        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  July 15, 2014 Session

         STATE OF TENNESSEE v. BRADLEY DOUGLAS PARKER

                  Appeal from the Circuit Court for Hickman County
                     No. 125119CR      Timothy L. Easter, Judge




               No. M2013-02620-CCA-R3-CD - Filed February 10, 2015


Defendant, Bradley Douglas Parker, was indicted by the Hickman County Grand Jury for one
count of aggravated child abuse, a Class A felony, and one count of aggravated child neglect,
also a Class A felony. Both charges involved the same incident and victim. Subsequently,
the State announced that it was unable to prove serious bodily injury of the victim and moved
the trial court to dismiss the count of aggravated child abuse and to amend the count charging
aggravated child neglect to charge the Class D felony offense of child neglect of a child less
than eight years of age. Immediately, Defendant pled guilty to the Class D felony offense
of child neglect. The parties agreed Defendant would be sentenced as a Range I standard
offender, with the length and manner of service of the sentence to be determined by the trial
court following a sentencing hearing. The trial court imposed a sentence of three years to
be served by split confinement comprised of thirty days’ incarceration in the county jail
followed by three years’ probation. Defendant appeals, arguing that the trial court should
have granted judicial diversion or in the alternative imposed a three-year sentence totally
suspended to be served on probation. After a thorough review, we affirm the judgment of
the trial court.

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

T HOMAS T. W OODALL, P.J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and A LAN E. G LENN, JJ., joined.

Michael J. Flanagan, Nashville, Tennessee, for the appellant, Bradley Douglas Parker.

Herbert H. Slatery, III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Kim
R. Helper, District Attorney General; and Kate Yeager, Assistant District Attorney General,
for the appellee, the State of Tennessee.
                                          OPINION

Facts

        Guilty Plea

        At the guilty plea hearing the State summarized the facts in support of Defendant’s
guilt of the Class D felony offense of child neglect as follows:

                Had this case proceeded to trial, the State would have shown that on
         or about February 4th or 5th of 2012, the victim, [ ], date of birth, [13
         months old] was in the custody of his father [Defendant] for his visitation
         that weekend.

                That Sunday morning, the 5th , the father [Defendant] took the child
         over to the mother’s home and encountered the mother’s boyfriend and her
         mother. And they discovered some burns on the child’s face and on his
         chest area. They then determined the child needed to go to the hospital,
         took him there.

                  And various testimony from doctors and medical personnel would
         tell the Court that the burns were first-degree and second-degree on his face
         and chest, that they were chemical in nature. And that the father,
         [Defendant] whose custody the child was in, had no explanation that made
         medical sense as to what happened.

                 [Defendant] was interviewed on February 6th by Detective Smith, and
         Cynthia Primm from DCS, and he was not able to offer any explanation as
         to the burns on the child’s face. He did state that he was constantly with his
         son and that his girlfriend, who was there that weekend did not have access
         to him without [Defendant] being present.

                The State would submit that this occurred here in Hickman County.
         Injuries were caused to the child by the neglect by [Defendant]. And
         [Defendant] was the person who is the child’s biological father and who
         allowed these things to happen other than by an accidental means.

Sentencing Hearing - State’s Proof




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        At the sentencing hearing Bobby Chance testified that he is engaged to the victim’s
mother. Brenda Edwards is the victim’s maternal grandmother. On the Sunday morning in
question, Defendant brought the victim to Brenda Edwards and to Mr. Chance, who were at
the home of Kelsie Edwards, the victim’s mother. Kelsie Edwards was at her job at Wal-
Mart in Dickson. Mr. Chance observed blistering on the victim’s face, and it appeared that
skin was peeling off the victim’s face. Defendant told Mr. Chance that he found that the
victim had vomited when Defendant awoke the victim that Sunday morning. When the vomit
was cleaned off, Defendant noticed the blistering. Defendant stated that his girlfriend had
bathed the victim, and in the process the victim touched a rag that may have had chemicals
on it. Mr. Chance also testified that Defendant claimed that part of a Sonic hamburger eaten
by the victim on Saturday night might have caused the blistering. Mr. Chance elaborated that
Defendant said, “something about the acid in it could have made the skin peel off his face.”

        Cynthia Primm, a Child Protective Investigator with the Tennessee Department of
Children’s Services, testified that she went to Horizon Medical Center in Dickson when the
victim was being treated there. She talked with hospital staff members, the victim’s mother,
and Defendant. Defendant told Ms. Primm that when he awoke the victim on Sunday
morning, the victim had vomit on his face, and when Defendant wiped off the vomit he saw
the victim’s skin “blistering off.” In an interview a few days later Defendant told Ms. Primm
that on Saturday the victim had grabbed a cleaning rag which had some cleaning chemical
on it. Ms. Primm added that Defendant became aggravated at the hospital when she wrote
up a protective plan for the child because Defendant was under investigation in the incident.

        After examination at Horizon Medical Center, the victim was transported to
Vanderbilt Medical Center in Nashville. Dr. Kyle Brothers examined the victim at
Vanderbilt. He testified that the victim had second degree burns on both sides of his face
with the overlying skin peeling off or already removed. Dr. Brothers was also concerned
about a bruise behind the victim’s ear. Dr. Brothers observed petechiae (burst capillaries)
down the chest and back of the victim. He testified that the petechiae would have been
caused by physical trauma. In Dr. Brother’s opinion, the victim’s skin injuries were not the
result of a scalding burn, such as would be caused by boiling water. Dr. Brothers opined that
the peeling skin was the result of a chemical burn.

       Vicky Edwards, the victim’s step-grandmother, testified that Defendant stated at
Horizon Medical Center that the stomach acid in the victim’s vomit was what probably
caused injuries to the victim. She also noted that Defendant was not excited and was simply
standing around with his hands in his pants pockets.

        Kelsie Edwards, the victim’s mother, had never been married to Defendant, who is
the victim’s father. Kelsie Edwards stated that Defendant exercised visitation with the victim

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on alternating weekends. She repeated the substance of most of the prior witnesses’
testimony concerning the victim’s condition when she first saw him at Horizon Medical
Center. The incident occurred on Sunday, February 5, 2012. She testified that the victim had
recovered physically and was doing very well at the time of the sentencing hearing.

       Sentencing Hearing - Defendant’s Proof

        Kelsie Edwards was also called as a witness during Defendant’s proof. She
acknowledged that a little over eight months after the incident she signed a petition which
states:

        This is to verify that I, the undersigned have listed beside my signature the
        approximate number of years I have known [Defendant]. [Defendant] has
        never been in trouble with the law and is a very kind and compassionate
        person that represents the exact opposite of the charges placed against him.
        It is my opinion that these charges are not warranted. My signature below
        is a plea on behalf of [Defendant] that these charges be exonerated. These
        charges could ruin the life of a truthful and honest young man.

       During cross-examination by the State, Kelsie Edwards claimed “I don’t think I knew
what it meant.” She clarified that she did not believe that criminal charges should not have
been brought against Defendant. However, she admitted that at the time of the sentencing
hearing, she and Defendant had a civil relationship with each other.

               Defendant’s grandfather, Ken Pruitt, testified that Defendant was a hard worker
both in the landscaping and construction business owned by Defendant’s father and any other
work he was able to find. Doug Parker, Defendant’s father, testified that Defendant had
worked at his business dating back before Defendant’s graduation from high school. Doug
Parker assured the trial court that Defendant would continue to be employed if Defendant
was granted probation.

      Defendant, twenty-four years old at the time of the sentencing hearing, testified that
he had lived his entire life in Hickman County. At the time of the sentencing hearing,
Defendant resided in a house owned by his grandfather, which Defendant was remodeling.
He graduated from Hickman County High School. Defendant described his work experience
working for his father’s business: trimming shrubs, cleaning out flower beds, pouring
concrete for a driveway, re-mulching landscape at a business, and doing small home
remodeling projects. Defendant said that he generally worked thirty-five to thirty-eight hours
per week. Defendant also listed other employers where he had worked in the past, including
a temporary help agency.

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        Defendant stated that he had filed income tax returns over the past years but admitted
that his father paid him in cash, his father did not withhold taxes, and Defendant did not
receive W-2 forms from his father’s business even though he did pay income taxes in 2011
and 2012. Defendant testified that he hoped to get training to become certified as a
mechanic. Defendant stated that his physical and mental health were good. He planned to
continue to work, he exercised supervised visitation with the victim, and he paid child
support, both current and toward an arrearage.

        In testimony concerning the victim’s injuries, Defendant accepted responsibility for
what happened even though Defendant stated that he still was not sure what exactly caused
the injuries. Defendant described in detail his activities with the victim from the time
Defendant picked him up for weekend visitation on Friday until he noticed vomit on the
victim’s face on Sunday morning when he got the victim out of the bed. When he wiped off
the vomit, he saw the blistering on the victim’s face. Defendant stated that he and his
girlfriend gave the victim and the girlfriend’s one-year-old child a bath in the kitchen sink
on Saturday night. In his direct testimony Defendant explained the incident when the victim
handled a cleaning rag during the bath:

        Q.     Tell the Court about how that washrag fits into - -

        A.     It was one that was laying on the counter.

        Q.     By the sink?

        A.     By the sink. And while we were giving [the victim] a bath, I had
               him at the time, he grabbed this rag. I didn’t know what was on it.
               And all I could figure was, you know, it was some bleach on it from
               where we wiped down the counters. So I grabbed it away from him.
               I made sure to wash his hands. He tried putting it to his mouth, but
               he never did.

        Q.     Okay. And you let the police have that, and they sent it off to be
               tested?

        A.     Yes.

       Defendant testified that after he saw the blisters, he immediately took the victim
upstairs where he was living to see the landlord, who was also a nurse. The nurse told
Defendant to take the child to the emergency room. Defendant drove the victim directly to

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Kelsie Edwards’ home. Kelsie Edwards was at work so the victim’s grandmother and Mr.
Chance rode with Defendant to the emergency room at Horizon Medical Center in Dickson.
Defendant stated that he did not intentionally hurt the victim, and that he was very sorry for
what had happened to the victim.

       In closing argument the State strongly asserted that judicial diversion for Defendant
was not appropriate. The State also urged the trial court to impose a sentence of four years,
served by split confinement comprised of one year in the county jail followed by four years
of probation. Defendant’s counsel did not request a specific sentence length, but instead
stated he would leave this up to the trial court without a recommendation. However,
Defendant argued in the favor of judicial diversion, or in the alternative, full probation.

        The trial court announced its sentencing decision in open court following a recess.
The trial court first addressed the issue of whether judicial diversion was appropriate. As to
Defendant’s amenability to correction, the trial court found this factor to be “neutral.” The
trial court specifically found that Defendant’s past indicated he was amendable to correction,
but that his inconsistent explanations on the day of the incident as to what happened and his
failure to explain later what caused the injuries raised questions in the trial court’s mind as
to Defendant’s credibility.

       As to the circumstances of the offense, the trial court concluded that this factor
weighed heavily against judicial diversion. The trial court referenced photographs taken of
the victim at the hospital which showed the second and first degree burns resulted in this
criminal offense being “a very serious matter” involving serious injuries.

        The trial court determined that Defendant’s “record is devoid of any criminal history”
and that weighed in favor of judicial diversion. The trial court found as favorable to
Defendant that he had graduated from high school and had been “giving a lot to the
community.” However, the trial court found that Defendant was compensated for his work
for his father by payments in cash without paying his appropriate taxes, and thus Defendant’s
“social history” weighed against granting judicial diversion because “he has been earning his
living in a rather questionable way.”

       The trial court found that the record indicated that Defendant’s physical and mental
health should be weighed in favor of granting judicial diversion. The trial court concluded
that because the offense was committed upon a defenseless and vulnerable victim, a child
thirteen months old, that specific and general deterrence weighed against granting judicial
diversion.




                                              -6-
       The trial court found that Defendant’s attitude “seems to be one of remorse and
appropriateness,” and that Defendant “comes from a good family.” The trial court stated he
was not sure about Defendant’s current home environment, but there was no evidence of
drug usage or of emotional instability. Also, the trial court found that Defendant’s general
reputation was good.

       The court found that although Defendant was paying his current child support, he was
also paying on an arrearage, which indicated that at one time Defendant failed to face family
responsibilities. In conclusion as to judicial diversion, the trial court stated:

        His attitude of law enforcement seems to be fine. Having reviewed all of
        those, and, again, going back to the circumstances of the offense, the Court
        finds that this is just not the appropriate case for the granting of judicial
        diversion. And that request is denied.

       As to the length of the sentence, the trial court found that two statutory enhancement
factors were applicable: (a) the victim was particularly vulnerable because of his young age,
T.C.A. §. 40-35-114(4); and (b) Defendant abused a position of private trust, T.C.A. § 40-35-
114(14). The trial court found that one mitigating factor applied, that being Defendant had
no prior criminal record. See T.C.A. § 40-35-113(13). The trial court imposed a sentence
length of three years.

        As to whether some form of probation should be imposed, the trial court found that
because of Defendant’s lack of a history of criminal conduct, this was favorable to Defendant
for a sentence involving something other than confinement. However, the trial court
reiterated its prior finding that Defendant had committed an offense so serious that this
weighed heavily against punishment with no confinement.

       Finally, the trial court made an implicit factual finding that the victim’s mother had
known the exact meaning of the petition she had signed in support of leniency for Defendant.
The trial court quoted from the petition, “[t]hese charges could ruin the life of a truthful and
honest young man.” The trial court then commented, “That’s the mother of this child saying
that. I don’t know how it could be anymore plain. . . . the Court finds the appropriate
sentence to impose to hopefully not ruin completely the life of a truthful and honest young
man will be 30 days in the Hickman County Jail, suspended to probation.”

Analysis

       Full Probation



                                              -7-
       Defendant argues in his first issue that the trial court erred by failing to grant him full
probation. The State asserts that full probation is not warranted. We agree with the State.


       When a defendant on appeal challenges the length of the sentence imposed by the trial
court, the appellate court reviews this sentencing decision under an abuse of discretion
standard of review with a presumption of reasonableness as to a within-range sentence when
the appellate record reflects the trial court properly applied the purposes and principles of
Tennessee’s statutory sentencing procedures. State v. Bise, 380 S.W.3d 682, 707 (Tenn.
2012). Our supreme court held that the same standard of review applies to all sentencing
decisions “related to probation or any other alternative sentence.” State v. Caudle, 388
S.W.3d 273, 279 (Tenn. 2012). The burden rests with the defendant to show that he is a
suitable candidate for probation. T.C.A. § 40-35-303(b).

        The purposes and principles of Tennessee’s statutory sentencing procedures are
generally set forth in T.C.A. §§ 40-35-102 and -103. As pertinent to the issues presented in
the case sub judice, these provisions require that punishment should provide an effective
general deterrent to those who violate the criminal laws of the state and encouragement of
effective rehabilitation by promoting the use of alternative sentencing. T.C.A. § 40-35-
102(3)(A) and (C). Also, each defendant should be punished by imposition of a sentence
“justly deserved in relation to the seriousness of the offense.” Id. at (1).

        The trial court ordered that the three-year sentence be served by split confinement,
which is probation following partial service in a jail or workhouse. T.C.A. § 40-35-306(a).
The total sentence was set at thirty-six months, with thirty days, or approximately 2.8% of
the sentence to be served by incarceration. The trial court specifically found that the
seriousness of the offense justified confinement of thirty days in order to avoid depreciating
the seriousness of the offense. T.C.A. § 40-35-103(1)(B). The trial court stated that it would
have ordered 120 days to nine months of incarceration if not for the statements attributable
to the victim’s mother in the petition. Obviously, this indicated that the trial court had a
significant belief that Defendant possessed considerable amenability to rehabilitation, even
if not enough to grant full probation. The record reveals that the trial court made pertinent
findings of fact to impose the sentence. The trial court’s determination as to the length and
manner of service of the sentence is entitled to a presumption of reasonableness under an
abuse of discretion review. Bise, 380 S.W.3d at 707; Caudle, 388 S.W.3d at 279.

       Judicial Diversion

      Tennessee Code Annotated section 40-35-313 governs judicial diversion procedure.
Upon a finding of guilt, the trial court may place a qualified defendant on probation without

                                               -8-
entering a judgment of conviction. T.C.A. § 40-35-313(a)(1)(A) (2010). Once the defendant
successfully completes probation, the charge will be dismissed. T.C.A. § 40-35-313(a)(2)
(2010). Judicial diversion is similar to pretrial diversion; but judicial diversion follows a
determination of guilt, and the judge, as opposed to the prosecutor, makes the decision
whether to grant judicial diversion. State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim.
App. 1992). In this case Defendant is a statutorily defined “qualified defendant.” See T.C.A.
§ 40-35-313(a)(1)(B)(I).

      For a defendant to be eligible for judicial diversion, the record must reflect that the
accused:

        (a) was convicted of a misdemeanor, which is punishable by imprisonment,
        or a Class C, D, or E felony, (b) has never been convicted of a felony or a
        Class A misdemeanor, and (c) consents to the deferment of the proceedings
        and the imposition of probation for up to the maximum length of
        punishment for the crime in question.

State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). However, satisfying these
criteria does not presumptively entitle a defendant to judicial diversion, but simply allows the
trial court to grant diversion in appropriate cases. Id. The defendant bears the burden of
proving that he or she is a suitable candidate for judicial diversion. State v. Faith Renea
Irwin Gibson, No. E2007-01990-CCA-R3-CD, 2009 WL 1034770, at *4 (Tenn. Crim. App.
Apr. 17, 2009) (citing State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999); State v. Baxter, 868
S.W.2d 679, 681 (Tenn. Crim. App. 1993)). In determining whether to grant judicial
diversion to a qualified defendant, the trial court must consider the following factors:

        (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 accused’s physical and mental health; (f) the deterrence value to the
        accused as well as others; and (g) whether judicial diversion will serve the
        interests of the public as well as the accused.

State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998); Parker, 932
S.W.2d at 958. In addition to the Electroplating factors, the trial court may consider the
following factors in making its decision: “[the defendant’s] attitude, behavior since arrest,
prior record, home environment, current drug usage, emotional stability, past employment,
general reputation, marital stability, family responsibility[,] and attitude of law enforcement.”
State v. Anthony Adinolfi, No. E2013-01286-CCA-R3-CD, 2014 WL 2532335, at *2 (Tenn.
Crim. App. June 2, 2014) (quoting State v. Washington, 866 S.W.2d 950, 951 (Tenn.
1993))(internal quotation marks omitted). The record must reflect that the trial court

                                               -9-
weighed all the Electroplating factors against each other, and the trial court must give an
explanation of its ruling on the record. State v. King, 432 S.W.3d 316, 326 (Tenn. 2014);
Electroplating, 990 S.W.2d at 229. When the record reflects that the trial court considered
the Electroplating factors, identified which factors were relevant, and explained its ruling on
the record, this Court must apply a presumption of reasonableness and review the judgment
for an abuse of discretion. King, 432, S.W.3d at 319, 327. We will affirm the trial court’s
judgment “so long as there is any substantial evidence to support the trial court’s decision.”
Id. at 327. However, if the trial court fails to consider and weigh the relevant factors, the
presumption of reasonableness does not apply, and this Court may either conduct a de novo
review or remand the issue for reconsideration. Id. at 327-28. In this case, the record shows
that the trial court methodically considered and weighed each of the Electroplating factors,
identified the factors weighing against granting judicial diversion, and explained the basis
of its ruling on the record.

       We have set forth in detail the trial court’s findings of fact regarding whether to grant
judicial diversion. The trial court considered all the Electroplating factors, identified the
factors weighing against judicial diversion, and explained the basis of its ruling. There is
substantial evidence in the record to support the trial court’s decision, and applying a
presumption of reasonableness, we affirm the decision to deny judicial diversion.

      Accordingly, we conclude that Defendant is not entitled to relief in this appeal. The
judgment of the trial court is affirmed.


                                            _______________________________________
                                            THOMAS T. WOODALL, PRESIDING JUDGE




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