whether the
applying defendant will or will not become a repeat offender should be considered. Hammersley,
650 S.W.2d at 355. Our supreme court has held that:

        [a]mong 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 the defendant where appropriate, and the likelihood that pretrial diversion will
        serve the ends of justice and the best interests of both the public and the defendant.

Id. Furthermore, the prosecutor may consider the need for general deterrence. McKim, 215 S.W.3d
at 787 (citing State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993)). However, the circumstances
of the offense and the need for deterrence “cannot be given controlling weight unless they are ‘of
such overwhelming significance’ that they [necessarily] outweigh all other factors.” Id. (quoting
State v. Markham, 755 S.W.2d 850, 853 (Tenn. Crim. App. 1988)). Our supreme court has
recognized that “the responsibility placed upon prosecutors to pick and choose among the lot [of
applicants for pretrial diversion] based upon a particular candidate’s amenability to rehabilitation
and recidivism requires the exercise of unusual powers of discrimination.” Hammersley, 650
S.W.2d at 353.

        If a prosecutor denies pretrial diversion, the denial must be written and must articulate the
factors considered, as well as the weight attributed to each factor. Curry, 988 S.W.2d at 157. “This
requirement entails more than an abstract statement in the record that the district attorney general
has considered [all relevant] factors.” McKim, 215 S.W.3d at 787 (quoting State v. Herron, 767
S.W.2d 151, 156 (Tenn. 1989)). A district attorney general’s failure to consider and articulate all
relevant factors constitutes an abuse of discretion. Bell, 69 S.W.3d at 178. Additionally, a district
attorney general must avoid relying upon irrelevant factors when denying diversion. Id.

        In the event pretrial diversion is denied, a defendant may appeal by filing a petition for a writ
of certiorari in the trial court. T.C.A. § 40-15-105(b)(3). The prosecutor’s decision is
“presumptively correct,” Curry, 988 S.W.2d at 158, and, on review, the trial court is limited to
examining only the evidence considered by the district attorney general and must determine whether
the prosecutor has abused his or her discretion. Bell, 69 S.W.3d at 177. That is, “the trial court
should examine each relevant factor in the pretrial diversion process to determine whether the district
attorney general has considered that factor and whether the district attorney general’s finding with
respect to that factor is supported by substantial evidence.” State v. Yancey, 69 S.W.3d 553, 559
(Tenn. 2002). The trial court must focus on the district attorney general’s methodology rather than


                                                   -3-
the intrinsic correctness of his or her decision, and the trial court should, therefore, not engage in
reweighing the evidence considered by the district attorney general. McKim, 215 S.W.3d at 788
(citing Yancey, 69 S.W.3d at 559). If the trial court determines that the district attorney general has
failed to consider and weigh all relevant factors, the trial court must reverse the district attorney
general’s decision and remand the matter for further consideration and weighing of all of the factors
relevant to the pretrial diversion determination. Id. (citing Bell, 69 S.W.3d at 180). On appeal, this
court must determine whether the trial court’s decision is supported by a preponderance of the
evidence. Curry, 988 S.W.2d at 158.

       In his four-page response denying diversion, the district attorney general stated the following:

              The State has considered the objective factors dictated by Herron,
       Hammersly, Curry, and Marcum, as well as Defendant’s social history, her physical
       and mental condition, her prior record, her amenability to rehabilitation, the nature
       and facts of the case as well as her application for diversion and other factors as
       [hereinafter] set out.

               Defendant’s Personal History: The defendant is a twenty-eight year old
               female, divorced, with two children of the ages of eight and one year. The
               defendant does not have any prior criminal convictions in her history. The
               State considers this factor in favor of the defendant. Other than the almost
               five year period the defendant worked for CVS Pharmacies (the victim in this
               case), the defendant’s work history is somewhat sporadic. This factor is
               considered against the defendant, however the State does not place great
               weight on this factor. The defendant did not report any physical, mental
               health or substance abuse issues to the District Attorney’s Office as part of
               her application for Diversion. This factor is considered against [ ]the
               defendant. While it is good that the defendant apparently does not have any
               addictions, this factor weakens her credibility when she reported that only a
               small portion of the drugs taken were sold. Either she is not forthcoming
               about her drug usage or she is dishonest in her statement when she stated that
               only 200-250 of the approximately 10,400 lortabs taken were sold.

       (2)     Facts of the Case: . . . .
               Unfortunately, Maury County shares a distinction with too many counties in
               Tennessee. That distinction is that there is a serious drug problem in our
               community. Lortab is a drug that is abused with frequency here and is
               illegally sold on the streets with regularity. Since the defendant did not relate
               that she has any addiction to any substance and indicated in her application
               that the use of drugs was not a factor in the commission of the offense, the
               logical conclusion is that her actions were carried out with the intent to obtain
               these substances to sell illegally. It is obvious to the State that [the



                                                 -4-
      defendant’s] statement made to Mr. Crowell and in her application show no
      remorse and, at best, an attempt to minimize her actions.

      This Assistant District Attorney has prosecuted at least 99% of all
      prescription fraud cases in Maury County since October, 2000 and can say
      that this case is, by far, the most egregious seen in this county since October
      2000. Based on the foregoing, this factor is considered strongly against the
      defendant and is given great weight.

(3)   Nature of the Offense: [The defendant] is indicted for one-hundred-twenty-
      two (122) counts of Prescription Fraud allegedly occurring between April 28,
      2004 and March 28. 2006. Each count is a class D felony. The proof shows
      that [the defendant’s] actions began slowly, with only one or two
      prescription[s] per month, but quickly escalated into blatant, unbridled
      activity resulting in as many as fourteen (14) fraudulent prescriptions in one
      month. Add to that, her theft of whole bottles of Lortabs from the shelves.
      She used her grandmother’s and cousin’s identities, without their knowledge,
      and the names of three different doctors to carry out her actions. She falsified
      computer records, as well as prescription records. Her actions were
      obviously calculated, involved various levels of deceit and absolutely show
      that [the defendant] had absolutely no regard for any pecuniary loss sustained
      by CVS and a complete disregard for effects that over 10,000 Lortabs could
      have on her community.

      Based on the foregoing, this factor is considered against [the defendant] and
      is given great weight. The fact that [the defendant] did cooperate to the
      extent of giving a statement to Mr. Crowell is considered for her. However,
      the nature and facts of these offenses greatly outweighs this.

(4)   The Needs and Interests of Victim and Society: The victim in this case is
      Society as well as CVS. Unfortunately, Maury County shares a distinction
      with too many counties in Tennessee. That distinction is that there is a
      serious drug problem in our community. Lortab is a drug that is abused with
      frequency here and is sold illegally on the streets with regularity. Since the
      defendant did not relate that she has any addiction to either substance[ ] and
      indicated in her application that the use of narcotics was not a factor in the
      commission of the offense, the logical conclusion is that her repeated actions
      were carried out with the intent to obtain these substances to sell. Granting
      [the defendant] a diversion under the circumstances of this case would do
      nothing to improve the current drug problem in Maury County. It could only
      make it worse.




                                        -5-
       (5)     Deterrent effect of punishment on other criminal activity: As stated above,
               this is the most egregious case of Prescription Fraud seen in Maury County
               since, at least October, 2000. Suspending prosecution under the
               circumstances of this case (122 counts) could only serve as encouragement
               to others who might commit this type of offense to actually commit it. There
               would absolutely be no deterrent effect in granting diversion in this case.
               Granting diversion in this case could only result in an increase of this type or
               crime, not a decrease.

       (6)     Defendant’s amenability to correction: The defendant is a 28 year old mother
               of two with no prior record. These factors suggest that she would be
               amenable to correction. The defendant’s employment situation has been
               somewhat sporadic which weighs slightly against the defendant. Her
               application for Diversion contains no information that suggests that the
               defendant has any amount of remorse for her actions. This, along with the
               extreme and egregious nature of these offenses, and [the defendant’s] attempt
               to minimize her actions strongly diminish the State’s confidence that she is
               amenable to correction through Pre-trial diversion.

       (7)     Likelihood that Pretrial Diversion would serve the ends of justice and the best
               interests of society and the defendant: As stated above, the facts of this case
               are extreme. This is one of the most egregious examples of Prescription
               Fraud seen in this county. The ends of justice and the best interest of society
               require that disposition of this case serves to reduce the commission of this
               type of offense in the future. Suspending Prosecution in a case where the
               defendant’s actions were as extreme, callous, and blatant as the defendant’s
               could only have a detrimental effect on society and would only serve to defeat
               the end of justice. Also, the best interests of [the defendant] would not be
               served if there is no punishment for her actions. Her actions were extreme
               when she had never been in trouble and would theoretically fear the criminal
               justice system. Granting Pre-Trial Diversion solely because she had no
               record could only cause [the defendant] to have less respect for a system that
               she obviously didn’t fear or respect to begin with.

In it’s order affirming the denial of pretrial diversion, the trial court made the following findings:

       After reviewing the record, the court finds that the District Attorney General properly
       considered all factors, and the record supports the District Attorney General’s
       weighing of the respective factors. While at first blush the defendant’s employment
       with CVS Pharmacy for over four years might appear to be a positive factor, the
       District Attorney General exercised appropriate discretion in concluding that her
       overall work history was not a positive factor, especially in light of her breach of trust
       at CVS by engaging in 122 acts of fraud or theft. The history of the case also shows


                                                  -6-
        that she engaged in identity theft with regard to a grandmother and cousin and
        falsified computer records at CVS in order to effectuate and conceal her fraudulent
        activity. Identity theft with three physicians was also involved in the falsifying of
        prescriptions.

                Certain offenses like fraud do not need extrinsic proof to justify a significant
        weighing of deterrence. Also, the circumstances of this offense and the number of
        Lortab tablets made available for abuse by the defendant, her boyfriend, or others
        make the nature and circumstances of the defendant’s crimes and general deterrence
        significant factors more than offsetting, in relative weight, all positive facts to which
        the defendant is entitled.

         The defendant argues that “the prosecutor placed too much weight upon the circumstances
of the offense and failed to consider factors relating to her amenability to correction.” According
to the defendant, the State “failed to consider or misunderstood some of the facts which indicate that
[the defendant] is amenable for correction, and it placed too much focus on the facts of the case
itself.” Specifically, she contends that the State failed to consider that the defendant is remarried,
that she is a lifelong resident of the county, that her father still lives there, that she made a voluntary
statement, began paying restitution, and surrendered her pharmacy technician license. The defendant
further disagrees with the State’s characterization of the defendant’s work history as “sporadic” and
the assumption that she was either lying about being addicted to the pills or that they were sold. She
argues that “the facts of this case permeate every factor that the prosecutor discusses.” Finally, she
likens the case to the facts of the McKim case, in which the prosecutor refused to grant diversion
based upon his belief that the crime should not be diverted. See McKim, 215 S.W.3d at 784. She
asserts the prosecutor in this case, though not specifically stating, held the position that any
“egregious” prescription fraud case should not be eligible for diversion.

        We disagree with the defendant’s characterization of the prosecutor’s consideration of the
case. From our review of the prosecutor’s letter of denial, it is apparent that all factors were
considered, including the defendant’s amenability to correction. The defendant’s argument focuses
upon the weight given to prosecutor’s findings and disagrees with the conclusions reached. That is
not the purpose of our review. Moreover, we find that the defendant’s reliance upon McKim is
misplaced. In McKim, the prosecutor denied diversion based upon the commission of a specific
crime, not because of the egregious nature of the specific crime committed. The defendant’s
argument that the prosecutor in this case would deny diversion to anyone charged in an “egregious”
case of prescription fraud is, thus, not akin to the situation in McKim. Additionally, in her argument,
she ignores established case law that “the circumstances of the offense and the need for deterrence
may alone justify a denial of diversion, but only if all relevant factors have been considered as well.”
See Curry, 988 S.W.2d at 158. The record supports that the circumstances of these offenses were
particularly egregious. As noted, the prosecutor in this case considered all required factors, including
those favorable to the defendant, and determined that the defendant was not an appropriate candidate
for diversion. Thus, we agree with the trial court’s finding that there was no abuse of discretion in
the prosecutor’s denial of diversion.


                                                   -7-
                                        CONCLUSION

       Based upon the foregoing, the Maury County Circuit Court’s denial of judicial diversion is
affirmed.




                                                     ___________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




                                               -8-
