                IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                 AT NASHVILLE

                    STATE OF TENNESSEE V. DAVID C. VAZQUEZ

                 Direct Appeal from the Criminal Court for Wilson County
                                  No. 98-1776 & 98-1779

                                    ____________________

                  No. M1999-00211-CCA-R3-CD - Decided April 27, 2000
                                ____________________

        The defendant entered pleas of guilty to the crimes of statutory rape and contributing to
the delinquency of a minor and was sentenced to community corrections. The issue raised by the
defendant on appeal is whether the trial judge improperly denied judicial diversion. We conclude
that the trial court erred in denying judicial diversion and in enhancing the sentence above the
presumptive sentence. Therefore, we reverse the decision of the trial court and remand the case
for disposition in accordance with this opinion.

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

ACREE, Special J., delivered the opinion of the court, in which GLENN, J. and RILEY, J. joined.

Phillip L. Davidson, Nashville, Tennessee, for the appellant, David C. Vasquez

Paul G. Summers, Attorney General & Reporter, Lucian D. Geise, Assistant Attorney General, Tom
P. Thompson, Jr., District Attorney General, Bobby Hibbitt, Assistant District Attorney General, for
the appellee, State of Tennessee

                                             OPINION

                The defendant was indicted for four counts of statutory rape for crimes occurring
between the dates of May 15, 1998 and May 24, 1998. He entered a plea of guilty to one count of
statutory rape, a Class E felony, and to one count of contributing to the delinquency of a minor, a
Class A misdemeanor. The remaining counts were dismissed. Following the sentencing hearing, the
trial court sentenced the defendant to two years on community corrections.

        The evidence establishes that the defendant met the victim through a mutual friend. The
victim told the defendant she was a sophomore in high school and was 16 years of age. As it
developed, the victim was only thirteen. The defendant was a senior in high school and was 18 years
old.

       Eventually, the defendant and the victim began having sex. On three occasions, the
defendant went into the victim’s home late at night while the victim’s parents were asleep and had
sex with her. On the fourth occasion, the victim slipped into the defendant’s home late at night and
had sex with him while his mother was asleep. The relationship discontinued, and the victim told her
mother about her relations with the defendant. The disclosure led to the arrest of the defendant.

        Several witnesses testified at the sentencing hearing. Betsy Jakalski, who prepared the pre-
sentence report, testified that the defendant did not have a prior criminal record either as a juvenile or
as an adult. He is a student at Middle Tennessee State University and has a part-time job. She
believes that the defendant is a responsible young man who is capable of making some type of useful
contribution to society. The defendant told her he thought the victim was 16 years of age, and he did
not know that he was doing anything legally wrong.

       Dr. Lawrence J. Weitz, a clinical psychologist, performed a psychological evaluation of the
defendant. Dr. Weitz did not find the defendant to have a disorder which precipitated the problem.
He does not think the defendant is a danger to society nor does he think the defendant has a criminal
personality. Dr. Weitz believes the defendant is extremely remorseful for what he has done and also
believes a criminal conviction will be devastating to him.

        One of the defendant’s high school teachers testified that the defendant is dependable,
respectful, intelligent and naive. She had the defendant as a student in her vocal group for three
years.

        The defendant testified that he is a business/finance major at Middle Tennessee State
University and works weekends at the Circuit City in Franklin. He said he was asked to call the
victim by a mutual friend and was told and believed she was 16 years of age. He acknowledges that
he made a mistake and is remorseful for what he did.

         Another psychological evaluation was performed by Judith Burnett, a clinical psychologist.
This evaluation was performed at the request of the Wilson County probation officer and was
attached to the pre-sentence report. Dr. Burnett did not testify, but the report was accepted without
objection as evidence by the trial court. Dr. Burnett’s report was not particularly eventful except that
the trial court placed emphasis upon the following statement:

       “His victim empathy scale score of 48 fell within the low range and depicts an
       individual who has a low level of empathy for sex abuse victims.”1

        At the conclusion of the sentencing hearing, the defendant requested the trial court to
place him upon judicial diversion. The State took no position. The trial court denied the request.
It appears that the basis for the trial court’s decision is that he was concerned that the defendant
may engage in similar activity in the future. The trial judge said in part:


       1
         The trial court asked Dr. Weitz’s comments upon that statement. However, Dr. Weitz
testified that he did not have a comment because those scores are variable.

                                                 -2-
                “. . . it’s a little late now after the plea is entered to say that he didn’t know
       how old she was. The time to have done that would have been at a trial. So his
       guilt is apparent to the court, because he said he was guilty, he admitted it.2 . . .
       When I looked at the psychologist’s report that was attached to the sentencing
       report, and I saw the empathy for a victim at a low score of 48 that bothered me.
       You know, this could be all over with, you could walk, and then it would be some
       other little girl. I am not going to let it happen, not if I’ve got anything to do with
       it. A little girl has a right to be protected at that age. The court’s going to try and
       protect them, based on what the Legislature tells me to do. That’s the judgment of
       the court. . .”

         As previously stated, the issue presented for review by the defendant is whether the trial
court erred in denying judicial diversion under Tenn. Code Ann. §40-35-313. Under this statute,
the trial court may in its discretion defer further proceedings and place a qualified defendant on
probation without entering a judgment of guilty. Tenn. Code Ann. §40-35-313 (a) (1) (A). A
qualifying defendant is a defendant who pleads guilty or is found guilty of a misdemeanor or a
Class C, D or E felony; who has not previously been convicted of a felony or a Class A
misdemeanor; and who is not seeking deferral for certain sex offenses.3 Tenn. Code Ann. §40-
35-313 (a) (1) (B) (1).

        An accused who is eligible for judicial diversion is not entitled to such as a matter of
right, and he is not entitled to the presumption created by Tenn. Code Ann. §40-35-102 (6). The
trial court has discretion as to whether to grant judicial diversion, and this court will not interfere
with the decision if there is any substantial evidence to support the trial court. State v. Bonesteal,
871 S.W.2d 163, 168 (Tenn.Cr.App. 1993).

        In determining whether to grant judicial diversion, the trial court must consider the same
factors considered by a district attorney general in determining whether to grant pretrial
diversion. Those factors include: “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 pretrial diversion will serve the
ends of justice and best interests of both the public and the defendant.” A trial court should not
deny judicial diversion without explaining the specific reasons supporting the denial and why
those reasons outweigh other factors for consideration. State v. Cutshaw, 967 S.W.2d 332, 343,
344 (Tenn.Cr.App.1997).



       2
       The crime of statutory rape (Tenn. Code Ann. §39-13-506) does not require that the
defendant know the age of the victim.
       3
           Statutory rape is not one of those sexual offenses.

                                                   -3-
         In the case sub judice, the trial court did not address the criteria set forth above. Rather,
the trial court denied diversion because he was concerned that the defendant might commit
similar acts in the future.

         We do not believe that the record supports the trial court’s conclusion that the defendant
is likely to be a repeat sex offender. The only evidence relied upon by the trial court in reaching
this conclusion was a statement made in a psychologist’s report that the defendant’s victim
empathy scale score was in a low range and depicted an individual who had a low level of
empathy for sex abuse victims. However, the report by the psychologist also stated:

                “David was able to demonstrate the ability to be empathetic toward others
        in general circumstances, and, display a level of empathy toward victims of sexual
        abuse. Generally, sex offenders fail to demonstrate empathy toward others or
        their victims.”

        The significance of the victim empathy scale score was questioned by Dr. Weitz, who
testified that victim empathy scale scores are variable. We also observe that the psychologist,
upon whose report the trial court relied, did not testify and was not able to offer any explanation
as to her findings nor was she cross-examined. In summary, we do not think that this evidence is
sufficient to support a finding that the defendant is likely to be a repeat offender.

       The personal characteristics of the defendant support his request for judicial diversion.
He has no prior criminal record either as an adult or as a juvenile. He is presently a student at
Middle Tennessee State University and works weekends. There is no evidence in the record of
any mental or emotional instability or of any drug usage. The record does not reflect any
criminal intent on the part of the defendant. Rather, the record reflects that the defendant
committed a criminal act with a willing victim who misrepresented her age.

        We conclude that there was not substantial evidence upon which to deny judicial
diversion. Moreover, we believe the personal characteristics of the defendant along with the
circumstances of the offense indicate that judicial diversion will serve the ends of justice and the
best interests of both the public and the defendant.

        In conclusion, we hold that the trial court erred in denying judicial diversion. We
therefore modify the judgment to grant judicial diversion with supervised probation for a period
of two years. This case is remanded to the trial court for disposition in accordance with this
opinion.



                                                William B. Acree, Jr., Special Judge
                                                Joe G. Riley, Judge
                                                Alan E. Glenn, Judge

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