        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 21, 2011

                STATE OF TENNESSEE v. MARILYN SESLER

                  Appeal from the Circuit Court for Dickson County
                    No. 2008-CR-478 Robert E. Burch, Judge


               No. M2010-01930-CCA-R3-CD-Filed September 21, 2011


The Defendant, Marilyn Sesler, was convicted by a Dickson County Circuit Court jury of
making a false report, a Class D felony. See T.C.A.§ 39-16-502(a) (2010). The trial court
sentenced the Defendant as a Range I, standard offender to two years’ probation. On appeal,
the Defendant contends that the evidence was insufficient to support her conviction and that
the trial court erred by failing to consider and make appropriate findings when rejecting
judicial diversion. We affirm the Defendant’s conviction, but we remand for resentencing
consistent with this opinion.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
                    Part and Reversed in Part; Case Remanded.

J OSEPH M. T IPTON , P.J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER and C AMILLE R. M CM ULLEN, JJ., joined.

William B. Lockert, III, District Public Defender, and Lila Kathleen Mitchell, Assistant
District Public Defender, for the appellant, Marilyn Sesler.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Dan M. Alsobrooks, District Attorney General; and Timothy Peters, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

        This case relates to a police report involving an encounter between the Defendant and
George Burnett. At the trial, Dickson Police Officer Jessica Blackwell testified that she
responded to a call placed by the Defendant regarding Mr. Burnett’s violation of his bond
restrictions and an order of protection. She met with the Defendant and was informed by the
Defendant that Mr. Burnett was ordered to have no contact with the Defendant after an
incident of domestic abuse. She said the Defendant told her that Mr. Burnett pulled his truck
beside the Defendant while she was at a McDonald’s restaurant, that Mr. Burnett waved at
the Defendant in an attempt to speak with the her, and that the Defendant held her hand up
to stop Mr. Burnett and left the restaurant. Officer Blackwell said that she filed a report
based on the information the Defendant provided and that a person who violated a bond
restriction typically was arrested.

       Jason Cockran testified that he was the store manager at the McDonald’s where the
incident between the Defendant and Mr. Burnett occurred and that video surveillance
cameras recorded the incident. The video recordings were played for the jury. On cross-
examination, Mr. Cockran testified that Mr. Burnett’s sister previously dated the owner of
the McDonald’s.

       George Burnett testified that on March 6, 2008, he was buying lunch in the drive-
through lane of a McDonald’s restaurant when the Defendant pulled beside his truck in the
second drive-through lane, honked her horn, and yelled at him to roll down his window. He
said he bought his food and left. He said he did not follow the Defendant to the restaurant.

       On cross-examination, Mr. Burnett testified that he did not lean toward or wave at the
Defendant in an attempt to get her attention. He agreed the Defendant raised her hand but
said she did not gesture in a motion indicating that he should stop. He agreed the Defendant
did not remain at the restaurant to speak with him.

        Margaret Sage testified that she was an Assistant District Attorney and that she
worked primarily on domestic violence cases. She said the Defendant was the victim in a
previous case involving Mr. Burnett. She said that in early March 2008, the Defendant came
to her office and asked to speak about an incident that occurred earlier that day. The
Defendant was “extraordinarily upset” and informed Ms. Sage that Mr. Burnett attempted
to contact her at a McDonald’s on Mathis Drive. She said the Defendant stated that she was
ordering food when Mr. Burnett drove next to her car and “frantically” waved in an attempt
to have the Defendant roll down her window and speak with him. The Defendant informed
Ms. Sage that she immediately left the restaurant and reported the incident to the police. Ms.
Sage said the Defendant stated that this was not the first time Mr. Burnett violated his bond
restriction, that she was upset because “nobody ever did anything” about Mr. Burnett’s
violations, and that she previously attempted to inform a magistrate of Mr. Burnett’s actions.
Ms. Sage said that a person who violates a bond condition is normally arrested and placed
in jail for ten days and that she filed a motion to revoke Mr. Burnett’s bond after the
Defendant affirmed that her statement was truthful.




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       Ms. Sage testified that on March 14, 2008, a hearing was scheduled to determine
whether Mr. Burnett violated his bond conditions but that the hearing was postponed after
she learned the restaurant had video footage of the incident. She said the Defendant became
upset when the hearing was postponed and stated that Mr. Burnett was “getting away with
everything again” and that she was concerned someone had tampered with the surveillance
video. Ms. Sage said she withdrew the motion to revoke Mr. Burnett’s bond after she viewed
the surveillance video and determined that it would be an ethical violation for her to put
“false evidence” before the court.

      On cross-examination, Ms. Sage testified that the hearing on March 14, 2008, was
postponed to allow the State and Mr. Burnett’s defense counsel to review the surveillance
footage. She did not recall seeing Mr. Burnett’s face on the recording and disagreed that
most victims flee the scene after encountering someone who previously hurt them.

        David Hicks testified that he worked for the District Attorney’s Office. He said that
he spoke with the Defendant about the incident at the restaurant and that she reported to the
police that Mr. Burnett pulled into the restaurant after her and yelled at her. Mr. Hicks said
that after he and the Defendant viewed the surveillance footage together, she stated that she
panicked when she saw Mr. Burnett and that she thought the incident occurred as she
reported it to the police. He said the Defendant left when he told her that Mr. Burnett was
arrested due to her incorrect report. On cross-examination, Mr. Hicks agreed that Mr.
Burnett was not arrested based on the Defendant’s report and instead was issued a summons.

        The Defendant testified that she drove to the McDonald’s after submitting paperwork
at the District Attorney’s Office related to a previous incident when Mr. Burnett beat her, left
her on a dirt road, took her telephone, and forced her to walk home. She said she did not
notice Mr. Burnett at the restaurant until she entered the outer drive-through lane and saw a
truck in the adjacent lane with “Burnett Electric” written on the side. She said she had not
seen Mr. Burnett since the previous incident. She said that Mr. Burnett honked his horn and
attempted to obtain her attention and that she panicked and began screaming, “you’re not
supposed to be here.” She said that she drove away after “waving him off” and that she
contacted the police. The Defendant made an offer of proof outside the hearing of the jury
in which she described an incident in 1993 when Mr. Burnett pled guilty to property
destruction after vandalizing two of her cars and an incident in 2007 when Mr. Burnett beat
her, told her she would die that night, and left her on a dirt road.

       On cross-examination, the Defendant testified that she called 9-1-1 after encountering
Mr. Burnett at the McDonald’s. She said that she was hysterical and that she felt there was
an emergency. She said that she thought Mr. Burnett followed her to the restaurant and that
she did not intentionally follow him to the restaurant. She agreed she initially pulled in

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behind Mr. Burnett’s truck and said she pulled into the lane beside Mr. Burnett because she
thought there were several cars in front of him in his lane. She said that although the video
recording showed no cars in front of Mr. Burnett, she remembered the incident differently.
She denied that she honked her horn and gestured to Mr. Burnett but agreed that she
screamed in her car.

       The Defendant agreed that she had not viewed the surveillance footage before Mr.
Burnett’s bond violation hearing on March 14, 2008, and testified that she asked Mr. Hicks
whether someone could have tampered with the video because Mr. Burnett’s sister dated the
owner of the restaurant. She said that after she watched the video recording with Mr. Hicks
and Ms. Ruff, Ms. Ruff stated that it was obvious the Defendant panicked when she saw Mr.
Burnett. On redirect examination, the Defendant testified that her windows were up when
she yelled in her car.

        Upon this evidence, the jury found the Defendant guilty of making a false report. The
trial court sentenced the Defendant as a Range I, standard offender to two years’ probation.
This appeal followed.

                                                I

       The Defendant contends that the evidence was insufficient to support her conviction
because it did not establish that she knowingly filed a false report. She argues that she
assumed Mr. Burnett was trying to have contact with her and that she perceived a threat from
Mr. Burnett and reported it to the police. The State argues that the evidence was sufficient
to support the Defendant’s conviction. We agree with the State.

       Our standard of review when the sufficiency of the evidence is questioned on appeal
is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This means that we may not reweigh
the evidence but must presume that the trier of fact has resolved all conflicts in the testimony
and drawn all reasonable inferences from the evidence in favor of the State. See State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). Any questions about the credibility of the witnesses were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

       Pertinent to this appeal, it is a criminal offense for a defendant to initiate a report or
statement to a law enforcement officer concerning an offense or incident within the officer’s
concern, knowing that the offense or incident did not occur or that the information relating
to the offense is false. See T.C.A. § 39-15-502(a)(1). “[A] person acts knowingly with

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respect to the conduct or to circumstances surrounding the conduct when the person is aware
of the nature of the conduct or that the circumstances exist.” T.C.A. § 39-11-106(a)(20)
(2006) (amended 2009). “A person acts knowingly with respect to a result of the person’s
conduct when the person is aware that the conduct is reasonably certain to cause the result.”
Id.

        Taken in the light most favorable to the State, the record reflects that the Defendant
followed Mr. Burnett into a McDonald’s drive-through. Although she initially sat behind
Mr. Burnett, she later moved her car beside his truck. Mr. Burnett testified that the
Defendant honked her horn, yelled at him to roll down his window, and then left. Mr.
Burnett said he did not lean toward or wave at the Defendant in an attempt to get her
attention. Officer Blackwell testified that she was informed by the Defendant that Mr.
Burnett pulled his truck along side the Defendant while she was at a McDonald’s restaurant
and that Mr. Burnett waved at her in an attempt to speak. Officer Blackwell said she filed
a report based on the information the Defendant provided. Ms. Sage testified that the
Defendant informed her that Mr. Burnett drove next to her car and “frantically” waved in an
attempt to have the Defendant roll down her window and speak with him. The Defendant
informed Ms. Sage that this was not the first time Mr. Burnett violated his bond restriction
and that she was upset because “nobody ever did anything” about Mr. Burnett’s violations.
Ms. Sage filed a motion to revoke Mr. Burnett’s bond but withdrew the motion after she
viewed the surveillance video and determined that the Defendant’s statement was false.
Regardless of whether the Defendant perceived a threat from Mr. Burnett, the record reflects
that she knowingly gave a false account of her encounter with Mr. Burnett and affirmed to
authorities that her statement was accurate.

        We conclude that a rational trier of fact could have found the elements of making a
false report beyond a reasonable doubt. We hold that the evidence is sufficient to support
the Defendant’s conviction.

                                            II

        The Defendant contends that the trial court erred by failing to consider appropriate
factors or make findings in support of denying judicial diversion. The State concedes that
the trial court did not consider the necessary factors in evaluating the Defendant’s request for
judicial diversion and that the record is inadequate for appellate review. We hold that the
trial court’s failure to make findings and consider the necessary factors in evaluating the
Defendant’s request for judicial diversion renders the record inadequate for appellate review
and we remand for resentencing.




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        A defendant is eligible for judicial diversion if he or she is found guilty of or pleads
guilty or nolo contendere to a Class C, D, or E felony or a lesser crime, has not previously
been convicted of a felony or a Class A misdemeanor, and is not seeking deferral for a sexual
offense. See T.C.A. § 40-35-313(a)(1)(B)(I) (2010). The decision to grant judicial diversion
lies within the sound discretion of the trial court, and this court will not disturb that decision
on appeal absent an abuse of discretion. State v. Electroplating, Inc., 990 S.W.2d 211, 229
(Tenn. Crim. App. 1998). Upon review, we will give the trial court the benefit of its
discretion if “‘any substantial evidence to support the refusal’ exists in the record.” State v.
Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992) (quoting State v. Hammersley, 650
S.W.2d 353, 356 (Tenn. 1983)).

        In determining whether to grant judicial diversion, the trial court must consider (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 physical
and mental health; (6) the deterrence value to the defendant and others; and (7) whether
judicial diversion will serve the ends of justice. Electroplating, 990 S.W.2d at 229; State v.
Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). In addition, “the record must reflect
that the court has weighed all of the factors in reaching its determination.” Electroplating,
990 S.W.2d at 229. If the trial court refused to grant judicial diversion, it should state in the
record “the specific reasons for its determinations.” Parker, 932 S.W.2d at 958-59.
Appellate review is precluded if the trial court fails to make findings in support of its
determination regarding judicial diversion. See State v. Lewis, 978 S.W.2d 558, 566-67
(Tenn. Crim. App. 1997); State v. Kevin Spurling, No. E2008-02599-CCA-R3-CD, Roane
County, slip op. at 4 (Tenn. Crim. App. Feb. 8, 2010).

        At the sentencing hearing, the Defendant testified that she received disability
payments and that she took several medications for depression and panic attacks. She said
she was diagnosed with depression and anxiety. She said that Mr. Burnett vandalized two
of her cars in 1993 and was convicted for the offenses and that in 2007, Mr. Burnett beat her,
broke the rear windshield of his car by smashing her head into it, and told her that she would
die. She identified photographs of the injuries she received from Mr. Burnett. She said that
Mr. Burnett “petrified” her and that she had a panic attack when she saw him at the
restaurant. She said she called the police because they instructed her to call if Mr. Burnett
came near her. She said that she was sorry and that she did not intentionally break the law.
She said she would comply with all conditions of probation or diversion. She agreed that
between the trial and the sentencing hearing, she was charged with domestic assault but said
the judge informed her that the case would be dismissed if she paid court costs before May
19, 2010. On cross-examination, the Defendant testified that there was no charge pending
against her at the time of the sentencing hearing and that the assault charge resulted from an
incident involving her sister.

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       The trial court found no enhancement factors applicable but found mitigating factor
(13) applicable because the Defendant’s actions were consistent with her diagnosis of
depression and anxiety. See T.C.A. § 40-35-113(13) (2010). The trial court found that the
possibility of the Defendant re-offending was great. In denying judicial diversion, the trial
court stated, “the Court finds that she does not qualify and even if she did, she would not be
a good candidate for judicial diversion. If for no other reason she needs this conviction on
her record because if she does it again I’m going to fall [sic] her.”

        We note that the Defendant was found guilty of a Class D felony and that the record
reflects that she has not previously been convicted of a felony or a Class A misdemeanor,
thus making her eligible for judicial diversion. See T.C.A. § 40-35-313(a)(1)(B)(I). We hold
that the trial court’s failure to consider the necessary factors in evaluating the Defendant’s
request for judicial diversion and its failure to make sufficient findings when denying judicial
diversion renders the record inadequate for appellate review. On remand, the trial court
should consider all appropriate factors and place its findings on the record.

      In consideration of the foregoing and the record as a whole, the Defendant’s
conviction is affirmed, but we remand for resentencing consistent with this opinion.




                                               ____________________________________
                                               JOSEPH M. TIPTON, PRESIDING JUDGE




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