State of Tennessee v. Susan Gail Stephens

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 12, 2015 Session

STATE OF TENNESSEE v. SUSAN GAIL STEPHENS

Appeal from the Circuit Court for Coffee County

No. 35,064F Vanessa Jackson, Judge

No. M2014-01270-CCA-R9-CD – Filed July 7, 2015

In this interlocutory appeal, Susan Gail Stephens (“the Defendant”) challenges the

prosecutor‟s denial of her application for pretrial diversion. She asks this court to remand

the case to the prosecutor with instructions that the Defendant be granted pretrial

diversion. She also asks us to instruct the prosecutor to grant pretrial diversion nunc pro

tunc to the Defendant‟s 2012 update to her application for pretrial diversion. Upon

review, we find that there is no substantial evidence in the record to support the denial of

pretrial diversion. Accordingly, we reverse the order of the trial court and remand the

case to the trial court with instructions that the Defendant be granted pretrial diversion

upon the terms and conditions of the diversion to be established by the trial court.

However, we decline to instruct that pretrial diversion be granted nunc pro tunc to 2012.

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

and Case Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which JAMES

CURWOOD WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Edward M. Yarbrough and J. Alex Little, Nashville, Tennessee, for the Appellant, Susan

Gail Stephens.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;

Craig Northcott, District Attorney General; and Jason M. Ponder, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

Factual and Procedural Background

This is the third time this case has been appealed to this court from a denial of

pretrial diversion. In the first appeal, we summarized the facts as follows:

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

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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.

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,

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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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State v. Susan Gail Stephens, No. M2008-00998-CCA-R9-CO, 2009 WL 1765774, at *1-

2 (Tenn. Crim. App. June 23, 2009) (alterations in original). The Defendant was charged

with two counts of statutory rape and two counts of contributing to the delinquency of a

minor. Id. at *3. The Defendant applied for and was denied pretrial diversion.

In the Defendant‟s first appeal, this court found that the prosecutor failed to

consider the Defendant‟s amenability to correction. Id. at *5. Consequently, the case

was remanded to the prosecutor for reconsideration. Id.

After the case was remanded, the Defendant submitted additional information to

the prosecutor to support her application for pretrial diversion. The additional

information detailed her work history since the filing of the original application, updated

the prosecutor about her daughters‟ progress in school, informed the prosecutor that the

Defendant was going through a divorce, and described how media coverage of the case

had affected her daily life. Additionally, the Defendant noted that she had not been

charged with any other crime since the filing of her original application. The Defendant

also stated, “To say I regret my actions would be a huge understatement. I realize how

many people I have hurt and changed lives forever. I am hugely remorseful and very

sorry for all the pain I have caused everyone involved.” The prosecutor again denied

pretrial diversion. In his written denial, the prosecutor claimed, “[T]he State is under no

obligation to permit the Defendant to file a new application or to consider any other

factors than those originally filed and considered by the Circuit Court and Court of

Criminal Appeals.”

On appeal from this second denial, this court again remanded the case for

reconsideration. State v. Susan Gail Stephens, No. M2010-01373-CCA-R9-CD, 2012

WL 340247, at *7 (Tenn. Crim. App. Jan. 31, 2012). We held that the prosecutor should

have considered the Defendant‟s updated information because such “surely would have

reflected upon the likelihood that the Defendant would or would not become a repeat

offender.” Id. at *5.

Again, the Defendant submitted updated information to support the third

consideration of her application for pretrial diversion. This information included an

updated work history, an explanation as to how the Defendant was coping as a single

mother following her divorce, and details about her daughters‟ success as honors students

in their respective schools. Additionally, the Defendant gave an account of how her

charges were affecting her daily life, including the following statement:

I am ashamed of my behavior and will always be. I am greatly

saddened by how it has affected all those involved, the victim, my family,

and my friends.

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Since February 2006 I have been a fully law-abiding citizen, with

not even a traffic ticket. I continue to regret the pain I have caused others

due to my actions in February 2006.

The prosecutor again denied the Defendant‟s application for pretrial diversion. He

claimed that, although he erroneously stated he was not obligated to do so, he had

considered the updated information submitted before denying the Defendant‟s application

the second time. To clarify the record for the instant appeal, the prosecutor explicitly

stated that he was considering all of the information the Defendant had submitted to

support her original application.

The prosecutor noted that, aside from the instant offenses, the Defendant had no

criminal record. Additionally, the prosecutor concluded that the Defendant had a

favorable social history, including participation in numerous church activities and extra-

curricular functions with her daughters. The prosecutor noted that the Defendant‟s

physical and mental health were not relevant to the proceeding. As to the Defendant‟s

amenability to correction, the prosecutor expressed concern that the Defendant

“appear[ed] to describe the events in a light most favorable to her own cause,” a practice

the prosecutor had seen from “countless child sexual offenders.” Additionally, the

prosecutor noted that, while the Defendant had sought counseling after the charged

offenses, she stopped counseling shortly after her application for pretrial diversion was

filed due to “insurance issues.” The prosecutor commented that “the dates certainly raise

suspicions as to her motives.” Nevertheless, the prosecutor concluded that the Defendant

was “moderately amenable to correction.” Despite this conclusion, however, the

prosecutor did not believe the Defendant was a suitable candidate for pretrial diversion

because “she ha[d] expressed much more remorse over the consequences to herself and

her family than the effects to the victim, his family, the other children present, or to the

community.”

Turning to specific and general deterrence, the prosecutor described the Defendant

as a “predator” who pursued the victim over the course of several encounters. Looking at

specific deterrence, the prosecutor again commented he could not determine whether the

Defendant was remorseful for her actions or for being caught. As to general deterrence,

the prosecutor cited the television show Desperate Housewives to illustrate a need to

deter middle-aged defendants from taking advantage of teenage victims. Additionally,

the prosecutor stated that the community trusted adults to ensure the safety of children.

The prosecutor concluded that the Defendant‟s actions were a breach of that trust, as

evidenced by “the flood of communication to [the district attorney general‟s] office from

members of the general public.” Therefore, granting pretrial diversion would lessen the

seriousness of the offense and “do nothing to deter others from committing the same or

similar offenses[.]”

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Finally, the prosecutor concluded that pretrial diversion would not serve the ends

of justice or the best interests of the public or the Defendant. Instead, the prosecutor

concluded that granting pretrial diversion would “unquestionably make a mockery of the

ends of justice while at the same time place the public and more specifically, our

children, at a higher risk.”

The Defendant petitioned the trial court for a writ of certiorari. Upon review, the

trial court found that the prosecutor had considered all the relevant factors and did not

abuse his discretion in denying pretrial diversion. The Defendant requested and was

granted permission to file this interlocutory appeal.

Analysis

In this appeal, the Defendant argues that the prosecutor abused his discretion in

denying pretrial diversion. She asks this court to reverse the trial court‟s order affirming

the denial of pretrial diversion and remand the case with instructions that diversion be

granted. Additionally, the Defendant asks this court to direct the prosecutor to grant

pretrial diversion nunc pro tunc to the date of her 2012 application as an equitable

remedy. We agree that the prosecutor abused his discretion in denying pretrial diversion

and remand the case with instructions that the Defendant be placed on pretrial diversion.

However, we decline to instruct the prosecutor to grant pretrial diversion nunc pro tunc to

2012.

The pretrial diversion statute allows a qualified defendant to enter into a

memorandum of understanding with the State to suspend prosecution for up to two years.

Tenn. Code Ann. § 40-15-105(a)(1)(A) (2006). A qualified defendant is one who has not

been previously granted diversion and who does not have a disqualifying prior

conviction. See Tenn. Code Ann. § 40-15-105(a)(1)(B)(i)(a)-(b) (2006). Additionally,

the offense for which pretrial diversion was sought cannot be a Class A or B felony, an

enumerated Class C felony, an enumerated sexual offense,1 driving under the influence,

or vehicular assault. Tenn. Code Ann. § 40-15-105(a)(1)(B)(i)(c) (2006). If granted

pretrial diversion, the defendant is required to observe at least one condition in order to

successfully complete diversion. Tenn. Code Ann. § 40-15-105(a)(2) (2006).

Statutory eligibility for pretrial diversion does not entitle a defendant to diversion.

State v. McKim, 215 S.W.3d 781, 786 (Tenn. 2007) (citing State v. Curry, 988 S.W.2d

153, 157 (Tenn. 1999)). The decision of whether to grant pretrial diversion lies within

the prosecutor‟s discretion. State v. Bell, 69 S.W.3d 171, 176 (Tenn. 2002). In deciding

1

Because statutory rape was not an enumerated sexual offense under Tennessee Code Annotated

section 40-15-105(a)(1)(B)(ii) at the time of the offense, the Defendant was not disqualified from seeking

pretrial diversion.

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whether to grant pretrial diversion, the prosecutor “should focus on the defendant‟s

amenability to correction.” Id. Consequently, “[a]ny 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). Such factors

include the circumstances of the offense, the defendant‟s criminal record, social history,

physical and mental condition, the need for general and specific deterrence, and the

likelihood that pretrial diversion will serve the ends of justice and the best interests of

both the public and the defendant. Id. at 354-55; see also State v. Richardson, 357

S.W.3d 620, 626 (Tenn. 2012); McKim, 215 S.W.3d at 786-87. 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.‟” McKim, 215 S.W.3d at 787 (emphasis and alterations in

original) (quoting State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993)). “Absent

such exceptional circumstances, the prosecutor must consider the defendant‟s amenability

to correction and the likelihood that the defendant will not commit further crimes.” State

v. Russell L. Tipton, No. M2006-00260-CCA-R9-CO, 2007 WL 2295610, at *6 (Tenn.

Crim. App. Aug. 9, 2007).

A prosecutor‟s denial of pretrial diversion must be in writing and enumerate all the

relevant factors considered as well as the weight accorded to each. Richardson, 357

S.W.3d at 626. The defendant may appeal the prosecutor‟s decision by petitioning the

trial court for a writ of certiorari. Id. at 626-27. The district attorney general‟s decision

is presumed to be correct, Curry, 988 S.W.2d at 158, and the trial court must determine

whether the prosecutor abused his or her discretion by examining only the evidence

considered by the prosecutor. Bell, 69 S.W.3d at 177. The trial court may not reweigh

the evidence but can only look to the district attorney general‟s methodology. State v.

Yancey, 69 S.W.3d 553, 558-59 (Tenn. 2002). The appellate court‟s review is confined

to a determination of whether the trial court‟s decision was supported by a preponderance

of the evidence. Richardson, 357 S.W.3d at 627 (citing Curry, 988 S.W.2d at 158 and

State v. Pinkham, 955 S.W.2d 956, 960 (Tenn. 1997)).

“A reviewing court may find that the district attorney general abused his or her

discretion in one of two ways: either by failing to consider or articulate all the relevant

factors or considering and relying upon an irrelevant factor, or (2) by making a decision

that is not supported by substantial evidence.” Richardson, 357 S.W.3d at 627 (citing

McKim, 215 S.W.3d at 788-89; Bell, 69 S.W.3d at 179; Curry, 988 S.W.2d at 158).

Should the district attorney general fail to consider all the relevant factors or give

undue consideration to an irrelevant factor, the reviewing court must vacate the district

attorney general‟s decision and remand the case to allow the district attorney general to

reconsider and weigh all the relevant factors. Id. However, if the reviewing court

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determines that the district attorney general properly weighed all the relevant factors and

did not give undue consideration to any irrelevant factors, but the denial of pretrial

diversion is not supported by substantial evidence in the record, “the reviewing court may

order the defendant to be placed on pretrial diversion rather than remand the case to the

district attorney general.” Id. (citing McKim, 215 S.W.3d at 788 n.3); see also Tenn.

Code Ann. § 40-15-105(b)(3) (2006).

In this case, it is evident that the prosecutor considered and weighed all the

relevant factors. However, we do not believe the decision to deny pretrial diversion is

supported by substantial evidence in the record. The prosecutor identified the need for

deterrence and the ends of justice as factors weighing against granting pretrial diversion.

Additionally, even though the prosecutor concluded that the Defendant was “moderately

amenable to correction,” he did not believe this factor weighed in favor of granting

diversion because the Defendant had not expressed sufficient remorse for her actions.

As this court has previously held, the prosecutor may not require the Defendant to

admit guilt before granting pretrial diversion. See Russell L. Tipton, 2007 WL 2295610,

at *5 (citing State v. Thompson, 189 S.W.3d 260, 268 (Tenn. Crim. App. 2005)). To do

so constitutes an abuse of discretion. Id. Therefore, we conclude that the prosecutor

abused his discretion when he concluded that the Defendant‟s amenability to correction

weighed against granting pretrial diversion because she had not demonstrated sufficient

remorse for her actions. Consequently, the record does not contain substantial evidence

to deny pretrial diversion on the basis that the Defendant is not amenable to correction.

Likewise, the record does not contain substantial evidence to support the

conclusion that the ends of justice and best interests of the Defendant and the public favor

denying pretrial diversion. In regard to this factor, the prosecutor simply stated,

“[P]retrial diversion in this case would unquestionably make a mockery of the ends of

justice while at the same time place the public and more specifically, our children, at a

higher risk.” The prosecutor does not point to, nor can we find, any evidence in the

record to support this conclusion.

The only remaining factor the prosecutor cited as weighing against pretrial

diversion is the need for specific and general deterrence. As noted above, the

circumstances of the offense and need for deterrence “cannot be given controlling weight

unless they are „of such overwhelming significance that they [necessarily] outweigh all

other factors.‟” McKim, 215 S.W.3d at 787 (emphasis and alterations in original)

(quoting Washington, 866 S.W.2d at 951). We do not believe there is substantial

evidence in the record to show that the need for deterrence in this case is so exceptional

as to outweigh all other factors to be considered when determining whether the

Defendant should be granted pretrial diversion. This is especially true when the record

clearly indicates that the Defendant has not been arrested for or charged with any other

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crime since the instant offenses. Because there is no substantial evidence in the record to

support the prosecutor‟s decision to deny pretrial diversion, we reverse the order of the

trial court and remand this case with an instruction that pretrial diversion be granted.

However, we decline to instruct the prosecutor to grant pretrial diversion nunc pro

tunc to the Defendant‟s 2012 update to her application. A judgment may be ordered nunc

pro tunc when the judgment is pronounced but not entered. Thomas v. State, 337 S.W.2d

1, 4 (Tenn. 1960). The nunc pro tunc order allows the order to be entered as of the date

of its pronouncement. Id. However, our supreme court has stated that,

The general rule is that to justify a nunc pro tunc order there must exist

some memorandum or notation found among the papers or books of the

presiding judge, and a nunc pro tunc order will not be valid unless there is

some such memorandum showing what judgment or order was actually

made and these facts recited.

Id.

This is not a case where the Defendant was granted pretrial diversion but, through

some error, that fact was never recorded. Instead, the prosecutor has consistently denied

pretrial diversion. Accordingly, a nunc pro tunc order is not appropriate in this case.

Additionally, although the Defendant asserts that she has been under “court

supervision” during the pendency of these charges, there is nothing in the record

indicating that she had been required to comply with any of the conditions listed in

Tennessee Code Annotated section 40-15-105(a)(2). Successful completion of pretrial

diversion requires that the Defendant comply with one or more conditions as agreed upon

by the parties. Tenn. Code Ann. Section 40-15-105(a)(2) (2006). Because she has not

been required to comply with any of these restrictions, the Defendant has not yet

successfully completed pretrial diversion. Therefore, contrary to the Defendant‟s

assertions, equity does not require granting pretrial diversion nunc pro tunc to 2012.

Conclusion

For the aforementioned reasons, the judgment of the trial court is reversed. The

case is remanded to the trial court with instructions to order the prosecutor to grant

pretrial diversion under such terms and conditions as are deemed appropriate by the trial

court.

_________________________________

ROBERT L. HOLLOWAY, JR., JUDGE

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