        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 June 28, 2016 Session

             STATE OF TENNESSEE v. JEFFREY LEE SOWERS

                 Appeal from the Criminal Court for Greene County
                    No. 15CR392 John F. Dugger, Jr., Judge


               No. E2015-01961-CCA-R3-CD – Filed August 12, 2016


The Defendant, Jeffrey Lee Sowers, pleaded guilty in the Greene County Criminal Court
pursuant to a negotiated plea agreement to official misconduct, a Class E felony, with the
length and the manner of service of the sentence to be determined by the trial court. See
T.C.A. § 39-16-402 (2014). The court sentenced the Defendant as a Range I, standard
offender to eighteen months’ incarceration. On appeal, the Defendant contends that the
trial court erred in denying his request 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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which CAMILLE
R. MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

Dan R. Smith, Jonesborough, Tennessee, for the appellant, Jeffrey Lee Sowers.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Dan
E. Armstrong, District Attorney General; and Ritchie Collins, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                       OPINION

       This case arises from the Defendant’s engaging in sexual contact with Greene
County Jail inmates while teaching GED classes. The Defendant pleaded guilty to one
count of official misconduct by way of an information, which is not included in the
appellate record. According to the State’s recitation of the facts,

      Jeff Sowers was a detective with the Greeneville Police Department. After
      work and when he was off duty from his job as a detective, Mr. Sowers
          instructed GED classes for female inmates at the Greene County Jail. He
          did this under the auspices of the Greeneville City School System. The
          pertinent classes occurred throughout the first part of this year, 2015. In
          May jail personnel began receiving reports that contact of a sexual nature
          was taking place between Jeff Sowers and [multiple] female inmates.

       At the sentencing hearing, the trial court inquired about the number of female
inmates involved, and the prosecutor stated that Tennessee Bureau of Investigation (TBI)
Special Agent Scott Lott interviewed approximately thirty female inmates. The
prosecutor stated that although not all of the interviewed inmates reported sexual contact,
in many instances, jail video surveillance recordings contradicted the inmates’ denials of
sexual contact. The prosecutor thought two or three inmates admitted having sexual
contact with the Defendant. The trial court requested that Agent Lott testify regarding
the factual basis for the Defendant’s guilty plea.

        TBI Agent Scott Lott testified that he interviewed twenty-nine or thirty female
inmates who attended GED classes taught by the Defendant. He said that at least three
female inmates admitted having sexual contact with the Defendant. He said that the
inmates described touching without penetration. Agent Lott said that he reviewed thirty
to fifty hours of jail surveillance recordings, which he said contradicted some of the
inmates’ statements that no sexual contact occurred.

       Agent Lott testified that he spoke to the Defendant, who provided the following
written statement:

                 My name is Jeff Sowers and this is my voluntary written statement .
          . . on June 10th, 2015 at the Greeneville Police Department. I know my
          constitutional rights and I’m making this statement freely. I’ve been
          teaching GED classes at the Greene County Jail for maybe two years. I’ve
          been advised of the allegations against me and they are not true. Since I
          have been teaching GED classes at the jail I have tried to treat everyone,
          male and female alike, respectfully and like humans. I’ve told them I was
          not there on behalf of law enforcement and I wanted them to get an
          education, I wanted them to trust me. I brought the inmates candy in the
          past, we watched movies and I may have slapped someone on the leg if
          something was funny in the movie but I did not do it in a sexual manner . . .
          . [A.H.]1 was crying one time over her possible sentence offer and I gave
          her a hug. Last Monday [W.M.] was crying about her charges and I hugged
          her. I have never propositioned anyone. I’ve told them when they got out
          my feelings would be hurt if they saw me out and didn’t say hi. I’ve never
1
    This court refers to victims of sexual offenses by their initials.
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      kissed an inmate on the cheek or anywhere else. I’ve never touched any
      inmate in a sexual way. One time I was teaching U.S. history and when I
      tried to draw a picture of the colonies it looked very phallic and the girls
      were laughing. I saw what was going on, said it looks like a big d--- and
      erased it and tried again. Sometimes the girls would say when they got out
      they were going to find their man but there was never any sexual
      discussions with them involving me.

             [A.H.] brought up that she has hepatitis C and she said . . .it was
      thanks to [M.T.]. When [A.H.] came to class she would sometimes go into
      the SRT office with me and I would put sugar in her coffee. On May 18th,
      2015, when she went into the office I spilled the sugar and had to clean it
      up and I also had to turn the blowers off in the gym. I’ve never had any
      sexual contact or conversations with any female inmate including [A.H.],
      [K.R.], [A.F.], [T.N.], or [S.H.].

               Sometime last year [K.R.] asked me to bring her cigarettes and I told
      her it will get me fired and get her kicked out of the class. [K.R.]
      apologized for asking. I remember [A.F.] and [T.N.] but I have not seen
      either of them for a long time. I don’t even recognize [S.H.’s] name. There
      was one girl, I don’t recall who she was, that I asked her if her eye color
      was natural and when the girl said yes I told her they were prettiest eyes I
      had ever seen. I was just trying to be nice. I tell the inmates that most have
      spent their whole lives being beat down, that they haven’t had a chance and
      I just try to be nice to them. I have never seen nor had any contact with any
      of the female inmates . . . outside of jail. I’ve never let any inmate have
      control of my cell phone. I played a music video on my phone for them
      before but I did everything myself. [A.H.] talked about her mother not
      going to see her in jail and one day I did stop and see her mother at work
      and told her that [A.H.] would like her to go see her.

             I told all inmates that I would write them letters to show the judge,
      parole board, or any other person that needs it to show the inmate’s
      participation and activity in the classes. This is a blanket letter I will write
      for any of them. I don’t think I wrote one for [A.H.]. If some inmates
      came out with their pants sagging, I would tell them to pull their pants up.

             I have been offered a polygraph test on a future date and I am
      willing to take one to clear my name.

       Agent Lott testified that March 16, 2015 surveillance recordings from the gym
inside the jail showed A.H.’s rubbing the Defendant’s “pants area” and showed the
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Defendant’s rubbing A.H. in the same area. Agent Lott said that A.H. denied any sexual
contact when he interviewed her.

       On cross-examination, Agent Lott testified that the only incident he saw from the
surveillance recordings was the March 16 incident involving A.H. He agreed he could
not confirm the statements of the inmates who reported sexual contact with the
Defendant. Agent Lott clarified that he saw the Defendant’s and A.H.’s rubbing the
other’s respective “crotch” areas above their clothes. On redirect examination, Agent
Lott agreed that during the GED classes when videos were viewed by the inmates, the
lights were off or dimmed and that as a result, the surveillance recordings were black.

       Sherry Sowers, the Defendant’s wife of eleven and one-half years, testified that
she and the Defendant were in the process of divorcing. She was the Director of Nursing
at the Greene County Jail. She said that initially, the Defendant denied the allegations
but that he ultimately admitted to sexual contact with four women. She said he admitted
to fondling the women’s breasts, placing his hand up their shirts, and placing his hands
on their crotch areas. She said the Defendant also admitted that “a few” of the women
placed their hands on the Defendant’s crotch area. When asked if he had expressed any
remorse, she said that the Defendant said the sexual contact probably would have
continued had he not been caught.

       On cross-examination, Ms. Sowers testified that the Defendant’s conduct had hurt
her. Although she said that the Defendant had sought mental health treatment, he had
also threatened to stop the treatment. She agreed the Defendant never admitted to sexual
penetration.

        Several individuals submitted letters of recommendation in support of the
Defendant, which were received as a collective exhibit. The Defendant was described as
a dedicated and professional member of his church and a motivating, inspiring, and
dedicated teacher. A coworker described the Defendant’s behavior as professional,
respectful, and appropriate. The Defendant’s former wife described him as kind and
compassionate and noted his military service in the area of explosive ordnance disposal.
She described the Defendant’s desire to build a sense of family within his military unit
and to protect his fellow servicemen and servicewomen. She stated that since their
divorce, the Defendant had been committed to his children and had played an active role
in their lives.

       The Defendant apologized to the court, his family, and his community, admitted
his conduct was “wrong,” and accepted responsibility for his actions. He told the trial
judge that the judge would never see him again and that provided the opportunity, the
Defendant would provide for his three children.

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        In determining the Defendant’s sentence, the trial court relied upon the evidence
presented at the hearing and the presentence report. We note that although the record
reflects the presentence report was placed in the trial court file, the report is not contained
in the appellate record. The court found that although the Defendant was amenable to
correction, the circumstances of the offense were horrendous. The court noted that the
Defendant was a police officer allowed to enter the jail and teach the inmates in a manner
to help better their lives. The court found that the Defendant’s conduct breached the
public trust and stated that it gave great weight to this factor. The court found that the
Defendant had no previous criminal history and that his social history and physical health
had been good. The court noted that the Defendant had threatened to stop counseling
when considering his mental health. The court stated that it considered the Defendant’s
military service favorable and noted the Defendant was deployed to Iraq and served his
country.

        Relative to deterrence, the trial court stated that it was aware correction officers in
several nearby counties were “getting in trouble” and that “it needs to be deterred.” The
court noted that when a person was in a position of authority and control over inmates,
the person could not use the authority and control for any type of personal benefit. The
court determined that other correction officers needed to know that abuse of power and
authority was a “serious situation.” The court determined that judicial diversion might
serve the Defendant’s interests but noted relative to the public interest that the Defendant
was a law enforcement officer who had “relations” with a felony inmate who was
charged with murder. The court stated that it gave the greatest weight to the
circumstances of the offense. The court noted that the breach of the public trust was
enough to deny judicial diversion. The court determined that judicial diversion was not
appropriate and stated that the Defendant “had a badge” and was “held to a higher
standard.” The court noted Agent Lott’s statement in the presentence report that a law
enforcement officer should be held to “higher accountability standards.”

       The trial court found that mitigating factor (1) applied because the case involved
sexual battery. See T.C.A. § 40-35-113(1) (2014) (“The defendant’s criminal conduct
neither caused nor threatened serious bodily injury[.]”).

       The court found that enhancement factors (3), (7), and (14) applied. See id. § 40-
35-114(3), (7), (14) (Supp. 2015). The court found that the offense involved more than
one victim based upon the evidence presented at the hearing. See id. § 40-35-114(3)
(“The offense involved more than one (1) victim[.]”). The court noted that the
Defendant’s wife stated the Defendant admitted to incidents involving four female
inmates, that Agent Lott said the incidents involved at least three inmates, and that the
information stated “female inmates.” The court found that the Defendant’s conduct was
motivated to gratify his desire for pleasure or excitement. See id. § 40-35-114(7) (“The
offense involved a victim and was committed to gratify the defendant’s desire for
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pleasure or excitement[.]”). The court also found that the Defendant abused a position of
public trust and placed the greatest weight on this factor. See id. § 40-35-114(3) (“The
defendant abused a position of public . . . trust . . . in a manner that significantly
facilitated the commission or the fulfillment of the offense[.]”).

        The trial court discussed at length the need to deter law enforcement officers from
engaging in similar conduct. It noted that an inmate might feel helpless and worthless
because the inmate was incarcerated and that someone who was in a position of authority
should not take advantage of an inmate. The court found that confinement was necessary
to avoid depreciating the seriousness of the offense and was suited to provide an effective
deterrent to others. See id. § 40-35-103(1)(B) (2014). The court found based upon the
totality of the circumstances that the proper length of sentence was eighteen months. The
court said that although it thought the proper sentence was two years, it was imposing an
eighteen-month sentence because of the Defendant’s ten-year military service and
because the Defendant took responsibility for his conduct. The court ordered the
sentence be served in confinement. This appeal followed.

       The Defendant contends that the trial court abused its discretion by denying his
request for judicial diversion. He argues that the court improperly placed undue weight
on the Defendant’s breaching the public trust in denying diversion because the breach of
the public trust was inherent in the offense. The State responds that the trial court
properly denied diversion because it considered all of the relevant factors.

       A trial court may order judicial diversion for certain qualified defendants who are
found guilty of or plead guilty or nolo contendere to a Class C, D, or E felony or a lesser
crime; have not previously been convicted of a felony or a Class A misdemeanor; and are
not seeking deferral for a sexual offense. See T.C.A. § 40-35-313(a)(1)(B)(i) (Supp.
2013) (amended 2014). The grant or denial of judicial diversion is within the discretion
of the trial court. State v. King, 432 S.W.3d 316, 323 (Tenn. 2014) (citing T.C.A. § 40-
35-313(a)(1)(A)). When considering whether to grant judicial diversion, a 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. State v.
Electroplating, 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998); State v. Parker, 932
S.W.2d 945, 958 (Tenn. Crim. App. 1996); see King, 432 S.W.3d at 326. “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 a trial court refuses to grant judicial diversion,
“[T]he court should clearly articulate and place in the record the specific reasons for its
determinations.” Parker, 932 S.W.2d at 958-59. “The truthfulness of a defendant, or
lack thereof, is a permissible factor for a trial judge to consider in ruling on a petition for
suspended sentence.” State v. Neeley, 678 S.W.2d 48, 49 (Tenn. 1984).
                                              -6-
       On review of a decision to grant or deny judicial diversion, this court will apply a
presumption of reasonableness if the record reflects that the trial court considered the
Parker and Electroplating factors, specifically identified the relevant factors, and placed
on the record the reasons for granting or denying judicial diversion, provided any
substantial evidence exists to support the court’s decision. King, 432 S.W.3d at 327. If,
however, the trial court failed to weigh and consider the relevant factors, this court may
conduct a de novo review or remand the case for reconsideration. Id. at 328.

        The record reflects that the trial court considered and articulated the weight it gave
each Electroplating factor. We therefore review the court’s decision for an abuse of
discretion with a presumption of reasonableness. The court weighed against the
Defendant the circumstances of the offense, the deterrent value, and whether judicial
diversion would serve the ends of justice. The court placed great weight on the
circumstances of the offense, which it considered horrendous based upon the Defendant’s
being a law enforcement officer and using his authority and power to engage in sexual
contact with female inmates. As a result, the nature of the circumstances of the offense
involved a breach of the public trust. The court determined these factors outweighed the
Defendant’s amenability to correction, the Defendant’s lack of previous convictions, and
the Defendant’s good social history and health. We note that the trial court found one
mitigating factor applied and also considered the Defendant’s military record and his
taking responsibility for his conduct in determining the sentence length. The record
reflects that the court considered all of the appropriate factors in denying the Defendant’s
request for judicial diversion and that the court’s determinations are supported by the
evidence.

       Relative to the Defendant’s argument that the trial court improperly placed undue
weight on the breach of the public trust because the breach of the public trust is inherent
in the offense, the statute governing official misconduct does not reference a breach of
the public trust. See T.C.A. § 39-16-402. The Defendant conceded this point during oral
argument but argued that the court’s “fixation” upon the breach of the public trust was
tantamount to the court’s determining official misconduct is an offense for which judicial
diversion should never be granted, although the offense is diversion eligible. We
disagree and determine nothing in the record reflects the court believed that any form of
conduct leading to an official misconduct conviction would prevent its granting judicial
diversion.

       Official misconduct can be committed by various forms of conduct that do not
include sexual contact with female inmates. We note that the Defendant cites to no
authority stating that consideration of the nature of the breach of the public trust in the
context of the circumstances of the offense is improper. The trial court was troubled by
the circumstances of the offense because the Defendant was entrusted to educate the
inmates but chose to engage in sexual contact with them. The court discussed the
                                             -7-
vulnerability of the Defendant’s victims as a result of their incarceration and emphasized
how the breach of the public trust occurred as a result of the Defendant’s conduct. The
court determined that the Defendant’s abuse of his authority and power was horrendous
and that judicial diversion was not appropriate. The court did not determine, as a general
principle, that any conduct sufficient for an official misconduct conviction would
preclude its granting judicial diversion.

      The trial court properly considered all of the appropriate factors and placed great
weight on the circumstances of the offense and the deterrent value in denying diversion.
We conclude that the trial court did not abuse its discretion by denying judicial diversion.

      In consideration of the foregoing and the record as a whole, we affirm the
judgment of the trial court.




                                          ____________________________________
                                          ROBERT H. MONTGOMERY, JR., JUDGE




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