### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs M arch 19, 2002

STATE OF TENNESSEE v. JAM ES ROBERT LAWSON

Direct Appeal from the Criminal Court for Sullivan County

No. S43,617 R. Jerry Beck, Judge

No. E2001-01415-CCA-R3-CD Filed July 3, 2002

The Defend ant pled guilty to one count of child abuse, a Class D felony. Following a hearing, the trial court denied judicial diversion. The trial court sentenced the Def endant as a Range I, standard offender to two years to be served on intensive probation. The Defendant now appeals, arguing that the trial co urt erre d by denyi ng him judic ial diver sion and by imposing a s a condit

ion of his probation that he no t reside i n the same household

with children of “tender years.” Finding no error, we affirm the judgment of the trial court.

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

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which GARY R. W ADE , P.J., and D AVID H. W ELLES , J., joined.

Terry L. Jordan, Blountville, Tennessee, for the Appellant, James Rober t Lawson.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney Genera l; H. Greeley Wells, Jr., District AttorneyGenera l; and James F. Goodwin, Assistant District Attorney General, for the Appellee, State of Tenne ssee.

OPINION

I. FACTUAL BACKGROUND

The Sullivan Cou

nty Gran d Jury re

turned a present ment cha rging the Defend ant, J ames Robert Lawson, with child abuse, a Class D fel ony. The D efendant moved for pretrial diversion, which was denied by the District Attorney General. The trial court affirmed the prosecutor’s denial of pretrial diversion. The Defendant pled guilty to the charged of fense and sought judicial diversion. F ollowing a hearing, the trial court denied judicial diversion. The trial cour t sentenced th e Defendant

as a Range I, standard offender to two ye ars to be served on intensive probation. As condition s of his p robation, the trial court ordered that the Defenda nt have no contact with the-2-

victim, that he refra

in from re siding in

the same household with children of “tender years,” and that he have liberal but supervised visitation with his fourteen-month-old child.

The facts of the underlying case, as presente d by the State and as stipulated by the Defe ndant,

are as follow s: On Nove mber 10, 1 999, Detectiv e Dar la Anderson of the Kingsport Police Department

went to Holston Valley Hospital in response to a child abuse complaint. Anderson observ ed a five-year-ol d female with seve ral bruis es, inclu ding “pet echial- type” br

uising unde

rneath eacheye. There was also bruising to both sides of the ch ild’s f ace with linear-type markings indicative of a hand. Upon questioning, the child told Detective Anderson that her daddy slapped her face. The child also stated that she was knockeddown and hit with a belt. Detective Anderson found several bruises onthe child’s buttocks area that were in differe nt stages of healing. Dr. Goh examinedthe child at the hospital. The Department of Children’s Services then removed the child and placed her in a foster home. Detective A nderson deter

m ined that when the child’s mother discovered

the bruises, the Defen da nt told the mother that the child had tripped over the cat and busted her nose.

At the hearing on the mot ion for judicial diversion, Victoria Lawson testified that she had been married to the Defendant a year a nd a half. Lawson testified that on November 10, 1999, she had been married to the Defendant for two we eks and that he was living with her and her five-anda-half -year- olddaughter, the victim in this case. On that date, she left the Defend ant and th e victim at home while

she went to the grocer

y store. A fter ab out forty -five min

utes, Law son retur

ned home to find the Defendant giving her daughter a ba th. Her daught er’s face was “red a nd puffy” and “[t]herewas a little bit of blood about one nostril.” When Lawson asked the Defe ndan t what had happened, he responded that she had tripped over the cats.

Lawson testified that

approximately four or

five hours later, the Defendant told her what ha d

r eallyhappened. However, before he relayed what had occurred, he stated that he was going t o check into Woodbridge Hospital because he was having suicidal thoughts again. The De fendant left their home that evening. Lawson testified that she and the Defenda nt separated while he was i n treatme nt, but that they had been living together again since January 2001. Lawson stated that the victim was living

with Laws on’s mothe

r in North Carolina. Lawson testified that the d iffere nce in the Defend ant s ince treatment is “like night and day.” Lawson stated that the Def endant is more responsi ble and takes his medication regularly. Lawson maintained that the Defendant is remorseful about his actions.

On cross-examination, Lawson stated that she h as a four

teen-mo nth-old

daughter living in the home w ith her a

nd the De fendant

. Lawson acknowledged that the Defe ndant did n ot admit to her that he hit the victim on the back. Lawson testified that the Defendant told her that “he put hi s hands behind her back and pushed her ac ross the step . . . and that she fell on the floor.”

Michelle Barbara Tizdell testified that she has known the Defendant since1999. Tizdell has observed the Defendant in her home interacting with her children and with the Defendant’s stepdaughter. Tizdell testified that the Defendant has been alone with her children who are seven, ten,-3-

and thirteen

years ol d. Tizdell maintain ed that she has ne ver had a problem with the Defendant watching her children and that she feels comfortable leaving them with him. Tizdell stated that she has noticed “ a tremendous amoun t of diffe rence” in the Def

endant si nce his treatme

nt. She further stated that the Defendant is “more into his family” and is “more responsible.”

Frank Lynn Eugene Blender testified that he has known the Defe ndant since 1992 and that he and the Defendant lived together on “about three or four different occasions.” Blender testified that before the incid ent, the D efenda

nt was de pressed all of the tim e and tha

t h e would “ fall into these big depre ssion things” w here he did not want to go out or do anything. Blender stated that si nce November 1999, the Defendant seems to be getting better. Blende r maintained that the Defendant

would be a good candidate for probation and that he would be sa fe around children. Blender acknowl edged tha

t the Def endant di d not tell him all the de tails of the incident involving the victim

.

Dr. Gary Lee Petiprin testified that he has a Ph.D. in counseling psychology and is employed at East Tennessee State University, where the Defendant

attended school. Petiprin testified that he counseledthe Defe

ndant for the first time in November

1999. Petip

rin state d that the

Defend ant told him that he ha

d repea tedly hit hi s s tep-daught er in the face with an open hand the day be fore. According to Petiprin, the Defendant stated that he hit his step-daughter hard enough to cause her to fall down, have a bloody nose, and later to develop discoloration under he r eyes. As a

result of the conversation, Dr. Petiprin, withou t object ion from the Defendant, contacted Child Protective Services.

Dr. Petiprin felt that the Defendant should be hospitalized, and the Defenda nt agreed. The Defendant

was subsequently admitted to Woodbridge Hospital. Dr. Petiprin testified that he and the staff believe d that the

Defend ant was d

epresse d. Dr. Pet

iprin saw the Defendant during nineteen weekly or bi-weekly sessions between November 1999 and May 2000. Dr. Petiprin testified that the Defendant

was remo

rseful a bout his actions a

nd that his moods bec ame more stable with treatm

ent. In addition, the Defendant informed Dr. Petipr

in that he and his wife had been attending a parenting class through a community agency.

The Defendant

withdrew as a student f rom East T ennesse e State Un iversity, and Dr. Pe

tiprin referred him to a division of

Frontier Health. Dr. Petiprin recommended that the Defendant continue in personal counseling and continue taking his medica tion. Dr. Petiprin

believe s that tre atment is the most appropriate course for the Defendant and that the Defendant c ould eventually be reunited with his step-daughter.

On cro ss-examinat ion, Dr. Petiprin admitted that the Defendant did not tell him anything about hitting his s tep-dau ghter wit h a belt or

about tel ling his wife that the victim received the injuries from tripping over a cat. Dr. Petiprin acknowledged that lying is not a sign of remorse

.

Dr. David A. Sabatino testified that he is a psychologist specializing in child or adolescent psychology. Dr. Saba

tino testif ied that th

e Defe ndant wa s one of hi s patientsat East Tenne ssee-4-

Psychological Associates. Dr. Sabatino stated that the Defendant attended fifteen sessions alone and thereafter attended sessions with his wife. Dr. Saba tino initia lly diagnose d the Def

endant w ith bipolar disorder. However, after the De fendant began taking medication, Dr. Sabatino re vised th at diagnosis to major recurrent depressio n and later to a [dystemic] disorder which is a low-gra de “bother some depress ion.” Dr . Sabatino testifie d that th e De fendant responded very we

ll to medication. Dr. Sabatino further testified that the Defendant was r emorseful about his actions and extreme ly motivated. Dr. Sabatino stated that the Defendant discontinued treatment in January 2001 after Dr. Saba tino notifi ed him tha

t he had me

t his trea tment goa ls. Dr. Saba

tin o maintained that because the Defe ndant had

develope d th ought org anization to promote social control and selfcontrol, it would be a “positiv e accom plishment”

if the Defendant

were to b e place d back in

a family relation ship with his wife and his step-daughter. On cross-examination, Dr. Sabatino ac knowledged that the Defendant did not tell him that he struck his step-daughter across her ba ck.

II. ANALYSIS

A. Judicial Diversion

The Defendant argues that the trial court err ed in declining to impose

a sentence pursu ant to Tennessee Code Annotated § 40-35-313, commonly referred to as judic ial diver sion. Acc ording to this statute, the trial court may, in its discretion, following a determination of guilt, defer further proceedings and plac e a quali fied def endant on probatio n without e

ntering a judgment o f guilt. Tenn. Code Ann. § 40-35-313(a)(1)(A). A qualified def endant is one who pleads guilty or is found guilty of a misde

meanor o r a Cl ass C, D or E felony; who has not previously been convicted of a felony or a Class A misdeme anor; an d who is not seeking d

eferr al for a sexual of fense or a Class A

or Class B felony. Id. § 40-35-3 13(a)( 1)(B)(I )(a)-( c); State v. Parker , 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996).

When a defendant contends that the trial court committed error in refusing to grant judicial diversion, this Court must determine w hether the t rial cou rt abuse d its discr

etion in fa

iling to sentence pursuant to the statute. State v. Electroplating, In c. , 990 S. W.2d 211, 229 (Ten n. Crim. App. 1998); State v. Cutshaw , 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997). Judicial diversion is similar to pretrial diversion; however, judicial diversion follows a determination of guilt, and the decision to grant judicial diversion is initiated by the trial court, not the prosecut or. State v. Anderson
, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992). When a defendant challenges the trial court’s denial of judicial diversion, we may not revisit the issue if the record contains any substantial evidence supporting the trial court’s decision. Cutshaw , 967 S.W.2d at 344; Parker , 932 S.W.2d at 958. As this Court stated in Anderson
,

[w]e conclude that judicial diversion is similar in purp ose to p retrial diversion and is to be impose d within the discreti on of the t

rial cou rt subjec t only to the

same constra ints applicable to prosecutors in applying pretrial diversion under T.C.A. § 40-15-105. Therefore, upon review, if “a ny substantial evidence t o suppor t the refusa l” exists in th

e recor d, we will give the trial court the benefit of its discretion. Only an a buse of th at discre

tion will allow us to ov erturn th e trial c ourt.-5-

857 S.W.2d at 572 (citation omitted).

The criteria that the trial court must consider in determining whether a qualified defendant should be granted judicial diversion include the f ollowing: ( 1) the defendant ’s amena bility to correction; (2) the c ircumsta nces of t he offe nse; (3) the defe

ndant’s c rim inal record ; (4) the defendant’s social his to ry; (5) the defendant’s physical and mental health; and (6) the de terrence value to the defendant and others. Cutshaw , 967 S.W.2d at 343-44; Parker , 932 S.W.2d at 958. An additional consideration is whether judicial diversion will serve the ends of justice, i.e., the inter ests of the public as well as the defendant. Cutshaw , 967 S.W.2 d at 344; Parker , 932 S.W.2d at 958.

The trial court statedthat in d enying judicial diversion, it considered the Defendant’s educational background and lack of a criminal record as positive factors. The trial court found that the Defend ant violated a position of private trust, that he had a mental disorder and that he had admitted using marijuana in the past. The trial court assigned a great dea l of weight

to the fact that the Defend ant viola

ted a position of tru st. The tr ial cour t found tha

t the Def endant’ s proble ms “appear to be asso ciated in

that he le ads a

orderly life” and that if th at order ly life is disturbed, “he’s likely to go off a

nd potenti ally harm

someone around him.” Therefore, the trial cour t denied judicial diversion.

We conclude that the trial court did not abuse its discretion in denying judicial diversion. After being married to his wife for only two weeks, the Defenda ntrepeat edly stru ck his fiv e-year

-old step-daughter

in the face. As a result, the victim sustained large bruises under each eye and a bloody nose. It was also stipulated that Detective Anderson found sever al bruises on the child’s buttocks

area that were in different stages of healing. Although the Def endan t did seek trea tment for his actions, Dr. Peliprin coul d not say whether the Defendant’s anger management improvement was due to being out of the environment or making behavioral chang es. As the trial court noted, the Defendant

violated a position of private trust. The trial court considered several positive factors, but determinedtha t the Defendant’s violation of a position of private trust outweighed the positive factor s. The record contains substant ial ev idence supporting the trial court’s decision to deny judicial diversion, and, thus, we conclude that the trial court did not abuse its discretion.

B. Conditions of Probation

The Defendant also argues that the trial court erred in ordering as a condition of his probation that the D efenda

nt not live i

n the same

household

with a small child. In so finding, the trial court acknowledged

that such a restri ction “c

reates problems with families,” but stated that “the important thing is that we don’t have a repetition of having a situation where the Defendant is in the household withchildren that are vulnerable.” The t rial co urt also required that the Defendant be eva luated through Frontier

Health, a

nd if a pr

ogram of treatm ent and rehabilitation is indicated, that he complete such a program. The trial court ordered tha t the Defendant have no contact with the victim. The trial cou

rt did allo w libera

l, but supe

rvised vi sitation w ith the Defendant ’s fourteen-month -old daughter. The trial court

placed t he Defe ndant on in

tensive p robation subject to

special condition s.-6-

When a criminal defendant challenge s the length, range, or manner of ser vice of a sentence, the reviewing cou r t must conduct a de novo review of the sentence with a presumption that the determinations made by the trial c ourt are correct. Tenn. Cod e Ann. § 40 -35-401( d). This presumption, however, “is conditioned upon theaffirmative showing in the record that the trial court considered

the sentencing principles and all relevant facts and circumstanc es.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In the eve nt that the record fails to show such consideration, the review of the se

ntence i s pu re ly de novo

. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

If our review reflects that

the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence after having given due c onsider ation and proper weight to the factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adequately

supported by the re cord, then we may not modify the sentence

"even if we would have preferred a different res ult." State v. Fletcher
, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The defendant bears the burden of showing the impropriety of the sentence imposed. Ashby , 823 S.W.2d at 169.

A trial court may order condition s of proba

tion that a

re “re asonably

related to the pur

pose of the offender’s sentence and not unduly restrictive of the offender’s liberty, or incompat ible with the of fender’s fr eedom of conscience, or otherwise prohibited by this chapte r . . . .” Tenn. Code Ann. § 40-35-303(d)(9). Although several wi tnesses testified that the Defendant’s demeanor and attitude had impro ved with tr eatment, there is n o guaran tee that t he Defe ndant would not rep eat his behavior. While he was receiving psychological treatment, the De fendant did not live with the victim, and Dr. Pe

tiprin note d that it was difficult to determine whether the Defendant’s a nger management

improvement was due to behavioral changes or simply the fact that he was no longer living with his wife and step-daughter. We agree with the trial court that the safety of the children is of the utmost priority. We note that the trial court allowed for the Defendant to have supervised visitation with his young daught er. Considering the nature of the Defendant’s conviction and the evidence presented at the hearing, we conclude that the trialcourt properly ordered as a condition of his probation that the Defendant not live in a household with young children.

Accordingly, the judgment of the trial court is AFFIRMED.

___________________________________ ROBERT W. WEDEMEYER, JUDGE