             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                  Assigned on Briefs August 2, 2005

                            STATE OF TENNESSEE v. ERIC RICE

                     Direct Appeal from the Circuit Court for Madison County
                               No. 04-656    Roger A. Page, Judge



                     No. W2004-03024-CCA-R3-CD - Filed September 14, 2005


The defendant, Eric Rice, pled guilty to one count of statutory rape, a Class E felony, and applied
for judicial diversion pursuant to Tennessee Code Annotated section 40-35-313. The trial court
denied the application for judicial diversion and sentenced the defendant as a standard offender. On
appeal, the defendant argues that the trial court erred in denying judicial diversion. After our review,
we affirm the judgment of the trial court.

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

J.C. MCLIN , J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA MCGEE
OGLE , JJ., joined.

David H. Crichton, Assistant Public Defender, for the appellant, Eric Rice.

Paul G. Summers, Attorney General and Reporter; Brian C. Johnson, Assistant Attorney General;
James G. Woodall, District Attorney General; and Jim Thompson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                     OPINION

                                                BACKGROUND

        The defendant pled guilty to one count of statutory rape1 arising out of his consensual sexual
intercourse with a thirteen year-old in July 2003. The pre-sentence report detailed both the victim’s
and the defendant’s recollection of the incident. The victim stated that she called the defendant and
asked him to come over to a friend’s house, where they had consensual sexual intercourse. The
defendant likewise stated that the victim called him and invited him over to a friend’s house.


         1
           Tennessee Cod e Annotated section 39-13-506 states that statutory rape is “the sexual penetration of a victim
by the defendant or of the defendant by the victim when the victim is at least thirteen (13) but less than eighteen (18)
years of age and the defendant is at least four (4) years older than the victim.
        At the diversion hearing, the defendant testified that he was almost nineteen at the time of
the offense and that he, based on what the victim told him, believed the victim was sixteen years old.
The defendant also testified that this incident taught him not to go around with younger girls. The
pre-sentence report, as well as the defendant’s testimony, indicated that he had no other criminal
convictions, planned on getting his GED, never used drugs, had no physical or mental health
problems, had some varied work history, but desired to go to auto mechanic school.

       The trial court denied the defendant’s request for judicial diversion stating:

               [T]here are several factors set forth in the statute and also by case law that
       . . . I must consider when determining whether or not one gets diversion the
       circumstances of the offense is very important, any criminal record he has, his social
       history, the amenability of this defendant to correction, the status of his mental health
       and physical health, any deterrence value to the accused as well as others, and
       whether judicial diversion will serve the ends of justice, the public as well as the
       Defendant.

                       ....

              But I’ve gone over the criteria that I’m supposed to consider. I mean, [the
       defendant] has some things in his favor here and certainly that he has no prior
       criminal history is very good.

               He has some things that are not in his favor. He doesn’t have a very good
       work history. [He] doesn’t have a high school diploma, dropped out in the ninth
       grade. He says he’s trying to get a GED but, of course, I don’t have any proof of that
       other than his testimony.

               Considering these factors, the Court’s greatest concern here is . . . the age of
       this victim. She was barely thirteen years old.

                       ....

               I’ve stated for the record . . . considering the circumstances of the offense, his
       amenability to correction. . . .This happened eighteen months ago and he’s stated he’s
       not been in any more trouble. He doesn’t have any criminal record. Those things are
       certainly in his favor.

               He doesn’t have regular employment. He . . . didn’t finish school.

              [W]eighing everything together, considering his amenability to correction but
       primarily the circumstances of the offense . . . because of her age being just barely



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        thirteen, I just cannot in good conscience grant him diversion in this case. So I’m
        going to deny it.

       The trial court sentenced the defendant to two years as a standard offender with credit for
time served, the balance to be spent in a community corrections program. The trial court also
imposed a fine, ordered the defendant to perform 100 hours of community service and abide by the
Sexual Offender Registry Law. The defendant appealed the trial court’s denial of judicial diversion.

                                                      ANALYSIS

         On appeal, the defendant argues that the trial court abused its discretion in denying diversion
and failing to elucidate its reasoning for denial. When there is a challenge to the length, range, or
manner of service of a sentence, it is the duty of this Court to conduct a de novo review of the record
with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. §
40-35-401(d). This presumption is conditioned upon the affirmative showing in the record that the
trial court considered the sentencing principles and all relevant facts and circumstances. State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden of showing that the sentence is improper
is upon the defendant. Id. In the event the record fails to demonstrate the required consideration by
the trial court, review of the sentence is purely de novo. Id. If appellate review reflects that the trial
court properly considered all relevant factors and its findings of fact are adequately supported by the
record, this Court must affirm the sentence “even if we would have preferred a different result.”
State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        Under the judicial diversion 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 qualified 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.2
Tenn. Code Ann. § 40-35-313(a)(1)(B)(I).

        A defendant who is eligible for judicial diversion; however, is not entitled to such as a matter
of right. See 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)). The decision of whether to place a
defendant on judicial diversion is within the sound discretion of the trial court. State v. Harris, 953
S.W.2d 701, 705 (Tenn. Crim. App. 1996). Therefore, the trial court’s denial of judicial diversion
is subject to reversal on appeal only if the 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).




        2
            Statutory rape is not one of the e xcluded sexual offenses.

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        “Tennessee courts have recognized the similarities between judicial diversion and pretrial
diversion and, thus, have drawn heavily from the case law governing pretrial diversion to analyze
cases involving judicial diversion.” State v. Cutshaw, 967 S.W.2d 332, 343 (Tenn. Crim. App.
1997). Accordingly, in determining whether to grant or deny 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; Bonestel,
871 S.W.2d at 168. Additional factors which may be considered include the defendant’s “attitude,
his behavior since his arrest, his home environment, current drug usage, emotional stability, past
employment, general reputation, family responsibilities, and the attitude of law enforcement.” State
v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997). Moreover, the record must reflect that the
court has weighed all of the factors in reaching its determination. State v. Electroplating, Inc., 990
S.W.2d 211, 229 (Tenn. Crim. App. 1998). 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.

         In the instant case, the trial court denied diversion based primarily on the circumstances of
the offense, focusing upon the age of the victim. However, the trial court did note that it analyzed
all criteria it was supposed to consider. The court stated that it considered the defendant’s work
history, amenability to correction, lack of criminal record and educational background. Although
the trial court did not state on the record the precise weighing process used, it did state that various
factors weighed for and against diversion. In particular, the court said “weighing everything
together, considering his amenability to correction . . . the circumstances of the offense . . .” After
our review, we conclude that the trial court properly considered and weighed all relevant factors.
Therefore, we affirm the judgment of the trial court.

                                          CONCLUSION

       Accordingly, the judgment of the trial court is affirmed.




                                                        ___________________________________
                                                        J.C. McLIN, JUDGE




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