IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
DECEMB ER SESSION, 1998 January 28, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9801-CC-00035
)
Appellee, )
)
) SEVIER COUNTY
VS. )
) HON. RICHARD R. VANCE
PATRICIA BOHNENSTIEHL, ) JUDGE
)
Appe llant. ) (Direct Appeal - Theft over $10,000)
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID W. WEBB JOHN KNOX WALKUP
1415 Middle Creek Road Attorney General and Reporter
Sevierville, TN 37862
MICH AEL J . FAHE Y, II
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
AL SCHMUTZER, JR.
District Attorney General
CHUCK ATCHLEY
Assistant District Attorney
Sevier County Courthouse
Sevierville, TN 37862
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
On Octo ber 15 , 1997 , Appe llant Pa tricia Bohnenstiehl pleaded guilty to one
count of theft of pro perty worth more than $10,00 0. Appe llant’s agre emen t with
the State involved a suspended sentence of six years with supervised probation
and it allowed Appella nt to request judicial diversion. On November 18, 1997, the
trial court de nied Ap pellant’s re quest for judicial divers ion. Appellant challenges
that denial. After a review of the record, we affirm the judgm ent of the tria l court.
FACTS
Appellant was employed by Burchfield-Overbay & Associates in Sevier
County, Tennessee from December 1993 to March 1995. Appellant began
embezzling money from the company during the first month she was employed
and she continued until she resigned her position and took another job in Sevier
County. During her employment with Burchfield-Overbay, Appellant embezzled
a total of $22,347.89 by keeping a portion of cash deposits, forging at least one
check, and making false entries into the account books. Appellant claimed that
she took th e mo ney in o rder to pay off c redit card b ills and to support herself and
her three children.
ANALY SIS
Appellant contends that the trial court erred when it denied her request for
judicial diversion. At the time of Appellant’s guilty plea, Tennessee Code
Anno tated sec tion 40-3 5-313 p rovided, in re levant pa rt:
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If any person who has not previously been convicted of a felony or a Class
A misdemeanor is found guilty or pleads guilty to . . . a Class C, D or E
felony, the court may, without entering a judgment of guilty and with the
consent of such person, defer further proceedings and place the person on
probation upon such reasonable conditions as it may require, and for a
period of time not less than the period of the maximum sentence . . . of the
felony with w hich the p erson is c harged . . . .
Tenn. Code Ann . § 40-35-313 (a)(1)(A) (1997). 1 The pr ocedu re unde r this
provision is comm only referre d to as jud icial diversion . It is subs tantially similar
to pretrial diversion; however, judicial diversio n follows a guilty plea and the
decision to grant diversion rests with the court, not the prosecutor. State v.
Anderson, 857 S.W .2d 571, 572 (Tenn. Crim . App. 1992 ).
The trial cou rt’s denial of judicial diversion is subject to appellate reversal
only if that court abused its discretion. State v. Hammersley, 650 S.W.2d 352,
356 (Tenn. 198 3). When a defendant challenges the denial of judicial diversion,
we are con strained n ot to revisit the issue if the record contains any substantial
evidenc e supp orting the tria l court’s de cision. Id.
This Court has stated that in determining whether to grant judicial
diversion, the trial court must consider
(a) the accused’s amenability to correction, (b) the circumstances of the
offense, (c) the accused’s criminal record, (d) the accused’s social history,
(e) the status of the accused’s physical and men tal health, (f) the
deterrence value to the accused as well as others, and (g) whether
diversion will serve the pu blic’s an d the a ccus ed’s in terests in the ends of
justice.
State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993). Moreover, the
record must reflect tha t the court h as weig hed all of th e factors in reaching its
determination. Id. The c ourt m ust exp lain on the record why the defendant does
1
This sta tute has s ince bee n am ended . See Tenn. Code A nn. § 40-35-313 (Supp. 199 8).
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not qualify und er its analysis, and if the court has based its dete rmina tion on only
some of the facto rs, it must e xplain wh y these fa ctors outw eigh the o thers. Id.
The record indicates that the trial court conside red and ba lanced the ab ove
factors when it denied Appellant’s request for judicial diversion. The trial cou rt
examined the pre-sentence report and noted that Appellant’s lack of a criminal
record was an important factor in its decision. The trial court also recognized that
Appellant had “skills, talents, [and] abilities.” In addition, the court noted that
Appellant had a “good background in her church, community, work activities,” and
with her children. In fact, the court considered Appellant’s family circumstances
in mak ing its decis ion to gran t probation rather tha n impo se incarc eration.
Although the trial court recognized these favorable factors, the court
concluded that they were outweighed by concerns about the interest of the p ublic
and the nee d for dete rrence. The cou rt noted that Appellant had stolen $22,000
from an employer who had put her in a position of trust. Thus, other potential
employers had a clear interest in knowing that Appellant had been convicted of
this offense. In addition, the court was concerned that diversion would send a
message to the p ublic th at bein g con victed o f emb ezzle men t mere ly results in
having to repay the amount that was stolen. Thus, the deterrent effect on the
public was of great concern.
W e conclude that the trial court’s de termina tion to deny judicial diversion
is supported by substantial evidence. Of particular importance is proof that
Appellant began embezzling money almost as soon as she was hired by
Burchfield-Overbay, that she e mbez zled m oney thro ughou t the fifteen m onth
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period of her employment, that she utilized different means of embezzling the
money, and tha t she falsified documents in order to keep her wrongdoing from
being detected . Under th ese circu mstan ces, we cannot say that the trial court
abuse d its discretio n when it denied A ppellant’s reques t for judicial dive rsion.
Accordingly, the judgment of the trial court is AFFIRMED.
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JERRY L. SMITH, JUDGE
CONCUR:
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DAVID G. HAYES, JUDGE
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
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