            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs June 2, 2015 at Jackson

                     STATE OF TENNESSEE v. JOSEPH R. VIBBERT

                       Appeal from the Criminal Court for Overton County
                           No. 2013-CR-91    Gary McKenzie, Judge


                    No. M2014-02034-CCA-R3-CD – Filed September 2, 2015


The Defendant, Joseph R. Vibbert, was indicted for two counts of sexual battery by an
authority figure, a Class C felony. See Tenn. Code Ann. § 39-13-527. The Defendant
pled guilty to one count of sexual battery, a Class E felony, and the second count was
dismissed. See Tenn. Code Ann. § 39-13-505. The trial court sentenced the Defendant
as a Range I, standard offender to two years to be served in confinement. In this appeal
as of right, the Defendant contends (1) that the trial court erred by denying his request for
judicial diversion; and (2) that the trial court erred by denying his request for an
alternative sentence. Following our review, we affirm the judgment of the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

John Milton Meadows, III, Livingston, Tennessee, for the appellant, Joseph R. Vibbert.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Bryant C. Dunaway, District Attorney General; and Mark Edward Gore, Deputy District
Attorney General, for the appellee, State of Tennessee.

                                                    OPINION

                                        FACTUAL BACKGROUND

       The Defendant has failed to include a copy of the plea agreement or the plea
submission hearing transcript in the record. Based upon the evidence at the sentencing
hearing, it appears that on June 1, 2013, the victim, B.L.,1 was fifteen years old. The

1
    It is the policy of this court to refer to juveniles and victims of sexual offenses by their initials.
victim spent that night at her cousin’s apartment, sleeping on the couch. The Defendant
was the victim’s cousin’s boyfriend and also lived at the apartment. The victim told the
police that at some point that night she was awoken “by something cold touching her
breasts.” The victim pretended to remain asleep but pulled her shirt up and “pulled the
covers around her tightly.” The Defendant stopped touching her, and she fell back
asleep.

       B.L. stated that later, she woke up to the Defendant pulling the covers off of her
legs. The Defendant then “grabbed her hand and put it on his [erect] penis.” The victim
stated that she “jerked her hand back and put the covers back around her.” The
Defendant went to see if his girlfriend, the victim’s cousin, was still asleep. The
Defendant then came back into the room where the victim was and touched the victim
through “the cover as if to see where her arms were.” The Defendant sat down on the
floor and started to play video games while the victim lay on the couch unable to sleep.
When her mother picked her up the next day, the victim told her what the Defendant had
done to her, and they went to the police.

        When he learned that the victim was going to report him, the Defendant went to
the police station and told the dispatcher that “a girl was coming in to make allegations
against him for touching her, and that he [was there] to dispute [those] allegations.” The
Defendant spoke with the chief of police and a detective and denied touching the victim
“at first.” The Defendant eventually told the investigators that the night before he had put
his hand under the victim’s shirt and bra and touched her breasts for fifteen or twenty
seconds. The Defendant said that he then waited ten minutes before he pulled the
victim’s hand from underneath the covers and put his erect penis in it. The Defendant
stated that “he knew what he had done was wrong, and did not know why he” did it.

       At the sentencing hearing, it was established that the Defendant had no prior
criminal history other than minor traffic violations. The Defendant graduated from high
school and had been employed off and on since his graduation. The Defendant
underwent a psychosexual evaluation that demonstrated “[p]roblematic scores [that]
manifest[ed] some pedophile interest and thinking.” The report also listed the
Defendant’s “impulsiveness score in the severe problem range.” The report noted no
problems with alcohol or substance abuse but warned of the “possibility of denial of
problems” as the Defendant “described certain personality characteristics that are often
associated with involvement with alcohol or drugs.” Overall, the Defendant was
characterized as a moderate risk to reoffend.

       Detective Tim Poore testified that he was a detective with the Livingston Police
Department and one of the officers who interviewed the Defendant. Det. Poore recalled
that the Defendant denied the victim’s allegations for “around [twenty] minutes” before
“his conscience finally got the better of him,” and he confessed. Det. Poore testified that
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once the Defendant confessed, there was very little variance between his statement and
the victim’s. Det. Poore also recalled the Defendant saying that he stopped because he
“knew it was wrong.” Later, Det. Poore testified that the Defendant did not confess until
after he had been “confronted [] with the complete evidence.”

        The victim’s mother, B.M.,2 testified that since this incident, the victim’s grades
have fallen, and she was “fighting in school.” B.M. explained that the Defendant’s sister
went to school with the victim and caused her peers to call the victim names and laugh
“at her for what had happened.” B.M. testified that the victim had to switch schools
because of the abuse from her peers and that they are planning on moving out of the state.
B.M. explained that they are moving because “of the way people look at my child after
what had happened, and people sit there and gossip, and talk, and put it on Facebook.”
B.M. further testified that the Defendant had posted about the incident on social media.
B.M. also testified that, since the incident, the victim had suffered from post-traumatic
stress disorder, had to undergo counseling, became afraid of the dark and to sleep alone,
and became angry at “people in general.” Additionally, B.M. testified that the Defendant
had dated the victim’s cousin for almost two years and “was around the family,” having
been at “Thanksgiving dinners” and “Christmases.”

        The Defendant testified that he was nineteen at the time of the offense, that he
“really [did not] know why [he] did it,” that he “shouldn’t have done it,” that “it was a
poor decision on [his] behalf,” and that he “really [was] truly sorry.” The Defendant
further testified that since the incident, he had gotten married and moved to Kentucky,
where he worked for his wife’s grandparents. The Defendant disagreed with Det. Poore
that it took him twenty minutes to confess. The Defendant claimed he only denied the
allegations for “five or ten” minutes before he “got guilty” and “fessed up.” The
Defendant also testified that since he confessed, he had complied with all that had been
required of him, participating in the presentence report and psychosexual evaluation,
registering as a sex offender, and turning himself in when he was indicted.

        The Defendant complained that he had lost two jobs since he touched the victim
and testified that he “bottomed out” when he lost his first job. The Defendant explained
that he “had no money” and “lost [his] car,” so he left town “for a week or so” to go to
his father’s house and “have a little fun.” The Defendant admitted that he posted about
what he had done on social media but claimed that he “just said that [he] was sorry and
[he] wished [he] hadn’t [] done it.” The Defendant reiterated that he was “sorry for doing
it.” The Defendant testified that he just wanted “to do [his] time” and “to move on with
[his] life.”



2
    In order to protect the privacy of the victim, we will refer to her mother by her initials.
                                                        -3-
       When asked on cross-examination whether he touched the victim “for sexual
arousal and gratification,” the Defendant responded that he did not “know why [he] did
it” but that he knew he “shouldn’t have.” The prosecutor asked the Defendant why he
“shouldn’t have,” and the Defendant responded “[b]ecause it was wrong . . . [y]ou just
don’t do that.” The prosecutor continued to press the Defendant on whether he touched
the victim for sexual arousal or gratification, and the Defendant responded that he
guessed he touched her because “she was a female.” The Defendant also admitted on
cross-examination that his first instinct was to try to beat the victim to the police station
and deny her allegations. The Defendant admitted that he lied to the police about what
had happened when he first spoke to them.

        In denying judicial diversion, the trial court stated that there were “some things
that” gave it “concern” about the Defendant’s amenability to correction. The trial court
stated that “the first thing that [the Defendant] did was try to cover his tracks” and that it
thought that was “very telling of what we’re dealing with.” As such, the trial court gave
little weight to the Defendant’s amenability to correction. The trial court also stated that
the circumstances of the offense were “very serious in nature.” The trial court noted that
the offense was “extremely serious” given that the Defendant was staying in an apartment
with a juvenile and that after “inappropriately touch[ing] this child once,” he “came back
and did it again” following “a break.” The trial court acknowledged that the Defendant’s
criminal record and social history both weighed in favor of granting diversion.

       The trial court stated that it had “some concerns” about the Defendant’s physical
and mental health based upon the psychosexual evaluation. The trial court noted that
“some of the [evaluation] scores” suggested that the “possibility of reoffending [was]
high.” With respect to the deterrence value to the Defendant, as well as others, the trial
court asked “what kind of message are we sending if we give diversion” in this situation.
The trial court once again pointed out that the victim was a juvenile and that the
Defendant had known her from “family events.” The trial court also noted that the
Defendant was originally charged with sexual battery by an authority figure, which was a
nondivertible offense. The trial court stated that, given the proof, the State “may have
[had] a run at that if they went to trial.”

       The trial court also stated that it did not believe that judicial diversion would have
served the interests of the public or the Defendant in this case. In conclusion, the trial
court stated that it had “some real concerns about [the Defendant’s] candor” at the
sentencing hearing. The trial court stated that its decision rested “highly on the
circumstances of the offense” coupled with the deterrence value to the Defendant as well
as others. The trial court also stated that it was “real concerned about the position of
private trust that [the Defendant] had in this situation.”


                                             -4-
       The trial court then enhanced the Defendant’s sentence to the maximum two years,
finding that the Defendant had abused a position of private trust. Tenn. Code Ann. § 40-
35-114(14). The trial court explained that the Defendant was “involved with this family”
and that “they knew who” he was. The trial court further explained that, had the
Defendant “been a stranger that [the victim’s family] didn’t know, who their cousin was
dating, they likely would not have let her stay there.” The trial court concluded that
“because they knew who [the Defendant was] . . . there was some trust placed in [him].”

        The trial court next addressed whether the Defendant would receive an alternative
sentence. The trial court stated that the Defendant did not have a long history of criminal
conduct and that he had not had measures less restrictive than confinement frequently or
recently applied unsuccessfully to him. However, the trial court stated that it thought
confinement was necessary to avoid depreciating the seriousness of the offense or to
provide an effective deterrence to others. The trial court reiterated that it was not sure
that the Defendant had been candid at the sentencing hearing about “why [he] did what
[he] did,” that the Defendant had abused a position of private trust, and that it placed
great weight on the seriousness of the offense. The trial court then stated that “on top of
that, [the Defendant] went to the police to file a false report accusing [the victim] of
lying.” As such, the trial court ordered the Defendant’s sentence to be served in
confinement.

                                       ANALYSIS

                                   I. Judicial Diversion

       The Defendant contends that the trial court erred by denying his request for
judicial diversion. The Defendant argues that the trial court erred in weighing the
applicable factors by not placing enough weight on the Defendant’s lack of criminal
history and amenability to correction. The State responds that the Defendant has failed to
show that the trial court abused its discretion in denying judicial diversion.

        There is no dispute that the Defendant was eligible for judicial diversion. See
Tenn. Code Ann. § 40-35-313(a)(1)(B). The decision to grant judicial diversion lies
within the discretion of the trial court. State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim.
App. 1996). If the trial court has placed “on the record its considerations for the grant or
denial of judicial diversion, the determination should be given a presumption of
reasonableness on appeal and reviewed for an abuse of discretion.” State v. King, 432
S.W.3d 316, 319 (Tenn. 2014). We may not revisit the issue so long as the record
contains any substantial evidence to support the trial court’s action. Parker, 932 S.W.2d
at 958.


                                            -5-
       When making a determination regarding judicial diversion, the trial court must
consider the following factors: (1) the defendant’s amenability to correction; (2) the
circumstances of the offense; (3) the defendant’s criminal record; (4) the defendant’s
social history; (5) the defendant’s mental and physical health; (6) the deterrent effect on
the sentencing decision to both the defendant and other similarly situated defendants; and
(7) whether judicial diversion will serve the interests of the public as well as the
defendant. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998)
(citing Parker, 932 S.W.2d at 958); see also King, 432 S.W.3d at 326 (reaffirming that
the Electroplating requirements “are essential considerations for judicial diversion”).

        A trial court is “not required to recite all of the Parker and Electroplating factors
when justifying its decision on the record in order to obtain the presumption of
reasonableness.” King, 432 S.W.3d at 327. “[T]he record should reflect that the trial
court considered the Parker and Electroplating factors in rendering its decision and that it
identified the specific factors applicable to the case before it.” Id. Additionally, the trial
court “must weigh the factors against each other and place an explanation of its ruling on
the record.” Id. at 326. When the trial court does so, “the appellate court must apply a
presumption of reasonableness and uphold the grant or denial so long as there is any
substantial evidence to support the trial court’s decision.” Id. at 327.

        Here, the trial court considered all of the Parker and Electroplating factors,
specifically identified the relevant factors, and placed its reasons for denying judicial
diversion on the record. As such, the presumption of reasonableness applies to the trial
court’s decision so long as there is any substantial evidence to support the decision. The
trial court relied heavily on the circumstances of the offense and the deterrence value to
the accused as well as others. With respect to the deterrence value, while the Defendant
had apologized for his actions several times, the Defendant was more concerned at the
sentencing hearing with how his arrest had affected him and his desire “to move on with
[his] life” than the significant and destructive impact his actions had on the victim.

       With respect to the circumstances of the offense, the victim, a juvenile staying at
the Defendant’s girlfriend’s apartment, was touched by the Defendant while she slept.
She awoke to the Defendant touching her breasts, and she covered herself up in an effort
to stop the Defendant. The Defendant then waited several minutes until the victim fell
back asleep to put his erect penis in her hand. While the Defendant asserted that he
stopped because he “knew it was wrong,” the victim stated that this second encounter
ended when she jerked her hand away and covered herself up again.

        The Defendant then went to ensure that his assault on the victim did not wake up
his girlfriend. After checking on his girlfriend, the Defendant touched the victim a third
time, feeling over the covers for her arms, and then sat down and played video games
near the victim as she lay on the couch frightened and awake the rest of the night.
                                             -6-
Afterwards, the Defendant attempted to discredit the victim by lying to the investigators
when he found out that she had gone to the police. Given these facts, we agree with the
trial court that the circumstances of the offense were “very serious in nature.”
Accordingly, we conclude that the trial court’s denial of judicial diversion was supported
by substantial evidence.

        With respect to the Defendant’s argument that the trial court placed too little
weight on his amenability to correction, we note that a defendant’s credibility is a
relevant consideration in assessing his amenability to correction. See State v. Dowdy,
894 S.W.2d 301, 306 (Tenn. Crim. App. 1994). The Defendant admitted at the
sentencing hearing that he lied to the investigators in an effort to discredit the victim and
dispel her allegations. The trial court was also troubled by the Defendant’s repeatedly
stating that he did not know why he touched the victim and denying that he did so for the
purposes of sexual arousal or gratification. This court gives great weight to a trial court’s
credibility determinations at a sentencing hearing absent “evidence in the record clearly
preponderat[ing] against [those] findings.” State v. Melvin, 913 S.W.2d 195, 202 (Tenn.
Crim. App. 1995). Nothing in the record preponderates against the trial court’s
determination regarding the Defendant’s credibility.

       The Defendant also argues that the trial court erred by mistakenly stating that the
psychosexual evaluation stated the Defendant’s “risk of reoffending was high.” The
Defendant is correct that the psychosexual evaluation stated that his risk of reoffending
was only moderate. However, the trial court addressed this with respect to the
Defendant’s physical and mental health and did not place a significant amount of weight
on this factor. Instead, the trial court relied on the circumstances of the offense and
deterrence value. Based upon the foregoing, we conclude that the Defendant has not
overcome the presumption of reasonableness granted to the trial court’s denial of judicial
diversion nor has he shown that the trial court abused its discretion in this regard.
Accordingly, we affirm the trial court’s denial of judicial diversion.

                                 II. Alternative Sentencing

        The Defendant contends that the trial court erred by denying his request for
alternative sentencing. The Defendant does not challenge the length of his sentence, but
he argues that the trial court misapplied one of the enhancement factors, that the
Defendant abused a position of private trust. The Defendant also argues that the
circumstances of the offense were not egregious enough for the seriousness of the offense
alone to warrant a denial of alternative sentencing and that there was no evidence that the
denial would have a deterrent effect within the jurisdiction. The State responds that the
trial court did not abuse its discretion in denying the Defendant alternative sentencing.


                                             -7-
       On appeal, the burden is on the defendant to show that the sentence is improper.
Tenn. Code Ann. § 40-35-401(d), Sentencing Comm’n Cmts. Our supreme court has
held that an “abuse of discretion standard, accompanied by a presumption of
reasonableness, applies to within-range sentences that reflect a decision based upon the
purposes and principles of sentencing, including the questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

       The Defendant was eligible for probation because the “sentence actually imposed
upon [him was] ten (10) years or less.” Tenn. Code Ann. § 40-35-303(a). Thus, the trial
court was required to automatically consider probation as a sentencing option. Tenn.
Code Ann. § 40-35-303(b). However, no criminal is automatically entitled to probation
as a matter of law. State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). The defendant has
the burden of establishing his or her suitability for full probation. See State v. Boggs,
932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). The defendant must demonstrate that
probation will “subserve the ends of justice and the best interests of both the public and
the defendant.” Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956), overruled on other
grounds by State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000).

      In determining any defendant’s suitability for alternative sentencing, the trial court
should consider whether

       (A) Confinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;

       (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective
       deterrence to others likely to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1)(A)-(C). A trial court should also consider a defendant’s
potential or lack of potential for rehabilitation when determining if an alternative
sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); State v. Boston, 938
S.W.2d 435, 438 (Tenn. Crim. App. 1996). Ultimately, in sentencing a defendant, a trial
court should impose a sentence that is “no greater than that deserved for the offense
committed” and is “the least severe measure necessary to achieve the purposes for which
the sentence is imposed.” Tenn. Code Ann. § 40-35-103(2), (4).

      With respect to the Defendant’s argument that the trial court misapplied an
enhancement factor, that he abused a position of private trust, we will not address
whether the trial court erred in that regard because the Defendant does not challenge the
                                            -8-
length of his sentence on appeal. The fact that the Defendant knew the victim, had been,
“involved with [her] family,” and that the victim was a juvenile were all circumstances of
the offense for the trial court to consider in its decisions regarding judicial diversion and
alternative sentencing.

       As for the Defendant’s argument that the offenses were not egregious enough for
the seriousness of the offense alone to warrant a denial of alternative sentencing, we note
that the trial court did not deny alternative sentencing solely on the basis of avoiding
depreciating the seriousness of the offense. See State v. Travis, 622 S.W.2d 529, 534
(Tenn. 1981). In denying alternative sentencing, the trial court relied on what it
perceived to be the Defendant’s lack of amenability to correction due to his lack of
credibility and candor. The trial court also relied on the circumstances of the offense.

        With respect to the Defendant’s argument that there was no evidence that the
denial would have a deterrent effect within the jurisdiction, we note that it appears that
the trial court recited all of Tennessee Code Annotated section 40-35-103(1)(B), which
allows for denial of alternative sentencing based upon the need to avoid depreciating the
seriousness of the offense or to deter others. Nothing in the trial court’s ruling suggested
that it relied on the deterrent effect on others in denying alternative sentencing. Based
upon the foregoing, we conclude that the trial court considered the applicable sentencing
factors and did not abuse its discretion in denying the Defendant alternative sentencing.
Accordingly, we affirm the trial court’s denial of alternative sentencing.

                                      CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgment of
the trial court is affirmed.

                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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