        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 5, 2013

                 STATE OF TENNESSEE v. COLLIER SMITH

                  Appeal from the Criminal Court for Shelby County
                   No. W12-00380     L.T. Lafferty, Special Judge


                 No. W2012-01455-CCA-R3-CD - Filed May 16, 2013


The defendant, Collier Smith, pled guilty to statutory rape, a Class E felony, and was
sentenced as a Range I, standard offender to one year, suspended to two years probation. On
appeal, he argues that the trial court erred in denying his request for judicial diversion.
Following our review, we affirm the judgment of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and C AMILLE R. M CM ULLEN, JJ., joined.

Leslie I. Ballin and Richard S. Townley, Memphis, Tennessee, for the appellant, Collier
Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
Amy P. Weirich, District Attorney General; and Alanda Dwyer, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

                                          FACTS

       The defendant, a school bus driver, was charged by criminal information with
statutory rape based on his sexual contact with a fourteen-year-old girl who rode the bus he
drove. At the May 30, 2012 guilty plea and sentencing hearing, the State recited the facts it
would have presented had the case gone to trial:

       If the matter had gone to trial, the State would have shown that on February
       the 4th of 2012, a 14 year old victim reported to the Memphis Police
       Department that she and the defendant, Collier Smith, 30 years old[,] had
       penile/vaginal sex on the backseat of the defendant’s vehicle.

               The victim stated that the defendant picked her up from her home.
       They drove to the 1500 block of Drew Street and had sex on the backseat of
       his vehicle. The defendant is also her school bus driver. After several phone
       calls from the victim’s grandfather, . . ., the defendant . . . took the victim to
       the Raines Police Station, told her to tell officers that she was a runaway. He
       was transported to the Sex Crime[s] Bureau, advised of his Miranda Rights
       and admitted to having sexual intercourse with [the] 14 year old victim. He
       was placed under arrest and charged with statutory rape.

       The defendant, testifying through a deaf interpreter, said that he had been deaf since
birth. He said he was a high school graduate and had completed two semesters of college,
as well as a diesel mechanic course at a technical school and a truck driving school program.
At the time of the offense, the defendant had been working as a school bus driver for about
a year and a half. When asked to explain the crime he committed, the defendant testified:

               What did I do wrong? Well, I know now she was too young and I feel
       so very bad about it. I apologize. I just know it will never happen again. I .
       . . have experienced the hardest time in my life, and I want to – I just – all I can
       say is I’m so sorry.

              ....

       And, again, I’m so sorry for all of this. And . . . it just will not happen again.
       I want us all to go on with our lives. And I want to be successful and . . . help
       out my mother and support my kids. So, anyway, I’m just so sorry about all
       of this.

       The defendant said that his crime was “[his] fault,” that he blamed himself, and that
he “should have known better.” He said that, at the time of the offense, he had been the
victim’s bus driver for about six months and knew that she was fourteen years old and too
young to engage in sexual activity. He denied ever talking to the victim about having sex,
saying, “[I]t was her coming to me . . . . And I told her that I’m too old and that I can be your
dad.” He explained that the victim approached him on the bus and then sent text messages
to him when he was off duty, most of which he ignored. He admitted that he and the victim
had been texting each other for about two months before the offense occurred.

       Regarding the day the offense occurred, the defendant said the victim had been

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“texting all day. I ignore all day. And then I have no reason . . . how it happened but I just
want to say I’m sorry.” He said the victim “texted and texted and texted again. . . . So I
didn’t know exactly what she was talking about, so I went to see what was going on. To see
if there was anything wrong. Now, I terribly regret doing that.” He said that he did not plan
to have sex with the victim when he went to her home and that “[i]t just happened.” He
admitted driving the victim to an elementary school at about 9:30 p.m. and having sex with
her in the backseat of his vehicle. Afterwards, the victim refused to go home and kept telling
him to take her somewhere else. He talked to the victim’s grandfather around 2:00 a.m. who
told him to take the victim to her other grandparent’s house or to the police station. He
eventually took her to the police station at 11:30 a.m. the following morning because she was
“wanting to run away.” He acknowledged that the victim was with him from 9:30 p.m. until
11:30 a.m. because he “didn’t know where to take her.”

       The defendant said that he wanted to become a truck driver and that he had never been
charged with any other offense. He said that he had been married for three years but was
currently divorced and had three young children. He was currently living with his parents
and two brothers.

        Debra Smith, the defendant’s mother, testified that the defendant was very remorseful
for his crime and that he was “a very good person.” She said he would be a good probationer
and follow all the rules of probation. She said the defendant was hoping to be hired as a
truck driver in order to support his children.

       Inez Scott, the victim’s grandmother, testified that the victim was living with her other
grandparents the night of the offense. The other grandparents called and told her that the
victim was missing and called again when the victim was located. Ms. Scott said that she
would have taken the victim that night if the defendant had brought her and that, to her
knowledge, he never offered to take the victim to her other grandparents’ house. When
asked if she thought the defendant should receive diversion, Ms. Scott said:

               I don’t think that he should get it. For one thing, because he is an adult
       and . . . he can be in contact with other children if this is diverted from his
       record. He is a grown man. And it just hurts me to my heart that I have to take
       my granddaughter to the Rape Crisis Center every week. She will not talk to
       us about what happened to her. This is a stain on her life what he did to her.
       He is a grown man.

       At the conclusion of the hearing, the trial court denied the defendant’s request for
judicial diversion and sentenced him to one year, suspended to two years probation. This
appeal followed.

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                                         ANALYSIS

       The defendant argues that the trial court abused its discretion in denying his request
for judicial diversion by failing to address all of the relevant factors for diversion. The State
disagrees, arguing that there was substantial evidence to support the trial court’s denial of
diversion. We agree with the State.

        Following a determination of guilt by plea or by trial, a trial court may, in its
discretion, defer further proceedings and place a qualified defendant on probation without
entering a judgment of guilt. Tenn. Code Ann. § 40-35-313(a)(1)(A). A qualified defendant
is one who is found guilty or pleads guilty or nolo contendere to the offense for which
deferral of further proceedings is sought, is not seeking deferral of further proceedings for
a sexual offense, a violation of section 71-6-117 or section 71-6-119, or a Class A or Class
B felony, and who has not been previously convicted of a felony or a Class A misdemeanor.
Id. § 40-35-313(a)(1)(B)(i). If the defendant successfully completes the period of probation,
the trial court is required to dismiss the proceedings against him, and the defendant may have
the records of the proceedings expunged. Id. § 40-35-313(a)(2), (b).

       The decision to grant or deny a qualified defendant judicial diversion lies within the
sound discretion of the trial court. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn.
Crim. App. 1998); State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997); 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). As such, it will not be disturbed on appeal
absent an abuse of discretion. Electroplating, 990 S.W.2d at 229; Cutshaw, 967 S.W.2d at
344; Bonestel, 871 S.W.2d at 168. To constitute an abuse of discretion, the record must be
devoid of any substantial evidence in support of the trial court’s decision. Cutshaw, 967
S.W.2d at 344; Bonestel, 871 S.W.2d at 168; State v. Anderson, 857 S.W.2d 571, 572 (Tenn.
Crim. App. 1992).

       In determining whether to grant diversion, the trial court must consider all of 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.
Electroplating, 990 S.W.2d at 229; Bonestel, 871 S.W.2d at 168. A trial court should not
deny judicial diversion without explaining the factors in support of its denial and how those
factors outweigh other factors in favor of diversion. Id.

       Recently, a panel of this court discussed the impact of the supreme court decisions
of State v. Bise, 380 S.W.3d 682, 707-08 (Tenn. 2012) and State v. Caudle, 388 S.W.3d

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273, 278-79 (Tenn. 2012), on our review of a denial of judicial diversion. See State v. Kiara
Tashawn King, No. M2012-00236-CCA-R3-CD, 2013 WL 793588, at *6-7 (Tenn. Crim.
App. Mar. 4, 2013). This court noted that “our supreme court has made clear that primary
responsibility for determining the appropriate sentence rests with trial courts and that their
decisions are presumptively reasonable.” Id. at *6. In Kiara Tashawn King, this court held:

       [W]e can reach no conclusion other than that those portions of [State v.]
       Parker, 932 S.W.2d [945,] 958 [(Tenn. Crim. App. 1996)], Electroplating, and
       their progeny in which this court reversed a trial court’s decision to deny
       judicial diversion merely because the trial court failed to expressly consider
       one or more of the seven legally-relevant factors (or merely because it failed
       to specify why some factors outweighed others) can no longer be considered
       governing law. Instead, in order to comply with Bise and Caudle, in cases in
       which a trial court has made a procedural omission in the course of denying
       judicial diversion, we must in fact apply the standard of review that we have
       always purported to follow, see Parker, 932 S.W.2d at 958, and uphold the
       trial court’s denial of judicial diversion if we find any substantial record
       evidence supportive of its decision.

Id. at *7.

       The trial court’s ruling states in pertinent part:

       Now, your attorney’s asked me to put you on diversion. I’ve looked at the
       applicable law here. It looks like you’re eligible. There’s a question in [my]
       mind whether or not the State could prove that you were a statutory [sic]
       figure, but based on the record here that I’ve heard and the Presentence Report,
       you’re a bus driver employed . . . with a contract with Durham Services with
       Shelby County and the City of Memphis. So you were in a, if not a custodial
       position, you were in a semi custodial position as a driver taking care of these
       kids . . . and that’s how your contact came with [the victim]. And I glean that
       you started, probably from the best of your testimony, in September as a bus
       driver taking these kids back and forth to their homes and this occurred
       somewhere around February the 4th.

              So it looks like a relationship developed somehow between you and the
       [victim]. Now, I heard the testimony about her texting which maybe it’s usual
       for 14 year olds to do that. I don’t know. . . . But it seems to me a man 30
       years old, got a good education, you’re making something of yourself, that if
       a young girl is continually texting you, there’s an indication something is

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       wrong.

              You either talk to the school authorities or teacher or her grandparents
       or somebody about what is the problem. Why she keeps calling you for over
       a week? But on this night in question, you pick her up at 9:30 at night. You
       take her to an isolated school down there at Coro Lake . . . . Somehow – I
       believe your testimony is she’s the instigator and wants to have sex, jumps
       over the backseat, takes her clothes off and . . . the opportunity knock[e]th and
       you accept it. Then you don’t take her home. You keep her for up to 11:30
       which is almost 15 hours later. And there’s questions in the report whether or
       not you told her to tell the police a lie that she was a runaway or whatever.

               I will be perfectly frank with you. I sat here and watched you. You got
       this disability which I’m in complete sympathy with. I think you tried to make
       a good living by yourself. But in good conscious based on the facts, I cannot
       believe that you qualify for Judicial Diversion based on what I’ve heard in this
       courtroom under these facts.

              But I will put you on probation for two years. And you will seek
       counseling if you have a problem. You may have a problem. But I suggest the
       Probation Department will talk to you about if you have a problem.

        In its denial of judicial diversion, the trial court explicitly focused on the nature and
circumstances of the offense, but its findings can also be read to indicate that it considered
the defendant’s social history, physical health, and the interests of the public as well. The
court’s findings also touch on the defendant’s truthfulness, and thus his amenability to
correction. From these findings, it is clear that the trial court found the nature and
circumstances of the offense, the interests of the public, and the defendant’s questionable
amenability to correction to override the positive factors in the defendant’s favor. In
addition, we discern a great need for deterrence in keeping individuals responsible for
transporting children to and from school from engaging in such inappropriate behavior with
those school children. Beginning with the presumption that the trial court’s decision to deny
judicial diversion was reasonable, we find substantial evidence in the record to support the
trial court’s decision. We cannot conclude that the trial court abused its discretion in
denying judicial diversion.


                                       CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the judgment of the

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trial court.




                     _________________________________
                     ALAN E. GLENN, JUDGE




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