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State v. Crudup6/9/2005
08-CC-00244, 1997 WL 71829 (Tenn. Crim. App., Nashville, Feb. 20, 1997), no application for perm. to appeal filed (diversion denied to police dispatcher who, while not a sworn official, was a symbol of law enforcement and committed one of her offenses while in uniform); State v. William H. Bowen, Jr., No. 02C01-9409-CC-00199, 1995 WL 422850 (Tenn. Crim. App., at Jackson, July 19, 1995), no application for perm. to appeal filed (diversion denied to correctional officer who attempted to smuggle drugs into the prison).
We are aware that Defendant relies on Curry in support of his position that a public employee who embezzles funds from a municipality may be granted judicial diversion. In Curry, however, an abuse of discretion was found not because the prosecutor erroneously considered the circumstances of the defendant's offense, including the violation of the public's trust, but because in considering such circumstances, the district attorney general failed to consider the defendant's lack of a criminal record, her favorable social history, and her amenability to correction. Curry, 988 S.W.2d at 159. In the case sub judice, the prosecutor properly weighed Defendant's positive factors against those supporting a denial of pretrial diversion.
A district attorney general may appropriately inquire into the circumstances of the offense when considering an application for pretrial diversion. Hammersley, 661 S.W.2d at 355. In addition, " eterrence to others as well as deterrence to the defendant is appropriate for consideration." State v. Holland, 661 S.W.2d 91, 93 (Tenn. Crim. App. 1983).
The record does not indicate whether Defendant made any of his unauthorized purchases outside of business hours. Nonetheless, we find that the district attorney general's finding that Defendant had violated the public's trust under the facts presented in this case was appropriate. As purchasing agent for the City of Lebanon, Defendant was entrusted with a city-issued credit card for the expenditure of public funds. Defendant used his position to make unauthorized purchases intended for his personal uses. Unlike the offense examined in Lane, Defendant's unauthorized purchases were not isolated events. The purchases, which numbered in excess of one hundred, occurred over a significant period of time, and Defendant took affirmative steps to elude detection by falsifying the unauthorized purchase orders. Based on the foregoing, we find that the district attorney general did not abuse his discretion in considering the circumstances surrounding Defendant's offenses, including the violation of the public's trust. In addition, we find that there was substantial support in the record to support the other factors relied upon in the district attorney general's determination to deny Defendant pretrial diversion.
After reviewing the record, we find that the evidence does not preponderate against the trial court's finding that the district attorney general did not abuse his discretion in denying pretrial diversion.
CONCLUSION
We affirm the judgment of the trial court.
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