IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 2, 2004

STATE OF TENNESSEE v. RONALD HARRISON

Direct Appeal from the Criminal Court for Shelby County

No. 03-03860 Chris Craft, Judge

No. W2003-00685-CCA-R3-CD - Filed December 2, 2004

The Defendant, Ronald Harrison, was indicted for rape, and he pled guilty to the lesser-included

offense of sexual battery. After holding a sentencing hearing, the trial court denied the Defendant’s

request for judicial diversion, suspended sentence and probation, and sentenced the Defendant to two

years in the county workhouse. The Defendant appeals, contending that the trial court erred when

it: (1) denied his application for judicial diversion; and (2) sentenced him to two years. After

thoroughly reviewing the record, we conclude that the trial court did not err when it denied the

Defendant’s application for judicial diversion. Further, we hold that the trial court improperly

enhanced the Defendant’s sentences in light of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531

(2004), and we reduce the Defendant’s sentence in accordance with this opinion to the presumptive

minimum of one year. We remand the case for the entry of appropriate judgments of conviction.

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

Reversed in Part, and Remanded.

ROBERT W. WEDEMEYER,J., delivered the opinion of the court, in which JERRY L. SMITH and J.C.

MCLIN, JJ., joined.

Jeffery L. Stimpson, Munford, Tennessee, for the appellant. 

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Michele Parks, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Facts

This case arises out of the Defendant’s conviction for sexual battery, a class E felony. On

June 5, 2003, the Defendant was indicted by the ShelbyCounty Grand Jury on one count of rape, and

he pled guilty to sexual battery. At the Defendant’s sentencing hearing, the following occurred.
It is the policy of this Court to refer to victims of sexual offenses by their initials only.

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The victim, T.T., testified that, at the time of the hearing, she was thirty years old. She said 1

that, in September of 2002, she was working at Forest Hill Funeral Home as an apprentice while

going to school to be a mortician. The victim said that the Defendant was her supervisor/manager

at the home. She said that approximately six or seven months after she began working at the funeral

home, during September of 2002, the Defendant sexually assaulted her. She said:

We were in the chapel. We had turned off the lights in the building in order to go

home. And we were in the chapel where we were turning off the lights in order to

leave. And it was real dark in the chapel. And I had made some comments about it

being [sic] spirits and scary and spooky in the chapel. And [the Defendant] told me

to come back to the back part where the two doors are in the middle of the chapel.

And he told me it’s darkest back here. And so when we went back there, we stood

back there. And I was like, I’m scared being back here because it was dark and the

spirits, and he made a comment. He didn’t say it in a manner that was, I guess

supposed to make me scared, it was a joking manner. The only thing you have to fear

is me. And he didn’t say it in a way to intimidate me. But then after that, he rubbed

my breast area and my stomach. He was behind me. And he asked me if I—if he

could kiss me. And I said huh-uh. He kissed me anyway. It’s the pews or benches

like those out there in the chapel. He told me to sit down. I sat down. And he told

me he wanted me to touch him. I was just scared. So I touched him . . . his genitals.

The victim said that she was scared because the Defendant was her supervisor, and she asked “who

am I going to tell?” The victim said that the Defendant unzipped his pants and pulled out his penis.

She said that he pulled her head to it and put her hands on it. She said the Defendant walked her

around the bench, bent her over, and had sex with her. She again said she was scared.

The victim testified that she did not immediately tell the police about the incident, but a few

days later, she told her uncle, who is a police officer. She said that it took a few days to tell anyone

about the incident because she “just thought he made me do something I didn’t want to do. I thought

rape was getting beat[en] up and brutal.” The victim said that she said “huh-uh,” before she “just

froze.”

The victim testified about the impact that this incident has had on her life. She said that she

goes to counseling and has been diagnosed with post traumatic stress disorder. She testified that,

because of this assault, she attempted to kill herself twice, once by taking a lot of pills and another

time by cutting herself. The victim said she is still in counseling and goes once a week. She said

that she is taking anti-depressants and tranquilizers. She testified that she has to start her life over

because she no longer wants to be a mortician, even though she graduated at the top of her class.

The victim said that the Defendant hurt her, and she is scared to be in a closed environment. She

said that she cannot trust anyone.
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On cross-examination, the victim testified that she told the Defendant “huh-uh” one time, and

then she froze. The victim said that “huh-uh” means “no.” The victim said that the room was dark,

and she did not know if the Defendant could see her face.

The Defendant testified that he pled guilty to sexual battery, and he was asking the trial court

for judicial diversion or probation. He said that when the victim said “huh-uh” he understood her

to say “uh-huh,” but “looking back, you know, maybe Ishould have recognized she didn’t mean that.

But she offered no other resistance. I had no reason to think otherwise.” He said that, now that he

has seen what this encounter has done to the victim, he regrets his actions “terribly.” The Defendant

apologized to the victim and to her family. He said that he used poor judgment, and he was deeply

sorry. He said that he regretted his actions every day. 

The Defendant testified that he understood that the victim had filed a civil suit against him

and that his statement would prove her case. He said that there was also another sexual harassment

lawsuit pending against his company, but the suit was stayed by the company’s bankruptcy. The

Defendant said that he has never been arrested before and has only had a few speeding tickets in the

past. The Defendant said that he just wanted to get this behind him and never go through anything

like this again. He said that he understood that he could be required to register as a sex offender

wherever he lives for the rest of his life.

On cross-examination, the Defendant stated that, several years ago, he had consensual sexual

relations with two other female employees. The Defendant said that, when he was first questioned

by the police about this case, he said that he had “never touched” the victim. He said that he “had

given [his] employer a statement that nothing had happened because [he] knew [he]would lose [his]

job if [he] told them otherwise.” The Defendant said that, after he was arrested, he admitted to his

wife and his attorney that he had intercourse with the victim. The Defendant said that he understood

the victim to have said “uh-huh” and that he kissed her and things just progressed from there. He

said that she offered no other resistance. He testified that he did not plan to “make a move. It just

happened.” On re-direct examination the Defendantsaid that the incident occurred in a “fairly large

room” that had several exits. 

When sentencing the Defendant, the trial court stated:

Well, looking at the diversion consideration in State v[.] Bonestel . . and State v.

Parker. His [amenability] to correction, I think is a question mark. I don’t know if

he’ll be able to stop this sexual activity. I think he’ll probably if he were placed on

probation, probably wouldn’t violate out of fear. I’m not sure he wouldn’t start right

back later. The circumstances of the offenses are extremely aggravated in my

opinion, especially the los[s] to this woman of her career. He has no criminal record

other than smoking dope in the past a few times. His social history is somewhat

suspect given past sexual harassment of employees and people that he worked with

which is just an absolutely horrible thing. His physical and mental health appears to

be normal.
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A key here to diversion is deterrent value to the accused. I just don’t see him

doing this and feeling like nothing happened. That he can get away with it. And

whether judicial diversion would serve the interest of the public as well as the

accused, it seems to me that this man needs a felony record because I have a distinct

feeling, given her testimony and his testimony, [the Defendant] is lying. And it’s just

almost as clear as I can be, the difference between his testimony and hers, is this lady

is telling the truth. And I just cannot give this man diversion for violating her the

way he did. He knew it was wrong and just did it anyway.

A striking thing about this case is looking at the [D]efendant’s version of

these facts which are, although the [D]efendant testified and acts like well, you know,

I thought she said uh-huh. And she said huh-uh, and really, we really agree on the

same things, it was just a mistake. And I noticed the [D]efendant’s testimony where

he said I made a mistake. This wasn’t a mistake. This was a purposeful violation of

another human being. Treating them as meat when you were controlling them as

supervisor. And a particular other quote he said, she offered no other resistance.

When a lady is working at a work place and her boss is in control of her career that

she’s gone to school for, what kind of resistance is she supposed to offer? How in

the world can anybody be justified in putting somebody in that position?

Suppose one of my clerks here, I asked them to have sex with me after court

today? What are they going to do? Realizing that if they complain against me,

they’re not ever going to get promoted in the clerk’s office. Lawsuits, all of these

politicians mad at them, them mad at me. All of this stuff going on. It’s just

absolutely inexcusable in today’s world. But here’s what he says. Here’s the story

he tells in his presentence report. [T.T.] and I . . . were the last two employees left to

close down the building at 5 p.m. After turning off the lights in the chapel, she said

it was scary in there. I told her there was nothing to be afraid of. She walked over

and stood close beside me. I asked if I could kiss her. She said un-huh. I kissed her

and then I touched her breast. I sat down on one of the pews. She straddled my lap.

Okay. None of this was mentioned by this [D]efendant just a minute ago. She

straddled my lap. I unbuttoned her shirt, lifted her bra, began touching her breast.

After a short time, I asked if she would touch me. Well, obviously if she’s going to

get on his lap and straddle it and give him a little lap dance, obviously he would

think, yeah, sure, go for it. But that’s not what happened. No. This fellow’s just flat

lying about what happened. And he needs to realize that he’s not telling the truth.

His wife needs to realize that he’s lying. She got off my lap and sat on the pew. I

stood in front of her and unzipped my pants. She took out my penis and

beg[an]giving me oral sex. After a short time I told her we should stop because Dub

Nance and Wendel Smith should be right—in other words, he’s the one that said let’s

stop, not her. [We] [w]ent to the funeral director’s work office after we fixed our

clothes. Dub and Wendel arrived at that time. And then 20 minutes went by with
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other people around them. And then they clocked out and left. And we went back

in the chapel. Itook off my pants and she began giving me oral sex again. I removed

her pants and gave her oral sex. 

Now, somehow the victim forg[ot] to leave out the fact that she took off her

clothes and he gave her oral sex for a while. That just—it just flat didn’t happen.

This man is a liar. I stood up and walked around behind the pew and motioned for

her to follow me. She walked around and stood in front of me. She bent over and

I penetrated her vagina from behind. After we were finished, I picked up my clothes

and went to the men’s room to clean up. She went to the ladies room to clean up and

get dressed. After we were dressed, she clocked out and we left.

This is just—there’s just no way this is a true version. This man wants to get

here and say, Judge, I’m going to commit perjury in front of you and commit a felony

right in front of your eyes. And I want probation, diversion. It’s just not going to

happen, [Defendant]. If you’d taken the stand and you’d told the truth ab[o]ut what

was going on, then maybe we would do something for you. But you’re still lying.

You’re still persecuting this young lady. And that’s the problem. You still can get

a job somewhere, but all those years of work she ha[s] have come to no avail. She

offered no other resistance. That’s the quote that I wrote down. Absolutely no

diversion, not only because of the past episodes which weren’t crimes, but because

you’re lying today on the stand, absolute lack of candor. You want to say just enough

to where everybody will believe that it was an honest mistake. This was not a

mistake. It was a crime. And when you were in charge – one of our enhancement

factors and I’ll just read it from the statue that I can use to apply.

I absolutely find in this case that the [D]efendant abused a position of private

trust in this case. Looking at the probation considerations, there’s a presumption of

an alternative sentence. I’ve considered the presentence report; his physical and

mental condition, his social history as I’ve described. The facts and circumstances

surrounding the offense; the nature and circumstances of the criminal conduct which

were aggravated for a sexual battery case. This wasn’t just a case where somebody

walked up to somebody standing at a stop sign and grabbed their breast. This was

a calculated, intimidation of someone else that was under your care. To take

advantage of her and basically be a predator of her body.

I’ve considered your lack of criminal history other than this marijuana

smoking. The previous actions of the [D]efendant. The fact that the other

complaints were going on. That you were doing this to people who were working for

your employer as well as being their supervisor. Whether or not you might

reasonably expect to be rehabilitated. I just, because of the lies, I don’t really think

that this man is rehabilitated. And I think that this man will probably re-offend again

some day as soon as he’s in a position of power over women. Whether or not you’ll
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abide by the terms of probation, and I think he will. I think he’s scared. And I think

he’ll abide by the terms of probation. Whether or not the interest of society and

being protected from possible future criminal conduct from the [D]efend[ant] are

great. I would say yes, they are. No measures less restrictive than confinement have

been applied because he’s never been prosecuted before.

Whether or not a sentence of full probation would unduly depreciate the

seriousness of the offense. Absolutely yes. It would make him feel like he’s not a

criminal, and what he did is really not right and that he’s the one that’s being

misunderstood. Whether or not confinement is particularly suited providing effective

deterrent to others. It may be. I really can’t find that from the record, but it very well

may be if this gets around in the funeral home business. I thought in this case

because of [the] presumption of an alternative sentence, that maybe he would deserve

some kind of alternative sentence and not full probation.

The problem I see in this, though, is with this man actually having the gall to get on

the stand and say, yes, she told the truth. We just had a misunderstanding,

completely mitigates against giving this man any probation whatsoever. 

The trial court then sentenced the Defendant to two years in the work house. 

II. Analysis

The Defendant presents two issues for review, both of which involve his sentence. First, he

contends that the trial court erred when it denied his request for judicial diversion. Next, he asserts

that the trial court erred when it ordered enhanced his sentence. When a defendant challenges the

length 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 court from which the appeal is

taken are correct.” Tenn. Code Ann. § 40-35-401(d) (2003). This presumption is “‘conditioned

upon the affirmative showing in the record that the trial court considered the sentencing principles

and all relevant facts and circumstances.’” State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001) (quoting

State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999)); State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). The presumption does not apply to the legal conclusions reached by the trial court in

sentencing a defendant or to the determinations made by the trial court that are predicated upon

uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001); State v. Butler,

900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith 891 S.W.2d 922, 929 (Tenn. Crim.

App. 1994). In conducting a de novo review of a sentence, we must consider: (a) any evidence

received at the trial and/or sentencing hearing; (b) the presentence report; (c) the principles of

sentencing; (d) the arguments of counsel relative to sentencing alternatives; (e) the nature and

characteristics of the offense; (f) any mitigating or statutory enhancement factors; (g) any statements

made by the defendant on his or her own behalf; and (h) the defendant’s potential or lack of potential

for rehabilitation or treatment. Tenn. Code Ann. § 40-35-210 (2003); State v. Taylor, 63 S.W.3d
Sexual battery is not a “sexual offense” as defined by this section of the statute.

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400, 411 (Tenn. Crim. App. 2001). The party challenging a sentence imposed by the trial court has

the burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401(d),

Sentencing Comm’n Cmts.

In the case under submission, we conclude that there is ample evidence that the trial court

considered the sentencing principles and all relevant facts and circumstances. Therefore, we review

its decision de novo with a presumption of correctness. Accordingly, so long as the trial court

complied with the purposes and procedures of the 1989 Sentencing Act and its findings are

supported by the factual record, this Court may not disturb this sentence even if we would have

preferred a different result. See Tenn. Code Ann. § 40-35-210, Sentencing Comm’n Cmts; State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). We note that the defendant bears the

burden of showing that the sentence is improper. Tenn. Code Ann. § 40-35-401, Sentencing

Comm’n Cmts.; Ashby, 823 S.W.2d at 169.

A. Judicial Diversion

The Defendant argues that the trial court abused its discretion in declining to impose a

sentence pursuant to Tennessee Code Annotated section 40-35-313 (2003), commonly referred to

as “judicial diversion.” According to this statute, the trial court may, at its discretion, following a

determination of guilt, defer further proceedings and place a qualified defendant on probation

without entering a judgment of guilt. Tenn. Code Ann. § 40-35-313(a)(1)(A). A qualified defendant

is one who: 

(a) Is found guilty of or pleads guilty or nolo contendere to the offense for which

deferral of further proceedings is sought;

(b) Is not seeking deferral of further proceedings for a sexual offense or a Class A 2

or Class B felony; and 

(c) Has not previously been convicted of a felony or a Class A misdemeanor. 

Tenn. Code Ann. § 40-35-313(a)(1)(B)(i)(a), (b), (c) (footnote inserted). When a defendant contends

that the trial court committed error in refusing to grant judicial diversion, we must determine whether

the trial court abused its discretion by denying the defendant’s request for judicial diversion. State

v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. 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 prosecutor. 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; State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). In

Anderson, this Court stated: 
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We conclude that judicial diversion is similar in purpose to pretrial diversion and is

to be imposed within the discretion of the trial court subject only to the same

constraints applicable to prosecutors in applying pretrial diversion under Tennessee

Code Annotated § 40-15-105. Therefore, upon review, if “any substantial evidence

to support the refusal” exists in the record, we will give the trial court the benefit of

its discretion. Only an abuse of that discretion will allow us to overturn the trial

court. 

Anderson, 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 following: (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; and (6) the deterrence

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 interests

of the public as well as the defendant. Cutshaw, 967 S.W.2d at 344; Parker, 932 S.W.2d at 958;

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. 2000). 

In the case under submission, the trial court found that the Defendant’s amenability to

correction was a “question mark,” because it did not “know if he’ll be able to stop this sexual

activity.” The trial court also found that the circumstances of this offense were “extremely

aggravated” considering the victim’s loss of her career. The trial court stated that the Defendant’s

social history was “suspect given past sexual harassment of employees and people that he worked

with . . . .” Finally, the trial court considered the deterrence value to the Defendant and others and

found, “I just don’t see him doing this and feeling like nothing happened. That he can get away with

it.” Further, the court found that the Defendant needed a felony record in order to appreciate the

seriousness of his actions, because it was apparent that the Defendant lied to the court. After

considering these factors and findings, the trial court denied the Defendant’s request for diversion.

We conclude that there is evidence in the record to support these findings by the trial court and that

it did not abuse its discretion by denying the Defendant’s request for judicial diversion.

B. Enhanced Sentence

The Defendant next asserts that the trial court erred when it ordered that the Defendant be

sentenced to the enhanced sentence of two years. In calculating the sentence for a Class E felony

conviction, the presumptive sentence is the statutory minimum for a Range I offender if there are no

enhancement or mitigating factors. See Tenn. Code Ann. § 40-35-210(c). If there are enhancement

but no mitigating factors, the trial court may set the sentence above the minimum, but still within

the range. Tenn. Code Ann. § 40-35-210(d). A sentence involving both enhancement and mitigating

factors requires an assignment of relative weight for the enhancement factors as a means of

increasing the sentence. Tenn. Code Ann. § 40-35-210(e). The sentence must then be reduced
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within the range by anyweight assigned to the mitigating factors present. Tenn. Code Ann. § 40-35-

210(e). The sentence range for a Range I offender for a class E felony is not less than one (1) nor

more than two (2) years. Tenn. Code Ann. § 40-35-112 (2003). 

The United States Supreme Court’s recent opinion in Blakely v. Washington, 542 U.S. __,

124 S. Ct. 2531 (2004), calls into question the continuing validity of our current sentencing scheme.

In that case, the Court, applying the rule in Apprendi v. New Jersey, 566 U.S. 466, 490 (2000),

struck down a provision of the Washington sentencing guidelines that permitted a trial judge to

impose an “exceptional sentence” upon the finding of certain statutorily enumerated enhancement

factors. 124 S. Ct. at 2537. The Court observed that “the ‘statutory maximum’ for Apprendi

purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in

the jury verdict or admitted by the defendant.” 124 S. Ct. at 2537. Finally, the Court concluded that

“every defendant has a right to insist that the prosecutor prove to a jury [beyond a reasonable doubt]

all facts legally essential to the punishment.” Id. at 2539. 

In the case under submission, the trial court enhanced the Defendant’s sentence based upon

its finding that one enhancement factor applied, that the Defendant abused a position of trust. See

Tenn. Code Ann. § 40-35-114 (16). This enhancement factor was not submitted to a jury or admitted

by the Defendant. Therefore, the rule in Blakely precludes the application this factor. Because there

are no enhancement factors that were proved to a jury beyond a reasonable doubt or admitted by the

Defendant, the sentence must be modified to the presumptive minimum of one year. 

III. Conclusion

In accordance with the foregoing reasoning and authorities, we affirm the trial court’s

judgment in part, reverse in part, and remand for entry of a judgment modifying the sentence to the

presumptive minimum of one year.

___________________________________ 

ROBERT W. WEDEMEYER, JUDGE