State of Tennessee v. Susan Gail Stephens

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

February 10, 2009 Session

STATE OF TENNESSEE v. SUSAN GAIL STEPHENS

Appeal from the Circuit Court for Coffee County

No. 35, 064F L. Craig Johnson, Judge

No. M2008-00998-CCA-R9-CO - Filed June 23, 2009

The Defendant, Susan Gail Stephens, was charged with two counts of statutory rape and two counts

of contributing to the delinquency of a minor. The State denied her application for pretrial diversion,

and she petitioned for a writ of certiorari to review the State’s decision. The Circuit Court of Coffee

County upheld the denial of pretrial diversion. The Defendant now appeals, arguing that the State,

in its memorandum, considered irrelevant factors and failed to consider all relevant factors. After

our review, we vacate the judgment of the trial court and direct that this case be remanded to the

district attorney general for further consideration.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Vacated;

Remanded

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.

WOODALL, JJ., joined.

Jeffrey Rider, Tullahoma, Tennessee (at trial) and Russ Heldman, Franklin, Tennessee (on appeal),

for the appellant, Susan Gail Stephens.

Robert E. Cooper, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;

Mickey Lanyne, District Attorney General; and Jason Ponder, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

The record in this case contains two recitations of the facts. In her pretrial diversion

application, the Defendant recounted the facts as follows:

On February 24, 2006, I was with [the victim] and other teenagers in my car

in the Eaves’ driveway and they had alcoholic beverages. They appeared to be

intoxicated. The next night, Saturday, February 25, 2006, I was at the home of Chris

and Kelly Eaves when the teenagers were again present and were drinking. I drank

some beer and probably this is what caused me to lose my normal inhibitions and led

to what happened later.

My memory of the exact events is hazy. However, I know that I became

physically involved with [the victim] and we had intercourse. I am very sorry for

what I did. This event has had a devastating effect on me and my family. I

immediately went to seek treatment with a counselor. I did this even before I got a

call from the investigator. The therapist is helping me understand why this happened

and is helping me to prevent anything like this from happening in the future.

The State compiled a more detailed account of the relevant events in its memorandum

denying pretrial diversion. According to the State, the circumstances of the offense are as follows:

Officers with the Tullahoma Police Department began receiving information

and complaints about the Defendant and her friend (codefendant Kelley Renee

Eaves) in late 2005 and early 2006. The complaints were in reference to the

Defendant and Eaves hosting parties for high school students in the Eaves’ home at

421 Albermarle Drive in Tullahoma. Several parents and students reported that

defendants Eaves and Stephens allowed numerous boys into the home to consume

alcohol and smoke cigarettes. Also, the defendants would consume alcohol, dance

and act inappropriately with the boys. Complaints also came in that the women

would drive around town in the Defendant’s vehicle with their daughters and act

inappropriately with the high school boys.

Upon investigation, Officer Joe Brown with the Tullahoma Police

Department found that the defendants each had a 14 year-old daughter that was

allowed to date a 17 year-old boy. Apparently the boys were then encouraged to

come to the Eaves house and invite their friends to join the festivities. During these

parties, the Defendant and Eaves would allow the high school boys to drink beer and

smoke cigarettes. Although they deny giving beer to the boys, witnesses report that

it was freely available and further, both defendants admit they knew the boys were

drinking.

On or about February 18, 2006, during one of these “parties,” the Defendant,

Susan Stephens began her pursuit of the minor victim in this case . . . by kissing and

fondling him. [The victim], a 17 year-old high school student would attend the

parties and become intoxicated. He and the Defendant would speak on the phone,

exchange text messages and see each other at the parties.

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On February 24, 2006, the Defendant again met [the victim] at the Eaves

home in Tullahoma. Again, [the victim] had been drinking and the Defendant made

sexual advances toward him[.]

It should be pointed out that the [sic] both defendants’ 14 year-old daughters

were present during these parties with their respective 17 year-old boyfriends. Their

boyfriends were also allowed to consume alcohol although both defendants deny

their daughters consumed any themselves.

On February 25, 2006, the Defendant and Eaves hosted another “party.”

Witnesses report that [the victim] along with several other boys were intoxicated both

inside and outside the residence. During this time, [the victim] and the other boys

were yelling in the driveway and being loud. Sometime after this the Defendant and

Eaves got into the Defendant’s vehicle, which was parked in the driveway, along

with [the victim] and another high school boy . . . . Defendant was talking to [the

victim] because he was drunk and about to fight another boy. Reportedly, while this

conversation was taking place, codefendant Eaves was engaged in kissing and petting

with the minor . . . in the backseat. [The victim] then exited the vehicle followed by

the Defendant. Later in the evening the victim . . . describes the following events:

Everyone went inside. Me and [the Defendant] were in the

garage. She was smoking a cigarette and I was drinking a beer. I

turned on a Terry Clark song and we were dancing. [The Defendant]

then pulled me over to the couch and said “come here.” She was

sitting on my lap. [The Defendant] then started kissing me and I

kissed her back. She fell back on the couch and pulled me on top of

her. I unbuttoned her pants, she unbuttoned my pants. She pulled

down my pants to my knees and then she pulled her pants off. She

said, “Do you really want to do this?” I said, “It’s up to you.” I said

“Do I need to go get a condom?” She said “Yes.” I ran out to my

truck and got a condom. When I returned she jerked me back on the

couch and asked “Do I need to put it on for you?” I said “No, I got

it.” Then we started making out and then I penetrated her.

The Defendant and the victim were then interrupted by the codefendant,

Eaves, who laughed and went back into the house. As the evening went on, [the

victim] was allowed to sleep in the Eaves’ bonus room along with two other boys

because they were still drunk. The Defendant chose to sleep in the bonus room with

them. After she mistakenly believed everyone was asleep, the Defendant went to the

recliner where [the victim] was sleeping, unbuttoned his pants, and had sex with him.

Defendant’s 14 year-old daughter was also in the house as well with her 17 year-old

boyfriend.

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The Defendant was charged with two counts of statutory rape under Tennessee Code

Annotated section 39-13-506 and two counts of contributing to the delinquency of a minor under

Tennessee Code Annotated section 37-1-156. Upon being denied pretrial diversion, she petitioned

the Circuit Court of Coffee County for a writ of certiorari. In denying the Defendant’s petition, that

court found that the State “considered all relevant factors” and “reasonably weighed each factor.”

The court also found that there were “no material factual disputes raised by [the State] or the

[D]efendant which would require an evidentiary hearing.” The Defendant now appeals the trial

court’s denial of her petition.

Analysis

The pretrial diversion statute allows a district attorney general to suspend the prosecution of

an eligible defendant for a period not to exceed two years. See Tenn. Code Ann. §40-15-

105(a)(1)(A). In order to qualify for pretrial diversion, the defendant must not have previously been

granted diversion; must not have a prior misdemeanor conviction for which a sentence of

confinement was served or a prior felony conviction within a five-year period for such conviction;

and must not be charged with a class A felony, a class B felony, certain class C felonies, certain

sexual offenses not at issue in this case, driving under the influence, or vehicular assault. See id. §

40-15-105(a)(1)(B)(i)(a)-(c).

There is no presumption that a person eligible for pretrial diversion is entitled to diversion.

See State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999). The “defendant bears the burden of

establishing that pretrial diversion is appropriate and in the interest of justice”; therefore, it is the

responsibility of the defendant to provide “substantial favorable evidence for the district attorney

general’s consideration.” State v. Bell, 69 S.W.3d 171, 179 (Tenn. 2002).

The decision to grant or deny an application for pretrial diversion rests within the discretion

of the district attorney general. See Tenn. Code Ann. § 40-15-105(b)(3). “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.”

State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983).

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. Id. If pretrial diversion is denied, the denial must be

written, must list the evidence considered, discuss which factors were considered, and discuss the

weight accorded to each factor. See State v. Pinkham, 955 S.W.2d 956, 960 (Tenn. 1997). “This

requirement entails more than an abstract statement in the record that the district attorney general

has considered these factors.” Curry, 988 S.W.2d at 157 (citations omitted).

If the application for pretrial diversion is denied, the defendant may appeal to the trial court

for a writ of certiorari. See Tenn. Code Ann. § 40-15-105(b)(3). On review, the trial court is

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constrained to consider only the evidence considered by the district attorney general and must

determine whether the district attorney general has abused his or her discretion. See Bell, 69 S.W.

3d at 177. An abuse of discretion may only be found where the prosecutor fails to consider all the

relevant factors and their weight or reaches a decision not supported by substantial evidence. See

id. On review, the decision made by the district attorney general is presumed correct. Curry, 988

S.W.2d at 158. Therefore, in a close case where the prosecutor could have legitimately granted or

denied the application, the trial court must defer to the judgment of the prosecutor. See State v. Carr,

861 S.W.2d 850, 856 (Tenn. Crim. App. 1993). For purposes of our review, this Court is “bound

by the factual findings made by the trial court unless the evidence preponderates against them.” Bell,

69 S.W.3d at 177.

“However, if the evidence of record is undisputed and calls for no finding of fact to resolve

the issue, a trial court’s determinations constitute conclusions of law to which an appellate court is

not bound.” Carr, 861 S.W.2d at 856 (citations omitted). Therefore, when the facts are undisputed,

the underlying issue that this Court must determine on appeal remains whether, as a matter of law,

the district attorney general abused his or her discretion in denying pretrial diversion. Id.

I. Reliance on Irrelevant Factors

The Defendant contends that the State relied on a number of irrelevant factors in denying

pretrial diversion. First, she argues that the prosecutor considered his personal distaste for the

television show Desperate Housewives in the following excerpt from his memorandum:

One can barely turn on a television or radio without hearing of another

example of middle-aged men and women taking advantage of high school and middle

school students sexually. One particularly disturbing facet is the apparent distinction

drawn in our society between male and female victims. Turn on an episode of

Desperate Housewives and you will see the thirty-something housewife pining over

the 17-year-old high school lawn boy, with whom she is having an affair. Numerous

examples of these cases come to light, but somehow a distinction is drawn when the

victim is male.

We disagree that such concerns are irrelevant. In this passage, the State did not merely

express distaste for a particular television show, but rather used a television show as an example of

why its denial of diversion was necessary to reinforce the seriousness of the Defendant’s offense.

This fits well within the State’s duty to consider the ends of justice and the best interests of the

public. See Hammersley, 650 S.W.2d at 355.

The Defendant also argues that the State inappropriately relied on certain “inflammatory

societal issues” in denying her pretrial diversion, including concern about “sexually transmitted

diseases, unplanned pregnancies, and the recent story out of Knoxville where the jealous husband

shot and killed his wife’s teenage paramour.” The Defendant contends that the record does not

demonstrate how the denial of pretrial diversion would serve to deter the conduct leading to any of

these issues. The State cited those instances, however, in the context of its larger point that minors,

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male or female, are deemed unable to “truly comprehend the gravity of these situations,” and thus,

gain some measure of protection from the deterrence value inherent in a denial of pretrial diversion.

We conclude that this point was not irrelevant and that the State did not consider irrelevant factors.

This issue is without merit.

II. Failure to Consider All Relevant Factors

The Defendant next contends that the State abused its discretion by failing to consider all

relevant factors, particularly her amenability to correction. As noted above, the State should “focus”

on this factor in deciding whether or not to grant pretrial diversion. Hammersley, 650 S.W.2d at 355.

In its memorandum, the State noted that the Defendant has no prior criminal history. As to

her social history, the State acknowledged the twenty reference letters accompanying her application

for diversion, the first of which was a therapist’s letter diagnosing the Defendant with depressive

disorder. The remaining letters were uniformly supportive, although the State noted that letters from

the Defendant’s “friends and neighbors in her current community, members of her current church,

or anyone from the Tullahoma City School system where she served as a substitute teacher” were

“curiously sparse.”

The State also considered the general and specific deterrence value of denying diversion to

the Defendant, noting that an example should be made of “predators” like the Defendant, and also

noting that while the Defendant’s remorse was obvious, it was unclear “whether the Defendant [was]

remorseful for her conduct, or remorseful for being caught.” The State also explained its

consideration of some other Hammersley factors, including the Defendant’s mental and physical

condition, her interests, the interests of the public, and the ends of justice.

The State apparently gave little consideration to the Defendant’s amenability to correction,

however. It did not devote a section of its memorandum to the issue and offered no information as

to the weight that factor may have been given. The State did, in its conclusion, express concern with

the “memory loss” inherent in the Defendant’s version of the events as well as its belief that the

Defendant had sought therapy only after learning of a police investigation of her actions. While

these facts may tend to support a conclusion that the Defendant is not amenable to correction, the

State did not offer any discussion directly on this issue and certainly did not “focus” on it as required

by Hammersley.

III. Remedy

Our supreme court has stated that “[i]f 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 the

factors relevant to the pretrial diversion determination.” State v. McKim, 215 S.W.3d 781, 788

(Tenn. 2007). This procedure should also generally be followed in the event that a prosecutor relies

upon irrelevant factors in denying pretrial diversion. See id. at 789.

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The Defendant asks us to enter an order directing the trial court to grant her writ of certiorari

and approve pretrial diversion, however. In so doing, she relies on State v. Russell L. Tipton, No.

M2006-00260-CCA-R9-CO, 2007 WL 2295610 (Tenn. Crim. App., Nashville, Aug. 9, 2007). In

Tipton, this Court ordered the trial court to grant pretrial diversion rather than remanding for further

consideration. Id. at *7. We did so, however, because the State had already failed to properly

exclude irrelevant factors on an earlier remand for further consideration. Id. There has been no

previous remand in this case. Also, the prosecutor in Tipton refused to consider the Hammersley

factors, instead categorically denying pretrial diversion to defendants charged with certain crimes

he felt were particularly objectionable. Id. As such, he relied almost entirely on irrelevant factors.

Id. We have explained above that the State erred in this case not by considering irrelevant factors

but by failing to specifically address the Defendant’s amenability to correction. As such, we

conclude that a remand for further consideration is appropriate. See McKim, 215 S.W.3d at 788.

Conclusion

Based on the foregoing authorities and reasoning, we vacate the order of the trial court

upholding the denial of pretrial diversion. We remand this case to the trial court and direct that the

matter be remanded to the district attorney general for reconsideration of the pretrial diversion

application consistent with this opinion.

______________________________

DAVID H. WELLES, JUDGE

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