         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs June 19, 2007

              STATE OF TENNESSEE v. JUNE LEEANN FRANKS

                    Direct Appeal from the Circuit Court for Giles County
                            No. 12513 Stella L. Hargrove, Judge



                    No. M2006-02157-CCA-R3-CD - Filed June 28, 2007



The Defendant, June Leeann Franks, pled guilty to statutory rape. Her request for judicial diversion
was denied by the trial court, who sentenced her to fifteen months to be served on probation. She
appeals that decision. Upon review, we affirm the judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
NORMA MCGEE OGLE, JJ., joined.

Robert H. Stovall, Jr., Assistant Public Defender, Pulaski, Tennessee, for the Appellant, June Leeann
Franks.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;
Mike Bottoms, District Attorney General; and Patrick Butler, Assistant District Attorney General,
for the Appellee, State of Tennessee.



                                             OPINION

                                              I. Facts

        The Defendant was indicted for statutory rape, and, on August 11, 2006, the Defendant and
the State agreed to a proposed plea whereby the Defendant would be sentenced to two years, the
maximum as a Range I offender for a Class E felony, with post-plea judicial diversion and 200 hours
of community service. The trial court refused to accept that plea agreement. The Defendant then
entered into a plea agreement whereby the trial court would determine an appropriate sentence, but
the Defendant specifically requested judicial diversion. The trial court accepted that plea agreement.
        The same day that the Defendant, twenty-five at the time of the relationship, entered her
guilty plea, the factual basis for the plea was stated by the defense attorney as follows:

       [The Defendant] has admitted to Investigator Butch Sutton that she participated in
       oral sex with a young man who was 16 years old on several occasions during the time
       period mentioned in the indictment. She has cooperated with the police; has been
       truthful with the police. She has admitted her guilt. I think she had some
       misunderstanding of the law, President Clinton had several years ago, that oral sex
       amounted to statutory rape. But I’ve discussed with her, in my office, the elements
       of sexual penetration, and she understands, now, what the law requires.

        At the sentencing hearing, Linda Lipham testified that, when she helped to prepare the
presentence report in this case, she interviewed the Defendant. Lipham stated that the Defendant
admitted the acts associated with the statutory rape charge, and she was cooperative. On cross-
examination, Lipham stated the Defendant was “real sweet” and respectful. The Defendant appeared
to have a good relationship with her family. The Defendant was working with her father as a
plumber, and she lived at her parents’ home. She did not appear to be under the influence of drugs
or alcohol.

        David Pratt testified he also helped prepare the presentence report, and, as such, he mailed
the victim a victim’s impact statement form. That form was returned and included in the presentence
report. Further, he testified that his investigation revealed that the Defendant had excellent social
history, no prior criminal record, and finished high school, all factors that would generally weigh in
favor of being amenable to rehabilitation. The Defendant also reported no use of alcohol or drugs,
and she had steady employment. The only negative was that the Defendant was “not particularly
contrite” in that “she minimized some of her criminality.” Pratt testified that the Defendant indicated
she and the victim developed a relationship as a boyfriend and girlfriend normally would. The
Defendant seemed to “gloss over the fact of the age difference.”

        Jonathan Alsup, Sr., the victim’s father, testified the victim was sixteen years old, but he was
fifteen at the time of the relationship with the Defendant. Alsup learned of the relationship because
he “walked in on them” at his house. Later, the victim told Alsup about the relationship. One
morning, two weeks later, the victim did not come home one night and did not attend school the next
day. He finally arrived at home at 11:00 a.m. the next morning, but Alsup had already gone to the
police to have the victim arrested as a runaway. Alsup stated the relationship with the Defendant
has caused a serious strain in his relationship with his son because the victim had been angry with
Alsup over the discipline Alsup imposed after learning of the relationship between the victim and
the Defendant. Alsup stated that he first knew that the Defendant and the victim had become friends
through her place of employment, Highland Christian Academy, which was where the Defendant
attended school.

       On cross-examination, Alsup clarified that the victim attended Highland Christian Academy
through the eighth grade, and, beginning in the ninth grade, he attended Giles County High School.


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The relationship between the victim and the Defendant did not begin until the Defendant was in the
ninth grade. The victim and the Defendant were not involved in a relationship while at the same
school. However, Alsup stated the victim continued to attend church at Highland Christian Academy
after he began the ninth grade.

        Investigator Butch Sutton testified that, as he began his investigation into the relationship
between the victim and the Defendant, he first interviewed the Defendant who stated that she and
the victim went on their first date on August 12, 2005. Shortly thereafter, the sexual relationship,
which did not include intercourse, began. Investigator Sutton stated that the Defendant admitted she
and the victim had oral sex almost every time they were together, which was almost every day.
Investigator Sutton explained this was a crime, and it appeared the Defendant disagreed. The
Defendant appeared to feel that, because the two did not engage in intercourse, there was nothing
criminal. The Defendant indicated she declined to have intercourse by her choice because she had
been involved in a sexual relationship at fifteen, and she did not want to expose the victim to that
kind of relationship.

        On cross-examination, Investigator Sutton stated that the Defendant did not appear to know
that oral sex was considered sex under the statutory rape law. The indictment covered actions
occurring between August 26 and December 31, 2005, and Investigator Sutton had no indication that
any activity occurred outside that time frame. Additionally, Investigator Sutton stated that the
Defendant was respectful, and Investigator Sutton was willing to “go along with the ADA on what
ever he recommend[ed]” concerning judicial diversion. The victim did not show any signs of
physical injuries. The victim did state that he had digitally penetrated the Defendant.

       Brenda Kerley, the Defendant’s mother, testified that the Defendant was twenty-five, and she
was working full-time as a plumber. She lost her job at Highland Christian Academy after the
indictment in this case. The Defendant did not suffer from any mental or emotional problems.
Kerley stated that the Defendant moved back in with her after the Defendant got divorced, in July
of 2005. The Defendant never used alcohol or drugs, and she had a good reputation in the
community.

        On cross-examination, Kerley stated that she first learned of her daughter’s sexual
relationship with the victim in January of 2006. The Defendant did not seem to think there was
much of a problem because they cared about each other. The Defendant was a little concerned about
the victim’s age, “and it being his first time and stuff like that.”

        Jeremy Clark, the Defendant’s ex-brother-in-law, testified that the Defendant’s reputation
in the community was good, “other than this.” Clark stated he saw the Defendant four or five times
a month.

        Sherry Powell, the Defendant’s friend, stated she had known the Defendant for ten to fifteen
years. They went to church together, and she was a “decent, caring, loving, woman. She’s a
Christian.” When the Defendant attended Highland Christian, the two of them were in handbells


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together, and they attended church every Sunday morning, Sunday night, and Wednesday night. The
Defendant left Highland Christian and began attending Wells Baptist, and Powell stated the
Defendant was in the choir there.

        After argument, the trial court stated that there were several factors in favor of granting
judicial diversion. The Defendant had no criminal record, she had a favorable social history, and she
completed high school at a church school. She was employed, and had excellent physical and mental
health. The factors against judicial diversion were the circumstances of the offense, especially the
fact that the Defendant did not “understand that that is a really a sexual relationship, since it didn’t
involve sexual intercourse.” The trial court expressed “great concern” with the fact that the victim
attended Highland Christian Academy, where the Defendant had worked, despite the fact that the
sexual relationship did not begin until he was in the ninth grade at Giles County High School.
Additionally, the trial court found the Defendant was not amenable to correction because the
relationship only ceased when the victim’s father intervened. The Defendant did not appear to show
any remorse for her actions. The trial court also concluded there was a need for deterrence despite
the State not admitting evidence of any similar situations. Further, the trial court found judicial
diversion would not serve the interests of the public, and it was concerned with the message it would
send. The trial court stated, “in our society, somebody has to be the adult in the situation and make
those decisions.” As such, the trial court found that the factors against judicial diversion outweighed
the factors for it, and the request for judicial diversion was denied.

        In addressing probation, the trial court considered what sentence was necessary to avoid
depreciating the seriousness of the offense and what would provide an effective deterrence. The trial
court also determined the Defendant failed to accept responsibility for her crime. The trial court
determined the Defendant abused a position of private trust as “this child has been in the school
where she worked for many years.” “[T]he [D]efendant stood in a relationship to the victim that
promoted confidence, reliability, or faith . . . .” The court gave “some weight” to the mitigating
factor that the “defendant’s conduct neither caused nor threatened serious bodily injury,” but it
stated, “I know it’s a factor, but it just doesn’t seem to fit.” As a result, the court sentenced the
Defendant to fifteen months, and stated, “One of the reasons I’m doing 15 months is that [the victim]
turns 18 on December 21, 2007. So I think that’s an appropriate sentence.” The trial court
suspended the sentence and placed the Defendant on probation for fifteen months.

                                             II. Analysis

                                        A. Judicial Diversion

       On appeal, the Defendant alleges the following: (1) that the trial court erred in denying her
request for judicial diversion; and (2) the trial court erred in enhancing her sentence based upon a
finding that the Defendant was in a position of private trust.

       When a defendant challenges the denial of judicial diversion, we review the trial court’s
decision under an abuse of discretion standard. State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim.


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App. 1997). We must conclude that “no substantial evidence exists to support the ruling of the trial
court” if we are to grant the Defendant relief. Id.

        Judicial diversion falls under Tennessee Code Annotated section 40-35-313(a)(1)(A),
pursuant to which a judge can defer proceedings without entering a judgment of guilty. The
defendant would be placed on probation, but she would not be considered a convicted felon. T.C.A.
§ 40-35-313(a)(1)(A) (2006). To be eligible for judicial diversion, a defendant must have pled guilty
to, or been found guilty of a class C, D, or E felony and must have not previously been found guilty
of a felony or class A misdemeanor. In the case under submission, the trial court found that the
Defendant was eligible for judicial diversion based on these requirements. However, eligibility in
and of itself does not entitle a defendant to judicial diversion. 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).

        Once a defendant is deemed to be eligible for judicial diversion, the trial court must consider
several factors when deciding whether or not to grant judicial diversion. Due to the similarities
between pre-trial diversion — determined initially by the district attorney general — and judicial
diversion, courts draw heavily from pre-trial diversion law and examine the same factors:

       [A court] 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 [judicial] diversion will serve the ends of justice and best interests of
       both the public and the defendant.

Cutshaw, 967 S.W.2d at 344. Additionally, “a trial court should not deny judicial diversion without
explaining both the specific reasons supporting the denial and why those factors applicable to the
denial of diversion outweigh other factors for consideration.” Id. (citing Bonestel, 871 S.W.2d at
168).

        We initially note that all parties are in agreement, and the presentence report indicates, the
Defendant has never been convicted of a Class A misdemeanor or any felony. Thus, she is eligible
for judicial diversion. In analyzing whether to grant judicial diversion, the trial court found a number
of factors weighed in favor of judicial diversion — the Defendant’s lack of a criminal record, her
social history, mental and physical condition, emotional stability, lack of drug use, employment, and
her home environment. Weighing against judicial diversion, the trial court found the Defendant was
not amenable to correction primarily because the Defendant appeared to express no remorse for her
actions. Evidence on this issue came from the testimony of one of the officers who prepared the
presentence report and the investigating officer. Also, the Defendant was apparently prepared to
continue the relationship until the victim’s father intervened. Additionally, the court found the
circumstances of the offense weighed against judicial diversion, and there was a need for deterrence,


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despite, as the court acknowledged, the lack of evidence presented by the State on this issue. Finally,
the trial court determined judicial diversion would not serve the best interest of the public as it would
send the wrong message.

         The Defendant argues that the trial court, in analyzing whether the Defendant was amenable
to correction, failed to consider the testimony of the probation and investigating officers who
testified the Defendant admitted to her actions, though she was surprised they were criminal. The
Defendant was cooperative and respectful, and pled guilty, accepting responsibility.

        In addressing the need for deterrence, the Defendant notes the trial court acknowledged that
the State had “not put into the record any cases that involve similar situations of maybe teachers and
students” or other cases involving adults and minors. The Defendant argues the trial court did not
consider “[w]hether other incidents of the charged offense are increasingly present in the community,
jurisdiction, or in the state as a whole.” Hooper, 29 S.W.3d at 10. Additionally, the trial court did
not analyze whether this crime is of the type that is deterrable under the guidance of Hooper.

        With respect to the circumstances of the offense, the Defendant argues the trial court erred
in reasoning that this factor weighed against the Defendant because of the age difference, the almost
daily oral sex, and the fact that the Defendant did not realize this was criminal. The Defendant
contends that, as statutory rape cases go, this is not a particularly egregious case. The offense, by
nature consists of two individuals, with a legally significant age disparity, engaging in some type of
sexual relationship.

        In addressing whether judicial diversion would serve the ends of justice and the best interest
of the public, the Defendant argues that merely noting that the Defendant should have acted like an
adult in this situation, and that the trial court did not want to send the wrong message is insufficient.
Additionally, the Defendant notes the trial court failed to consider whether judicial diversion would
serve the best interest of the Defendant.

        Upon review, we conclude there is some evidence of the Defendant’s lack of remorse.
Testimony from David Pratt, one of the probation officers who prepared the presentence report,
indicated that the Defendant seemed to “gloss over the fact of the age difference” and “she
minimized some of her criminality.” Investigator Sutton echoed that sentiment. Investigator
Sutton’s testimony provided evidence that the Defendant thought that, because the relationship did
not involve intercourse, it was somehow less criminal. This type of evidence is relevant to whether
the Defendant is amenable to correction.

        The deterrence factor, found by the trial court, was present despite a lack of evidence
concerning similar episodes in the area or state. The Tennessee Supreme Court has stated that there
is some aspect of general deterrence in every case, and in analyzing the weight given to the
deterrence factor, we look at whether “(1) a need to deter similar crimes is present in the particular
community, jurisdiction, or in the state as a whole, and (2) incarceration of the defendant may
rationally serve as a deterrent to others similarly situated and likely to commit similar crimes.”


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Hooper, 29 S.W.3d. at 10. The Supreme Court has also observed that certain crimes are more
deterrable than others. Id. Indeed, “Actions that are the result of intentional, knowing, or reckless
behavior or those motivated by a desire to profit from illegal activity are probably more deterrable
than those which are not the result of a conscious effort to break the law.” Id. at 11. We may also
consider whether there was substantial publicity surrounding the case, whether this was part of a
criminal enterprise, and whether the Defendant has previously engaged in conduct of a similar type.
Id. at 11-12. We find no evidence in the record to support any of these factors. The trial court
admitted the State had “not put into the record any cases that involve similar situations of maybe
teachers and students” or other cases involving adults and minors. Additionally, this was a not a
crime for profit or one that was a result of a conscious effort to break the law. There is no evidence
that this was part of a criminal enterprise or that the Defendant has previously engaged in a similar
course of conduct. There was testimony that the Defendant had been interviewed on television, but
there is no evidence where or when that interview was aired or how much other publicity surrounded
the case.

        The trial court also found the circumstances of the case warranted a denial of judicial
diversion. We conclude there is evidence concerning the frequency of the sexual acts between the
Defendant and the victim, in that they occurred almost daily over a period of months. Additionally,
there was evidence this relationship was procured while the Defendant worked as a secretary at the
victim’s school.

        Finally, in analyzing whether the ends of justice would have been served and whether judicial
diversion was in the best interest of the public, the trial court found that the wrong message would
be sent to potential statutory rapists if the Defendant were given judicial diversion.

        Although there was no substantial evidence to support the need for deterrence, there was
substantial evidence for the remaining three factors, with the circumstances of the case weighing
heavily. As a whole, we conclude there is substantial evidence to support the trial court’s denial of
judicial diversion. The Defendant is not entitled to relief on this issue.

                                            B. Sentence

        When a defendant challenges the length, range or manner of service of a sentence, it is the
duty of this Court to conduct a de novo review on the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-35-
401(d) (2006). As the Sentencing Commission Comments to this section note, the burden is now
on the appealing party to show that the sentencing is improper. T.C.A. § 40-35-401, Sentencing
Comm’n Cmts. This means that if the trial court followed the statutory sentencing procedure, made
findings of facts which are adequately supported in the record and gave due consideration and proper
weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing Act,
T.C.A. § 40-35-103 (2006), we may not disturb the sentence even if a different result was preferred.
State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001). The presumption does not apply to the legal
conclusions reached by the trial court in sentencing a defendant or to the determinations made by the


                                                  7
trial court which are predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377
(Tenn. Crim. App. 2001); State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v.
Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994).

         In conducting a de novo review of a sentence, we must consider: (1) any evidence received
at the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing, (4)
the arguments of counsel relative to sentencing alternatives, (5) the nature and characteristics of the
offense, (6) any mitigating or enhancement factors, (7) any statements made by the defendant on his
or her own behalf and (8) the defendant’s potential or lack of potential for rehabilitation or treatment.
See T.C.A. § 40-35-210 (2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).

       The Defendant challenges the application of the abuse of a position of private trust
enhancement factor. See T.C.A. § 40-35-114(14) (2006). In State v. Gutierrez, 5 S.W.3d 641 (Tenn.
1999), our Supreme Court held that:

        Application of [this] factor requires a finding, first, that the defendant occupied a
        position of trust, either public or private. The position of parent, step-parent,
        babysitter, teacher, coach are but a few obvious examples. The determination of the
        existence of a position of trust does not depend on the length or formality of the
        relationship, but upon the nature of the relationship. Thus, the court should look to
        see whether the offender formally or informally stood in a relationship to the victim
        that promoted confidence, reliability or faith.

5 S.W.3d at 645 (quoting State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996)).

        The evidence in the record indicates that, despite not working at the same school at the time
the relationship began, the victim did attend Highland Christian Academy while the Defendant was
a secretary there, from January 14, 2005, when the Defendant began working, until the summer,
when the victim’s school year finished. Thus, the trial court could properly conclude the relationship
was one of confidence or reliability. To enhance the Defendant’s sentence based on this factor was
not improper.

        The trial court also mitigated the Defendant’s sentence based on the lack of physical injury
or threat of physical injury to the victim. See T.C.A. § 40-35-115(1) (2006). The trial court duly
considered the issue and gave it “some weight.” Because the trial court followed the proper
procedures, we will not disturb its decision weighing the factor. The Defendant is not entitled to
relief on this issue.

                                           III. Conclusion

        In accordance with the foregoing authorities and reasoning, we affirm the judgment of the
trial court.



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    ___________________________________

        ROBERT W. WEDEMEYER, JUDGE




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