State of Tennessee v. Lonna K. Brewer

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 20, 2006

STATE OF TENNESSEE v. LONNA K. BREWER

Direct Appeal from the Circuit Court for Williamson County

No. II-5214 R.E. Lee Davies, Judge

No. M2005-01876-CCA-R3-CD - Filed August 3, 2006

The appellant, Lonna K. Brewer, pled nolo contendere in the Williamson County Circuit Court to

two counts of obtaining a controlled substance by fraud, a Class D felony. She received concurrent

two-year sentences to be served as one day in jail and the remainder on supervised probation. On

appeal, she contends that the trial court erred by denying her request for judicial diversion.

Following our review, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS

T. WOODALL, JJ., joined.

Susan V. Logan, Franklin, Tennessee, for the appellant, Lonna K. Brewer.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;

Ronald L. Davis, District Attorney General; and Kim R. Helper, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

I. Factual Background

At the appellant’s guilty plea hearing, the State presented the following factual account of

the crimes: On September 5, 2002, a pharmacist and a pharmacist technician from Eckerd’s

Pharmacy contacted the police about a forged prescription. Detective Andrew Green of the Franklin

Police Department investigated the case and learned that the appellant’s doctor had given her three

prescriptions for Adderall. Although the doctor had post-dated the prescriptions, the appellant had

changed the date on one of the prescriptions to August 28, 2002, and attempted to have it filled. In

the course of his investigation, Detective Green also discovered that the appellant had previously

obtained Adderall by changing the date on a second prescription from September 26, 2002, to July

26, 2002. Pursuant to the plea agreement, the trial court sentenced the appellant to concurrent

sentences of two years for each conviction with the manner of service to be determined after a

sentencing hearing.

At the sentencing hearing, Detective Green testified that he responded to a report of a forged

prescription at the Eckerd’s Pharmacy. When he arrived, two patrolmen were talking with the

appellant. Detective Green went inside and spoke with the pharmacist and the pharmacist

technician, and they gave him two suspicious prescriptions. Detective Green went outside and spoke

with the appellant, who was “frazzled” and had a difficult time focusing. The appellant went with

the officers to the police department, and Detective Green interviewed her. Detective Green stated

that one of the appellant’s prescriptions had been written for “9-26-02” but that the “9” had been

“whited out” and changed to a “7.” A sticker on the back of the prescription showed that the

pharmacy filled the prescription on August 9, 2002. The second prescription, which the appellant

attempted to have filled on September 5, 2002, was dated “8/28/02” and had been photocopied and

“traced over to make it heavier and dark to make it appear as if it were filled out.” The appellant

denied tracing over or altering the prescriptions. Detective Green asked her, “[W]ell how do you

explain then that this has been traced over?” and the appellant stated, “[W]ell, that’s the way I was

given the prescription.” The appellant told Detective Green that her doctor had given her three post-

dated Adderall prescriptions because he sympathized with her about her recent divorce and financial

situation. Detective Green did not arrest the appellant at that time.

Detective Green testified that the appellant’s physician was Dr. Lucas Van Ordin and that

he spoke with Dr. Ordin’s office manager, who faxed him a copy of one of the appellant’s unaltered

prescriptions. The unaltered prescription showed that Dr. Van Ordin wrote the appellant an Adderall

prescription for “9/26/02.” Dr. Ordin also faxed a letter to Detective Green stating that he did not

authorize the appellant to change the “9” to a “7.”

In May 2003, a grand jury indicted the appellant for two counts of obtaining a controlled

substance by fraud, and Detective Green went to her home on May 16, 2003, to arrest her. Detective

Green arrived about 8:00 p.m. and knocked on the door. The appellant answered the door several

minutes later, and Detective Green told her that he had a capias for her arrest. The appellant told

Detective Green that she remembered speaking with him at the police department but that she had

no idea what he was talking about. The appellant also told Detective Green that he “would have to

come back because that was not a good time for her, and that she would let me know when an

appropriate time to serve that was.” Detective Green told the appellant that she would have to come

with him, and the appellant was very flustered and agitated. Detective Green went into the

appellant’s home and saw that the house was in disarray. He smelled pet urine and feces, saw that

patches of the carpet were ripped, and saw that the house “looked like a tornado had gone through

it.” The appellant told Detective Green that she was home alone, and Detective Green took her into

custody.

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On cross-examination, Detective Green testified that when he questioned the appellant at the

pharmacy, her answers were evasive, but she did not try to flee. The appellant did not want to talk

with him about the forged prescriptions but tried to talk with him about being treated for depression

and “various different things due to her divorce.” When Detective Green went to the appellant’s

home on May 16, he saw only the lower floors of her home. Detective Green remembered that boxes

were in the home, but he did not remember the appellant’s telling him that she was in the process

of moving.

David Pratt of the Tennessee Board of Probation and Parole testified that he prepared the

appellant’s presentence report. Pratt met with the appellant on the day of her guilty pleas, and he

later interviewed her for about thirty minutes in his office. The appellant was pleasant and polite but

“[i]t was difficult to get information out of her because she kept going off on tangents and it was

hard to keep her focused.” At that time, the fifty-one-year-old appellant was involved in a child

custody battle with her ex-husband, and she wanted to talk about the custody dispute. On cross-

examination, Pratt testified that the appellant had been a housewife for many years, had three minor

children, and had no prior criminal record.

Robert Grimes, the appellant’s brother, testified for the appellant that he and the appellant

had a close relationship while growing up. The appellant was a good student, was senior class

president, and never got into trouble. He stated that he would trust the appellant with his life and

that she made sure her children did their school work. The appellant and her children currently lived

with Grimes. He stated that before her divorce, the appellant kept up her house. At the time of her

arrest, the appellant was in the process of moving and was replacing the carpet in order to sell the

home. Grimes acknowledged that the appellant was emotionally and psychologically affected by her

divorce but stated that she was a strong person. He did not believe she would do well in confinement

and stated that confinement would devastate her minor children, who were sixteen, fourteen, and

nine years old.

Alexandra Brewer, the appellant’s sixteen-year-old daughter, testified that she and the

appellant had a close relationship and that she had never seen the appellant use drugs. She also said

that she had never seen the appellant “high” and did not believe the appellant was a drug addict.

Alexandra was asleep at the time of her mother’s arrest on May 16 and was shocked by the arrest.

She said that she was a member of her school marching band, the color guard, the German club, and

was a youth legislator and that the appellant was supportive of her extracurricular activities. She

stated that her grades were all As and Bs and acknowledged that her mother helped her with her

homework when she needed it. In 2002, Alexandra participated in a poetry competition in

Washington, D.C. and a modeling competition in California, and the appellant went with her on both

trips. She acknowledged that the appellant could follow the terms of probation and that the appellant

had many talents and skills to offer the community.

The appellant testified that at the time of the crimes, she was divorced with four children and

had never even had a speeding ticket. The appellant never got into trouble in school and graduated

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from Eastern Michigan University in 1975 with a double major in psychology and English literature.1

After graduation, the appellant worked for ten years but stopped working in order to take care of her

young children. In the summer of 2002, the appellant was under a physician’s care and was being

treated for attention deficit hyperactivity disorder (ADHD). She had scattered thoughts and trouble

focusing, and Dr. Van Ordin prescribed Adderall. The appellant had also gone through a difficult

divorce after having been married for eighteen years.

The appellant testified that when Detective Green came to her home on May 16, she was

asleep, had never been arrested before, and “had no idea how things like that worked.” The appellant

stated that in her presentence report, she described her health as “poor.” However, when she did so,

she had recently been released from the hospital and was in poor health. Since that time, however,

the appellant had “done pretty good” and was no longer taking Adderall. Although the appellant had

been having seizure-type convulsions, doctors discovered that stress was causing the convulsions

and prescribed Depakote. The appellant stated that she was no longer taking Depakote but that she

currently was taking Tramadol, which was listed incorrectly as Trazodone in her presentence report.

She said that she had been drug-tested, had seen a psychologist and a psychiatrist, and had been

assessed by Cumberland Heights Treatment Center. According to a letter from Cumberland Heights

introduced into evidence, the appellant has “a low probability for a substance dependence disorder.”

The defense also introduced into evidence several letters written by the appellant’s family and friends

on her behalf.

On cross-examination, the State asked the appellant if she had altered the prescriptions at

issue, and the appellant stated, “I’m taking responsibility for the action.” The appellant

acknowledged that on December 8, 2004, she filed a petition to change her guilty pleas to not guilty

and stated in the petition, “I did not commit either of these crimes.” The following exchange then

occurred:

Q. But you are now saying that you did commit the crimes; is

that correct?

A. To the best of my knowledge when I read up on this, altering

[a] prescription can mean writing on it or -- it does not mean

that you actually changed the dose. If you have wrote on it --

if you did anything, like doodling on it, that is altering the

doctor’s prescription.

....

Q. But are you saying that you did not change the date on any of

those prescriptions?

1

W e note that according to the appellant’s presentence report, she graduated in 1974.

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A. I am taking responsibility --

THE COURT: Oh, I think you need to just belly up to the bar

and answer the question.

THE WITNESS: I didn’t change the date.

THE COURT: You didn’t -- did you change anything on those

prescriptions?

THE WITNESS: I wrote over them.

THE COURT: That’s not changing the prescription, if you

just traced over what is already there.

THE WITNESS: Well, I pled no contest and I’m taking

responsibility for doing so, so I believe I need to say yes. Is that

correct?

THE COURT: Well, I just have a hard time understanding

what you did.

THE WITNESS: I do too.

The appellant then stated that she believed someone in her family took the first prescription out of

her purse, changed the “9” to a “7,” had the prescription filled, and kept the Adderall. Regarding the

second prescription that appeared to have been photocopied, the appellant stated, “I wrote over the

one. I was waiting in line and I went over that and I told Detective Green that. I traced over what

he had already written. I added my birthdate and I wrote in the corner, no address.”

According to the appellant’s presentence report, she graduated from Eastern Michigan

University. She was divorced but had four children, and the oldest child was serving in the United

States Navy. In the report, the appellant described her physical condition as poor, stating that she

suffered from seizure/convulsive disorder. The report shows that she was taking the medications

Trazodone, an antidepressant; Depakote, for bipolar disorder; and Diazepam, a sedative. According

to the report, the appellant provided copies of her medical records to verify her health information.

The appellant reported no drug or alcohol abuse. At the time of the report, the appellant had custody

of her three minor children and was supposed to receive $3,200 per month in alimony and child

support. However, she stated in the report that her ex-husband was “in contempt of the divorce

decree.”

In denying the appellant’s request for judicial diversion, the trial court stated that “I just have

a reluctance to do that. A lot of it has to do with the failure, your failure to come clean with me and

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tell me what exactly is going on here.” The trial court noted that the appellant had been going

through a divorce at the time of the crimes and that this could have been a very stressful time for her.

The trial court also stated that it did not believe the appellant had a drug problem and was taking into

consideration the fact that her family was present at the sentencing hearing. However, the trial court

stated that it wanted the appellant’s children to understand “that there are consequences for your

actions.” Although the trial court denied her request for judicial diversion, it concluded that the

appellant was a good candidate for alternative sentencing and ordered that she serve one day in

confinement and the remainder of her sentence on supervised probation. The trial court also ordered

the appellant to maintain part-time employment.

II. Analysis

The appellant claims that the trial court erred by denying her request for judicial diversion.

She contends that although the trial court denied diversion on the basis that she did not admit her

guilt, the legislature did not intend to exclude people who do not expressly confess their crimes from

receiving judicial diversion. In support of her argument, she notes that the judicial diversion statute

specifically states that defendants who enter nolo contendere pleas are eligible for diversion. The

appellant also contends that the trial court failed to sufficiently state on the record its reasons for

denying diversion and that diversion was appropriate in this case because she did not have a

sustained intent to violate the law, has a favorable social history, is a community volunteer, is a

college graduate, obtained the Adderall prescriptions legally, and has no prior criminal history. The

State claims that although the appellant qualified for judicial diversion, the appellant’s lack of candor

alone was a sufficient reason to deny her request. We conclude that the trial court properly denied

judicial diversion in this case.

A defendant is eligible for judicial diversion when he or she is found guilty or pleads guilty

or nolo contendere to a Class C, D, or E felony and has not previously been convicted of a felony

or a Class A misdemeanor. See Tenn. Code Ann. § 40-35-313(a)(1)(B). It is within the trial court’s

discretion to grant or deny judicial diversion. See State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim.

App. 1996). As such, the trial court’s decision will be overturned only if the court abused its

discretion. Id. In other words, we will not interfere with the denial of judicial diversion if the record

contains any substantial evidence to support the trial court’s refusal to grant diversion. Id.

Moreover, 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).

In determining whether to grant a defendant judicial diversion, the trial court must consider

all of the following factors: (1) the defendant’s amenability to correction, (2) the circumstances of

the offense, (3) the defendant’s criminal record, (4) the defendant’s social history, (5) the status of

the defendant’s physical and mental health, and (6) the deterrence value to the defendant and others.

State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997). “The trial court should also consider

whether judicial diversion will serve the ends of justice--the interests of the public as well as the

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accused.” Id. The record must reflect that the trial court has taken all of the factors into

consideration. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998).

Furthermore, “[t]he court must explain on the record why the defendant 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.

Upon our review of the record, we believe the trial court properly denied diversion in this

case. The appellant’s lack of a criminal history, family support, and care of her minor children weigh

in favor of granting diversion. However, the appellant not only refused to accept responsibility for

her crimes but tried to shift blame to another member of her family. In State v. Anderson, 857

S.W.2d 571, 574 (Tenn. Crim. App. 1992), this court stated,

the record reflects that the trial court did not consider the defendant

sincere in accepting responsibility for the offense and it was duly

concerned with the defendant’s attempt to divert the blame to another.

These circumstances are relevant to assessing the degree of

rehabilitation potential shown by the defendant. Since the trial court

was in the best position to determine [the defendant’s] attitude and

demeanor, we are not in a position to view the defendant differently

upon the record before us.

In the instant case, the appellant’s failure to accept responsibility for her crimes greatly disturbed the

trial court. The appellant’s failure to accept responsibility and her attempt to shift blame reflects

poorly on her rehabilitation potential, and the trial court obviously gave great weight to this factor.

Nevertheless, we recognize that a defendant’s “continued denial of guilt should not, in and of itself,

preclude judicial diversion.” State v. Lewis, 978 S.W.2d 558, 567 (Tenn. Crim. App. 1997).

However, the trial court’s statement that the appellant failed to “really come clean with me and tell

me what is exactly is going on here” demonstrates that the trial court also believed the appellant was

refusing to testify truthfully and lacked credibility. Moreover, the trial court’s stating that it wanted

the appellant’s children to understand there were consequences for her actions demonstrates that the

trial court believed the deterrence value to the appellant and others was an important sentencing

factor in this case. From the record before us, we cannot conclude that the trial court abused its

discretion by denying diversion.

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

___________________________________

NORMA McGEE OGLE, JUDGE

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