        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                March 22, 2016 Session


       STATE OF TENNESSEE v. GEORGE MARK ALAN GREENE

               Appeal from the Criminal Court for Claiborne County
                   No. 2013CR1770     E. Shayne Sexton, Judge




                No. E2015-01213-CCA-R3-CD – Filed August 12, 2016
                        _____________________________

The defendant, George Mark Alan Greene, pled guilty to one count of incest, a Class C
felony, and the trial court denied his application for judicial diversion. On appeal, he
contends that the judgment of the trial court should be reversed because he is a suitable
candidate for judicial diversion. We conclude that although the trial court did not
properly consider all of the factors in denying judicial diversion, a de novo review of the
record supports the denial of diversion. We affirm the judgment of the trial court.


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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and TIMOTHY L. EASTER, JJ., joined.

Neal W. Stanifer (on appeal) and David H. Stanifer (on appeal and at hearing), Tazewell,
Tennessee, for the Appellant, George Mark Alan Greene.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Jared Effler, District Attorney General; and Graham E. Wilson, Assistant
District Attorney General, for the Appellee, State of Tennessee.
                                       OPINION

                      FACTS AND PROCEDURAL HISTORY

       This case arose after the defendant sexually abused the victim, who was his
daughter. The defendant entered a guilty plea to one count of incest, and the trial court
held a hearing to determine the appropriate sentence. The victim testified at the
sentencing hearing that she was thirteen years old when the abuse occurred. She
explained that she and the defendant typically slept in the same bed. One morning, the
victim‟s brother got into the bed and asked the victim to rub his back. The defendant
then asked the victim if she wanted him to rub her back. The victim agreed, and the
defendant asked if she wanted him “to rub [her] butt.” The victim said no, but the
defendant “did it anyway.” The victim “froze”, and the defendant inserted his fingers
into the victim‟s vagina. The victim explained that the incident required her to receive
counseling and that it was something she would carry with her for the remainder of her
life. She testified that she was aware that the defendant smoked marijuana “for pain
purposes” and that he had been diagnosed with bipolar disorder. She stated that she
wished to see the defendant punished for his actions.

       The defendant testified that he pled guilty to the charge of incest and
“[a]bsolutely” accepted responsibility for his actions. He testified that he did not recall
the incident but that he accepted the victim‟s explanation as the truth. He explained that
he was on several medications at the time of the incident that may have affected his
memory. He testified that he pled guilty despite having no memory of the event because
he did not want to subject the victim to a trial. When asked if he was acknowledging that
he committed the offense, he stated that if the victim said he committed the offense, then
“[he] did.” He testified that he was not admitting guilt to the offense based on his own
memory of the incident.

       The defendant testified that his wife filed for divorce after the allegations were
reported and that he was currently living in Alabama in an apartment next door to his
father. He his income consisted of disability checks, and he used his disability checks to
pay child support. He stated that he should receive judicial diversion because “medically,
[he] just wasn‟t aware of how sick [he] was.” He stated that since the incident, he had
learned how to better care for his mental health. He explained that he saw a psychiatrist
every two months, that he was under a doctor‟s direction and control, and that he
followed the doctor‟s recommendations. He stated that he had not had any problems
before the incident and that he had not behaved unlawfully after the incident. He testified
that he did not believe he posed a risk to anyone in the future.

                                            2
       The defendant stated that had a bachelor‟s degree and that he briefly taught school
as a substitute teacher for a semester. He testified that he formerly coached a recreational
soccer team for middle school boys and girls who were a similar age as the victim. The
defendant testified that he smoked marijuana to help him sleep, and he agreed that using
marijuana was against the law.

       The defendant‟s father testified that the defendant lived next door to him in
Alabama. He testified that he had seen improvement in the defendant‟s behavior since he
moved to Alabama and began receiving proper mental health treatment. He testified that
the defendant was no longer using marijuana. He stated that he did not believe that the
defendant posed a threat to anyone else.

       The State argued that several factors weighed against granting the defendant
judicial diversion. The State argued that he had not accepted responsibility for his
actions because he merely testified that he would believe his daughter that he committed
the offense. The State argued that the circumstances of the offense weighed strongly
against judicial diversion because the defendant molested his thirteen-year-old daughter.
The State contended that the defendant‟s social history weighed against diversion, as he
was coaching a soccer team of girls that were the same age as his daughter at the time of
the offense. The State also argued that diversion would depreciate the seriousness of the
offense.

       The trial court found that the defendant was not a suitable candidate for judicial
diversion. The court found that “the most compelling issue is the depreciating the
seriousness of the offense.” The court found that the defendant was amenable to
correction, noting that the defendant was “making steps and doing the right thing toward
-- toward readying himself for the next step.” The court found that the offense was
shocking to the conscience of the court. The court stated that it was not denying judicial
diversion based on the victim‟s wish to see the defendant punished but that because “the
overall crime itself is shocking” to the conscience, granting judicial diversion would
depreciate the seriousness of the offense. The court stated that it would not grant
diversion “simply because this is just a case that shocks” the conscience.

                                       ANALYSIS

       The trial court possesses the discretion to place qualified defendants on judicial
diversion. A qualified defendant is one who is found guilty or pleads guilty or nolo
contendere to the offense for which judicial diversion is sought, is not seeking the
deferral of further proceedings for a statutorily prohibited sexual offense, has not
previously been convicted of a felony or a Class A misdemeanor for which a sentence of

                                             3
confinement is served, and has not previously been granted judicial diversion.           See
T.C.A. § 40-35-313(a)(1)(B)(i)(a), (c), (d), (e) (2010).

        The decision to grant or deny judicial diversion rests within the sound discretion
of the trial court. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App.
1998). In determining whether to grant judicial diversion, 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. Id.; State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). “[T]he
trial court must weigh the factors against each other and place an explanation of its ruling
on the record.” State v. King, 432 S.W.3d 316, 326 (Tenn. 2014) (citing Electroplating,
990 S.W.2d at 229). If “the trial court considers the Parker and Electroplating factors,
specifically identifies the relevant factors, and places on the record its reasons for
granting or denying judicial diversion, the appellate court must apply a presumption of
reasonableness and uphold the grant or denial so long as there is any substantial evidence
to support the trial court‟s decision.” Id. at 327 (footnote omitted). The trial court is not
required to recite all of the factors, but the record must reflect that the court considered
the factors and identified specific factors applicable to the case before it. Id. at 327.
However, if “the trial court fails to consider and weigh the applicable common law
factors, the presumption of reasonableness does not apply,” and the abuse of discretion
standard is not appropriate. Id. “In those instances, the appellate courts may either
conduct a de novo review or, if more appropriate under the circumstances, remand the
issue for reconsideration.” Id. The decision of whether de novo review or a remand is
the appropriate course of action is within the discretion of this court. Id. “In making
such a determination, relevant factors include: „the adequacy of the record, the fact-
intensive nature of the inquiry, and the ability of the court to request supplementation of
the record.‟” State v. Dycus, 456 S.W.3d 918, 930 (Tenn. 2015) (quoting King, 432
S.W.3d at 328).

       Here, the trial court only considered the first two Electroplating factors: whether
the defendant was amenable to correction and the circumstances of the offense. The
court found that the first factor weighed in favor of the defendant because he appeared
amenable to correction. The court placed great weight on the second factor, denying
judicial diversion based solely on the shocking nature of the offense and the belief that
diversion would depreciate the seriousness of the offense. The record does not reflect
that the court considered any of the remaining factors. See Dycus, 456 S.W.3d at 930
(concluding that the trial court‟s analysis of one of the factors was not adequate to
“satisfy the minimum standard set forth in King”). However, we conclude that the record

                                             4
is sufficient for us to conduct a de novo review of the decision to deny judicial diversion.
Id. at 931.

        Turning to the factors, several factors weigh in favor of judicial diversion or are
neutral. The trial court found that the defendant was amenable to correction. The record
reflects that the defendant had honored the victim‟s request not to contact her, he testified
that he accepted responsibility for his actions, and he was fulfilling his child support
obligations. This factor weighs in favor of judicial diversion. The defendant had no prior
criminal history, and this factor also weighs in favor of judicial diversion. The defendant
testified that he suffered from mental health issues, but he explained that he was
receiving treatment for these issues and following his doctor‟s recommendations. The
defendant‟s physical and mental health is neutral.

        Several factors also weigh against judicial diversion. The defendant testified that
he coached youth soccer around the time of the offense and that there were girls on the
team who were the same age as the victim. The defendant also testified that he smoked
marijuana and that he knew it was illegal to do so. The trial court found that granting
judicial diversion would depreciate the seriousness of the offense. The victim testified
that the defendant asked her if she wanted him to rub her “butt,” and she said no. Despite
the victim‟s response, the defendant rubbed her buttocks and digitally penetrated her
vagina. The defendant also committed these acts in front of the victim‟s younger brother.
We conclude that based on “the totality of the circumstances, the ends of justice would
not be served by granting judicial diversion to” the defendant. King, 432 S.W.3d at 329.
Accordingly, we affirm the trial court‟s denial of judicial diversion.

                                     CONCLUSION

       Based upon the foregoing analysis, we affirm the judgment of the trial court.




                                                  _________________________________
                                                  JOHN EVERETT WILLIAMS, JUDGE




                                             5
