1 It is the po licy of this co urt to ide ntify victims o f sexual a buse by their initials o nly.
2 In North Carolina v. Alford , 400 U.S . 25, 3 7, 91 S. Ct. 1 60, 1 67, 2 7 L. E d. 2d 162, 171 (1970), the United States Supreme Court hel d that a defendan t may enter a guilty plea while cl aiming his i nnocence if the “defendant (con tinued ...) 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON May 7, 2002 Session STATE OF TENNESSEE v. RONALD SIMMO NS Direct Appeal from the Criminal Court for Shelby County No. 00-04708 James C. Beasley, Jr., Judge

No. W2001-02352-CCA-R3-CD - Filed August 27, 2002

The defendant

pled guilty to sexual battery , a Class E felony, in exchang e for a two-year sentence. The trial court sentenced the defendant to ninet y day s of we ekend confinement, suspended the balance of the two-ye ar sentence, and placed the def endant on probation fo r four yea rs. The defendant appeals his sentence, arguing that the trial court erred

in denying his petition for judicial diversion and in sentencing him to ninety days of conf

inement. After a re view of the record, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN , J., delive red the opi nion of the court, in which D AVID G. H AYES and J ERRY L. S MITH , JJ., joined.
Robert M. B rannon, Jr., Memphis , Tennes see, for the appe llant, Rona

ld Simmons.
Paul G. Summers , Attorne y General and Repor

ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; William L . Gibbons, District A ttorney Genera l; and L inda Kirk len Dy cus, Assi stant District Attorne y General, for the appellee, State of Te nnessee. OPINION
The defendant, Ronald Simmons, was indicted on May 2, 2000, f or aggravat

ed sexual battery, a Class B felony, f

or his November 20, 1999, sexual contact with the te

n-y ear-ol d victim, C.C. 1 On Marc h 5, 2001, t he defe ndant ent ered a b est

interest guilty plea

under North Carolina v. Alford 2 to sexual battery, a Class E felony

. The defendant subsequently filed a petition for judicial2 (.. .cont inu ed) intelligently conc ludes that his intere sts requ ire entry o f a guilty plea and th e reco rd b efo re the judge contains st rong evidence of

actualguil t.” -2- diversion. On September 5, 2001, the trial court denied this petition, sentenced the defendant as a Range I, standard offende r, imposed a two-ye ar sentence suspended to ninety days of weekend service in the Shelby County Correctional Center, and placed the defe ndant on probation fo r fou r ye ars. The def

endant th en filed a timely notice of appeal, raising two issues: whether the trial court erred (1) in de nying his pe

tition for judicial d

iversion , and (2) in sentencing him to ninety days of confinement before placing him on probation. We aff irm the judgment of the trial court.
FACTS
At the guilty plea

hearing, the

State info

rmed the court tha t if this ca se went to

trial, it would show the following: (1) onSaturday, Novembe r 20, 1999, the defenda

nt broug ht the vic tim to his house so she could play g ames on his computer, (2) while the victim was playing on the computer, the defendant placed t

he victim on his lap and “put his hand underneath her shirt and rubbed her breast,” and (3) a short time later, the defendant aga in placed the victim on his lap and“put his hand beneath her pants, inside her underwear and rubbed on her vaginal are a with his finger.”
At the sentencing hearing, the de fendant testified that he w as living with his wife, his two daught ers, ages 19 and 17, his son, age 11 , and his tw o-y ear-ol d grandson. His f amily had lived in the samehouse in Memphis since 1986 or 1987, and he financially supported his entire family. The defendant said that he joi ned the Air Force when he was 19 and ser ved for two ye ars before transferring to the Air

Nati onal Gu ard. He had recently retired from the Air National Guard after serving fortwenty -four y ears, a ttaining the rank of E-7, Ma ster Ser

geant. He was currently employed at a loc al business doing data entry and database management.
The defendant expressed his desire to be placed on judicial diversion, saying it would en able him to continue to support his family, and that he would not have a problem adhering to any conditions associated with diversion. He said th at he had never been in trouble with the police before this incident, and he had not had any offenses in the two y ears since.
The defendant testified that he had compl ied wi th the trial court’s order to obtain a psychologic al evaluat

ion. He sa

id that he met wit h Dr. John Robert Hutson a few times, took various tests, an d had bee

n candid with Dr. Hutson during their meetings. He had read Dr. Hutson’s report, which concluded that he was a low risk for r epeat offending. The defendant explained why he entered his best-interest plea under Alford : At the time of the tri al I w as sti ll a couple of months away from being e ligible f or retir ement in th

e Air National Guard. So if I had went [sic] to trial and it had went [sic] against me, I would have-3- been, of course, sentenc ed to a min imum of eig

ht y ears and I wo

uld have lost my retirement and my family wouldn’t of [sic] had any source of income, whatsoever.
The defenda

nt said that the Air National Guard told him that he would be immediately terminated if he wer e convic ted, and t

hat a con viction wo

uld have r

esulted in his termination from the Guard anyway , since confinement would have made him unable to report to his Guard duty station. During cross-examination, the defendant denied ever touching the victim

in an inap propria te manner. On the day in question, the victim ca lled and a sked him if

she could come over to hi s house and play on the computer because the computer at her house was lock ed in her parents ’ bedroo m. The defend ant’s wife wa s babysit ting t he vic tim a nd her sibl ings at the victim’s home that day, a nd he and his wife discussed the matter before he picke d up the victim

. He said that he was never alone in his home with the victim because his son and a friend were in the house playing

video games that afternoon. After the defendant picked the victim up from her

house an d took her

to his house , he said that she played a

computer game called “Jazz Jackrabbit” and then watche d the movie “Hocus P ocus” on televi sion with him. The defendant said his so n then ask

ed if he c ould go visit Pa u l Stott’s son, and he took the victim home. After he dropped the victim off at her house, she play ed wi th some child

ren with w

hom she wa s not suppos ed to asso ciate, a nd his wife

scold ed her. Th e defendant said that one of these children had pre viously exposed himself to the victim.
Th e S ta te as ke d t he de fe nd an t t o e xp la in wh y th e v ic ti m w ou ld in ve nt th is st or y: Q. Why

do y ou t hin k [t he victim] wo uld

ma ke thi s up ?
A. I don’t know. Q. You have

no explana

tion for th at?
A. No, I

do not. Q. Did

she dis -li ke [si c] y ou?
A. I didn’t think she did. Q. Di d y’ al l h av e a n a rg um en t t ha t d ay?
A. No. Q. Di d yo u p un is h h er in an y wa y?-4- A. No, I

didn’t. Q. Or

deny her time on the c omputer, or any othe r things like th at , t ha t w ou ld ma ke he r a ng ry?
A. I left her alone on the c omputer to do whatever. Q. So what you’re

telling the Court today is she just went home and told her mother that you touche d her breast and her vaginal area?
A. Well, she didn’t go home and tell her mother. It was later tha t eveni ng, or that night that she had told her mother. And this was, li ke, e arly in th e day, so s he was a t hom e all d ay long, withmy w if

e and other kids and stuff like that, before she said anything to a

nybody , or

said it to her mother, that night. Q. But her

mother wa s not pres ent, thoug h; isn’t tha

t correct?
A. Yeah, s he work ed unt il so meti me in t he even ing. Q. Right. So when she came home then that’s when [the victim] told her?
A. I sup

pose, y es. Several of the defendant ’s friends and fe llow Air National Guard members testified that the defendant is a dedicated, hardwo rking, trustworthy, and civic- minded individual. They eac h stated that they believed the

defendant would have no p roblem f ollowing any c onditions of judicial diversion. However, they all admitted that they did not kno w the victim and were not present the day of the alleged incident. Chris Allen Tackett testified that he had known the defendant for about sixteen years in the N ational Guard and that h

e believ ed him to be

an hones tand trustworthy per son. Tackett stated that if he “felt like [t he de fe nd an t] wa s g ui lt y [h e] wo ul dn ’t ha ve be en he re ” t o t es ti fy. James Daniel Gallagher, the defe ndant’s friend and a fellow member of the Air National Guard, testified that the d

efenda nt is “pra ctically [his] best friend, if not

[his] best friend.” Gallagher stated that the defe ndant live d with his f

amily after the defendant first got marr ied and that the defendant had been around his daughter many times as she was grow ing up. Gal lagher did not believe the accusations agains tthe defendant were true. He de scribed the defendant as “a soul brother” and

did notbelieve the defendant was “capa b l e of doing such things.” Paul Stott testified that he and the defendant had been close friends for about ten yea

rs. Stott testified that he had always trusted the defendant with his young childre

n. He said that the defendant and his son came to his home on the afternoonin question and tha t the defendant did not act unusual. Stott acknowledged that the-5-

defendant was having marital prob l ems during this period. He also said that he believed that the defendant would have told him if he had molested the victim in this case.
The victim testified that the defendant’s wife, Kathy Simmons, was babysittingher and her brother and sister on November 20, 1999, at the victim’s home. She said the Simmons’s son called and told Mrs. Sim

mons that he was re ady

to go home

from a friend’ s house. Mr s. Simmons called the defendant and, while they were talking on the phone, the victim asked if she c ould go to the Simmons’s residence to play on the computer. The defendant picked her up at her house and took her to his house. When she ar rived at th e defendant’s house, she immediately went to the dining roomwhere the computer was located and play ed a “rabbit” game on the computer. The defendant sat “two steps” behind her while she play ed the game. When she “got up for a minute,” the defendant left his seat and sat down in her chair. Th e defend ant “hit his hand on his knees,” indicating to her to sit in his lap. He then reached over, put his hand inside her shirt, and rubbed her breast . She d escri bed he r react ion t o thi s tou ching:

I got up, beca

use I was rea

l scared and I

was tired of play

ing on the computer. So I went down and I sat on the –

well, he had got up first and sat down on the couch. So then, I was tired of playing on the computer so I went over a nd sat on the couch on the ot h er side from him.
The victim said that they watched “ Little Women,” not “Hocus Pocus,” on television for a fe w minutes be

fore the defenda nt picked her up and put her o n his lap on the couch: Q. You were

n’t afra id at that p oint?
A. Well, I wa s scare d, at firs t, but I didn’t figure he was going to do anything e

lse to me. Q. Now, wha

t happened after

that?

. . . . A. Then he reac

hed down into my

pants and started

rubbing my private.
The victim said that the defendant also licked her neck and asked, “Did that feel good?” The victim said the defendant stopped touching her when he heard a door slam

or a car drive by

fast. He picked her up, threw

her on the

couch “ a li t tle bit,” ran to the door, and looked out the window. At that point, the victim told him she wantedto go home . The vic tim denied that the d efenda nt’s son or

his friendwere in the house when the defendant touched her. She sa id she and the defendant were alone in the house . She said t

hat it was only afte

r they picked

up the defendant’s son and all three went to get ice cream th at the defendant finally took her home. The victim testified that she did not tell3 Although Ke lly Grisha m’s testim ony d id not include a d etailed descrip tion of the criteria for C.P.I.T . cases,

the t ranscr ipt i ndicat es tha t th e case at hand was cl assi fied a s a C.P.I .T. case.
4 Th is fig ure repres ents t he number of C. P.I.T. cas es report ed in t he f irs t mont h of t he 2001 fis cal y ear, wh ich
runs from June 2001 to M ay of 2002. Grisham testif ied at the sent encing hearing on September 5 , 2001, and she exp lained that the nu mbe rs of rep orted child a buse cases fo r July an d Au gust 20 01 w ere no t yet availab le. -6- Mrs. Simmons what had happened when she arrive d home bec ause she was “sc ared [Mrs . Simmons] would say that that wasn’t true

. . . and get all mad at [her].” As soon as her mother got home fr om work and Mrs. Simmons had left, the victim told her mother that the defendant had touched her

. During cross -exam inati on, t he vic tim a dmit ted th at alt hough she knew her mother’s number at work, she did not

call her to tell her what had happene d at the de

fendant ’s house. Inste ad, she sa id she went outside to play and w aited until her mother came home from work.
On redire ct, the vi ctim

said she remembered the defendant licking he r neck only a

fter she had talked to the prosecutor several times. The victim stated, “I was reme mbering and I w as on a good roll right then, and I re

membered [the licking incident] and I told [the prosecutor].”
In response t o the court’s questions about this incident, the victim stated that this was the only time the defenda

nt touched her inappropriately

. The victim’s mother test

ified tha t, since th e incide nt, the victim

had ga ined weig ht, become depressed, and let her grades fall. She said that the victim had nightmares for a period of time after the incident . She aske d the cour t to deny the defe ndant’s r equest f or diver sion and to

sentenc e him to jail. The victim’s stepfather, who adopted the victim at an early age, testified that he believed that the defe ndant shou

ld serve so me time

in jail and

should hav e this “on

his reco rd for the rest of

his life.” He said that the victim still has nightmares and has suffere d emotionally. Kelly Gris ha m, th e e du ca ti on an d t ra in in g c oo rd in at or at th e C hi ld Ad vo ca cy C enter, testified that she maintains records on the number of child abuse case s reported in Shelby County each y ear. She explained thatthe Child Advocacy Cente r is notified of child abuse cases as they are reported to the Memphis Police Department, the outlying law enforcement

authorities, andthe Department of Children’s Services. The Center, in turn, is requir ed to report th

is informa

tion to fed eral an d state agencies on a reg

ular basis.
Grisham testifie d that if c ases mee t specifi c criter

ia, then t hey are des ignate d as Chil d Protection and I

nvestig ation Tea

m (“C.P.I.T .”) cas es. 3 These C.P. I.T. cases include ch ild abuse ca ses of a physica

l or sexual nature. Grisham stated that there were 1,360 C.P.I .T. cases reported in Shelby County in 1999 and 2,081 in 2000. I n 2001, 425 C.P.I.T. cases had been reporte d ye ar to date in Sh el by C ou nt y. 4 Grisham stated that 75% of the total number of child abuse cases reported eachyear in Shelby

County were sexual abuse c ases. On cross-examination, Grisham admitted that she did not know how many of these reported cases resulted in indictments or convictions.-7-

Dr. John Robert Hutson, a clinical psychologist, testified that he evaluated the defendant for the sentenc ing hea

ring. B ased on se

veral te sts , inclu ding two recommended by the Tennessee Department

of Corre ction, Dr . Hutson c oncluded that the d

efenda nt was a lo w risk forrepeat offending and that he was an excellent ca ndidate for probation and/or diversion.
At the conclusion of the sentencing hearing , the trial co urt dete rmi ned the defendant’s sente nce and set ou t its reason ing:

Let me prefac e my

remark s by

say ing that decision s in these kinds of cases are never easy . I don’t know the answers and I

don’t know all the sol

uti ons. But , I do know under the law that I have certain obligat ions and I’m g oing to tr y to comply with those obligations as I understand the la w to be written.
I’m going to attempt to address the issues that I think are supposed to be addressed under the law, to the

best of my

ability , to voice it a nd to spea

k it.
Becau se of the offense for which [the defendant] has be e n convictedis a class “E” felony , there i s a presu mptive en titlement t

o probation. An entitlement does not mean that [the defe ndant] automatic ally

gets probation, it means that there is a presumption of an entitlement to probation.
The presumpt

ion can be

overcom e by competent proof

. The factors that I think

need to be considered in this particular case, ob vi ou sl y, [the defe

ndant] has no prior criminal history. There’ s no indication of prior, previous actions, or character of the defendant

that are flawed, or in any

way, inappropr

iate.
In fact, with the material that’s been presented to the Cour t , [the defendant] has, what would appear on the surfac e and on paper, to be, an impeccable background. A long history of service to th e co un tr y. Dedication to one particular position in job. No arrests. No prior cr iminal histo

ry . Until we

reach t his partic ular inc ident.
Under those cir cumstanc es would it

be norma l, or appro priate to consider

[the defe ndant] as a

n individua

l who coul d reason ably

be expected to be rehabilitated? I don’t think there’s any answer but ye s to th at qu es ti on , b as ed up on th e h is to ry.-8- Would [the defendant] be an individual who could abide by the t erms of probation, if imposed? It would appear from hi s background that he would.
Have there ever been alter nativ es to confinement attempted with[the defendant]? Well, he’s never be en arre sted, so th ere is none. The answer

to that would be no, there’s never been any other alte rnat ive p ut for

th for [the d efendant].
Then we get to thefacts and circumstances of the offe nse. In li steni ng to the testimony and reviewing the documents that have been present

ed to me during the course of this hearing , one thing that stand s out in my mind, that is very difficult for me to over come , fr an kl y, I have a ten y

ear old child who makes an allegation of a sexual offense that’s been committed against her. I have no indication that

the child has been an inappropriate child; has a history of problems ; has a his tory

of ly ing; hasa history of wild and vivid imagination. I ha ve no th in g m or e, fr an kl y, than a nor mal, ty pical, ten year old child, who makes an allegation against a ma n who has no prior history and no pr

ior rec ord and n o prior in dicatio n of being a sexual offender.
So the quest

io n, the n, becomes why. Why would a ten yea

r oldchild, and frankly

it’s kind of hard to keep in mind th at what I have before me now is a ma turin g, taken in context, twelve ye ar old child, versus the alleged victim at the time of the offense w as a ten year old c hild. Whywo uld a ch ild make an allegation, such as the one we have here tod ay , again st a man tha t, by all acc ounts, has been

withhis fa mi ly, an activ e part of

her li fe for – I never did g et it straight, but eight, nine months to a year. An d it appea rs from a s best I

can rec all the testimony that the Simmons family baby-sat for

these chi ldren , two to three times, or more, a week, for that period of time.
No animosity . No alleg ations of inapprop riate behavior. No indications from the children that the Simmons w ere ug ly to them, or that there was a problem, or that they were not good baby -sitters. To the contrary . Everything

was good, based

on the testimony

that I’ve heard. No reason for such an alleg ation to be made.
Fr an kl y, som e in nue ndo es w hi ch I don’ t know the basis for the in nuendo , but some innuendo. But, even considering the-9- innu endo, the thing tha

t I ca n’t get out of my

mind is, why , if it’s a made up story, why

pick the individual who would, at least, seem to be close to your f

a mily as the pe rpetra tor. Why not pick th

e ugly neighbor down the street? Why not pick them ean guy next door? Whynot pick the teacher

that you don’t like at school? Why pick an individual who ’s [si c] children have been baby -sitting you, who’s [sic] wife hasbeen ba

by- sitting y

ou, who’sappare

ntly interac ted with you. Who’s apparently ca used no problems, had no prob lems , no indication of any kind of a nimosity. Why

pick that person to make these allegations against? That just doesn’t make sense to me.
And I understandchildren often do things and say things and get themselves in a

position that it’s hard to get themselves out of. I understandthat. But, I don’t know too many children that

tell lies to get themselve s into troub le. And it j ust does not seem to f it in this case. It doesn’t make any sense to me that

this little girl would make this up.
S o, we have a situation where an alleg ation has been m ade

. If the allegation[] is true, [the defendant] is not entitled to probation. But, because of thenature o f, whether it be th e case, whether

it be our sys tem, whether it be any

number of fact ors. The ability of [defe nse counsel] to negotiate, I don’t know. But, [the d efenda nt] pled guilty to a lessor offense, a class “E” fe lony, sexual batter

y, which by

law there is a presumptive right to probation.
The enormity

of the of

fense, in my

mind is gre at. The depravation of a ten ye ar old[’s] innocence, in my mind, is a gr eat harm. That is som

ething, in my

mind, that o nce lost

is probably neve

r recoverable. I ’d like to think that it can be, but I don’t know. Following the guidelines of the statute, 40-35-303, probation consideration and case law considerations the Court has cons ide red the facts a

nd circu mstance s surrounding thiso ffe nse, which I have stated.
Ob vi ou sl y, [the defe ndant] has no prior history. His actions and character

appear to be good, with the exception of this incide

nt.
Could we reasonabl[y] expect, based up on his prior history that he wo

uld be re habilitat ed? I se e no rea son to doub t that.-10- Would he abide b y the terms set by this Court? I see no reason t o doubt tha

t.
The interest of society a nd being protected from pos si ble future criminal conduct of the d efendant. It would appe ar to me, basedon the testimony of Dr. Hutson, based upon the background

of [the defendant], based

upon th e testimony of his friends and acquain tances, that [the defendant] would be an individual that if he didmake a mistake, is capable from learning from that mistake and would not be the kind of

individual, based on even the cold, calculated, statistical facts that we’re asked to consider. Would not be an individ

ual that w ould be lik

ely , in this case, to commit this type of an offense, again.
So I would think that the inter est of society and be

ing protected from possible, future criminal condu ct tha t the defendant could comfortabl y rest assure d that we would not have [the defendant] to deal with, again.
Is confinement necessary to avoid deprec iating th

e seriou sness of the offe nse? And also , is confinem ent part icularly suited to provide an effec tive d eterrence to others likely to commit similar of fe nse s[?]
Those are the two cases at issue that I ’m struggling with.
I can’t get aro un d the facts of the particular case. I t is the opinion of the Cou

rt that div ersion in

this particular case, based upon the nature of the case, th e facts of the case, the serious alleg ations involved in the ca se and I understand that it has bee n pled down to an “E” felony . But, the

allega tions involv ed in this w ould cons titute a

–I believe it’s a “B” felony, which indica tes that the legislature has seen fi t to make the allegations of this particular ty pe of a crime, a serious offense . And it w ould a ppear to this Court that diversion, under those circumstances of the facts of the ca se, the e motional effect and impact that this has had on the v ictim. T he fact that dive rsio n, in my mind, would completely depreciate the serious nature of this offense. I am of the opinion that diver s ion is not appropriate for this crime and for this offense.
I d o not feel, however, that complete confinement is nece ssary in this particular case, based upon [the defendant’s] background and his history. I

do feel he is a worthy

candidate for probation.-11- I feel tha

t some con

finemen t is nece ssary

to avoid depreciating the serious nature of this offense and also to provide an effectivedeterren ce to others likely to commit similar ty pes of offense s. It’s apparent from theproof that’s been presented that sexual abuse of children is a problem in our community. I t is a crime that does not usually involve

witnesses. It is usually

a crime that does not involve a lot of evidence. It’susually a crime involving adults [sic] word against the child’s word. And i t would ap pear to m e that if word is not sent out that if the proof is sust ained that anybody that commits this type of an offense should be confined.
It would not be an effective deterrenc e to others to place [the defendant] completely on pr obation. I’m g oing to

do this. I’m going

to requir e [the def endant] to serve 90 days at the Shelby County Correctional Center. I n light of his history

and in lig ht of the f act that h e is pres ently

employ ed I will consider allowing him to serv e that se

ntence o n weeke

nds.
He will be on probation for a period of 4 years. I

will require, as a conditi on of probation, pursuant to statute, sexual offender treatment progra m and that

will be the

only special condition that I ’ll put.
ANALYSIS
In his appeal, the defendant argue s thatthe trial court erred in deny ing his petition for judicial diversion and in sen

tencing him to ninet

y da ys o f confinement before pla cing him on probation. The Stateresponds that the record adequately supports the trial court’s decision to d eny diver sion and that the defendant has failed to show that the court ’ s imposition of ninety day s of conf

inement is improper.
When an accused

challenges the

length and manner of service of a sentence, it is the duty of this court to conduct a de novo review on the re cord with a p resumption that “the determinations made by t he court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-40 1(d ) (1997). This presumption is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant fa cts and circumstances.” State v. Ashby , 823 S.W.2d 166, 1 69 (Tenn . 1991). T he presu mp tion does not apply to the leg al conclusions reached by the trial court in sentencing the accused or to the determinations made by the trial court which are predicated upon uncontroverted f acts. State v. Butler , 900 S.W.2d 305, 311 (Tenn. Cr im. App. 1994); State v. Smith , 891 S.W.2d 9 22, 929 (T enn. Crim. App. 1994) ; State v. Bonestel , 871-12-

S.W.2d 163, 166 (Tenn. Crim. App. 1993). Ho wever, this cour t is requir ed to giv e grea

t weigh t to the trial court’s determination of controverted facts as the trial court's determination of these fa cts is pre dicat ed upo n the w itnes ses’ d emeano r and ap pearan ce when testi fying.
Since the defendant

challenges his sentence, he has the bur den of proving that his sentence was erroneous. See Tenn. Code Ann. § 40-35-401 (1997), S entencing Commiss ion Cmts.; see also Ashby , 823 S.W.2d a

t 169; Butler , 900 S.W.2d a t 311. This c ourt must consid er the following factors when co nduct ing a de novo review of a sentence: (a) a ny evidence

received at the trial and/or sentencing hearing, (b) the presentenc e report, (c) the principles of sentencing, (d) the arguments of counsel r elative t o sentenc ing alte

rnative s, (e) the nature and characteristics of the of fense, (f) any mitigating or enhancement factors, (g) any

statements made by the a ccused in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-10 3, -210; State v. Sc ott , 735 S.W.2d 825, 829 (Tenn. Crim. App. 1987)

. I. Denial of Judicial Diversion
The defendant argues that the trial court erred

in denying his petition for judicial diver sion, saying that altho

ugh the trial cou rt mentioned various facto rs in suppo

rt of dive rsion, it f ailed to actually weigh t hese fa ctors. The trial court’s emphasis on the alleged offe nse, he argue s, effe ctively prevented him from ever being considered for dive rsion. See State v. Markham , 755 S.W.2d 850, 853 (Tenn. Crim. App. 1988) (“Denial of diversion based only on the e ssential elements of a crime, withoutjudicially weig

hing all relevant

factors, effectively

excludes persons charged with that crime from consideration for pretrial diversion. Only the legislature has that preroga tive.”)
Second, the defe

ndant ar gues th at even if the trial court properly considered all of the appropr iatefactors, the rec or d does not s upport a d enial of judicial d

iversion . In s upport of

his argume nt, the defendant emphasizes the following facts: he supports h

is entire family ; he serv ed his country for twenty-f

our years in the A

ir Force and the Air National Guard; he has no criminal record; his friends and coworkers testified that they did not bel

ieve he w as capa

ble of co mmitting th

is crime; and Dr. Hutson testified that he was a low risk to repeat offend and a good candidate for probation and/or diversion. The defendant also points out several problems with the victim’s testimony : the victim request ed to come

to his resi dence to

play g ames on the computer; the victim chose to sit on the couch next

to the defendant after the alleged inappropriate touching occurred; the victim failed to run away f

rom the defendant or call her mother once she arrived home; and the victim fa iled to tell the police about the defendant licking her neck. The defendant argues that the record lacks any significant evidence to support the denial of diversion.
The judicial diversion statute provides that following a determination of guilt by plea or by trial, a trial court may , in its discretion, defer further proceeding s and place a qualified, consenting defendant on probation without entering a judgment of guilt. Tenn. Code A nn. § 40-35-313(a)(1)(A) (Supp. 200 1). Acc ording t o this statu

te, a qua lified defendant

is one who :-13- (a) Is found guilty

of or pleads guilty

or nolo contendere to t he offense for which defer

ral of fu rther pr oceedings is soug

ht; (b) Is not seeking def

erral of further proceeding s for a sexual off

ense or a Class A or Class B felony ; and (c) Has not pr

evio u sly been co nvicted o f a felo ny o r a Class A misdemeanor.
Tenn. Code Ann. § 40-35-313(a)(1)(B)(i) ( Supp. 2001). If th e defendant succ essfully

complete s his period of probation, the trial court is required to dismiss the proceeding s against him, and the defendant may have the records of the proceeding s expunged. Tenn. Code Ann. § 40-35-313(a)(2), (b) (Supp. 2001).
The decision to grant or deny a qualified defendant judicial diversion lies within the sound discretion of the trial court. Stat e v. El ectrop lati ng, Inc. , 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998); State v. Cutshaw , 967 S.W.2d 3 32, 344 (T enn. Cr im. App. 199 7); 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 (Tenn. 2000). As such, it will not be disturbed on appealabsent a n abuse of discretion. Electroplating , 990 S.W.2d at 229; Cutshaw , 967 S.W.2d a t 344; Bonestel , 871 S.W.2d at 168. To constitute an abuse of discr etion, the record must be devoid

of any substantial evidenc e in support of t he trial court’s decision. Cutshaw , 967 S.W.2d a t 344; Bonestel , 871 S.W.2d at 16 8; State v

. Anderson , 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992).
In determin

ing whe ther to g rant dive rsion, the trial cou rt consid ers the f ollo wing: (a) the accused’s amenability to correction, (b) the circumstances of the offense, (c) the accuse d’s criminal record, (d) the accused’s social history , (e) the accused’s phy sical and mental health, (f) t he deterrence

value to t

he accu sed as we

ll as other s, and (g) whether judicial diversion will serve the interest s of the public as well as the a ccused. Electroplating , 990 S.W.2d a t 229; Bonestel , 871 S.W.2d at 16 8. A tri al court should not d

eny judicial d

iversion without expl aining t

he fact ors in support of its denial, and how those factors outweigh other fa ctors in favor of diversion. Id.
It is apparent from the record that the trial court considered all factors releva nt to judicial diversion, including

the leng thy and thoro ugh pre sentation

on behalf of the defendant. However, the factors favorin g diver sion, in the view of the trial court, were outweig hed by the victim’s testimony that the defe ndant touc

hed her b reast a nd rubbe d her vag

inal are a; the sub sequent e ffect of th ese touchings on the victim; and the belief that diversio n would not

deter ot hers but w ould depr

eciate the seriousness of the offense. As we have discussed in ou r analy sis, we re view this r

uling to determine whether the trial court ab used it s discretion in denying diversion; and, to find abuse of discretion, we must determine that no substantial evidence exists to support the ruling of the t r ial court. Here, although there were numerous factors favoring judicial diversion, the trial c ourt determinedthat

these were outweighed by the factors, enumerated by the court, against diversion. The evidence presented in this matter was such that the trial cour t would h ave acted wi thin its-14-

discretionary

authority had it gr

anted judicial diversion. However, we c onclude t hat ther e is substantial evidenc e inthe record supporting the reasons enumer ated by the trial c ourt

for denying diversion, and, thus, that the court did not err in doing so.

II. Impos ition of Ninety Days of C onfinement
The defendant argues that his entry of an Alford

plea to the Class E felony of sexual battery raises a presumption that he should be entitled to probation, which the State has failed

to overcome. To buttre ss this claim, he points to the testimony of Chris Tackett, Paul Stott, and James Daniel Gallagher concer ning his g ood char

acter, dedicat

ion to his wo

rk, and u nblemish ed past. He also focuses on the testimony of Dr. Hutson, a witness for the State, who concluded that the defendant was a low risk to repeat offend and a good candida te for pr obation. I n addition , the def

endant c laims the State’s evidence concerning se xual abuse in Shelby County is incomplete and cites the s ame weaknesses in the victim’s testimony. Given this evidence, the de fendant argues that

the State has failedto rebut the presumption of probation. However, the State argue s that the need for deterrence, the facts of the offense, an d the defe ndant’s l ack of c andor sup port the tr

ial cour t’s decis ion to impose ninety day s of confinement rather than full probation.
It appearing that

the trial court considered the sentencing principles a nd all relevant facts and circumst ances, o ur revie w of this is sue is de novo with a pre sumption of correctness.
The Tennessee Criminal Sentencing Refor m Ac t of 1989 e

ncourag es trial c ourts to us e alternatives to confinement when sentencing defendants. See

Tenn. Cod

e Ann. § 40 -35-102( 3)(C) (1997); see also State v. Ashby , 823 S.W.2d 166, 168 (Tenn. 1991). According to Tennessee Code Annotatedsection 40-35-102(6), “an especially mitigated or standard offender convicted of a Class C, D or E felony is pre sumed to be a favora ble candidate for alternative sentencing options in the absence of evidence to the contrar y.” Tenn. Code A

nn. § 40-35-102(6) (1997).
Even if a def

endant iseligible

for prob ation, he

or she is n ot automatica lly e ntitled to probation as a matter of law. See Tenn. Cod e Ann. § 40 -35-303(

b) (1997) . The bur

den is upon the defendant to show that he is a suitable candidate for probation. Statev. Goode , 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); Statev. Boggs , 932 S.W.2d 467, 477 (Tenn. Cr im. App. 19 96); see Tenn. Code Ann. § 40-35-3 03(b) (1 997). I n order t o meet thisburden, the defe ndant “mu st demonstr

ate that probatio n will ‘subserve the ends of justice and the best interest of both the public and th e defendant.’” State v. Bingham , 910 S .W.2 d 448, 456 (T enn. C rim. A pp. 19 95) (q uoti ng State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)).
There is no bright line rule for determining when a defendant should be g ranted probation. Bingham , 910 S.W.2d at 4 56. Ever y se ntencing decision necessa rily require s a case -by -case analy sis

. Id. Fa ctors to be considered include the circumstances surr ounding the offense, the defendant’s criminal

record , th e defendant ’s social history and pre sent condition, the need for d eterrence, and the best interest of the defendant and the public. Goode , 956 S.W.2d a t 527

. Another appropriate factor for a trial cour t to consider in determining whether to grant p robation is-15-

a defe ndant’s cred ibility or lack thereof, a s this reflects on the defendant’s potential for rehabilitation. Id. Also rele vant is w hether a sentence of probation would unduly depreciate the seriousness of the offense. See State v. D avis , 940 S.W.2d 558, 559 ( Tenn. 199 7); Bingham , 910 S.W.2d at 456.
As a preliminary ma

tter, we note that the trial court al lo we d w ee ke nd se rv ic e o f t he ni ne tyday sentence so that the defendant could continue to su pp or t h is fa mi ly. As previously mentioned, the trial court acknowledged the defe ndant’s lack of a cri m inal history and rec ognized the defendant’s dedication to his job and his country. The c ourt noted that the evidence showed that the defendant could be rehabilitated and that there was a statistically low cha nce that he would reoffend. However, despite a

ll this fav orable

evidenc e, the tr

ial cour t still felt that “some

confine ment [was] necessary to avoid deprec iati ng the serious nature of this offense and also to provide an ef fective deterrence

to others likely to commit similar ty pes of offenses.” The court stressed that a lthough the charge in this case was pled downto a Class E felony, ther eby trig gering the possibility of alternative sente ncing, “the serious allegations involved in the case . . . wo uld consti tute a . . . [ Class] ‘ B’ fe lo ny, which indicate s that the l egisla ture hasseen fit

to make the allegations of this particular ty pe of a crime, a seriou s offens e.” For these re asons, t he trial c ourt sent enced th e defendant to ninety da ys of confinement. The transcript of the sentencing hearing indicates that the trial court considered the circumstances of

the offe nse, the d efenda nt’s cha racter and cre dibility , the best

interests of the defendant and society , the value of deterrence, and the se riousness of the offense. After weighing these f actors, the trial court determined that the defenda nt was not entitled to full probation. Alth ough the record would support a granting of total probation, based upon our de novo review of the trial court’s ruling, we cannot conclude that the court erred in ordering that the de fendant serve ninety day s in confinement, with the remainder of his sentence to be proba ted.
CONCLUSION
Based on the foregoing authorities and re asoning, we affirm the judgment of the trial court.

___________________________________ ALAN E. GL

ENN, JUDGE