1 Tennessee Cod e Annotated section 39-13-506 states that statut ory rape is “the sexu al pen etration of a victim

by the d efen dant or of

the defe ndant

by the vi cti m when t

he vi cti m is at l east

thi rte en (13) but l ess than eig htee n (18) yea rs of a ge a nd t he de fe ndan t i s at le ast fou r ( 4) y ear s ol der t

han th e vi cti m. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on

Briefs A ugust 2, 2005 STATE OF TENNESSEE v. ERIC RI CE Direct Appeal from the Circuit Court for Madison County

No. 04-656 Roger A. Page, Judge

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

The defendant, Eric Rice, pled guilty to one count of statutory ra pe, a Class E felony, an d applied for judicial diversion pursuant to Tennessee Code Annotated section 40-35-313. The tria l court denied the application for judicial diversion and sentenced the defe ndant as a standard offender. On appeal, the defendant argues that the trial court er red in denying judicial diversion. After our review, we affi rm the judg

ment of the

trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J.C. M C L IN , J., delivered the opinion of the court, in which D AVID H. W ELLES and N ORMA M C G EE O GLE , JJ., joined. David H. Crichton, Assistant Public Defender, for the appellant, Eric Rice

. Paul G. Summers, A

ttorney Genera l and Repo rter; B rian C. Johnson, Ass istant Attorney Genera l; James G. Woodall, District A tt or ney Gene

ral; and Jim Thompson, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION
BACKGROUND
The defendant

pled gu ilty to one count of statutory r ape 1 arising out of his consensual sexual interco urse with a thir

teen y ear-ol d in July

2003. The pre-sentence report deta iled both the victim’s and the defendant’s recollection of the incident. The victim statedthat she called the defendant and asked him to come over to a friend’s house, where they had con sen sual sexual intercourse. The defendant likewise stated that the victim called him and invited him over to a friend’s house.-2-

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 yea rs old. The defendant

also testified that this incident taught him not to go around with y ounger girls. The pre-sentence report, as well as the defendant’s testimony, indicated that he had no othe r criminal convicti ons, planned on gettin g his G ED, ne ver used

drugs, had no phy

sical or mental he alth problems, had some varied work history , but desired to go to auto mechanic school.
The tr ial co urt de nied t he defe ndant ’s requ est fo r judi cial d ivers ion s tati ng: [T]here are seve r al factors set forth in the statute and also by case law that

. . . I must consider when determining wh ether or not one gets diversion the circumstances of

the offe nse is ver y imp ortant, any criminal re cord he has, his social hi st or y, the amenability of this defe ndant to correction, the status of his men

tal healt h and physical health, any

deterrence value to the acc used as well as others, and whether judicial d

iversion will serv e the end s of justi ce, the public as well as the Defend ant.

. . . . But I’ve gone

over the criteria that I ’m supposed to consider. I mean, [the defe nd ant] has some things in his favor here and certa inly that he has no prior criminal history is very

good.
He has some thin gs that are not in his favor. He doesn’t have a very g ood work history. [He] doesn’ t have a high school dip loma, dro pped out in

the ninth grade. He says he ’s trying to g et a GED but, of course, I don’t have any

proof of that ot he r t ha n h is te st im on y. Considering these factors, the Court’s greatest concern here is . . . the age of this victim. She was barely thirteen y ears old.

. . . . I’ve stated for the record . . . considering the circumstances of the of fense, h is amenabi lity

to correction. . . .This happened eighteen months ago and he’s stated he ’s notbeen in any more

trouble. He doesn’t

have any criminal record. Those things are certainly in his favor

. He doesn’t have regular e mployment. He . . . didn’t finish school. [W]eighi ng everything toge ther, considering his amenability to correction but primaril y the circumstances of the offense . . . bec ause of her age be ing just b arely2 Statuto ry rape is not on e of the e xclud ed se xual o ffenses. -3- thirteen, I just cannot in good conscienc e grant him diversion in this case. So I ’ m going to deny

it.
The trial court se ntenced the defendant to two y ears as a standard offender with credit for time served, the balance to be spent in a community corrections program. The tr ial cour t also imposed a fine, ordered the defendant to per form 100 hours of community servic e and abide by the Sexual Offender Registry

Law. The

defendant appealed the trial court’s denia l of judicial diversion.
ANALYSIS
Onappeal, the defe

ndant ar gues tha t the tria l court a bused itsdiscretion in denying diversion and failing to elucidate its reasoning for de nial. When there is a challenge to the leng th, 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 a re 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 a nd all relevant fact s and circumstances. State v. Ashby , 823 S.W.2d 16 6, 169 (Tenn. 1991). The burden of showing that the sente nce is improper is upon the defendant. Id. In the event the rec ord fails to demonstrate the required consideration by the trial court, review of the sentence is purely de novo. Id. If a

ppellate review reflects that

the trial court properly c onsidered all relevant factors and its findings of fact areadequately supported by the record, this Court must affirm the sentence “even if we would have pr eferred a different re sult.” State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
Unde r the judicial diversion statute, the trial court may , in its discretion, defer further procee dings and place a qualified defenda nt on pro ba ti on wi th ou t e nt er in g a ju dg me nt of gu il ty. Tenn. Code Ann. § 40- 35-313(a )(1)(A ). A qual ified de fendant

is a defe ndant who

pleads g uilty or is found g uilty of a misde

meanor or a ClassC, D or E felony; who has not pre viously been convicted of a felony or

a Class A misdemeanor; and who is not seeking def erral for cert ain sex off

enses. 2 Tenn. Code Ann. § 40-35-313(a)(1)(B) (I).
A defendant who is eligib le for jud icial dive rsion; how ever, is

not entitle d to such a s 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 . 2 000)). The decision of whether to place a defendant on judicial diversionis 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 appea l 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 St ate v. Parker , 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996).-4-

“Tennessee courts have recognized the simil arities between judicial diversion and pretrial diversionand, thus, have drawn heavily from the case l aw g over

ning pret rial diversion to an aly ze cases involving judicial diversion.” Stat e 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 mus t consider (a) the accused’s amenability to correction, (b) the circumstances of the off ense, (c) the accused’s criminal rec o rd, (d) the accused’s social history, (e) the accused’s phy sical and mental health, (f) the deterrence value to the acc used as well as others, and (g) whether judicia l diversion will serve the interests of the public as well as the accused. Parker , 932 S.W.2d at 95 8; Bonestel , 871 S.W.2d at 168. Additional factors which may be c onsidered include the defendant’s “attitude, his behavior

sin ce his ar

rest, his h ome envir

onment, c urrent d rug usa ge, emo tional sta

bility , past employ ment, general reputation, family responsibilities, and the attitude of law e nforcement.” 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 ana lysis, and if the court has ba sed i t s determi nation on only some of the factors, it must explain why these f actors outweigh the others. See id.
Inthe instant case, the trial cou rt denie d diversi on based primaril y on the circumstances of the offense, focusing upon the ag e of the victim. However, the trial court did note that

it analyzed all criteria it was supposed to consider. The court stated that it con sidered the defendant’s work hi st or y, amenab ilit y to correc tion , lack of cri minal record and ed ucati onal b ackgrou nd. Al thou gh the trial court did

not state o

n the rec ord the pr

ecise weighing process used, it did state that various factors weighed for and ag ainst dive rsion. In particular, the cour t said “weighing every

thing together, considering his amenability to correction . . . the circumstances of the offense . . .” After our review, we conc lude that the trial court pr operly consider ed and we ighed a

ll releva nt facto rs. Therefore, we affirm the judg ment of the trial court.

CONCLUSION Accordingly , the judgment of the trial court is affirmed.

___________________________________ J.C. McLIN, JUDGE