State of Tennessee v. Tonya Lynn Jowers

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 4, 2004

STATE OF TENNESSEE v. TONYA LYNN JOWERS

Appeal from the Circuit Court for Henderson County

No. 02-047 Donald Allen, Judge

No. W2003-01697-CCA-R9-CD - Filed June 4, 2004

The defendant, Tonya Lynn Jowers, appeals the Henderson County Circuit Court’s order upholding

the prosecutor’s denial of pretrial diversion for the charge of theft of property valued more than

$10,000 but less than $60,000, a Class C felony. She claims that the prosecutor abused his discretion

by failing to consider all the relevant factors. We affirm the trial court’s order denying pretrial

diversion.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES

CURWOOD WITT , JR., JJ., joined.

Carthel L. Smith, Jr., Lexington, Tennessee, for the appellant, Tonya Lynn Jowers.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James

G. Woodall, District Attorney General; and William R. Martin, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

This case relates to the defendant’s stealing money from her employer, Hayes Small Engine,

Inc. (“Hayes”), in July and August 2002. The defendant requested pretrial diversion, and the trial

court ordered the Tennessee Board of Probation and Parole to conduct a background investigation

of the defendant. In a February 4, 2003 letter, the prosecutor denied the defendant’s application for

pretrial diversion based on the following reasons:

[1] I place no weight on the defendant’s age. Tonya is forty-

one years of age and has sufficient experience in life to appreciate the

wrongfulness of her conduct and conform her conduct to society’s

expectations.

[2] I place very slight weight in favor of diversion on Tonya’s

academic record. She is apparently enrolled in college but her past

history of dropping out together with the lack of specific information

as to actual course work, grades and other dates causes me to place

minimal weight on this factor.

[3] I weigh Tonya’s employment history against diversion.

Tonya has a history of being terminated or resigning and the present

charge was committed against her employer.

[4] I place significant weight on the fact that Tonya

committed a breach of confidence in committing this crime. Her

employer trusted her with certain financial obligations and she used

this trust to commit theft.

[5] Tonya was on bond or other form of release when she

committed this crime. Tonya had two worthless check charges

pending in General Sessions Court when she committed this crime.

I weigh this factor heavily against diversion.

[6] Tonya’s crime was not a crime of impulse but required

considerable effort of planning and took place over a period of several

months. I weigh this against diversion.

[7] It is apparent from the record that Tonya used stolen

money to pay off two pending worthless checks. . . . The record

demonstrates that both checks were paid off during the time period

Tonya was stealing from her employer. I weigh [this] factor heavily

against diversion.

[8] It is apparent that lesser means than full prosecution have

failed to correct Tonya’s criminal behavior. The General Sessions

Court passed two worthless checks in order for Tonya to pay off the

checks and court costs. . . . While this type of “informal diversion”

in no way disqualifies Tonya from seeking pretrial diversion, it does

demonstrate that . . . methods other than full criminal prosecution are

not likely to succeed in Tonya’s case and I weigh this against

diversion.

Having therefore considered and weighed the foregoing, I

have concluded . . . that it would not be in the best interests of society

to allow her to participate in pretrial diversion.

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In response to the prosecutor’s denying diversion, the defendant sent the prosecutor a letter,

proof of enrollment at Union University, and a transcript showing her coursework and grades. In

the letter, the defendant claimed that she had only one worthless check charge pending against her

at the time of the crime in question and that the charge had been dismissed because she had paid the

check. The defendant also noted that the crime in question occurred over a two-month period, not

over several months as the prosecutor had stated in his February 4 letter. In a written response, the

prosecutor stated that he had considered the defendant’s new information but that he still believed

pretrial diversion should be denied. Specifically, he stated that the defendant’s education weighed

against her request for pretrial diversion because she had used special skills learned through her

business and accounting courses to commit the crime.

In response to the prosecutor’s second denial, the defendant sent him ten letters written by

her counselor, high school teacher, and friends in support of her receiving pretrial diversion. The

prosecutor denied diversion for a third time, stating that the letters had not addressed the defendant’s

legal troubles and had not realistically assessed her true character. The defendant petitioned the trial

court for a writ of certiorari to review the prosecutor’s denial of pretrial diversion and submitted a

copy of the record upon which the prosecutor based his denial, including the Board of Probation and

Parole’s pretrial diversion report; the defendant’s written statement, victim impact statements, the

defendant’s academic records from Union University, and the letters written on her behalf.

According to the defendant’s diversion report, the defendant graduated from high school in

1979 and attended Vanderbilt University for a couple of years before dropping out. In the report,

the defendant stated that she enrolled in Union University in 1998 to study accounting but dropped

out after only one semester. She then re-enrolled in the fall of 2001 and was still enrolled at the time

of the report in December 2002. The defendant stated in the report that she used alcohol

occasionally, did not use illegal drugs, and took prescribed medicine for depression. The report

shows that before going to work for Hayes, the defendant worked as a bookkeeper for Miller CPA

and as a general office manager for Jackson Hewitt Tax Service. According to the report, both

employers fired the defendant for her poor job performance. The report also shows that the

defendant worked in the real estate business and as a florist. According to the report, the defendant

was charged in December 2001 with violating the bad check law but the charge was dismissed in

July 2002 when she paid $922.68 to Wal-Mart. The report shows that in June 2002, the defendant

again was charged with violating the bad check law and that the second charge was dismissed in

October 2002 when she paid Heritage Auctions $1,592.90. The report reveals that the defendant

paid $9,000 to the circuit court for restitution in the present case.

In the defendant’s typed statement, she stated that she took full responsibility for her actions

but that she took the money from Hayes in order to alleviate a financial crisis in her family. She said

that she “viewed the funds as an unapproved loan,” that she planned to use the money for her

family’s business, and that she had intended to replace the stolen money. She admitted to filling out

inaccurate deposit slips and keeping an inaccurate account balance in Hayes’ checkbook but said that

she kept an accurate tally of how much money she needed to return to the company. She said that

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she felt tremendous shame and guilt for what she had done and that she had not intended to hurt

Hayes.

The trial court determined that the prosecutor did not abuse his discretion by denying the

defendant’s request for pretrial diversion. The trial court noted that the prosecutor considered the

circumstances of the offense and the defendant’s criminal record, social history, age, and educational

and employment background. The trial court also noted that the prosecutor considered and gave

great weight to the fact that the defendant had committed the crime after she paid the two bad

checks, indicating to the prosecutor that the defendant lacked an amenability for rehabilitation and

that granting diversion would not deter her from criminal activity. The trial court noted that the

prosecutor also had considered the letters written in support of her receiving pretrial diversion and

had determined that diversion would not serve the ends of justice or be in the best interests of the

defendant and the public. The trial court concluded that substantial evidence in the record supported

the prosecutor’s denial of pretrial diversion.

In order to be eligible for pretrial diversion, a defendant must not have been previously

granted diversion; must not have a prior misdemeanor conviction in which the defendant served a

sentence of confinement or a prior felony conviction within a five-year period after completing the

sentence or probationary period for the prior conviction; and must not be seeking diversion for a

Class A or B felony, a sexual offense, driving under the influence, or vehicular assault. T.C.A. §

40-15-105(a)(1)(B)(i)(a)-(c). The decision to grant or deny an application for pretrial diversion is

within the discretion of the prosecuting attorney. T.C.A § 40-15-105; State v. Curry, 988 S.W.2d

153, 157 (Tenn. 1999). In making this determination, the 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 articulable and stated in the record in order

that meaningful appellate review may be had. 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.”

Curry, 988 S.W.2d at 157 (quoting State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983)). The

prosecutor’s response must be in writing, must list the evidence considered, and must point out any

factual discrepancies between the evidence upon which the prosecutor relied and that presented in

the defendant’s application. Curry, 988 S.W.2d at 157. The response must discuss the factors

considered by the prosecutor and the weight given to each factor. Id. The fact that a defendant has

the burden of showing suitability for diversion does not relieve the prosecutor from the obligation

to examine all of the relevant factors and to set forth the required findings. Id.

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The decision of the prosecutor to grant or deny pretrial diversion is presumptively correct and

will not be set aside absent an abuse of discretion. Id. at 158; Hammersley, 650 S.W.2d at 356. In

reviewing the prosecutor’s denial of pretrial diversion, the trial court may consider only that evidence

considered by the prosecutor. Curry, 988 S.W.2d at 158. In order to find an abuse of discretion, the

trial court must conclude that the record lacks substantial evidence supporting the prosecutor’s

determination. Id. The trial court “must not re-weigh the evidence, but must consider whether the

district attorney general has weighed and considered all of the relevant factors and whether there is

substantial evidence in the record to support the district attorney general’s reasons for denying

diversion.” State v. Yancey, 69 S.W.3d 553, 559 (Tenn. 2002). “On appeal, the appellate court is

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

State v. Bell, 69 S.W.3d 171, 177 (Tenn. 2002) (citing Curry, 988 S.W.2d at 158). If the facts are

undisputed, the underlying issue for determination on appeal remains whether or not, as a matter of

law, the prosecutor abused his or her discretion in denying pretrial diversion. State v. Carr, 861

S.W.2d 850, 856 (Tenn. Crim. App. 1993). Moreover, “upon review of a denial or grant of pretrial

diversion, the Court of Criminal Appeals is limited to considering only the evidence that was

considered by the district attorney general.” Yancey, 69 S.W.3d at 559-60.

The defendant contends that the prosecutor abused his discretion by denying her application

for pretrial diversion because he failed to consider all of the relevant factors. Specifically, she argues

that the prosecutor failed to consider her amenability to correction, that pretrial diversion would

serve the ends of justice, and that pretrial diversion was in her and the public’s best interests. She

also contends that the prosecutor improperly gave little weight to her academic status and

disregarded the fact that she is planning to graduate from Union University and has a 3.25 grade

point average. She also claims that nothing in the record supports the prosecutor’s concluding that

she used her education in accounting to commit the crime, that she used any elaborate scheme or

considerable planning to steal from Hayes, or that she used the money from Hayes to pay off her bad

checks to Wal-Mart and Heritage Auctions. Moreover, she points out that the crime was committed

over a two-month period, not over several months as the prosecutor stated in his original denial.

Finally, she contends that the letters submitted on her behalf, the payment of restitution, and her

accepting responsibility for the crime support granting her request for pretrial diversion. The state

claims that substantial evidence supports the prosecutor’s denying pretrial diversion. We agree with

the state.

In the prosecutor’s initial denial of pretrial diversion, he concluded that her academic record

was entitled to slight weight. After the defendant gave the prosecutor her academic records, he

stated that her education weighed against diversion because she had used it to commit the crime.

The defendant disputes this, claiming that nothing in the record supports his conclusion. She also

disputes the prosecutor’s concluding that she used an elaborate scheme and considerable planning

to commit the crime and that she committed the crime over several months. However, in the

defendant’s written statement, she described the crime as follows:

Yes, deposit slips and the checking balance in the checkbook were

inaccurate, but when making entries into the daily sales records, I

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posted the accurate cash amounts so that I could compare them to my

deposits in order to ascertain how much money needed to be returned.

Financial records submitted by Hayes support the defendant’s claim that she committed the theft

during July and August 2002. However, using the method she described, the defendant was able to

steal over $10,000 during that brief period of time. Also, records reveal that she began stealing from

the business after having worked there only one month and stopped taking money only when the

company’s owner discovered the theft.

Regarding the defendant’s prior criminal history, the prosecutor determined that the two bad

check charges also supported denying her request for pretrial diversion. The pretrial diversion report

shows that the defendant wrote a bad check to Wal-Mart on December 15, 2001, and that she wrote

a second bad check to Heritage Auctions on June 29, 2002. On July 30, 2002, while she was

working for Hayes, the defendant paid Wal-Mart $922.68 for the first bad check. Despite her claim

to the contrary, the prosecutor made a logical assumption that the defendant used money she took

from Hayes to pay off the Wal-Mart debt. Moreover, despite having just resolved the bad check

charge at Wal-Mart, the defendant continued stealing from Hayes.

Although the defendant claims that the prosecutor failed to consider her amenability to

correction, the prosecutor’s statements in his first letter of denial demonstrate that he believed that

the defendant’s stealing from Hayes while having two bad check charges pending against her

demonstrated that she lacked an amenability to rehabilitation. We agree. Finally, the defendant

argues that the prosecutor failed to consider that the likelihood of pretrial diversion would serve the

ends of justice and that pretrial diversion was in the best interests of her and the public. However,

in the prosecutor’s second letter denying diversion, he stated that diversion would not meet the

interests of society in this case. In light of the record, we conclude that the prosecutor and the trial

court were justified in denying the defendant’s request for pretrial diversion.

Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court.

___________________________________

JOSEPH M. TIPTON, JUDGE

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