         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs April 26, 2011

              STATE OF TENNESSEE v. CHRISTOPHER LOCKE

                   Appeal from the Circuit Court for Blount County
                     No. C-18813       David R. Duggan, Judge
                               ____________________

                 No. E2010-01965-CCA-R3-CD - Filed August 9, 2011
                              ____________________

The defendant, Christopher Locke, pled guilty to one count of incest, a Class C felony.
After a sentencing hearing, the trial court imposed a Range I sentence of three years, all
suspended upon compliance with the terms of probation and sex offender supervision. On
appeal he argues that the trial court erred in denying judicial diversion. After reviewing
the record, we affirm the judgment of the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL, J., and D AVID H. W ELLES, J R., Sp. J., and joined.

J. Liddell Kirk, Knoxville, Tennessee; Raymond Mack, District Public Defender; and
Tiffany L. Deaderick, Assistant Public Defender, for the appellant, Christopher Locke.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Michael L. Flynn, District Attorney General; and Tammy Harrington, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

        On July 12, 2010, in Blount County, the defendant was charged with one count of
incest, a Class C felony. The defendant pled guilty to incest for an agreed-upon sentence
of three years, with the trial court to later determine the manner of service at a sentencing
hearing. On September 3, 2010, the trial court sentenced the defendant, as a Range I
offender, to three years in the Department of Correction, all suspended upon compliance
with the terms of probation and sex offender status. The trial court denied the defendant’s
request for judicial diversion. On September 8, 2010, the defendant filed a timely notice
of appeal.

        The Pre-Sentence Investigation Report provides the following facts underlying the
case:
       On or about February 15, 2009, the defendant engaged in sexual intercourse with
his half-sister. At the time of the offense, the defendant was nineteen years old and the
victim was fifteen years old. The victim became pregnant and gave birth to a child on
November 4, 2009. The child was born with birth defects which the doctors determined
were indicative of incest. DNA tests revealed that the father of the child was either the
victim’s father or brother. It was then discovered that the defendant was the father of the
child. Upon this discovery, both the defendant and the victim admitted to engaging in
sexual intercourse with one another. The defendant stated that he knew what he did was
unacceptable.

       The offense occurred at the home of the defendant, where he lived with his mother
and the victim. The victim stated that she and the defendant were alone at the house one
day and were “roughhousing” around. She said that this led up to them having sexual
intercourse. In a taped interview with the defendant, he admitted to having sex with the
victim “at least three or four times.” The defendant expressed remorse about the incident
in question and said he knew he must take responsibility for it.

       The defendant grew up in Blount County. His mother was not a steady figure in
his early life, and he lived with his grandparents until the age of eleven. He then went to
New York to visit his mother and stayed to live with her. The defendant and his mother
stayed in New York for more than a year before moving back to Tennessee. The
defendant stated that during the time he lived with his mother, she drank frequently and
was always partying with different boyfriends. The defendant stated that he began
drinking alcohol and smoking marijuana between the ages of twelve and fourteen. The
defendant dropped out of school in the eleventh grade but later obtained his G.E.D.

       The defendant then joined the Army but was released soon after for being unable
to pass the fitness test. Upon his release, he returned to live with his mother, and that is
when the current offense occurred. The defendant worked at several different jobs but
has never been able to maintain steady employment.

      After his plea, the defendant moved in with his grandparents because he was not
allowed to have any contact with the victim. Prior to the sentencing hearing, the
defendant told his probation officer that he had not smoked marijuana in a “long time.”
However, the defendant then tested positive for marijuana and admitted that he had
smoked marijuana within the last thirty days.

       At the sentencing hearing, the defendant’s grandparents and his pastor testified on
his behalf. James Lee Taylor, the defendant’s step-grandfather, testified that the
defendant’s life entered a “downward spiral” after he was released from the Army.
Taylor also testified that he did not know about the incest incident until the baby was born
and the DNA tests were performed. Taylor testified that was not aware that the defendant
had been smoking marijuana while living at his and his wife’s home. Taylor stated he


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was disappointed about the drug use and the incest but testified that he believed the
defendant was a good candidate for judicial diversion. Taylor stated that the defendant
had no criminal record and had no serious problems as a minor.

        The defendant’s grandmother, Laura Taylor, also testified at the sentencing
hearing. Ms. Taylor stated that the defendant’s mother was not the best parent. She
testified that the defendant’s mother suffered from bad migraines and was on medication
that kept her in bed most of the time. This resulted in the defendant and the victim taking
care of her and the household. Ms. Taylor testified she did not know about the incest
until after the child was born and was not aware of the defendant’s drug use. Like Mr.
Taylor, Ms. Taylor also believed the defendant was a good candidate for judicial
diversion. She stated that he was a “real good person” who simply made a mistake.

       The defendant’s pastor also testified that the defendant was a good person. The
pastor offered to help the family with counseling.

       After hearing this testimony, as well as the defendant’s testimony on his own
behalf, the trial court sentenced the defendant to three years confinement, all suspended
upon compliance with the terms of probation and sex offender supervision. The court then
found that the defendant was not amenable to correction primarily because he had used
drugs after pleading guilty to incest but before the sentencing hearing. The court
considered several other factors in its determination regarding judicial diversion.
Ultimately, the court denied judicial diversion, stating that the defendant’s drug use was
the “primary reason” for the denial.

                                   Standard of Review

       When challenging a trial court’s denial of a request for judicial diversion, the
standard of review on appeal is an abuse of discretion. State v. Hammersley, 650 S.W.2d
352, 356 (Tenn. 1983). Thus, if the record contains any substantial evidence to support
the denial, we will not overturn the trial court’s decision. Id.

                                         Analysis

        On appeal, the defendant argues that the trial court erred in denying judicial
diversion. Specifically, the defendant argues that “the trial court failed to properly weigh
all the factors in favor of granting judicial diversion.” Essentially, he argues that while
his admitted use of marijuana after his guilty plea but before his sentencing hearing
should be considered by the court, it should not outweigh the other factors considered by
the court when determining whether to grant judicial diversion.

       Tennessee law provides a mechanism by which a defendant may be eligible for
probation while bypassing the need of the court to enter a guilty judgment. Tennessee


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Code Annotated section 40-35-313 states that a court “may defer further proceedings
against a qualified defendant and place the defendant on probation . . . without entering a
judgment of guilty and with the consent of the qualified defendant.” T.C.A. § 40-35-
313(a)(1)(A) (2010).

        In order to be eligible for judicial diversion, a defendant must meet certain
requirements that are necessary to obtain a “qualified defendant” status. A qualified
defendant is one who (a) is found guilty or pleads guilty to the offense for which
probation is sought; (b) is not seeking deferral of further proceedings for a Class A or
Class B felony, for a sexual offense, or for a violation of sections 71-6-117 or 71-6-119;
and (c) has not previously been convicted of a felony or a Class A misdemeanor. T.C.A.
§ 40-35-313(a)(1)(B)(I). However, mere satisfaction of these requirements does not
automatically entitle the defendant to judicial diversion as a matter of right. Id. The
statute states that the court “may” defer further proceedings and place the defendant on
probation, indicating that the decision to grant or deny judicial diversion is within the
sound discretion of the trial court. T.C.A. § 40-35-313(a)(1)(A). As previously noted, on
appeal this court will not disturb the trial court’s decision in denying judicial diversion if
there is “any substantial evidence to support the refusal.” State v. Parker, 932 S.W.2d
945, 958 (Tenn. Crim. App. 1996).

       Although sexual offenses typically disqualify a defendant from being granted
judicial diversion, the Tennessee legislature notably left out incest on the enumerated list
of “sexual offenses” in the judicial diversion statute. T.C.A. § 40-35-313(a)(1)(B)(ii). As
such, courts have considered incest an offense that is eligible for judicial diversion
consideration. See State v. Freels, No. E2008-01198-CCA-R3-CD, LEXIS 984, at *18
(Tenn. Crim. App., at Knoxville, Dec. 4, 2009).

      When determining whether to grant judicial diversion, a trial court should
consider:

       (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). The court
may also consider additional factors such as a defendant’s current drug usage, emotional
stability, past employment, and home environment. State v. Lewis, 978 S.W.2d 558, 566
(Tenn. Crim. App. 1997) (citing State v. Washington, 866 S.W.2d 950, 951 (Tenn.


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1993)). When denying judicial diversion, a trial court should explain its analysis of why
the defendant fails to qualify for diversion. Furthermore, if the trial court primarily bases
its decision on only a few of the factors, it must explain why the factors supporting denial
outweigh the remaining factors. Id.

        When considering the defendant’s request for judicial diversion in this case, the
trial court looked at the required relevant factors. Ultimately, the trial court determined
that the defendant’s low amenability to correction outweighed the other factors in favor of
diversion and, consequently, denied the defendant’s request.

        The defendant argues that the trial court failed to properly weigh all of the factors
in favor of granting judicial diversion by failing to explain what weight was afforded each
factor. However, this argument is misguided. The record illustrates that although the
trial judge did not go into a detailed discussion of each factor, he did consider all of the
relevant factors in his determination. A judge has not abused his discretion by failing to
include an intricate explanation of every factor considered in his analysis. State v. Mims,
No. M2009-00512-CCA-R3-CD, LEXIS 647, at **20-21 (Tenn. Crim. App., at
Nashville, July 27, 2010). In Mims, this court affirmed the decision of the lower court to
deny the defendant’s request for judicial diversion even though the lower court did not
specifically elaborate on each of the factors considered. Id. There, the lower court denied
judicial diversion based on the circumstances of the offense and the defendant’s
amenableness to correction. Id. In our review on appeal we held that, “[a]lthough the
trial court did not elaborate extensively on all of the relevant diversion factors or
explicitly state the weight it was applying to each factor, its findings implicitly show the
weight it applied and evince a knowledge of the factors it was to consider.” Id.

       Similarly in the instant case, the trial court did not elaborate extensively on all of
the diversion factors that it considered. However, as indicated in the record, the trial
court considered the defendant’s amenability to correction, the circumstances of the
offense, the defendant’s criminal record, the defendant’s social history, the defendant’s
physical and mental health, and whether judicial diversion would serve the interests of
both the defendant and the public. Because all of the relevant factors were considered in
his determination, the trial judge underwent the proper analysis and did not abuse his
discretion.

       Additionally, the defendant argues that his drug use should not outweigh the
factors in favor of granting judicial diversion. In his analysis, the trial judge placed
considerable weight on the fact that the defendant smoked marijuana in the time between
his guilty plea and the sentencing hearing. Because of this act by the defendant, the judge
determined that the defendant was not amenable to correction. Placing such weight on
this factor is within the discretion of the trial court and has been upheld on appeal. See
Freels, LEXIS 984 (holding that denial of judicial diversion was appropriate where lower
court determined that defendant was not amenable to rehabilitation); see also State v.


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Reep, No. E2007-00619-CCA-R3-CD, LEXIS 455, at **19-20 (Tenn. Crim. App., at
Knoxville, June 23, 2008). In a 2009 opinion by this court involving a defendant charged
with two counts of robbery, we pointed out the defendant’s poor social history, including
drug use, unstable work history, and his dropping out of school when affirming the trial
court’s denial of judicial diversion. State v. Simmons, No. W2008-0-CCA-R3-CD,
LEXIS 334, at **23-25 (Tenn. Crim. App., at Jackson, May 8, 2009). Although the court
determined that the circumstances of the robberies were not particularly outrageous and
the defendant had no prior criminal record, this court found that these factors were
outweighed by the defendant’s low amenability to correction, poor social history, and the
deterrent value to the public and the defendant in denying diversion. Id.

        Here, the record establishes that the defendant smoked marijuana after pleading
guilty to a Class C felony, had a spotty work history, and dropped out of high school in
the eleventh grade. On more than one occasion, the trial judge expressed concern over
the defendant’s drug use between the guilty plea and the sentencing hearing. This led the
judge to believe that the defendant was not amenable to correction. His low amenability
to correction together with his questionable social history could outweigh the remaining
factors when considering judicial diversion. The judge’s statements and concerns explain
why these considerations were afforded more weight. Because the record supports the
trial court’s findings, we must conclude that no abuse of discretion occurred.

                                   CONCLUSION

       We conclude that the trial court did not abuse its discretion in denying the
defendant’s request for judicial diversion. As such, we affirm the judgment of the trial
court.


                                                 _________________________________
                                                 JOHN EVERETT WILLIAMS, JUDGE




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