           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   Assigned on Briefs August 15, 2001

                       STATE OF TENNESSEE v. CHARLIE LOGAN

                            Appeal from the Criminal Court for Pickett County
                                     No. 593   John Wooten, Judge



                       No. M2001-00804-CCA-R3-CD - Filed September 11, 2001


The Defendant was indicted on twelve counts of aggravated rape and six counts of statutory rape.
He pled guilty to four counts of statutory rape, a Class E felony,1 with an agreed sentence of two
years on each count, to be suspended upon service of thirty days. The trial court ordered the
sentences to run consecutively, which ruling the Defendant now appeals. The Defendant also
appeals the court’s denial of his application for judicial diversion. We affirm the judgment of the
trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOE . G. RILEY and JAMES
CURWOOD WITT, JR., JJ., joined.

Randall A. York, Crossville, Tennessee, for the appellant, Charlie Logan.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
Bill Gibson, District Attorney General; and Dale Potter, Assistant District Attorney General, for the
appellee, State of Tennessee.

                                                        OPINION

        At the time of these offenses, the Defendant was the Sheriff of Pickett County.2 He had
developed a sexual relationship with the co-defendant, Peggy Dale. Dale had befriended the fifteen
year old victim, C.W.3 C.W. had obtained permission from her mother to spend the night with Dale.
Dale decided to drive to Pickett County to visit the Defendant. The Defendant was sitting in his

       1
           See Tenn. Code An n. § 39-13-506(c).

       2
           The Defendant subsequently resigned this office.

       3
           It is the policy of this Court to iden tify minor victim s of sex offenses by their initials.
patrol car on the side of the road when Dale and C.W. drove by. The Defendant was on duty,
wearing his uniform and gun. The Defendant pulled Dale over, flashing his blue lights. He told
them to meet him in the parking lot of the Durango, a closed bar.

       The threesome met in the parking lot and Dale introduced C.W. to the Defendant. The
Defendant asked C.W. how old she was, and C.W. replied that she was eighteen. The Defendant
asked to see some identification, and C.W. explained that she did not have any with her. The
Defendant asked for C.W.’s birth date, and she provided one which, had it been accurate, would have
made her eighteen. The Defendant was thirty-eight years old at the time.

        Dale approached the Defendant and initiated sexual relations. The Defendant then had sex
with the victim, who cooperated. After approximately forty-five minutes, this scenario replayed
itself. Dale and the victim then left.

        C.W.’s mother testified that C.W. was mentally retarded and took medication for a bipolar
disorder. She testified that her daughter required extensive counseling after the rapes and was
diagnosed with post-traumatic stress syndrome. She testified that her daughter’s life was “ruined”
by the crimes.4

         Whether the sentences were to be concurrent or consecutive was left to the discretion of the
trial judge. After a sentencing hearing, the trial court ordered the Defendant’s sentences to be served
consecutively for an effective sentence of eight years, suspended upon the service of thirty days. In
ordering consecutive sentences, the trial court relied on the statutory provision which provides for
consecutive sentencing where a defendant “is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor with consideration of the aggravating circumstances arising from
the relationship between the defendant and victim . . . , the time span of defendant’s undetected
sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and
mental damage to the victim.” Tenn. Code Ann. § 40-35-115(b)(5). The trial court found that the
Defendant was in a position of public trust, that the victim “went through a very traumatic period
of seven days” before she was able to tell anyone what had happened, that the crimes constituted “a
literal sexual escapade out there on the side of the road in a parking lot with a young girl,” and that
the victim “suffered residual, mental damage.” The Defendant now contends that the trial court
erred in ordering his sentences to run consecutively.

        When an accused challenges the length, range, or manner of service of a sentence, this Court
has a duty to conduct a de novo review of the sentence with a presumption that the determinations
made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is
“conditioned upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

         4
           The only proof of the crimes before this Court is contained in a transcript of the preliminary hearing. That
proof suppor ts only two counts of statutory rape. However, at the sentencing hearing, the trial court stated that, when
it took the Defendant’s guilty pleas, “there was a specific, factual basis for all four pleas as to each defendant.”

                                                          -2-
1991). The burden is upon the appealing party to show that the sentence is improper. See Tenn.
Code Ann. § 40-35-401, Sentencing Commission Comments.

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See State v. Brewer, 875 S.W.2d 298, 302 (Tenn. Crim. App. 1993);
State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn. Code Ann. §§ 40-35-102,
-103, -210.

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v. Fletcher,
805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        The record supports the trial court’s finding that the Defendant is subject to consecutive
sentences because of his sexual abuse of the minor victim. The relationship between the Defendant
and the victim left the victim feeling, by her own testimony, powerless to resist.5 She was in a
deserted parking lot late at night with a man she had never met before and who was a law
enforcement officer. The Defendant was wearing his uniform and his gun when he met C.W. The
Defendant was thirty-eight years old at the time; C.W. was fifteen. The proof at the sentencing
hearing established that C.W. was mentally retarded and taking medication. Although the time span
of the Defendant’s undetected sexual activity was relatively brief, the proof supports the trial court’s
finding that C.W. suffered distress for a week before she was able to tell anyone what had occurred.
The nature and scope of the sexual acts were egregious: while on duty, the County Sheriff was
engaging in sexual intercourse with a minor as she leaned up against his patrol car in a deserted
parking lot. Finally, the proof established that the victim suffered significant residual mental damage
from the rapes. Her mother testified that she had been hospitalized with post-traumatic stress
syndrome, that she was required to become a homebound student, that she required extensive
counseling, and that she had become terrified of police officers. The trial court did not err in finding
the Defendant eligible for consecutive sentences under the statutory criteria.

       We also find that the aggregate eight year term of the consecutive sentences is “justly
deserved in relation to the seriousness of the offense[s]” and is “no greater than that deserved for the
offense[s] committed.” Tenn. Code Ann. §§ 40-35-102(1), -103(2); see also State v. Lane, 3 S.W.3d
456, 460 (Tenn. 1999). The trial court found at the sentencing hearing that the proof established “a


         5
          C . W . testified that she “didn’t want to have sex. . . . But . . . it was just like if [she] didn’t [she] thought
[she’d] be in trouble, or [she] thought that [she] would have the police called on [her] if . . . [she] would tell.”

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confederacy that led to a sexual escapade . . . in Pickett County, involving a 15 year old. That’s
pretty serious. Especially when you have the chief law enforcement officer . . . doing things like
that.” We agree. The Defendant’s conduct with the victim was reprehensible, and an eight year term
of probation is certainly no more than the Defendant justly deserves. The Defendant’s complaint
about his consecutive sentences is without merit.

        The Defendant also contends that the trial court should have granted his request for judicial
diversion. The sentencing option commonly known as judicial diversion is codified at Tennessee
Code Annotated section 40-35-313. A defendant is eligible for judicial diversion if he or she (a) “is
found guilty or pleads guilty to . . . a Class C, D or E felony,” (b) has not previously been convicted
of a felony, and (c) consents to the deferment of proceedings and placement on probation “for a
period of time . . . not more than the period of the maximum sentence of the felony with which the
person is charged.” Tenn. Code Ann. § 40-35-313(a)(1)(A). However,
        [t]he fact that an accused meets these prerequisites does not entitle the accused to
        judicial diversion as a matter of right. The statute states that a trial court “may” grant
        judicial diversion in appropriate cases . . . . Thus, whether an accused should be
        granted judicial diversion is a question which addresses itself to the sound discretion
        of the trial court.

State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993), overruled on other grounds by
State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).

         Tennessee courts have recognized the similarities between judicial diversion and pretrial
diversion and, thus, have drawn heavily from the case law governing pretrial diversion to analyze
cases involving judicial diversion. For instance, in determining whether to grant pretrial diversion,
a district attorney general should consider the defendant’s criminal record, social history, mental and
physical condition, attitude, behavior since arrest, emotional stability, current drug usage, past
employment, home environment, marital stability, family responsibility, general reputation, and
amenability to correction; as well as the circumstances of the offense, the deterrent effect of
punishment upon other criminal activity, and the likelihood that pretrial diversion will serve the ends
of justice and best interests of both the public and the defendant. See State v. Washington, 866
S.W.2d 950, 951 (Tenn. 1993).

        A trial court should consider generally the same factors when deciding whether to grant
judicial diversion. See Bonestel, 871 S.W.2d at 168; State v. Hammersley, 650 S.W.2d 352, 355
(Tenn. 1983); State v. Anderson, 857 S.W.2d 571, 572-73 (Tenn. Crim. App. 1992). If, after
assessing all relevant factors, the trial court chooses to deny judicial diversion, the court must
articulate on the record both the specific reasons supporting the denial and why those factors
applicable to the denial of diversion outweigh the other factors for consideration. See Bonestel, 871
S.W.2d at 168.

       In reviewing the decision of a trial court to grant or deny judicial diversion, this Court applies
“the same level of review as that which is applicable to a review of the district attorney general’s


                                                  -4-
action in denying pre-trial diversion.” State v. George, 830 S.W.2d 79, 80 (Tenn. Crim. App. 1992);
see also Anderson, 857 S.W.2d at 572. In other words, this Court reviews the record to determine
whether the trial court abused its discretion. See Bonestel, 871 S.W.2d at 168; Anderson, 857
S.W.2d at 572. To find an abuse of discretion, we must determine that no substantial evidence exists
to support the ruling of the trial court. See Bonestel, 871 S.W.2d at 168; Anderson, 857 S.W.2d at
572.

        In this case, the trial court’s findings with regard to the Defendant’s application for judicial
diversion were brief but to the point. The trial court stated that it “incorporate[d] by reference that
which [it had] said with regard to the multiple convictions in this case. This case is far too serious.
It would diminish and demean the severity of these offenses . . . to grant the judicial diversion in this
case, accordingly, [judicial diversion is] den[ied].”

        The Defendant presented no testimony at the sentencing hearing, nor has this Court been
provided with the exhibits which the Defendant made to the sentencing hearing in support of his
application for judicial diversion.6 The only evidence before this Court is contained in the
Defendant’s motion for judicial diversion (which simply sets out his eligibility) and in his
presentence report. That document reveals that the Defendant is divorced; has two children; has no
prior criminal record; is in good health and does not suffer from substance abuse problems;
completed the seventh grade; is employed as a service manager at the family business where he was
employed prior to his election as sheriff; claims to have the support of his family; and is remorseful
for his actions.

        While we agree with the Defendant that these personal attributes might support a grant of
judicial diversion in another case, we also find that substantial evidence in the record supports the
trial court’s denial of same in this case. The circumstances of these offenses were egregious. The
Defendant’s sentence appears relatively lenient, yet his conduct was of the type which justifies public
outrage at the conduct of public officials. The grant of judicial diversion would certainly have served
to further demean the seriousness of the Defendant’s criminal conduct, and, in this Court’s opinion,
would not serve the ends of justice or the best interests of the public. While the trial court could
have made more thorough findings with respect to its denial of the Defendant’s application for
judicial diversion, we hold that the trial court did not abuse its discretion in its ruling. This issue is,
therefore, without merit.

         The judgment of the trial court is affirmed.




         6
            We no te that when necessary parts of the record are not included on appeal, we must presume that the trial
court’s ru ling was c orrect. See State v. Oody, 823 S.W.2d 554, 55 9 (Tenn. Crim. App. 19 91).

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___________________________________
DAVID H. WELLES, JUDGE




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