            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                           October 5, 2004 Session

                STATE OF TENNESSEE v. RONALD JOSEPH REECE

                          Appeal from the Circuit Court for Madison County
                                   No. 02-725   Roger Page, Judge



                      No. W2004-01130-CCA-R3-CD - Filed February 25, 2005


Ronald Joseph Reece pleaded guilty to statutory rape for which he received a two-year probationary
sentence. Aggrieved of the trial court’s refusal to grant judicial diversion, he now appeals his
sentence. After a thorough review of the record and applicable law, we affirm the sentence imposed
by the lower court.

                   Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
DAVID G. HAYES, JJ., joined.

Patrick Martin, Jackson, Tennessee, for the Appellant, Ronald Joseph Reece.

Paul G. Summers, Attorney General & Reporter; Michael Markham, Assistant Attorney General;
Jerry Woodall, District Attorney General; and Jim Thompson, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                                      OPINION

               The defendant, Ronald Joseph Reece, pleaded guilty in Madison County Circuit Court
to one count of statutory rape. See Tenn. Code Ann. § 39-13-506 (2003). The defendant entered a
“blind” plea with the sentence to be determined by the trial court. Pursuant to the request made by
defense counsel at the defendant’s sentencing hearing, the court bifurcated the hearing; the court first
addressed and denied the defendant’s request for judicial diversion and second sentenced the
defendant to serve a two-year probationary sentence.

                During the hearing, the victim’s mother testified on behalf of the state, and the victim1
testified on behalf of the defense. The defendant taught the victim at her high school, and the two
began their sexual relationship when the victim was seventeen years old. The victim’s mother first

        1
            It is the policy of this court to decline to refer to minor victims of sexual offenses by name.
learned of the relationship by reading some e-mail correspondences between the victim and the
defendant. The victim’s mother confronted the victim, and the victim admitted to her mother that
she had a relationship with the defendant. Shortly thereafter, the defendant approached the victim’s
mother to discuss the relationship. At that time, the victim’s mother promised the defendant that she
would not report the relationship to the authorities provided the defendant ceased all contact with
the victim. Nonetheless, the victim’s mother did report the relationship to the authorities, and the
defendant and the victim resumed communications thereafter. The victim’s mother further testified
that as a result of the crime, both her relationship with the victim and her job performance had
suffered, and she eventually lost her job.

                 The victim testified that she initiated her sexual relationship with the defendant and
felt badly that the relationship had caused such personal loss for him. The defendant introduced his
pre-sentence report, which included a statement indicating that he cared for the victim but faulted
his own weakness for succumbing to the victim’s initiation of a sexual relationship. The defendant
also introduced numerous letters written by various individuals beseeching the court to grant judicial
diversion in his case.

               The trial court denied the defendant’s request for judicial diversion on the basis that
(1) the defendant’s relationship with the victim involved continual contact over an extended period
of time; (2) the defendant knew the victim was a minor and actually discussed her age; (3) the
defendant was more than 20 years the victim’s senior; (4) the need to deter this type of behavior; (5)
the defendant was the victim’s teacher; and (6) the defendant contacted the victim at least once after
he agreed not to do so. The court further found that although mitigation factor (1), that the
defendant’s criminal conduct neither caused nor threatened serious bodily injury, Tenn. Code Ann.
§ 40-35-113(1) (2003), was applicable to the defendant’s case, it should be given little weight.

                The court subsequently imposed the maximum sentence in his sentencing range, two
years, based upon the applicability of enhancement factor (16), that the defendant abused a position
of public trust. Id. § 40-35-114(16). The court also found factors (1) and (4) applicable to the
defendant’s case but gave them little weight. Id. § 40-35-113(1), (4). The court recognized that the
defendant was a favorable candidate for alternative sentencing because he was being sentenced for
a Class E felony and because he had no prior criminal history. Accordingly, the court probated his
sentence. The court further ordered the defendant to register himself as a sexual offender and to
cease all contact with the victim.

                 The defendant now appeals the lower court’s refusal to grant judicial diversion in his
case. Specifically, the defendant argues that the trial court erred by giving improper weight to one
of the factors relevant to the court’s analysis. The defendant posits that the trial court placed
inappropriate weight on the circumstances of the crime, namely the length of the relationship
between the victim and the defendant and the age difference between the two. The defendant argues
that the trial court improperly ignored several factors applicable to its decision-making, such as the
remorseful statements made by the defendant in the presentence report, the numerous supportive
letters that recounted the defendant’s remorse, and the victim’s testimony. The defendant further


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complains that the trial court did not fully explain its reasoning on the record; it stated that it was
giving greater weight to certain factors and little weight to others, but it did not explain why it was
doing so as required by law. Furthermore, the defendant takes issue with the trial court’s disapproval
of judicial diversion for statutory rape offenders because Tennessee law classifies these offenders
as sexual offenders and because no other sexual offenders are eligible for diversion. Despite the
court’s comments to the contrary, the defendant asserts that the trial court relied upon the defendant’s
classification as a sexual offender when denying his request for judicial diversion. Finally, the
defendant argues that an analysis of Tennessee law reveals that the application of enhancement factor
(16), that the defendant abused a position of public trust, does not support denying judicial diversion
in the defendant’s case. The state counters that the defendant has not demonstrated that the court
abused its discretion when denying diversion and that the record supports the trial court’s decision.

                  The Sentencing Reform Act of 1989 allows a sentencing court to “defer further
proceedings . . . and place such defendant on probation upon such reasonable conditions as it may
require without entering a judgment of guilty and with the consent of the qualified defendant,”
provided that the candidate has not, inter alia, previously pleaded guilty to or been convicted of a
felony or Class A misdemeanor. Tenn. Code Ann. § 40-35-313(a)(1)(A), (a)(1)(B)(i)(a) (2003).
This procedure, commonly known as judicial diversion, is similar to pretrial diversion; however,
judicial diversion follows a determination of guilt, and the decision to grant diversion rests with the
trial court, not the prosecutor. See State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992).

               The lower court’s denial of judicial diversion is subject to reversal on appeal only if
that court abused its discretion. See State v. Robinson, 139 S.W.3d 661, 665 (Tenn. Crim. App.
2004). An abuse of discretion occurs when the trial court’s denial of judicial diversion is
unsupported by any substantial evidence. See State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim.
App. 1996).

                In determining whether to grant judicial diversion, the trial court must 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. Parker, 932 S.W.2d at 958; 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). Moreover, the record must reflect that the court has weighed all of the
factors in reaching its determination. See Bonestel, 871 S.W.2d at 168. That is, the court must
explain on the record why the defendant does not qualify under its analysis, and if the court has
based its determination on only some of the factors, it must explain why these factors outweigh the
others. See id.

               First, we conclude that the trial court adequately explained its reasons for denying
diversion on the record. The trial court reasoned, in relevant part:




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               [W]hen determining whether or not a defendant should get judicial
diversion[,] there are several factors that I must look at. Number one is the
defendant’s amenability to correction.

               Of course, in this case Mr. Reece has virtually no criminal record. I
think the presentence report mentions some traffic tickets but that’s all. Obviously
his amenability to correction is good.

              The circumstances of the offense is the second factor. In this case we
had continuing contact.
              ....

               According to the presentence report, then, the attachment, this was not
a one-time situation. This was continuing contact. And Mr. Reece asked of [the
victim] at one point I think he might kiss her, and then there was some visits to
apartments and actual discussions of her age and whether or not they should wait to
have sex until October the 5th till she turned eighteen. And they didn’t do that or we
wouldn’t be here.

               This relationship went on for a long time. At the time – It’s not like
some of the cases I’ve had in here when the defendants allege they did not know that
the victim was [not] eighteen. It’s obvious that Mr. Reece did know that.

               The relationship actually continued and did not stop until [the
victim’s] parents became aware of it. Actually I think that quote from Mr. Reece is
that, “She’s encountered hardships because of my indiscretions,” talking about her
running with a bad crowd and perhaps using drugs.

               Also, this is not a situation where I have a twenty-two year old and a
seventeen year old. He is more than twenty years older than [the victim].

                The next factor I must consider is [the] defendant’s criminal record,
which I’ve already said is there’s virtually none. His social history; according to the
presentence report Mr. Reece lost his father and mother and two siblings by the age
of thirteen. I have taken that into consideration.

               The next factor is the status of his physical and mental health, which
is good.

              The next factor is deterrence – deterrence value to others, to the
accused as well as others in similar circumstances.




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                       This is a big factor in this case. We must, in my opinion, not allow
       this type of behavior to be tolerated in our community. What would it say to the
       public if I allowed Mr. Reece to get diversion in this case?

                       I must consider the public and the accused’s interests. And also the
       ends of justice is another factor, and also additional behavior since the arrest.

                      Of course, Mr. Reece was not indicted until November of ‘02. This
       case didn’t appear on my docket until June of ‘03. But I will note for the record he
       made contact at least once after he agreed not to.

                       ....

                       Having said all that, considered everything and weighed all the factors
       I’m supposed to weigh, I cannot find that in this case Mr. Reece should be granted
       judicial diversion.

                        I don’t think that would be a proper statement to the community. It
       would not provide proper deterrence. Therefore, I’m going to find for the reasons set
       forth that the request for judicial diversion will not be granted.


                The court set forth its reasoning for according more weight to certain factors: The
facts of the case indicate that the defendant acted purposefully, as demonstrated by the ongoing
nature of the defendant’s relationship with someone he knew was a minor; moreover, society expects
more responsible conduct from someone of the defendant’s age and position, and thus to serve the
greater need to deter this type of conduct, the court denied the defendant’s request for diversion.
Accordingly, we find that the court’s reasoning was sufficiently relayed.

                 Turning next to the defendant’s contention that the trial court erred by applying
inappropriate weight to the facts and circumstances surrounding the defendant’s crime and by failing
to adequately explain its reasoning on the record, we conclude that the record supports the trial
court’s denial of diversion and that the trial court adequately explained its reasoning on the record.
When it denied the defendant’s request for judicial diversion, the trial court first outlined the litany
of factors to be considered when making this determination. The court did rely primarily on the facts
and circumstances surrounding the offense as the basis for its decision. It cited the ongoing nature
of the relationship, the fact that the defendant was aware of the victim’s age, the age difference
between the defendant and the victim, the teacher-student relationship between the defendant and
the victim, and the renewed contact between the defendant and the victim after the defendant had
agreed not to do so. The record supports these factual findings, and we hold that these facts, coupled
with the need to deter sexual relationships between teachers and their minor students, are sufficient
to support the court’s finding. Accordingly, the court did not abuse its discretion when denying
diversion.


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               Next, the defendant takes issue with the trial court’s comments regarding its belief
that the defendant should not be eligible for judicial diversion. The court made these statements
immediately prior to announcing its decision to deny diversion:

                And there’s one other thing I want to state for the record. I think – And this
       is not a factor in my decision. But we do have statutes setting forth that statutory
       rape is a sex offense. He’s a sex offender and, you know, at the end of this, assuming
       he’s convicted of it and it’s upheld on appeal, he will have to be monitored and will
       be called a registered sex offender. And it somehow flies in the face of the
       expungement statute to have a statutory rape defendant eligible for expungement.
       But the law says he’s eligible and I’m, as I said, considering it and I am not
       considering the fact that – of the reporting requirements when one is convicted of
       statutory rape.

                While the defendant asserts that the trial court improperly relied on his sexual
offender status when denying diversion, the trial court’s comments directly contradict that assertion.
Moreover, because we find that the record supports the trial court’s denial of judicial diversion, we
conclude that any error in referencing the defendant’s sexual offender status is harmless.

                Finally, the defendant argues that this court’s opinion in State v. Robinson, 139
S.W.3d 661 (Tenn. Crim. App. 2004), suggests that enhancement factor (16), that the defendant
abused a position of public trust, was improperly applied to the defendant’s case. In Robinson, this
court affirmed the trial court’s denial of the defendant’s request for judicial diversion. Id. at 665.
The defendant argues that the facts of Robinson are distinguishable from the facts of the instant case.
Specifically, the Robinson trial court denied the defendant’s request for judicial diversion because
the defendant, who was a pharmacist, illegally distributed prescription drugs to a woman with whom
he was romantically involved and thus abused his position of public trust. Id. The defendant
contends that the misuse of authority, present in Robinson, is not present in his case; he engaged in
no such “tradeoff,” such as the pharmacist’s exchange of romantic involvement for prescription
drugs. However, we find this distinction irrelevant and rule that the trial court properly applied this
enhancement factor when determining whether the defendant should receive judicial diversion.
When determining the applicability of this enhancement factor, the relevant inquiry is whether the
defendant violated a societal expectation that an individual in the defendant’s position would not
abuse the power entrusted to him or her. See, e.g., State v. William Blaine Campbell, No. E1999-
02208-CCA-R3-CD, slip op. at 3 (Tenn. Crim. App., Knoxville, Sept. 29, 2000) (upholding the
lower court’s finding of an abuse of public trust when denying the defendant’s request for judicial
diversion and probation; the defendant abused his position of public trust when he distributed alcohol
to his minor high school students). In the instant case, the defendant was the victim’s high school
teacher, and as such, society expected him to refrain from engaging in sexual activity with her.
Accordingly, we find that the trial court’s application of enhancement factor (16) to the defendant’s
case was apt.




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              In light of the foregoing, we hold that the defendant’s sentencing challenge lacks
merit and accordingly affirm the decision of the lower court.


                                                    ___________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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