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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
January 11, 2011 Session STATE OF TENNESSEE v. JESSE GRANT CRAVEN, TOMMY DAVENPORT & GREG POPE
Direct Appeal from the Circuit Court for Warren County No. F-12055 E. Shayne Sexton, Judge

No. M2010-00516-CCA-R9-CO - Filed May 27, 2011

In this interlocutory appeal, the Appellants, Jesse Grant Craven, Tommy Davenport, and Greg Pope, appeal the Warren County Circuit Court's order denying them relief from the prosecutor's denial of each of their respective applications for pretrial diversion. After a thorough review of the record and relevant authorities, we conclude that the trial court properly affirmed the prosecutor's denial of pretrial diversion. Accordingly, we affirm the judgments of the trial court. Tenn. R. App. P. 9 Interlocutory Appeal; Judgments of the Circuit Court Affirmed R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which D AVID H. W ELLES and J ERRY L. S MITH, JJ., joined. John G. Mitchell, III, Woodbury, Tennessee, for the Appellant Jesse Grant Craven. James Bryan Lewis and James Robin McKinney, Nashville, Tennessee, for the Appellant Greg Pope. Edward H. North, Manchester, Tennessee, for the Appellant Tommy Davenport. Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Lisa Zavogiannis, District Attorney General, Tomas J. Miner, Assistant District Attorney General, for the Appellee, State of Tennessee. OPINION I. Facts This case arises from a traffic incident wherein a driver hit and killed a child walking

toward her Warren County school bus, whose flashing warning lights and stop sign were not operating properly. Each of the three Defendants herein was an employee of the Warren County Board of Education School Bus Garage and was involved in repairing the warning system on the school bus after the fatal accident. Based on each Defendant's failure to disclose these repairs to police, each was indicted on charges of tampering with evidence. Defendants Craven and Pope were additionally charged with making a false report to law enforcement personnel. Each Defendant filed an application for pre-trial diversion, which the State denied. Each Defendant filed a petition for a writ of certiorari appealing the State's denial of their application for pretrial diversion. At the consolidated hearing on the Defendants' petitions for writs of certiorai, the following occurred: The parties agreed that little dispute existed about the facts in the case, and they agreed that those facts were adequately summarized by the State in its denial of the Defendants' applications for pretrial diversion. The State filed three separate denials, one for each respective defendant, and we summarize the facts presented in those denials as follows: Defendant Pope was employed as a mechanic at the Warren County Board of Education School Bus Garage. On the morning of April 23, 2009, Barbara Nunley, a bus driver who was running her normal morning route picking up children for delivery to school, radioed to the bus garage and advised Defendant Craven, who was the shop foreman and Defendant Pope's supervisor, that she was having problems with the warning system that is supposed operate when children are boarding the school bus. This system consists of a series of flashing overhead lights and a stop sign located on the driver's side of the bus that deploys and has flashing lights on it. The driver had noted that it was not functioning properly. After Ms. Nunley discussed the situation with Defendant Craven, she continued on her route with the understanding that she would bring the bus to the garage after dropping the children off at their respective schools. Each of the Warren County school buses is equipped with a radio that the bus driver can use to communicate with the bus garage and with other bus drivers. The buses are also equipped with video surveillance cameras and a video and audio recording is made of the activity in the interior of the bus while the bus is operating. The video from Nunley's bus on April 23, 2009, confirmed that she called Defendant Craven and reported,"[M]y stop sign is off and the overhead lights are not working this morning." The recording further showed that Nunley advised Defendant Craven that, after she completed her morning route, she intended to park the bus outside the school cafeteria where she worked during the day. She asked Craven pick up the bus from the cafeteria and repair it. Defendant Craven advised Nunley that he would pick up the bus and that she should "watch out" during the remainder of her morning route.

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Before the driver completed her morning bus route, an elementary school student who was crossing the road to board the bus was struck by an oncoming car and fatally injured. The bus's warning light system was not operating when this accident occurred. Immediately after the accident occurred, Nunley called over her radio frantically that she needed help and needed someone to call 911 because a child had been hit. She added that her stop sign and flashers were not operating at the time. Defendant Davenport, a mechanic who was present and working at the bus garage at the time, denied that he heard Nunley report an accident or that her flashers and stop sign were not working. He admitted that he heard "hysterical screaming" over the radio after which Defendant Craven told him that he was leaving the garage to check on Nunley's bus. Upon learning of the accident, Defendants Pope and Craven traveled to the location of the accident in a vehicle assigned to the bus garage to assist with issues related to the school bus being involved in an accident. Upon arrival at the accident site, they were advised by a law enforcement officer working traffic control that there was no school bus at the scene. While Defendants Pope and Craven were gone, there were continuous radio calls between Nunley and the bus garage about how best to proceed with the children still aboard her bus. Defendant Davenport, who was present during these calls, denied any knowledge of the accident. Defendants Pope and Craven then returned to the bus maintenance garage where they were advised that, upon arrival of the bus, the video tape from the bus's onboard camera was to be removed from the bus and taken to the maintenance garage office, and the bus was to be secured. Before troopers with the Tennessee Highway Patrol arrived, Defendant Pope boarded the bus, removed the video tape from the bus's camera system, and later turned it in at the maintenance office as he had been instructed to do. Defendant Pope also assisted another school system mechanic, Defendant Davenport, examine the bus's boarding warning system, which consisted of flashing overhead lights and a stop sign. The pair replaced a defective fuse in the warning system. Defendant Davenport maintained that he did not know that the bus had been involved in an accident while he was replacing the fuse and that he did not know what type of problem the bus was having when he repaired the fuse. He said he just happened to be helping Defendant Pope on this bus when he observed Defendant Pope pull the bus into the garage. A Tennessee Highway Patrol Trooper later arrived at the bus maintenance garage to inspect the bus, including the warning light system that operates when the bus is being boarded. Neither Defendant Pope nor Defendant Craven, who were both present, advised the trooper that the lights had not been working properly. The two men also failed to disclose to the trooper that they had replaced a defective fuse in the warning system. Both, in fact, watched as the trooper videotaped the lights functioning properly. The trooper therefore -3-

believed that the lighting system had been properly functioning at the time the accident occurred. During the afternoon of April 23, 2009, Defendant Pope came to the District Attorney's office in Warren County where he was questioned about his involvement with this bus on this date by persons who identified themselves as law enforcement officers. The officers advised Defendant Pope that he would not be in trouble if he had repaired the lights, insisting they only needed to know whether the lights had been repaired. In response, Defendant Pope stated he had checked the lights on the bus and that they were working. When Defendant Craven was questioned by the district attorney's office, he repeatedly denied that he had any knowledge of anyone working on the bus before the trooper arrived. He later admitted, however, that he had seen one of his mechanics at the access door and one on the bus before the trooper arrived. Based upon these facts and after reviewing each Defendant's application for pre-trial diversion, the District Attorney General denied each of the Defendants' applications. The Defendants filed petitions for writs of certiorari to the trial court, arguing that they each met all the statutory criteria for pre-trial diversion and that the District Attorney General had abused her discretion when she denied the applications. The trial court held a hearing on the petitions, wherein the Defendants were given the opportunity to present evidence. Defendant Pope presented evidence in the form of multiple letters supporting his petition. He admitted that the had been convicted of DUI, third offense, fifteen years ago, but said that he had rehabilitated himself, as evidenced by the letters. The trial court reviewed this evidence, and then it held "as to [D]efendant Pope, there is no abuse of discretion in the District Attorney['s] not entering into a pretrial diversion with Mr. Pope." Defendant Davenport then offered the testimony of multiple witnesses who testified that Defendant Davenport was a "good citizen" and had supported his children through school. The witnesses said that they had never known him to be in any trouble and recounted that he was, by all accounts, a good friend. These witnesses each testified that they had not been contacted by the District Attorney's office about Defendant Davenport. The trial court then held that "based on the facts of this case, . . . [the State] did not abuse its discretion" when it denied Defendant Davenport judicial diversion. It went on to state, "[T]his was public property used in the commission of a homicide . . . but then other members of the public body have been accused of participating in a cover-up and in that sense I think the State is entitled to use the public perception as a factor for their denial." With regard to Defendant Craven, the trial court reminded the parties that his standard of review was whether the State abused its discretion when it denied Defendant Craven's -4-

application for pretrial diversion. Based upon the trial court's review of the State's written denial, the letters provided on Defendant Craven's behalf, and the arguments of the parties, the trial court found the State had not abused its discretion in refusing to grant Defendant Craven pretrial diversion. The trial court did not file a written order memorializing the findings that it made during the hearing. The three Defendants asked the trial court for permission to seek an interlocutory appeal, and the trial court granted the Defendants an interlocutory appeal to this Court pursuant to Tennessee Rule of Appellate Procedure 9. This Court granted the appeal on April 20, 2010. II. Analysis On appeal, each of the three Defendants contends that the trial court erred when it denied his respective petition for a writ of certiorari. The arguments presented by each Defendant will be discussed thoroughly below. To be eligible for pretrial diversion, an applicant must not have been previously granted pretrial or judicial diversion; must not have a prior misdemeanor conviction in which he or she 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, certain sexual offenses, driving under the influence, or vehicular assault. T.C.A.

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