                                                                                        10/31/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs October 16, 2019

        STATE OF TENNESSEE v. MICHAEL ANDREW BURROWS

               Appeal from the Circuit Court for Montgomery County
                 No. 63CC1-2017-CR-4 Jill Bartee Ayers, Judge
                     ___________________________________

                           No. M2019-00367-CCA-R3-CD
                       ___________________________________


The Montgomery County Grand Jury indicted Defendant, Michael Andrew Burrows, on
seven counts of rape of a child and eight counts of aggravated sexual battery. Pursuant to
a plea agreement, Defendant pled guilty as a Range I offender to two counts of sexual
battery, with an agreed out-of-range sentence of four years on each count, with sentence
alignment, manner of service, and the issue of judicial diversion to be determined by the
trial court. The remaining counts were dismissed. Following a sentencing hearing, the
trial court denied judicial diversion, imposed consecutive sentences, and sentenced
Defendant to eight years’ probation. Defendant now appeals the denial of judicial
diversion. Based on a thorough review of the record and applicable case law, the
judgments of the trial court are affirmed.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Gregory D. Smith (on appeal) and Chase T. Smith (at trial), Clarksville, Tennessee, for
the appellant, Michael Andrew Burrows.

Herbert H. Slatery III, Attorney General and Reporter; Daniel P. Whitaker, III, Assistant
Attorney General; John W. Carney, Jr., District Attorney General; and Kimberly Lund,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                            OPINION

                               Factual and Procedural History

                                Guilty Plea Submission Hearing

       At the beginning of the hearing, the State announced that parties had reached a
plea agreement whereby the Defendant would plead guilty to two Class E felonies with
an out-of-range sentence of four years with thirty-five percent release eligibility on each
conviction and with the alignment and manner of service of the sentences to be
determined at a sentencing hearing.1 Defendant acknowledged that he understood that
the sentences were out-of-range. The State presented the following factual basis for the
plea:

              If this case were presented to a trial by jury, the proof would be that
       on October 2nd, 2016, law enforcement responded to a call of sexual
       assault at [***] Woodlawn Road, here in Montgomery County. The
       [c]omplainant, Lonna Burrows (phonetic), had called 9-1-1 in reference to
       her ten-year-old daughter having made statements that her stepfather, the
       Defendant, had touched her inappropriately.

              Law enforcement would testify that in -- upon going in the home,
       they did find [Defendant] laying [sic] in the bathtub on his back, naked.
       [Defendant] was mildly damp from a shower and had an odor of alcoholic
       beverage on his person. He stood up and was asked to put on underwear,
       which was located on the floor. [Defendant] was taken into custody, at that
       time.

               The children were later interviewed and would testify at trial,
       according to [the] following: L.S., whose date of birth is 02/21/06, would
       testify that the Defendant had touched and nibbled on her chest and breast;
       that he had put his [“]dinger[”] in her vagina; that he had made her touch
       his [“]dinger[”] with her hands; and [made] her get on top of him while she
       was naked. She indicated that, that had been going on for approximately
       two years. K.S., . . . whose date of birth was 12/10/07, would testify that
       approximately four to five times in her room that the Defendant had
       touched her inappropriately with his finger, . . . playing with her private on

       1
           A plea to an out-of-range sentence is known as a Hicks plea. Hicks v. State, 945 S.W.2d 706
(Tenn. 1997). “[A] knowing and voluntary guilty plea waives any irregularity as to offender
classification or release eligibility.” Id.
                                                -2-
       her skin, while cuddling with her. She thought that that had started when
       she was approximate eight years old.

       The trial court advised and questioned Defendant concerning his rights pursuant to
Tennessee Rule of Criminal Procedure 11(b) and insured that Defendant was voluntarily
and knowingly agreeing to an out-of-range sentence of four years on each count. The
court then accepted Defendant’s plea of guilty to two counts of Class E felony sexual
battery and, pursuant to the plea agreement, sentenced Defendant to four years on each
count. The court set a sentencing hearing to determine the alignment of the sentences and
the method and manner of service.

                                   Sentencing Hearing

       At a sentencing hearing, Lonna Burrows testified that L.S., age twelve, was her
older daughter and that K.S., age eleven, was her younger daughter. She stated that, at
one time, she was married to Defendant and that Defendant was in her children’s lives for
about five years. Ms. Burrows stated that, since the offenses occurred, her children were
“empowered” and had “overcome huge, huge adversity[.]” She said that L.S. was “on
track” but that K.S. was “struggling” with “suicidal tendencies” and recently hospitalized
due to the formation of a suicide plan. Ms. Burrows testified that both L.S. and K.S.
received treatment at the Sexual Assault Center in Clarksville. On cross-examination,
Ms. Burrows testified that, when she and Defendant were married, Defendant’s two other
children were also living with them.

       Defendant testified that he resided in Bismarck, Missouri, with his girlfriend and
her three children. He said that his girlfriend worked full-time and that he stayed home
with her children. Defendant stated that he was not concerned that he would commit
sexual offenses against his girlfriend’s children because he “[had] no predilection . . .
towards children.” Defendant stated that, before his guilty plea submission, he spent
approximately 180 days in jail in protective custody. Defendant said that his time in jail
“was rough[.]” He testified that he was medically retired from the Army in December
2013 due to post-traumatic stress disorder, some physical injuries to his back, knees, neck
and shoulder, and a traumatic brain injury. Defendant was rated by the Veterans
Administration with an eighty-percent disability. Defendant stated that, due to these
injuries, he was prescribed muscle-relaxant and anti-inflammatory medications and that
he was taking these medications at the time of his offenses.

        Defendant testified that, when he was married to Ms. Burrows, he had “a little bit”
of an alcohol problem. He said that he was heavily intoxicated at the time of the offense
of October 2, 2016, and that he only remembers waking up in the bathtub. Defendant
stated that his decision to drink to excess was “regrettable” and that, “for the most part,”
                                           -3-
he “ha[d] not let [him]self get that far again.” Defendant stated that it “[broke] his heart”
that the children “have been put through all of this. That they have this altered image of”
him now. Defendant said that, due to a ruling by the Juvenile Court in a case instituted
by their mother, he was prohibited from seeing his own biological children. Defendant
testified that he had no prior criminal record and that, since his arrest in October 2016, he
had not committed any new offenses or violated any conditions of his bond.

       On cross-examination, Defendant testified that his girlfriend’s three children were
ages eight, seven, and four. Defendant stated that he drank alcohol approximately one to
two times per month and no more than two to three drinks at a time. Defendant had not
attended any Alcoholics Anonymous meetings. Defendant said that he had no
recollection of the events alleged by L.S.

       The trial court noted that a conviction for sexual battery would “normally be [a]
one[-] to two-year sentence” but that Defendant’s plea agreement was for an out-of-range
sentence of four years on each count. Because the length of the sentence for each count
was established as part of the plea agreement, the court declined to address “enhancement
or mitigating factors.”

       The court noted that it had considered the evidence presented at the plea
submission and sentencing hearing, the presentence report, and the psychosexual
evaluation. In considering diversion, the trial court stated that it did not have “a lot of
information” on Defendant’s amenability to correction but noted that Defendant did not
have a prior criminal record.

        The trial court stated that it placed a lot of weight on the psychosexual evaluation,
which had “plenty of recommendations for correction.”2 The court noted that, even
though the psychosexual evaluation showed that Defendant was a “low to moderate risk,
all of the treatment [wa]s consistent with sex offender treatment over a long period of
time.”

       The trial court also noted that the circumstances of the offense included two
victims and that the offenses to which Defendant pled occurred over approximately “a

        2
           Only a brief cover sheet for the Psychosexual Risk Assessment was included in the record on
appeal. The party seeking appellate review of an issue has a duty to prepare a record that conveys a
“complete account of what transpired with respect to the issues forming the basis of the appeal.” State v.
Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). “In the absence of an adequate record on appeal, this court
must presume that the trial court’s rulings were supported by sufficient evidence.” State v. Oody, 823
S.W.2d 554, 559 (Tenn. Crim. App. 1991). We therefore presume the trial court’s finding that the
psychosexual evaluation provided “plenty of recommendations for correction” was supported by
sufficient evidence.
                                                  -4-
year and nine months.” Further, the trial court found that Defendant abused his position
of trust as their stepparent.

       Regarding Defendant’s social history, the court stated:

              One of the issues that has stood out to me is the drinking.
       [Defendant] blames this [October 2, 2016] incident really on his drinking,
       and yet, he’s testifying today he is still drinking. He says that he’s got it
       under control and he’s not going to let himself get in that position again.
       But that’s always troublesome to the [c]ourt, that when someone admits
       there’s an underlying cause and yet he’s still drinking, that is a concern to
       the [c]ourt.

       Concerning Defendant’s physical and mental health, the trial court acknowledged
that Defendant was receiving treatment for his various physical and mental problems.

       Concerning the deterrence value to the accused and others, the court stated that it
“[saw] too many of these cases” and determined that diversion would not serve the
interests of the public or Defendant, who needed “long-term treatment.”

      The trial court stated that, “when I weigh all of those factors, particularly the
circumstances of the offense, the deterrence value, and serving the interests of the public,
the Court just finds that those factors weigh against diversion in this case.”

       Regarding consecutive sentencing, the trial court relied upon Tennessee Code
Annotated section 40-34-115(b)(5), i.e., that the offenses involved “two or more statutory
offenses involving sexual abuse of a minor, with consideration of aggravating factors
arising from the relationship, the span of time, and the nature of the activities.” Based
upon section 40-34-115(b)(5), the trial court determined that consecutive sentencing was
appropriate.

       Finally, the court considered the manner of service of Defendant’s consecutive
four-year sentences. The court stated that “sentencing should be the minimum, based on
[Defendant’s] behavior since he has really bonded out and since he entered these pleas.”
The trial court sentenced Defendant to probation and required Defendant to register as a
sex offender. This timely appeal follows.

                                         Analysis

       Defendant argues that the trial court abused its discretion in denying judicial
diversion “based on the type of the crime alone[.]” Defendant claims that the court failed
                                           -5-
to properly consider his amenability to correction because he accepted responsibility for
the crime against L.S., “without admitting guilt,” and that he “remorsefully accepts
responsibility for his actions.” Moreover, Defendant contends that the trial court did not
consider all of the relevant judicial diversion factors and failed to place its findings on the
record; therefore, the trial court’s judgment is not entitled to a presumption of
reasonableness.

        The State responds that the trial court properly applied the relevant factors; thus,
the trial court’s judgment is subject to a presumption of reasonableness. The State asserts
that the record supports denial of judicial diversion.

       Tennessee Code Annotated section 40-35-313 governs judicial diversion
procedure. Upon a finding of guilt, the trial court may place a qualified defendant on
probation without entering a judgment of conviction. Tenn. Code Ann. § 40-35-
313(a)(1)(A) (2019). Once the defendant successfully completes probation, the charge
will be dismissed. Tenn. Code Ann. § 40-35-313(a)(2) (2019). The statute defines a
“qualified defendant” as a defendant who:

       (a) Is found guilty of or pleads guilty or nolo contendere to the offense for
       which deferral of further proceedings is sought;

       (b) Is not seeking deferral of further proceedings for any offense committed
       by any elected or appointed person in the executive, legislative or judicial
       branch of the state or any political subdivision of the state, which offense
       was committed in the person’s official capacity or involved in the duties of
       the person’s office;

       (c) Is not seeking deferral of further proceedings for a sexual offense, a
       violation of § 71-6-117 or § 71-6-119, driving under the influence of an
       intoxicant as prohibited by § 55-10-401, or a Class A or B felony;

       (d) Has not previously been convicted of a felony or a Class A
       misdemeanor for which a sentence of confinement is served; and

       (e) Has not previously been granted judicial diversion under this chapter or
       pretrial diversion.

Tenn. Code Ann. § 40-35-313(a)(1)(B)(I) (2019).

       However, satisfying these criteria does not presumptively entitle a defendant to
judicial diversion but simply allows the trial court to grant diversion in appropriate cases.
                                             -6-
State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). The defendant bears the
burden of proving that he or she is a suitable candidate for judicial diversion. State v.
Faith Renea Irwin Gibson, No. E2007-01990-CCA-R3-CD, 2009 WL 1034770, at *4
(Tenn. Crim. App. Apr. 17, 2009) (citing State v. Curry, 988 S.W.2d 153, 157 (Tenn.
1999); State v. Baxter, 868 S.W.2d 679, 681 (Tenn. Crim. App. 1993)).

        In determining whether to grant judicial diversion to a qualified defendant, the
trial court must consider 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.

State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998); Parker, 932
S.W.2d at 958. In addition to the Electroplating factors, the trial court may consider the
following factors in making its decision: “[the defendant’s] attitude, behavior since arrest,
prior record, home environment, current drug usage, emotional stability, past
employment, general reputation, marital stability, family responsibility[,] and attitude of
law enforcement.” State v. Anthony Adinolfi, No. E2013-01286-CCA-R3-CD, 2014 WL
2532335, at *2 (Tenn. Crim. App. June 2, 2014) (quoting State v. Washington, 866
S.W.2d 950, 951 (Tenn. 1993)) (internal quotation marks omitted), no perm. app. filed.
The record must reflect that the trial court weighed all the Electroplating factors against
each other, and the trial court must give an explanation of its ruling on the record. State
v. King, 432 S.W.3d 316, 326 (Tenn. 2014); Electroplating, 990 S.W.2d at 229.

        When the record reflects that the trial court considered the Electroplating factors,
identified which factors were relevant, and explained its ruling on the record, this court
must apply a presumption of reasonableness and review the judgment for an abuse of
discretion. King, 432, S.W.3d at 319, 327. We will affirm the trial court’s judgment “so
long as there is any substantial evidence to support the trial court’s decision.” Id. at 327.
However, if the trial court fails to consider and weigh the relevant factors, the
presumption of reasonableness does not apply, and this court may either conduct a de
novo review or remand the issue for reconsideration. Id. at 327-28.

       Here, the record establishes that the trial court considered the Parker factors and
weighed them against each other as required by Electroplating. The trial court
acknowledged that Defendant did not have a prior criminal record and that there was not
sufficient proof to show that he was not amenable to correction. The court also noted that
there was no proof that Defendant had behavior problems since his arrest and that his
                                            -7-
medical conditions were being properly treated. However, the court determined that the
circumstances of the offenses which involved the sexual battery of Defendant’s two
stepdaughters over a prolonged period of time, Defendant’s abuse of his position of trust
as a stepparent, Defendant’s social history of alcohol abuse, the deterrence value to
others, and the interests of the public outweighed the factors favoring diversion.

       Because the trial court properly considered the Parker factors, this court will
“apply a presumption of reasonableness” and will affirm the trial court’s decision “so
long as there is any substantial evidence to support the trial court’s decision.” Id. at 327.
Based upon the information provided at the guilty plea submission hearing, the record
established that Defendant sexually battered his two stepdaughters repeatedly over the
course of almost two years. We conclude that substantial evidence supports the trial
court’s denial of judicial diversion.

                                        Conclusion

     The trial court did not abuse its discretion in denying judicial diversion. The
judgments of the trial court are affirmed.


                                              ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE




                                            -8-
