        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               January 20, 2016 Session

           STATE OF TENNESSEE v. ROSA EMMA HONEYCUTT

             Direct Appeal from the Criminal Court for Sullivan County
                      No. S62817    James F. Goodwin, Judge



              No. E2015-00790-CCA-R3-CD - Filed September 29, 2016



A Sullivan County Criminal Court Jury convicted the appellant, Rosa Emma Honeycutt,
of failing to report suspected child sexual abuse, a Class A misdemeanor, and the trial
court sentenced her to eleven months, twenty-nine days to be served on unsupervised
probation. On appeal, the appellant contends that the trial court erred by denying her
request for judicial diversion. Based upon the oral arguments, the record, and the parties’
briefs, we reverse the judgment of the trial court and grant judicial diversion.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which, ROBERT W.
WEDEMEYER and CAMILLE R. MCMULLEN, JJ., joined.

Nathaniel H. Evans (on appeal), Knoxville, Tennessee, and Don Spurrell (at trial),
Johnson City, Tennessee, for the appellant, Rosa Emma Honeycutt.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
Barry Staubus, District Attorney General; and William Harper and Julie Canter, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                       OPINION

                                 I. Factual Background

       In October 2013, the Sullivan County Grand Jury indicted the appellant for failing
to report suspected child sexual abuse. At trial, the proof established that the appellant
was the Superintendent of Tri-State Baptist Children’s Home (hereinafter “the Home”) in
Bristol. On May 30, 2013, Robert Steuart, a child abuse investigator with the Department
of Children’s Services (DCS), received a referral concerning the alleged sexual abuse of
two boys, JC1 and JC2, at the Home.1 Steuart and Detective Tracy Haraz of the Sullivan
County Sheriff’s Department began investigating the allegations. The boys, who were
brothers, claimed that they had been “tied up” and anally raped repeatedly by CR, a
fourteen-year-old boy who also resided at the Home. Steuart and Detective Haraz
questioned CR. Detective Haraz testified that CR did not admit to anally penetrating JC1
and JC2 but “admitted to having sex” with them and that CR was charged in juvenile
court with the delinquent act of rape of a child.

         JC1 and JC2, who were in the first and second grade, respectively, at the time of
trial, testified that they told the appellant about the abuse and that she spanked them.
They denied telling anyone that CR had a knife. Darrin Carpenter, who was nineteen
years old at the time of trial, testified that he lived at the Home in 2013. One night, he
saw a fully-clothed CR in bed with JC1, “punched” CR, and told the appellant about the
incident. Stephanie Jackson, who was a houseparent at the Home in 2013, testified that
on the night in question, Carpenter told her that CR had been in the brothers’ room and
that he had hit CR. The following evening, Jackson questioned JC1, and he told her that
CR had been “humping” him over a blanket. The next morning, Jackson told the
appellant about her conversation with JC1 and that CR “needed help.” Jackson said she
had been trained at the Home to report sexual abuse to the appellant.

        Michael Nixon, the Director of the Home, testified for the appellant that he
questioned CR about the incident but “never did get anything from him.” Nixon said he
was told that CR “was on top of the covers, had clothes on, nobody was indecent, nothing
like that.” Nixon was never told of “humping,” and he and the appellant “never believed
anything happened.” Several other employees, including a male houseparent for all three
boys, testified that they never saw any signs that CR had sexually abused JC1 or JC2.

       The appellant, who was seventy-one years old at the time of trial, testified that she
had been associated with the Home for more than fifty-three years. During that time, she
had worked with over 1,000 children and had suspected and reported child abuse twice.
Neither incident related to this case. The appellant said that CR came to the facility about
one year before JC1 and JC2 and that CR had a “feet fetish.” CR did not come to the
Home with any prior allegations of having sexually abused children. CR was seeing a
therapist while he lived at the Home and was required to write down “what was on his
mind” as part of his therapy. In his writings, CR fantasized about rubbing people’s feet.
The appellant never saw CR act out against other children, and she developed a good
relationship with him.
        1
         It is the policies of this court to refer to the victims of sexual assault and minors by their initials.
Also, because both boys have the same initials, we will refer to them as “JC1” and “JC2” for clarity. We
mean no disrespect to these individuals.
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       The appellant testified that she was “buddies” with JC1 and JC2 and that she
“loved them dearly.” The appellant “may have had to paddle them a time or two,” but
she tried to treat them like they were her grandchildren. JC1 and JC2 played with CR,
and the appellant never saw anything between them that caused her to suspect the
brothers were withdrawing from CR. She said that JC1 and JC2 always came to her
when they had a problem and that they never reported sexual abuse by CR.

       The appellant testified that Darrin Carpenter told her that CR had been in the
brothers’ room but did not tell her that anything sexual happened. The appellant spoke
with JC1 and JC2 separately, and “they said nothing happened.” The appellant talked
with CR, and he also said nothing happened. The appellant believed CR had been in the
room but did not think he had done anything inappropriate to JC1 or JC2. She said that
“big boys” were not allowed in the rooms of younger children, and she acknowledged
that CR violated the Home’s rules by going into the brothers’ room.

       On cross-examination, the appellant testified that she caught CR in JC1’s and
JC2’s room twice and that she took a pocketknife from him. She also acknowledged that
CR’s writings “talked about rubbing the children’s feet on his wiener.” However, she
stated that CR’s writings were “fantasy” and that she did not consider children
“humping” with their clothes on to be sexual abuse. She maintained that she did not
think anything inappropriate happened between CR and JC1 or JC2, said that “DCS” and
Detective Haraz questioned CR alone and with his parents for about four hours, and said
that CR “would [have said] anything when they got through with him.” The jury
convicted the appellant as charged.

       At the sentencing hearing, the appellant requested that the trial court grant her
judicial diversion and submitted into evidence more than forty letters written on her
behalf by friends, family members, co-workers, and adults who had resided at the Home
as children. The State did not present any witnesses but introduced the appellant’s
presentence report into evidence. According to the January 2015 report, the appellant
was a high-school graduate, had two children, and was divorced. In the report, the
appellant described her mental health as good but said she suffered from the following
physical ailments: severe osteoarthritis, diabetes with neuropathy, hypertension, spinal
stenosis, hyperlipidemia, and peripheral vascular disease. The appellant had breast
cancer in 1994 and kidney cancer in 2010. The appellant stated in the report that she took
various prescription medications but that she had never consumed alcohol, illegal drugs,
or non-prescribed drugs. The report showed that the appellant was retired and had no
criminal history.



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       Joseph Alvarado testified for the appellant that he was the uncle of JC1 and JC2
and had custody of their sister, who was almost fifteen years old at the time of the
sentencing hearing. In 1995, Alvarado began working at the Home. He said that he
knew the appellant and that she was kind and caring to every child “that come through
there.” When JC1’s and JC2’s mother was incarcerated, Alvarado took them to live at
the Home. He visited them, and they seemed happy. He explained, “[T]hey would hug
my neck. They would hug the workers. They would hug Rosa Emma and I think Rosa
Emma favored them more than the rest of them really because she would take care of
them.” At some point, a boy at the Home told Alvarado, who did volunteer work there,
that CR had been in the brothers’ room. Alvarado spoke with CR, and CR claimed he
had been “sitting on the bed talking to them.” Alvarado never suspected anything
inappropriate, JC1 and JC2 never mentioned the incident to him, and he never noticed the
brothers avoiding CR. On cross-examination, Alvarado testified that he did not contact
the police because “[t]here was no reason to.”

        Craig Honeycutt, the appellant’s son, testified that his children attended school
with JC1 and JC2 and that his wife worked at the Home while the brothers lived there.
He said that his daughter played with them “constantly” and that neither his wife nor his
daughter reported anything suspicious. Honeycutt identified photographs of JC1 and JC2
sitting on the appellant’s lap, kissing her, and smiling with her. He also identified
photographs of them at his fortieth birthday party, at vacation Bible school, coloring
Easter eggs, and graduating from kindergarten. He said that he never saw JC1 or JC2
exhibit stress or anxiety and that the appellant had no reason to protect CR. He
acknowledged that this case had been devastating to the appellant, that DCS no longer
allowed her to work with children, and that “[i]t makes you want to second-guess what
God has called you to do.”

       At the conclusion of the hearing, the State argued that the trial court should deny
the appellant’s request for judicial diversion based upon the circumstances of the offense
because the appellant “was [the] one person at that Children’s Home that ran the show,”
knew about CR’s “problems,” received reports about the abuse, and “ignored it.” The
State also argued that the appellant was still in denial about what happened and that the
deterrence value to the appellant was “extremely high.”

        The trial court noted that the appellant was seventy-one years old with a criminal
history of “zero. . . . [N]ot even a speeding ticket.” Thus, the court found that her
criminal history favored granting judicial diversion. The trial court stated that her
amenability to correction also was “on the positive side” and that her social history was
“very good” in that “[s]he has spent a lifetime working with children in very difficult
situations” and had many people to support her. The court found that her physical and
mental health were “good” and weighed in favor of granting diversion.
                                           -4-
       Next, the trial court addressed the circumstances of the offense, stating as follows:

              [The appellant] did place her judgment over what the law
              says she has to do and I believe the legislature has enacted
              this law because too many times people in a position of
              authority don’t report.      They do conduct their own
              investigation and by doing so place children in harm.
              [Defense counsel asks] the Court to draw on the Court’s
              experience and part of this Court’s experience is that of a
              child abuse prosecutor for six years and I’ve seen the results
              of a person in authority when they don’t make that referral.

The trial court found that the circumstances of the offense were “neutral, slightly
negative.” The court went on to address the deterrence value to the appellant and others,
stating that “I’ve seen what happens.” The court found that while the deterrence value to
the appellant was “probably not that high” due to her age and the fact that she was no
longer in a position of authority at the Home, the deterrence value to others was
“extremely high.” The trial court also stated that “as much as it pains this Court, . . .
judicial diversion would not serve the interest of the public as well as [the appellant].”
The court ordered that the appellant serve her sentence of eleven months, twenty-nine
days on unsupervised probation and denied her request for judicial diversion.

                                        II. Analysis

        The appellant contends that the trial court denied judicial diversion based solely on
the deterrence factor and improperly relied on its prior professional experiences as a
prosecutor of child sex crimes to conclude that the factor weighed against diversion. The
appellant also contends that no evidence supports the court’s deterrence rationale, that the
court should have addressed the five deterrence factors discussed in State v. Hooper, 29
S.W.3d 1 (Tenn. 2000), and that she is “the perfect candidate for diversion.” The State
argues that the trial court did not abuse its discretion. Upon de novo review, we conclude
that the trial court erred by denying the appellant’s request for judicial diversion.

        Our Code provides that any person who “knows or has reasonable cause to suspect
that a child has been sexually abused . . . shall report such information . . . relative to the
sexual abuse of children, regardless of whether such person knows or believes that the
child has sustained any apparent injury as a result of such abuse.” Tenn. Code Ann. § 37-
1-403(a)(3). Moreover, “[a]ny person required to report known or suspected child sexual
abuse who knowingly and willfully fails to do so, or who knowingly and willfully

                                             -5-
prevents another person from doing so, commits a Class A misdemeanor.” Tenn. Code
Ann. § 37-1-165(a).

        Pursuant to Tennessee Code Annotated section 40-35-313(a)(1)(B)(i), a defendant
is eligible for judicial diversion when he or she is found guilty or pleads guilty or nolo
contendere to a Class C, D, or E felony; has not previously been convicted of a felony or
a Class A misdemeanor; and is not seeking deferral for a sexual offense. Additionally, in
determining whether to grant a defendant judicial diversion, the trial court must consider
all of 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 status of the defendant’s physical and mental health, (6) the
deterrence value to the defendant and others, and (7) whether judicial diversion will serve
the interest of the public as well as the defendant. State v. Electroplating, Inc., 990
S.W.2d 211, 229 (Tenn. Crim. App. 1998) (citing State v. Parker, 932 S.W.2d 945, 958
(Tenn. Crim. App. 1996)). The record must reflect that the trial court has taken all of the
factors into consideration, and “we may not revisit the issue if the record contains any
substantial evidence supporting the trial court’s decision.” Id. Furthermore, “[t]he court
must explain on the record why the defendant does not qualify under its analysis, and if
the court has based its determination on only some of the factors, it must explain why
these factors outweigh the others.” Id. When reviewing a trial court’s decision to grant
or deny judicial diversion, the standard of review is abuse of discretion with a
presumption of reasonableness. State v. King, 432 S.W.3d 316, 327 (Tenn. 2014). This
means that we “must . . . uphold the grant or denial so long as there is any substantial
evidence to support the trial court’s decision.” Id.

       Turning to the instant case, the record demonstrates that the trial court considered
the seven factors set forth in Parker and Electroplating. However, the court’s comments
demonstrate that in thinking about the circumstances of the offense and the deterrence
value to the appellant and others, the court considered its experiences as a prosecutor of
child sex crimes. A trial court must only consider “evidence in the record of the trial, the
sentencing hearing, the presentence report and the record of prior felony convictions filed
by the district attorney general with the court.” Tenn. Code Ann. § 40-35-210(f).
Accordingly, the standard of abuse of discretion with a presumption of reasonableness
does not apply, and we may conduct a de novo review or remand the issue for
reconsideration. See King, 432 S.W.3d at 327-28. We believe that the record is
sufficient for de novo review and will address whether the denial of judicial diversion
was appropriate in this case.

       The parties do not dispute that the appellant qualifies as a candidate for judicial
diversion. Therefore, we turn to the Parker and Electroplating factors. First, the
appellant lost her ability to work with children; was “devastated” by this case; and
                                            -6-
committed no additional offenses. In the presentence report, she stated that she respected
the jury’s decision, that she was remorseful, and that she would be “extra cautious” in the
future. Thus, her amenability to correction weighs in favor of granting judicial diversion.
Because she has no prior convictions of any kind, her lack of a criminal record also
weighs in favor of diversion. The appellant is a high school graduate and has the support
of her family, friends, co-workers, and former residents of the Home. Furthermore, prior
to this case, she had worked with more than 1,000 children over a period of fifty-three
years. She has never consumed alcohol, illegal drugs, or non-prescription medication and
is in good mental health. Although she has several physical ailments, she is seventy-one
years old and has survived cancer twice. Moreover, the appellant stated in the
presentence report that she was prescribed Lortab in 2010 for back pain and that she
proactively enrolled in a pain management program because she did not want to become
dependent on hydrocodone. Therefore, we believe that her social history and that the
status of her physical and mental health also weigh in favor of diversion.

        As to the circumstances of the offense, the evidence at trial focused primarily on
the single incident in JC1’s and JC2’s bedroom and the appellant’s failure to recognize
from the incident that CR was sexually abusing JC1 and JC2. However, Darrin
Carpenter, the only eyewitness to testify about the incident at trial, simply stated that he
saw a fully-clothed CR in bed with JC1. Stephanie Jackson testified that JC1 claimed CR
was “humping” him over a blanket. Employees of the Home testified that the three boys
interacted with each other regularly and that they never saw any signs CR was abusing
JC1 and JC2. Contrary to the State’s claim at the judicial diversion hearing, the appellant
did not ignore the allegations. She spoke with JC1, JC2, CR, and others about the
incident and concluded that CR had not sexually abused JC1. Thus, we disagree with the
trial court’s assessment that the circumstances of the offense weigh against granting
judicial diversion.

       In considering the deterrence value to the defendant and others and whether
judicial diversion will serve the interest of the public as well as the defendant, we note
that the trial court contemplated that the appellant “did place her judgment over what the
law says she has to do and I believe the legislature has enacted this law because too many
times people in a position of authority don’t report. They do conduct their own
investigation and by doing so place children in harm.” While we can appreciate the trial
court’s concern, the offense requires that a person have “reasonable cause to suspect”
child sexual abuse, which may justify a person’s own investigation prior to deciding
whether to report. Just as a decision not to report can harm a child, a decision to report
can have devastating effects on the falsely-accused. In this case, the evidence shows that
the appellant had reported abuse previously, that she cared for all three of the children,
that she investigated the incident, and that she honestly believed CR did not sexually
abuse JC1 or JC2. Nothing indicates that she failed to report the allegations in order to
                                            -7-
protect CR or the Home. Thus, in consideration of the deterrence value to the defendant
and others and whether judicial diversion will serve the interest of the public as well as
the defendant, we cannot say that they weigh in favor of denying diversion. Accordingly,
we conclude that the trial court erred by denying judicial diversion and grant the
appellant’s request.

                                    III. Conclusion

      Based upon the oral arguments, the record, and the parties’ briefs, we reverse he
judgment of the trial court and grant judicial diversion.



                                                 _________________________________
                                                 NORMA MCGEE OGLE, JUDGE




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