07/18/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 26, 2017 at Knoxville

STATE OF TENNESSEE v. PAUL AVERY RENO

 

Appeal from the Circuit Court for Sequatchie County

No. 2015-CR-50 Thomas W. Graham, Judge

No. M2016-01903-CCA-R3-CD

The Defendant, Paul Avery Reno, pleaded guilty to statutory rape, a Class E felony. See 

T.C.A. § 39-113-506 (2014). Pursuant to the plea agreement, the Defendant agreed to a 

six-year sentence as a Range III offender, with the method and manner of service to be 

determined by the trial court. The court ordered him to serve his sentence in

confinement. On appeal, the Defendant contends that the court erred by (1) denying 

judicial diversion, (2) denying alternative sentencing, and (3) ordering the Defendant to 

register as a sex offender. We affirm the judgment of the trial court but remand for a new 

sentencing hearing.

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

Case Remanded

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which D. KELLY 

THOMAS, JR., and ROBERT L. HOLLOWAY, JR.,JJ. joined.

Joshua P. Weiss, Chattanooga, Tennessee, for the appellant, Paul Avery Reno.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;

J. Michael Taylor, District Attorney General; and Steve Strain, Assistant District 

Attorney General, for the appellee, State of Tennessee.

OPINION

The Defendant was indicted for aggravated statutory rape and solicitation of a 

minor. The Defendant pleaded guilty to one count of statutory rape. The factual basis for 

the Defendant’s plea was set out at the guilty plea hearing as follows:

[B]etween April 1, 2013, and June 30, 2013, [the Defendant] did 

sexually penetrate the victim in this case. . . . She was between the ages of 
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13 and 18 years old, and actually at the time these events occurred [the 

Defendant] was 10 years older than the child.

The complaint was made, and not much happened on it. The 

victim’s mother contacted law enforcement. They were able to initiate 

contact with [the Defendant]. There [were] several text messages 

exchanged. [The Defendant] made statements consistent with having 

sexually penetrated the child. [The Defendant] was subsequently arrested 

by law enforcement. . . . In the course of the interview [the Defendant] did 

admit that he had sexually penetrated the victim in this case[.]

Upon questioning by the trial court, the prosecutor stated that the victim was age 

fourteen at the time of the incident. The prosecutor noted that the Defendant was

entering a guilty plea with an out-of-range sentence as a Range III offender and that the 

agreed sentence was six years. The prosecutor also noted that the Defendant was eligible 

for alternative sentencing and that his release eligibility was 45%. The trial court 

questioned the Defendant under oath about his understanding of the terms of the plea 

agreement and his rights to a jury trial, to confront witnesses, to remain silent, to testify, 

and to appeal. The Defendant stated that the factual basis for the plea was true, that he 

understood his rights, and that he wished to plead guilty. The court found that the 

Defendant was competent to plead guilty, that he understood the consequences of 

pleading guilty, and that he was entering his guilty plea freely, voluntarily, and 

understandingly. 

The presentence report reflected that the Defendant was age forty-three and had an 

eleventh-grade education. The Defendant’s criminal record consisted of convictions for 

traffic-related offenses. The Defendant submitted the following statement during the 

presentence investigation: “To be honest with you I don’t remember much about it. All I 

do remember [is that] my aunt passed away and [the victim’s] mother gave me a K8 [and]

told me it was a nerve pill. That’s all I remember.” The report noted that the Defendant 

admitted to Detective Lockhart that he had oral sex and sexual intercourse with the 

victim. The Defendant reported having had two strokes in 2010 and a stroke and a 

“light” heart attack in January 2016. He denied taking prescription or illegal drugs and 

drinking alcohol. The report stated that the Defendant passed a drug screen in May 2016. 

The Defendant reported suffering from untreated “major depression disorder” and 

anxiety. He reported having spent two weeks at a mental health facility around the time 

of his mother’s death in 1997 or 1998. The report listed women who were mothers to the 

Defendant’s children, and the Defendant’s minor children as follows:

1. K.C., 1age thirty-nine, mother to S.C., age twenty-five

 

1 We identify the non-testifying mothers of the Defendant’s children by their initials out of consideration 

for their privacy. 
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2. Breanna Baugh, age twenty-six, mother to A.M. 2,3and S.R., ages six and 

four

3. B.B., age thirty-three, mother to A.R., age fourteen

4. Terri Diederich, the Defendant’s fiancée, age forty-one, mother to B.D.4, 

age twelve

5. K.R., the Defendant’s wife, age twenty-eight, mother to Ad.R. and R.R.5, 

ages three and four

6. S.S., age forty, mother to Z.R., age eight6

The report stated that the Defendant did not provide verification of employment, 

that he reported working for himself “doing demolition services,” and that he had stopped 

working because he had not received payment after a month of work. The Defendant 

reported working for a construction company as a painter between May 2014 and May 

2016. The Defendant reported a child support obligation relative to one of his children, 

and the report reflects he was behind on his payments. Counsel noted at the sentencing 

hearing that any arrearage was recent and that the Defendant was having difficulty 

maintaining employment due to the charges in this case. 

At the sentencing hearing, Sequatchie County Sheriff’s Detective Jody Lockhart 

testified that on September 24, 2014, the victim’s mother came to the sheriff’s 

department to check on the status of a complaint she had filed on June 6, 2013. Detective 

Lockhart said that the case had been assigned to different investigators due to personnel 

changes and that eventually, the case was assigned to him. He said that the complaint 

alleged that the Defendant had sexual contact with a child. He stated that the victim’s 

mother gave him a cell phone belonging to the victim and that the Defendant had sent the 

victim text messages. Detective Lockhart said that the Defendant was a friend of the 

victim’s mother and that the victim and her mother identified the Defendant’s telephone 

number as the number from which the text messages came. Detective Lockhart noted 

that the Defendant also acknowledged the text messages during his police interview, 

although the Defendant initially denied that the telephone number belonged to him.

Detective Lockhart testified that he obtained permission from the victim and her

mother to pose as the victim and to respond to the text messages. He said the messages

the Defendant sent to the victim were sexual in nature, and he read two messages aloud 

that referred to giving and receiving oral sex. He agreed that the messages were sent 

about one year after the Defendant was alleged to have had sexual intercourse with the 

victim. 

 

2

It is the policy of this court to refer to minors by their initials. 

3 A.M. was listed as the Defendant’s foster child.

4 B.D. was listed as the Defendant’s stepdaughter.

5 The Defendant disputed paternity of these children. 

6 The Defendant disputed paternity of this child.
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Upon examination by the trial court, Detective Lockhart testified that the 

Defendant visited the victim’s family and that he became friendly with the victim. 

Detective Lockhart denied that the Defendant was an authority figure to the victim.

On cross-examination, Detective Lockhart testified that the deputy who initially 

investigated the case had been demoted for multiple reasons, including “being 

inappropriate” with the county mayor, whom the deputy wanted to fight, and another 

employee. Detective Lockhart said that the deputy filed a formal report about the 

Defendant but that Detective Lockhart did not know if the deputy investigated further. 

Detective Lockhart stated that he did not know if the second deputy to receive the case 

investigated further. Detective Lockhart said that the second deputy was promoted and 

that when the victim’s mother came to the justice center, Detective Lockhart explained 

the situation and reviewed the file with the victim and her mother. He said that he 

interviewed the victim, that the interview was not recorded, and that the victim described 

incidents occurring one year previously in which she and the Defendant engaged in 

sexual intercourse at his and the victim’s houses. The victim told him that the Defendant 

never threatened her and that she initially told him no, although she described the 

encounters as consensual. Due to the amount of time that had passed, Detective Lockhart 

did not order a forensic examination of the victim. 

Detective Lockhart testified that he did not interview the victim’s mother and that 

he later asked the victim to return to the sheriff’s department because, during Detective 

Lockhart’s text message conversations with the Defendant, the Defendant asked certain 

questions to which only the victim knew the answers. Detective Lockhart said that the 

Defendant expressed doubt that he was conversing with the victim. Detective Lockhart 

stated that he retrieved text messages from the victim’s cell phone, although he did not 

subpoena the victim’s or the Defendant’s cell phone provider records. 

Detective Lockhart testified that during the Defendant’s police interview, the 

Defendant repeatedly denied penetrating the victim, although Detective Lockhart noted 

that the Defendant “gave signs of deception when he told me no.” Detective Lockhart 

said that during the latter part of the interview, the Defendant admitted to penetrating the 

victim. Detective Lockhart denied that he or anyone from his office had contacted the 

victim or her parents after the Defendant entered his guilty plea. Upon examination by 

the trial court, Detective Lockhart stated that the victim and her family still lived in the 

area.

Breanna Baugh, the mother of one of the Defendant’s children, testified that she 

had two children, A.M. and S.R. She said that she had previously had a romantic 

relationship with the Defendant, that S.R. was the Defendant’s biological child, and that 

the Defendant “took responsibility” for A.M., whom the Defendant met when A.M. was 

three months old. She stated that S.R. was age four, that A.M. was age six, and that both 
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children lived with the Defendant. She said that the Defendant had a parental

relationship with A.M. and treated both children equally. 

Upon examination by the trial court, Ms. Baugh testified that her relationship with 

the Defendant began in August 2010 when she was age nineteen and that it ended in 

2013. She said that she had a good relationship with the Defendant and that he did not 

owe her child support. She stated that she “went through a rough time” years previously, 

that she surrendered her children into foster care to “get back on track,” and that after one 

year, she and the Defendant agreed that he would have legal custody of both children. 

She said that the children were never in harm’s way but that she thought the stated reason 

for the custody transfer was neglect “according to the paperwork.”

Ms. Baugh testified that she knew the Defendant well, that he was a good person, 

and that he was caring and dedicated to his children. She said that the Defendant usually 

worked and that when he was unemployed, he sought work. She stated that she did not 

live with the Defendant and did not know how many hours per week he worked. She 

noted that she was aware of a situation in which the Defendant was ordered to pay child 

support for a child that was not his. She denied that the Defendant was ever violent 

toward her, drank alcohol, or used drugs. She stated that her initial reaction to the 

allegations against the Defendant was that they were not true. She said that the behavior 

described would be out of character for the Defendant and that she knew the Defendant 

would never do anything to hurt a child. She stated that even after the proceedings in this 

case, she did not have any hesitation about her children living with and being around the 

Defendant. 

Relative to the manner of service of the Defendant’s sentence, Ms. Baugh testified 

that she did not think prison was “the best thing,” that the Defendant was a “decent guy” 

who cared about his children and his family, and that she did not think the Defendant 

would “do anything like that to anyone.” She did not think it was necessary to place the 

Defendant on the sex offender registry. She stated that if the Defendant were ordered to 

register as a sex offender, A.M. could not live with him and would probably have to live 

with her. She said that the Defendant followed instructions well and that he would abide

by the rules of probation. 

On cross-examination, Ms. Baugh testified that a decent person would not send 

text messages to a fourteen-year-old girl soliciting sex. She did not know if a decent

person would have sexual intercourse with a fourteen-year-old girl. She acknowledged 

that the Defendant admitted to Detective Lockhart that he had sexual intercourse with the 

victim and that he sent the text messages, although she did not believe the encounters 

with the victim occurred. 

Upon examination by the trial court, Ms. Baugh testified that the Defendant was 

raising her children. She said that she would like to obtain joint custody of the children 
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in the future, although she had to “meet certain guidelines” and report to court in 

Hamilton County before that was possible. She stated that she was not aware of the 

Defendant’s having relationships with children or young women.

Ms. Baugh testified that she had previously been convicted of forgery and theft of 

property, that her convictions had nothing to do with her losing custody of her children, 

and that she placed her children in foster care because she was not taking her medication. 

She acknowledged that when she met the Defendant, he was in his late thirties. She said 

that at the time of the sentencing hearing, the Defendant was married, divorce

proceedings were pending, and he also had a fiancée. She stated that A.M. and S.R. lived 

with the Defendant and his fiancée. Ms. Baugh said that she knew some of the 

Defendant’s previous employers and that the Defendant worked in construction, although 

she did not know for whom he worked at the time of the hearing. She said that in a 

meeting, the Defendant’s attorney told her about an incident in which the Defendant took 

a “nerve pill” and did not remember certain events that occurred with a child. 

Terri Diederich, the Defendant’s fiancée, testified that she lived with the 

Defendant, A.M., S.R., and her three children. She said that she was a stay-at-home 

mother, that she did not have family or friends in the area, and that she met the Defendant 

online. She stated that she and the Defendant had been in a romantic relationship for two 

years and had cohabitated for one and one-half years. She said that the first time she met 

the Defendant in person, she was accompanied by her daughter, B.D., who was age 

twelve at the time of the sentencing hearing. Ms. Diederich stated that she was a widow, 

that B.D. had never known her father, and that the “connection between my daughter and 

[the Defendant] clicked right away.” She said that the Defendant was a “very good 

family man,” that he was very good with children, and that she and the Defendant had a 

very good relationship.

Ms. Diederich testified that the Defendant worked as a construction foreman 

twelve to sixteen hours per day, that he earned eighteen dollars per hour, and that 

although he was consistently employed, he did not always work for the same company. 

She stated that the Defendant had previously been laid off or had left jobs because he 

“always tried to better himself” and find better-paying jobs for his family. She said that 

the Defendant was married, that he had no contact with his wife, that the Defendant had 

asked his wife for a divorce, and that the Defendant had “some issues” in obtaining a 

divorce. She stated that the Defendant’s wife had two children by another man after their 

separation, that the children had the Defendant’s surname, and that until the biological 

father acknowledged paternity of the children, the court would not grant a divorce. Ms. 

Diederich stated that the Defendant had not been ordered to pay child support for his 

wife’s two children. 

Ms. Diederich testified that she intended to marry the Defendant notwithstanding 

this case. She said that the Defendant told her he had filed for divorce, although she had 
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not seen the complaint. She denied that the Defendant drank alcohol, took drugs, was 

violent, or was emotionally abusive. She said that she and the Defendant were “very 

close” and communicated well. She said that five children, ranging in age from four to 

twenty, lived in their household and that the Defendant was “an amazing father.” She 

said that the Defendant worked between fifty and sixty hours per week and that he spent 

his free time helping her and spending time with the children. She stated that she was not 

concerned about the Defendant’s being around B.D. and that she did not believe the 

victim’s allegations. 

Ms. Diederich testified that when the Defendant was arrested, she was angry about

the accusations and that she was not angry with the Defendant. She said that she had 

watched the recording of the Defendant’s police interview, that the Defendant was “under

a lot of pressure” and was asked the same questions repeatedly, and that she did not 

believe the Defendant’s admissions. Relative to the text messages, she stated that the 

language was not characteristic of the Defendant and that the telephone number was 

“wrong.” Ms. Diederich testified that she was aware the Defendant had admitted in the 

presentence investigation report to kissing and to touching the victim. She said that the 

Defendant’s aunt had died, that the Defendant went to the victim’s mother’s house, that 

he was upset, and that the victim’s mother gave the Defendant a nerve pill to calm him. 

Ms. Diederich stated that he acted under the influence of the medication. 

Ms. Diederich testified that it would tear apart her family if the Defendant were

sentenced to confinement. She noted that if the Defendant were placed on the sex 

offender registry, he could not live with B.D. and that the Defendant pleaded guilty to 

statutory rape because he was concerned about being required to register as a sex 

offender. Ms. Diederich said that if the Defendant received judicial diversion, it would 

help him obtain better employment. She said that if the Defendant were sentenced to 

probation, she would ensure that he completed his obligations, including paying court 

costs and fines. She stated that the Defendant would pass drug screens and complete

counseling. She said that the Defendant did not deserve to go to jail, that the case had 

caused the Defendant health problems, and that the case had affected the children. 

On cross-examination, Ms. Diederich testified that before she met the Defendant, 

she lived in Graysville and supported herself and her children with her late husband’s 

Social Security death benefit. Ms. Diederich said that the Defendant paid child support to 

a woman, although he denied paternity of the child, and that when the Defendant asked 

for a DNA test in court, “[t]hey would not give him one.” Ms. Diederich stated that 

although the Defendant never married the child’s mother, he signed the child’s birth 

certificate. 

Ms. Diederich testified that the Defendant generally worked but had been laid off 

and had received unemployment benefits for at least seven weeks before the sentencing 

hearing. She said that when the Defendant was unemployed, he looked for work and 
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helped her at home. She stated that when she described the Defendant’s work schedule, 

she referred to a new job he started “a few weeks ago” and that she was unsure of the 

company’s name. She agreed that child support payments had been previously garnished 

from his unemployment checks. 

Ms. Diederich testified that she had no problem with the Defendant’s being around 

B.D. and that she knew sexual contact between the Defendant and the victim occurred 

after he took a pill. Ms. Diederich stated that the Defendant did not claim to have taken a 

pill when he sent the text messages. She said that in the Defendant’s police interview, 

Detective Lockhart spoke loudly but in a conversational tone. She agreed that Detective 

Lockhart never struck the Defendant and that the Defendant admitted he had sexual

intercourse with the victim. 

On redirect examination, Ms. Diederich testified that prior to the Defendant’s 

period of unemployment, he worked for a construction company and that due to the 

charges in the present case, the Defendant had difficulty maintaining employment. Upon

examination by the trial court, she stated that shortly after the charges were filed, the 

Defendant was fired. She said that her relationship with the Defendant began in April 

2014, that he had been employed for almost their entire relationship, and that she had 

accompanied the Defendant to a business to file his tax return. 

The Defendant testified that he had lived in Hamilton County his entire life, that 

he had family in the area, and that he had three children who lived in the area. He said 

that he had a son who was age twenty-four and who lived in Georgia, as well as a

daughter who was age fourteen, lived with her mother in Tennessee, and saw the 

Defendant regularly. He stated that he lived with Ms. Diederich and five children ages 

four, six, twelve, eighteen, and twenty. He said that he renovated the house in which they 

lived during a period of unemployment. He stated that due to a pending motion for 

custody of A.M. and S.R., he had only sixty days to repair the house and that the house 

passed inspection. 

Relative to his work history, the Defendant testified that two years previously, he 

worked for a “spa company.” He said that he next worked for a company that made car 

parts and that he worked seventy-two to seventy-four hours per week. He stated that he 

worked for a construction company as a painter for seven months, that he lost his job 

because he was jailed after his arrest in the present case, and that he regained his job 

within three weeks of his release. He said that he worked between seventy and eighty 

hours per week, that he was subsequently laid off due to a lack of work, and that he did 

“side jobs” and tried to help people. The Defendant said that he began working for a 

flooring company three weeks before the sentencing hearing and that he had not yet been 

paid due to an internal problem at the company. When asked by the trial court whether 

he reported to the Department of Labor and Workforce Development that he was still 
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seeking work, the Defendant stated that he was seeking factory work because when he 

did “housework” he generally got “shafted” and was not paid. 

Relative to his home life, the Defendant testified that he helped clean the house 

and spent time with the children. Upon examination by the trial court, the Defendant said 

that he had custody of A.M. and S.R. and that Ms. Baugh had previous issues with 

depression. He stated that Ms. Baugh put the children into foster care while he was at 

work, that a social worker never contacted him, and that he went to court to obtain 

custody of the children. He said that a social worker “checked everything” with his job 

and house and that he eventually obtained sole custody of both children. The Defendant 

stated that he had accepted A.M. as his own and that he treated A.M. the same as S.R. 

The Defendant testified that he married K.R. in 2009, that she “went to the clubs,” 

drank, “[slept] around,” and used methamphetamine and that they separated six months 

after they married. He said that K.R. had a subsequent relationship with another man and 

had two children with the man. He agreed that K.R. was age twenty or twenty-one at the 

time of their marriage. He said that K.R. filed for divorce, that he received a complaint

and signed the papers, and that his lawyer told him he did not have to accompany the 

lawyer to the court date. The Defendant stated that he and K.R. agreed on “everything” 

and that the children’s father was supposed to have taken a paternity test. The Defendant 

said, though, that the man refused to take the test and that the court refused to grant the 

divorce until one of the men took responsibility for the children. The Defendant stated 

that he wanted the divorce granted, even if he had to pay child support. He denied having 

signed the birth certificate for either child and owing child support to K.R. The 

Defendant noted that he did not drink alcohol or use drugs, that he would not have these 

substances around his children, and that K.R. had “been in trouble” six or seven times 

because of methamphetamine and other drugs. The Defendant said that he would pass 

any drug test the court ordered. 

Relative to S.S., the Defendant testified that she was his sister’s friend, that they 

had a romantic relationship, and that she became pregnant and told him she had been 

artificially inseminated. He said she asked him to “sign as the father” and told him that 

he had paid for the procedure. He stated that he signed the papers and that after the child 

was born, S.S. revealed that the child was conceived as a result of her infidelity. He said 

that they separated and that when the child was age four, S.S. applied for child support. 

He stated that he asked for a paternity test and that he was told he “played and I can pay.” 

The Defendant noted that both of S.S.’s children were biracial and had the same father, 

whereas the Defendant and S.S. were Caucasian. 

The Defendant testified that at the time of the incident with the victim, two of his 

aunts had died within three months of one another, that “it was just a hard time,” that 

“we[ were] all sitting there,” and that the victim’s mother gave him a pill called “K8,”

which she told him would “help your nerves.” He said that he told the victim’s mother he 
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did not take pills and that she told him if he did not take the pill he would have “another 

stroke” like he had earlier in the year. He stated that he took the pill around 7:30 p.m., 

that he was “in and out,” that he remembered kissing the victim and “grabb[ing] her 

chest,” and that he “got up and left and then I was knocking on my aunt’s door at . . . 3:00 

. . . in the morning.”

When asked by the trial court whether he meant that the drug “in some way caused 

you to have sex,” the Defendant responded, “No, I didn’t say nothing about sex.” The

Defendant said that he asked his sisters what K8 was because “they’re on anything and 

everything that you can probably think of” and that his sister told him it was a pain 

medication stronger than a 30-milligram Roxicodone tablet. The court asked the 

Defendant whether he claimed the victim fabricated the allegations, even though the 

Defendant admitted to Detective Lockhart and to the court during his plea that he had 

sexual intercourse with her. The Defendant responded that he was “just saying . . . what I 

remember happening,” that he did not remember what he told Detective Lockhart, and

that he was not denying that the encounter happened, but rather saying that he could not 

remember it. 

The Defendant testified that he previously had a romantic relationship with the 

victim’s mother. He said he also had a relationship with a second relative of the victim, 

which lasted for twelve and one-half years. He said that he had known the victim since 

her birth. He stated that he did not generally take pills and that he recently had two 

strokes, a “light” heart attack, and hypertension. He said that he did not take his 

prescribed blood pressure medication because he did not like taking pills. He stated that 

when he thought about the incident with the victim, he felt “[l]ike crap . . . [be]cause that 

is not me. I’m not that type of person. I have never been that type of person.” He said 

that if he had the opportunity, he would apologize to the victim and to her mother for 

“everything . . . that was said and . . . done and that . . . I cannot be . . . sorry enough.” 

He stated that he did not remember the substance of his police interview because he was 

“stressed to the max” about being taken from his family and his job. He said, though, 

that Detective Lockhart asked him between thirty and forty times whether he had sexual 

intercourse with the victim and that apart from the last time, the Defendant answered 

negatively. He stated that he eventually answered affirmatively because he had been 

interviewed for an hour and “it was just the same thing over and over and over.” The 

Defendant denied sending the victim sexually explicit text messages. 

The Defendant testified that an alternative sentence was important for his children 

and his family because he needed to contribute to the household income to support five 

children. He stated that if he were placed on the sex offender registry, he would lose his 

daughter and son, that he would have to move out of his house, and that it would be 

difficult to work and care for S.R. if he were not able to transport him to and from school. 

Relative to diversion, the Defendant expressed concern that a criminal record would 

prevent him from obtaining a job with a livable wage. 
-11-

The Defendant testified that he was initially charged with aggravated statutory 

rape and solicitation of a minor, that the maximum sentences for the charges were four 

years and two years, respectively, and that he agreed to a six-year sentence out of 

“gratitude.” He said that he was trying to take responsibility for his actions, that he did 

not “see how I could have let something like that happen,” and that he generally tried to 

be cautious and help people, not hurt them. He stated that talking about the incident was 

difficult for him. He said that he guaranteed no inappropriate behavior would occur with 

B.D. and that he considered B.D. to be his child. He stated that he would go to 

counseling to assure the trial court that he was not a danger to female children. He said 

that he did not have any prior felonies, that he was not violent, and that he tried to have a 

good relationship with Ms. Diederich and their children. 

The Defendant testified that he would abide by the rules of probation, pass drug 

screens, attend counseling, and pay court costs and fines. He said that he planned to find 

stable employment and that he was willing to “start low and . . . work [his] way up.” He

apologized and acknowledged his actions had hurt many people. He said that his 

children needed him to be present, and he asked the trial court to allow him to be with his 

family.

On cross-examination, the Defendant testified that he did not deny any 

wrongdoing but that he did not remember everything that happened. The Defendant said 

that he admitted having sexual intercourse with the victim because he was “tired of sitting 

there,” missed his family, and was stressed. He said that he never should have kissed or 

grabbed the victim. He stated that “[a] whole lot of” the incident occurred because he 

took a pill. He denied having sent text messages to the victim and telling Detective 

Lockhart he sent them. He denied “test[ing]” Detective Lockhart in the text messages by 

asking what the victim said the “first time we were together.” The Defendant said the 

only time he sent the victim a text message was on Facebook, which related to the birth 

of the victim’s niece. The Defendant stated that he pleaded guilty because he knew what 

he did was wrong and that he was trying to show remorse. When asked whether he was 

willing to admit having sexual intercourse or sexual contact with the victim, the 

Defendant said that he “honestly believe[d] I have not because . . . to my knowledge . . . I 

have not.” 

The Defendant testified that the victim, the victim’s mother, and the victim’s 

mother’s boyfriend visited his home on one occasion and that his daughter was present, 

but that none of them stayed overnight there. He said that he had visited the victim’s 

house previously and that the encounter he remembered occurred there. When the 

prosecutor commented that the victim said “this happened several times,” the Defendant 

responded, “I’ve got a son that [says] he has a purple elephant, that [doesn’t] mean it’s 

true.” The Defendant stated that he did not think he had sexual intercourse with the 

victim. Relative to the Defendant’s “immediately hit[ting] it off” with B.D., the 
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Defendant said that they “got along great” and that the Defendant also brought his 

daughter to their initial meeting. 

The Defendant testified that his relationship with Ms. Baugh occurred when she 

was age twenty and that he married K.R. when she was age twenty or twenty-one. He 

said that people at the local Department of Labor office told him to bring his first pay 

stub to them and that although he had been working for three weeks, he had not yet been 

paid. He denied having been paid in cash. He denied telling the Department of Labor he 

was working full time, and he said that he worked “side jobs.” He agreed that Ms. 

Diederich testified he worked twelve to sixteen hours per day. He said that he sometimes 

worked full days and that sometimes he worked only three hours per day. 

The trial court noted that the Tennessee Bureau of Investigation report on the 

Defendant’s eligibility for diversion had not yet been received but said it would consider 

the diversion factors. Relative to the Defendant’s amenability to correction, the court 

found that the Defendant did not have a record of repeated criminal conduct or failure to 

comply with probation. The court found, though, that it was “disturb[ed]” by the fact that 

the Defendant’s first child was born when the child’s mother was age fourteen. The court 

found that the then-eighteen- to nineteen-year-old Defendant had a sexual relationship 

with the child’s mother when she was age thirteen or fourteen, that the Defendant

committed statutory rape relative to K.C., and that the court considered this conduct as 

part of the Defendant’s amenability to change. The court found that the Defendant had “a 

number of relationships with . . . legal women, but they’re always pretty darn young.” 

The court found that K.R. and Ms. Baugh were ages twenty and nineteen, respectively, 

when they began romantic relationships with the Defendant. The court found that the 

Defendant was “well over” ten years older than the victim in the present case and that 

facts of this case supported a conviction for aggravated statutory rape. 

The trial court found that based upon the Defendant’s admissions, the witnesses’ 

testimony about the admissions, and the victim’s account, the encounters with the victim 

occurred. The court noted that “there’s a serious question . . . as to whether or not . . . all 

these young women that you’ve been having sex with makes society safer for you to be 

out there.” The court found that the Defendant’s amenability to correction was “in 

doubt.”

 Relative to the circumstances of the offense, the trial court found that they were 

“pretty horrendous,” and that the facts of the case indicated the victim was “barely 14, 

possibly 13” when she and the Defendant, who was age forty-two, had sexual intercourse. 

The court found that this was “a significant circumstance” given that the Defendant

pleaded guilty to a lesser offense.

The court found that the Defendant’s criminal record was “not all that relevant,” 

although it noted that the Defendant had “some issues” relative to the existence of proof 
-13-

he committed statutory rape in the past. It found that the Defendant’s social history was 

“checkered” due to having relationships with “so many different women” resulting in 

biological children or children for whom he had accepted parentage. The court noted that 

the Defendant had four or five children “that we know of” and that it was “pretty 

significant for a 42 or three year old man to have these kinds of relationships with 

children out there . . . that’s not the greatest social history[.]” 

Relative to the Defendant’s employment history, the trial court found that the 

Defendant had “some positives” and that he had worked “some.” The court discredited 

the Defendant’s testimony “with regard to some of these questions,” finding that there 

existed “serious issues about where the truth lies with regard to your own memory and 

what you’ve stated with regard to the events that you accepted in other interviews.” The 

court found that the Defendant’s physical and mental health did not weigh against 

diversion. The trial court found that deterrence to the Defendant and others was a 

“significant issue in this case given the vulnerability of the victim[.]” The court noted 

that young girls and women were very vulnerable to “this kind of conduct” and that to 

grant diversion would be a “free pass or a slap on the wrist” in a case where proof existed 

of “multiple engagements of sexual conduct with a child 14 or under[.]” 

Relative to the interests of the public and the Defendant, the trial court found that 

society would benefit from denying diversion. The court noted that it was “scary” that 

Ms. Diederich, whose child was unrelated to the Defendant and was entering puberty, 

“absolutely den[ied] the possibility that what you yourself admitted to under oath 

happened[.]” The court further noted that B.D. could not defend herself against an adult 

and that Ms. Diederich, the only adult available to defend her, was “living in a dream 

world.” The court found that it would not serve the public to “gloss over this.” The court 

found that almost every factor weighed against granting diversion and declined to grant

it.

Relative to probation and alternative sentencing, the trial court considered the 

contents of the presentence report. The court found that the report contained some 

“significantly negative things,” including that a twelve-year-old female child not related 

to the Defendant was living with him, and that it weighed against granting probation. 

The court also found that the report stated that the Defendant had “significant” 

relationships with young women, most of whom were close to but above the age of 

consent, and that two young women, the victim and K.C., “were clearly not adults when 

sexual intercourse occurred.” The court found that the Defendant’s physical and mental 

condition were not applicable to the case and did not weigh against granting probation. 

Relative to the Defendant’s social history, the court found that the Defendant had 

“peculiar relationships [that] would break off without orders of support or with orders of 

support which you now say are bogus.” The court noted that the Defendant did not have 

the “greatest social history[.]” Relative to the circumstances of the offense and the nature 

of the conduct involved, the court found that the Defendant had “tak[en] advantage of” a 
-14-

child who was not old enough to consent to sexual intercourse. The court noted that it 

was public policy to protect young people and that one could not treat a thirteen or 

fourteen-year-old child as an adult. The court further noted that a child would be 

“forever affected by their understanding of what sex is all about. It should be a positive 

factor dealing with family and so forth, not some kind of situation where a person is just 

getting gratification from it” and that a child could not appreciate the consequences of 

sexual intercourse. 

Relative to the Defendant’s criminal history, the trial court found that it was “not a 

plus or a minus in this case.” Relative to the previous actions and character of the 

Defendant, the court found that the Defendant’s character was at issue and that the 

Defendant had attempted to deny at the sentencing hearing behavior to which he had 

previously admitted. The court found that this “argues against the acceptance of 

whatever punishment we end up here with.” Relative to the interests of society and the 

need to protect society from the Defendant, the court found that the Defendant posed “a 

risk” to at least one young woman, B.D., with whom he would be in close proximity. 

The court found that the Defendant had made mistakes with the victim and that the court 

did not believe B.D. would be protected because Ms. Diederich did not believe it was 

possible for the Defendant to harm her. Relative to whether the Defendant had recently 

had measures less restrictive than confinement applied to him, the court found that this 

factor did not apply.

Relative to whether granting probation would unduly depreciate the seriousness of 

the offense, the trial court found that the Defendant had committed a “serious offense, it’s 

not just an indiscretion” and that “what really happened” was more serious than the crime 

to which the Defendant pleaded. Relative to the deterrent value to others, the court found 

that although people considering whether to violate the law might not know the 

Defendant’s sentence, the conduct was wrong and should be punished. The court denied 

full probation.

Relative to split confinement, the trial court considered the factors set out in 

Tennessee Code Annotated section 40-35-103 (2014). The court found that confinement 

was necessary to protect society from a defendant with a long history of criminal 

conduct. The court found that the Defendant had a history of relationships with minors, 

beginning with K.C. and spanning a period of many years. The court also found that the 

conduct had not stopped, that it had happened repeatedly, and that the Defendant had 

other relationships “perilously close given the fact that several of these other woman . . . 

[have] been 10 or 15 or 20 years younger than you even though they might have been 

over 18. They weren’t a whole lot over 18[.]” The court found that it had already 

reviewed whether confinement was necessary to avoid depreciating the seriousness of the 

offense in its consideration of whether to grant full probation. The court noted that it 

believed “this is a significant enough involvement, multiple occasions of intercourse and 

sexual contact with a child who is barely 14, maybe 13[.]” The court found that any 
-15-

sentence which included probation would be “against the guidelines.” The court found 

that the factor relative to the recent application of measures less restrictive than 

confinement did not apply.

The trial court noted that “some innocent people” would be harmed by the 

Defendant’s confinement but that it was not a controlling factor in sentencing. The court 

further noted that it had “a real problem here because of a pubescent child that’s going to 

have to be living with you.” The prosecutor noted that the plea agreement stipulated to a 

Range III, persistent offender status and that the Defendant had a standard release 

eligibility of thirty percent. 

The prosecutor asked the trial court to make a determination regarding the sex 

offender registry. The trial court asked if it were possible to set a time limit after which 

the Defendant would be taken off of the registry, and a probation officer in the courtroom

stated that the court could not set a time limit but that after a period of years, the 

Defendant could petition to be removed from the registry. 

Defense counsel argued that the Defendant had taken responsibility, shown 

remorse, pleaded guilty out of range, and agreed to a longer sentence than he faced at a 

trial in the hopes that he would not be ordered to register as a sex offender. The trial 

court commented relative to the length of the sentence that it thought the proof would 

have resulted in a guilty verdict and that the court would have run the sentences 

consecutively because they were not a part of the same act. The court stated that it did 

not think the Defendant had been harmed by the plea agreement. The court noted that the 

Defendant was “not a particularly strong witness” and that it did not think the Defendant 

would have been able to testify at a trial without guaranteeing a guilty verdict. The court 

ordered the Defendant to serve his sentence in confinement and to register as a sex 

offender. This appeal followed. 

 

I

Denial of Diversion

The Defendant contends that the trial court erred in denying judicial diversion, 

arguing that the court did not consider the King/Electroplating factors but rather “merely 

recite[d]” them. The Defendant requests that this court review the trial court’s 

determination de novo, and he asserts, generally, that the Electroplating factors weighed 

in his favor. The State responds that the court considered each factor and that the 

Defendant’s refusal to accept responsibility for his actions and history of similar conduct 

justified denying diversion. 

A trial court may order judicial diversion for certain qualified defendants who are 

found guilty of or plead guilty or nolo contendere to a Class C, D, or E felony or a lesser 
-16-

crime; have not previously been convicted of a felony or a Class A misdemeanor; and are 

not seeking deferral for a sexual offense.7 See T.C.A. § 40-35-313(a)(1)(B)(i) (Supp. 

2013) (amended 2014, 2015, 2016). The grant or denial of judicial diversion is within the 

discretion of the trial court. State v. King, 432 S.W.3d 316, 323 (Tenn. 2014) (citing 

T.C.A. § 40-35-313(a)(1)(A)). When considering whether to grant judicial diversion, a 

trial court must consider (1) the defendant’s amenability to correction, (2) the 

circumstances of the offense, (3) the defendant’s criminal record, (4) the defendant’s 

social history, (5) the defendant’s physical and mental health, (6) the deterrence value to 

the defendant and others, and (7) whether judicial diversion will serve the ends of justice. 

State v. Electroplating, 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998); State v. Parker, 

932 S.W.2d 945, 958 (Tenn. Crim. App. 1996); see King, 432 S.W.3d at 326 (stating that 

recent case law affecting the standard of review for sentencing determinations “did not 

abrogate the requirements set forth in Parker and Electroplating, which are essential 

considerations for judicial diversion”). “The record must reflect that the court has 

weighed all of the factors in reaching its determination.” Electroplating, 990 S.W.2d at 

229. If a trial court refuses to grant judicial diversion, “[T]he court should clearly 

articulate and place in the record the specific reasons for its determinations.” Parker, 932 

S.W.2d at 958-59. “The truthfulness of a defendant, or lack thereof, is a permissible 

factor for a trial judge to consider in ruling on a petition for suspended sentence.” State 

v. Neeley, 678 S.W.2d 48, 49 (Tenn. 1984).

On review of a decision to grant or deny judicial diversion, this court will apply a 

presumption of reasonableness if the record reflects that the trial court considered the 

Parker and Electroplating factors, specifically identified the relevant factors, and placed 

on the record the reasons for granting or denying judicial diversion, provided any 

substantial evidence exists to support the court’s decision. King, 432 S.W.3d at 327. If, 

however, the trial court failed to weigh and consider the relevant factors, this court may 

conduct a de novo review or remand the case for reconsideration. Id. at 328.

The record reflects that the trial court weighed each of the Electroplating factors, 

articulated its reasoning, and found nearly every factor weighed against granting 

diversion. However, the record reflects that the court relied heavily upon improper 

factors and determinations not supported by the record. 

The record reflects that the trial court doubted the Defendant’s amenability to 

correction because he had previously fathered a child with K.C. when she was age 

fourteen. Based upon this relationship, the court found that the Defendant had previously 

committed statutory rape and had a “long history” of criminal conduct. The record does 

not contain sufficient evidence to conclude that the Defendant’s relationship with K.C. 

satisfied the elements of statutory rape. Statutory rape was defined in 1991, the 

 

7 We note that statutory rape is not an enumerated sexual offense for purposes of the diversion statute. 

See T.C.A. § 40-35-313(a)(1)(B)(ii).
-17-

approximate year of S.C.’s birth, as the unlawful sexual penetration “of a victim by the 

defendant . . . 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.” T.C.A. § 39-13-

506(a) (Supp. 1991). The presentence report did not contain proof of K.C.’s birthdate, 

without which it was impossible for the court to determine whether the Defendant was 

four years older than K.C. at the time of S.C.’s conception. Therefore, the court did not 

have sufficient evidence to determine that the Defendant had committed a prior statutory 

rape, and the court’s placing weight on the circumstances of S.C.’s conception as 

indicative of the Defendant’s “long history” of criminal conduct was erroneous. 

The trial court also improperly discussed at length and afforded great weight to the

Defendant’s relationships with younger adult women in the context of his amenability to 

correction and his social history. The court found that the Defendant’s social history was 

“checkered” due to his previous romantic relationships with younger women, his 

fathering or being financially responsible for multiple children, his fathering children 

with multiple women, his disputing the paternity of some of the children, and his being 

ordered to pay child support for some children but not others. Involvement in

nontraditional, consensual relationships with younger adult women, fathering children 

with those women, disputing paternity of a child, and the absence of child support orders

are not unlawful.8 The court improperly relied upon the Defendant’s nontraditional 

relationships, and its decision to deny diversion was based heavily on its disapproval of 

the Defendant’s lifestyle. 

Furthermore, the trial court relied on a need to deter the Defendant from engaging 

in similar behavior with B.D., whom the Defendant considered to be his daughter, in 

denying judicial diversion. No psychosexual evaluation was performed in this case, and 

no evidence was introduced showing that the Defendant generally found teenage girls 

attractive, that he was attracted to B.D., notwithstanding their family relationship, or that 

he was likely to reoffend. The trial court’s reliance on the Defendant’s probability to 

reoffend in the future was misplaced in the absence of evidence supporting the 

determination. 

Last, the trial court characterized the offense as “horrendous,” and it discussed the 

harm to the victim’s “understanding of what sex is all about.” Relative to the 

circumstances of the offense, the Defendant, the forty-two-year-old friend of the victim’s 

mother, pleaded guilty to having sexual intercourse with the fourteen-year-old victim. 

According to Detective Lockhart, the victim characterized the encounters as consensual, 

and we note that the period specified in the indictment was three months, indicating that 

 

8 The Defendant reported not being current on his child support obligation to Z.R. in the presentence 

report. A delinquent child support obligation may have been indicative of a poor social history, but the

record reflects that the trial court did not find this as a basis for denying judicial diversion. We note that 

the Defendant and Ms. Diederich reported the Defendant’s difficulty finding work due to the charges in 

this case.
-18-

the sexual relationship was not excessively prolonged. Although the court properly 

considered the fact that the Defendant pleaded guilty to a lesser-included offense of the 

indicted offense, the age gap between the Defendant and the victim alone does not make 

the circumstances of the offense especially horrendous or shocking, and no evidence of 

lasting harm to the victim was presented. We note that the victim did not testify at the 

sentencing hearing, submit a statement to the presentence investigator, or submit a victim 

impact statement to the trial court. Therefore, we conclude that the case must be 

remanded for a new sentencing hearing for reconsideration of the trial court’s denial of 

diversion. 

As we discuss below, no psychosexual evaluation was conducted in this case. We 

note that on remand, the trial court may base relevant findings on the contents of a 

psychosexual evaluation report to the extent that it addresses the court’s concerns relative 

to the public interest and the necessity of deterring the Defendant from similar criminal 

behavior. 

 

II

Denial of Alternative Sentencing

The Defendant contends that the trial court erred by denying his request for 

alternative sentencing. He offers a host of arguments which may be grouped generally 

into arguments that (1) the court abused its discretion by “misapplying or failing to 

consider” the relevant factors, including the Defendant’s health, his criminal history, his 

prior relationships, and mitigating and enhancement factors, and by not finding more 

factors weighed in the Defendant’s favor given the witness testimony, (2) the court erred 

by ordering full confinement, and (3) the court improperly considered the facts 

underlying the dismissed solicitation of a minor charge. The State responds that the court

considered information relevant to all of the proper factors, that the court explicitly or 

implicitly discredited the testimony of the Defendant, Ms. Baugh, and Ms. Diederich, that 

the court properly considered the facts underlying the guilty plea, and that the court did 

not abuse its discretion by ordering full confinement.

The standard of review for questions related to probation or any other alternative 

sentence is an abuse of discretion with a presumption of reasonableness. State v. Caudle, 

388 S.W.3d 273, 278-79 (Tenn. 2012). Generally, probation is available to a defendant 

sentenced to ten years or less. T.C.A. § 40-35-303(a) (2014). The burden of establishing 

suitability for probation rests with a defendant, who must demonstrate that probation will 

“‘subserve the ends of justice and the best interest of both the public and the defendant.’” 

State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002) (quoting State v. Dykes, 

803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)); see T.C.A. § 40-35-303(b); State v. 

Carter, 254 S.W.3d 335, 347 (Tenn. 2008).
-19-

A sentence is based upon “the nature of the offense and the totality of the 

circumstances,” including a defendant’s background. State v. Ashby, 823 S.W.2d 166, 

168 (Tenn. 1991); see State v. Trotter, 201 S.W.3d 651, 653 (Tenn. 2006). A trial court 

is permitted to sentence a defendant who otherwise qualifies for probation or alternative 

sentencing to incarceration when:

(A) [c]onfinement is necessary to protect society by restraining a defendant 

who has a long history of criminal conduct;

(B) [c]onfinement is necessary to avoid depreciating the seriousness of the 

offense or confinement is particularly suited to provide an effective 

deterrence to others likely to commit similar offenses; or

(C) [m]easures less restrictive than confinement have frequently or recently 

been applied unsuccessfully to the defendant[.]

T.C.A. § 40-35-103(1)(A)-(C) (2014); see Trotter, 201 S.W.3d at 654. 

When determining the appropriate sentence, a trial court must consider any 

evidence received at the trial and sentencing hearing, the presentence report, the 

principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature and 

characteristics of the criminal conduct, any mitigating or statutory enhancement factors, 

statistical information provided by the Administrative Office of the Courts as to 

sentencing practices for similar offenses in Tennessee, any statement that the defendant 

made on his own behalf, and the potential for rehabilitation or treatment. Ashby, 823 

S.W.2d at 168 (citing T.C.A. §§ 40-35-103 (2014), -210 (2014)); State v. Moss, 727 

S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 

1987)); see T.C.A. § 40-35-102 (2014).

As a preliminary matter, the Defendant’s contention that the trial court improperly 

considered “irrelevant” and prejudicial evidence of the text messages the Defendant sent 

to the victim is without merit. The State correctly states in its brief that a court is 

permitted to consider evidence of the original facts that lead to a plea agreement. See

State v. Biggs, 769 S.W.2d 506, 507-508 (Tenn. Crim. App. 1988) (“In considering the 

circumstances of the offense, the court may go beyond the negotiated plea and consider 

the ‘true nature’ of the crime.”) (citing State v. Hollingsworth, 647 S.W.2d 937, 939 

(Tenn. 1983)). Nothing prohibited the court from considering the factual basis of the 

Defendant’s conduct leading to the guilty plea. 

However, we conclude that this case must be remanded for a new sentencing 

hearing. The trial court improperly considered some factors, neglected to consider 

others, and no psychosexual evaluation was conducted in violation of Tennessee Code 

Annotated section 39-13-705 (2014) (requiring a psychosexual evaluation when a sex 
-20-

offender requests alternative sentencing). As a result, we are unable to determine the 

Defendant’s suitability for alternative sentencing. 

The record reflects that the trial court did not consider mitigating or enhancement 

factors on the record. The prosecutor noted that he did not think enhancement factors 

were relevant because the length of the sentence was determined by the plea agreement. 

However, enhancement and mitigating factors are also relevant to determinations relative 

to alternative sentencing. See State v. Ring, 56 S.W.3d 577, 583-84 (Tenn. Crim. App. 

2001). If no applicable mitigating and enhancement factors exist, the court must state 

this finding on the record. State v. Ealey, 959 S.W.2d 605, 613 (Tenn. Crim. App. 1997). 

The record reflects that although the trial court considered most of the required 

factors, the court placed substantial weight on improper factors. The court placed 

substantial weight on the Defendant’s previous romantic relationships and determined

that the Defendant had a “long history” of criminal conduct based upon his 

nontraditional, but lawful, relationships and upon the unproven conduct the court 

erroneously concluded was criminal conduct. As we have previously determined,

insufficient evidence was presented to establish that the Defendant committed statutory 

rape when he was age eighteen. In any event, we do not view two incidents separated by

twenty-five years and in different contexts as constituting a long history of criminal 

conduct for purposes of denying alternative sentencing. The record does not reflect that 

the Defendant had a long history of criminal conduct. 

Again, no psychosexual evaluation was conducted in this case. Tennessee Code 

Annotated section 39-13-705(a) states, “[E]ach sex offender who is to be considered for 

probation or any other alternative sentencing shall be required to submit to an evaluation 

for treatment, risk potential, procedures required for monitoring of behavior to protect 

victims and potential victims” (emphasis added). See State v. Freddie McCullough, No. 

W2006-01407-CCA-R3-CD, 2007 WL 2376328, at n.5 (Tenn. Crim. App. Aug. 20, 

2007) (stating that in the absence of a completed psychosexual evaluation, the sentencing 

hearing should not have been conducted). We note that the record reflects no discussion 

about obtaining an evaluation in this case. Before a new sentencing hearing is held, the 

Defendant should undergo the statutorily required psychosexual evaluation. A

psychosexual evaluation is extremely relevant to the trial court’s determining that the 

Defendant posed a risk to B.D., a factor upon which the court placed significant emphasis 

in denying alternative sentencing.

III

Sex Offender Registry

The Defendant contends that the trial court erred by requiring him to register as a 

sex offender, arguing that the order was made “as an afterthought,” that no psychosexual 
-21-

evaluation was conducted, and that the court did not properly consider the factors 

articulated in Tennessee Code Annotated section 39-13-506(d)(2)(B) (2014), which 

governs sex offender registration in the context of statutory rape. The Defendant further 

argues that the length of time he will be required to register is “vague and ambiguous.” 

The State responds that the court did not abuse its discretion and that it is “reasonable to 

assume” that the court’s prior findings of fact informed its decision to place the 

Defendant on the sex offender registry.

Tennessee Code Annotated section 39-13-506(d)(2)(B) states that 

In addition to the punishment provided for a person who commits statutory 

rape for the first time, the trial judge may order, after taking into account 

the facts and circumstances surrounding the offense, including the offense 

for which the person was originally charged and whether the conviction 

was the result of a plea bargain agreement, that the person be required to 

register as a sexual offender[.]

The record reflects that after the trial court ordered full confinement, a discussion

occurred between the court, the prosecutor, defense counsel, and a probation officer

relative to whether the court could limit the term of registration. Although the court 

discussed the circumstances of the offense and the plea agreement in the context of 

alternative sentencing and diversion, it did not place on the record its reasoning for 

ordering the Defendant to register as a sex offender. The court briefly noted for counsel 

that the court did not think the Defendant had agreed to a longer sentence than he faced at 

trial, but the court did not otherwise discuss the plea agreement. 

The State’s argument relative to the trial court’s prior findings of fact is flawed 

because the court’s findings relative to alternative sentencing were based upon erroneous 

determinations and improper factors. It is also not the province of this court to assume a

trial court’s reasoning. Because we remand for a new sentencing hearing, we need not 

belabor the issue, but if after the new hearing the court determines that the Defendant 

should be ordered to register as a sex offender, it should place proper findings on the 

record to support its determination. 

Relative to the Defendant’s argument about the length of registration, we note that 

a trial court does not determine the length of time a defendant must remain on the sex 

offender registry. Ten years after the Defendant’s sentence is completed, he may file a 

request with the Tennessee Bureau of Investigation for removal from the registry. See

T.C.A. § 40-39-207(a)(1) (Supp. 2011) (amended 2014, 2015) (“No sooner than ten (10) 

years after termination of active supervision on probation, parole or any other alternative 

to incarceration, or . . . after discharge from incarceration without supervision, an 

offender required to register under this part may file a request for termination of 

registration requirements[.]”). The Defendant is not entitled to relief on this basis. 
-22-

In consideration of the foregoing and the record as a whole, we affirm the 

Defendant’s conviction, but we remand the case to the trial court for a psychosexual 

evaluation and a new sentencing hearing to determine the Defendant’s suitability for 

diversion or alternative sentencing and whether the Defendant should be required to 

register as a sex offender. 

 

____________________________________

ROBERT H. MONTGOMERY, JR., JUDGE