07/20/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 10, 2017

STATE OF TENNESSEE v. JENNIFER HODGES

Appeal from the Circuit Court for Montgomery County

No. 2015-CR-0010 Jill Bartee Ayers, Judge

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No. M2016-01057-CCA-R3-CD

___________________________________

Defendant, Jennifer Hodges, pleaded nolo contendere to six counts of statutory rape, a 

Class D felony, and one count of solicitation of a minor, a Class E felony. Defendant was 

sentenced to four years for each count of aggravated statutory rape and two years for 

solicitation. All sentences were ordered to run concurrently for an effective four-year 

sentence. The effective sentence was suspended, and she was placed on probation for 

four years. On appeal, Defendant contends that the trial court erred by not granting her 

request for judicial diversion and that the trial court erred by sentencing her to the 

maximum sentences for her convictions. 

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ROBERT W.

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

Roger Eric Nell, District Public Defender; and Charles Bloodworth, Sr., Assistant Public 

Defender, Clarksville, Tennessee, for the appellant, Jennifer Hodges.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;

John Wesley Carney, Jr., District Attorney General; and Kimberly Lund, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

Background

The following facts were set forth by the State at the plea submission hearing:

Your Honor, in July of 2014 the mother of DC, who was 16 at the time, 

found text messages on his phone in which the Defendant had detailed 
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sexual encounters between the two. During a forensic interview DC 

described four specific sexual encounters with the Defendant in June of 

2014 involving multiple penetrations, including both [penile] and [sic]

vaginal penetration as well as fellatio. 

DC also provided information that the Defendant had told him there 

were only three rules: That he couldn’t tell anyone, there could be no 

anal and that he couldn’t fall for her. In addition to these sex acts the 

Defendant did solicit DC for sexual intercourse. 

During an interview with law-enforcement the Defendant denied any 

sexual contact, but did describe herself as a MILF and that her son’s 

friends thought that she was hot. 

Testimony at trial would also come from Michael Lagrant (phonetic 

spelling), to whom the Defendant admitted having sex with DC and that 

he was just another notch on her belt.

After the facts were read, defense counsel made the following statement:

Obviously, we contest some of those facts. I’ve explained to 

[Defendant] that her plea of no contest, nolo contendere, is her admission 

that there is evidence out there that, if believed by a jury, could justify 

the returning of a verdict of guilty against her. She does not concede that 

all the facts are true and happened. She had had a preview of what DC 

will say, because this was actually subjected to a preliminary hearing at 

the general sessions level, and she had heard him testify on the witness 

stand. The Court will probably hear some of that at the sentencing 

hearing. 

. . . this Defendant says I do not attempt, that what they say is true; I’m 

willing to spare the State time, effort and expense of a trial; the Court 

may treat it as if it is true because I am not mounting a defense to it 

because I have been assured in this plea agreement that I will not go to 

jail.

At the sentencing hearing, the presentence report was admitted into evidence as 

well as a copy of Defendant’s psychosexual evaluation and the victim impact statements. 

The presentence report notes no prior criminal history for Defendant other than one 

traffic offense. Defendant told the trial court that she planned to move home to Alabama 

with her children. She also told the court: “And I can guarantee I will never be in trouble 

again or have anything to do with anything that might set me in this situation again. . .” 
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Defendant’s statement, included as part of the presentence report, mainly focuses 

on how the current offenses have affected her and her family. It reads as follows:

I could give my side of things but I really don’t think that would help me 

at this point. What I would like to say I have spent my whole life being 

judged, pointed at and disliked for many reasons. My whole life I have 

been a fighter and I have survived some pretty horrific things but I keep 

my head up and keep going. One thing I would like to put out there is 

I’m sorry that all this craziness has taken up the Judge[’]s and court[’]s 

time. I really need you to know in my entire life I have tried to do 

what[’]s right. I’m not perfect or better than anyone else and I don’t 

pretend to be. One thing I am very confident in is in no way after years 

of no criminal history did I wake up one day and choose to be a 

pedophile. 

The events that have taken place over the past 2 years have crushed my 

family. It almost caused a divorce twice. My kids all 7 were removed 

from my care [and] put in separate foster homes for months[.] I am still 

trying to correct the damage done by that. My anxiety had been so bad 

they have had to put me on larger doses. My health has declined. My 

children were harassed to the point that I had to move them to 2 different

schools before they were taken from me. My kids are my stren[g]th[.] I 

live for them. They are all I have in this world. I have de[a]lt with abuse 

physically and verbally my entire life but my children don’t deserve it. I 

am embarrass[s]ed by everything that has taken place in the last 2 years. 

My family is just now recovering from financial problems due to the 

outrage[ou]s bond amounts. My bond company can tell you I have 

followed every rule set. I have tried to prove to everyone I am a good 

person. I really am! I guess what I’m wanting to get across is, I owe my 

children to make things right so I’m asking even begging for mercy. I

can stand in court and hear all the bad things and lies they are going to 

say[.] I have taken worse from my own mother but my children can’t. I 

am not a sex offender nor will I ever be[.] [I]f I could have one wish it 

would be taken off the SOR [Sex Offender Registry.] I would take 

probation for the rest of my life, but if that is impossible please allow me

to be removed from that list after a short time. I was never in trouble 

before and I don’t plan on ever being in a situation like this again. If it 

wasn’t for my kids I would be a nobody but because of them and to them 

I am somebody and I would like to walk my 5 [year-old] to her first day 

of school and be room mom like I was [to] my much older children. I

want to be involved [with] my kids schooling and [ ] sports. I want to be 

given the opportunity to be the mom I have always been until all this 

took place. My 2 older children (16 [and] 18) who I have always been 
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close to are no longer close to me or even live with me due to the 

constant bull[y]ing and fear that they are being put through due to the 

family of [the victim] and the small town. Due to the separation from 

my kids my depression has escalated. I’m sure the situation has 

[a]ffected so many people and I am truly from the bottom of my heart 

sorry. I promise to never come to T[N] or K[Y] again I promise to never 

get into trouble I promise to neve[r] put myself in a situation that could 

cause people to get the wrong idea. Please have mercy not for me but 

for my children they need me in every aspect of their lives and the SOR 

and probation limits that and I’m trying my hardest to keep this from 

hurting and effecting my babies long term. I would rather die than have 

them be punished because I went through all of this. 

Defendant’s psychosexual evaluation, which was completed prior to her statement 

in the presentence report, indicates that she is “not a reliable historian due to inability to 

recall significant pieces of her past history, minimization of events with significant 

omission of number of contact[s] with the alleged victim.” Defendant also denied any 

depression, psychosis, or anxiety at the time of the report. The report also indicates that 

Defendant’s children were recently removed temporarily by the Department of Human 

Services due to a domestic violence incident between Defendant and her husband that 

involved the children. Defendant reported verbal and physical abuse by her mother when 

Defendant was a child and domestic abuse by Defendant’s husband. In her version of the 

events, Defendant essentially stated that the victim pursued her, and she eventually gave 

in to him. The psychosexual evaluation contains the following summary:

From the Review of Records and particularly what the alleged victim 

reported to the interviewer at the Child Advocacy Center and the initial 

officer’s report after talking to the alleged victim’s mother; [sic] there is 

definite concern for the actions reported that are consistent with sex 

offending behavior of Grooming: spending money on potential victim, 

buying presents, going to movie, and setting up rules to not tell and 

progression of sexual contact. It is also concerning there is indication in 

the reports that [Defendant] involved her teenage son for access to her 

alleged victim. 

[Defendant] is a low risk for recidivism with children under the age 

of 13 however the above reported Grooming Behavior indicates a 

significantly higher risk to those ages 13 to 18 years of age. Based on 

the reported grooming behavior with [the] current alleged victim, 

potential use of her own son to assist in initial contact with alleged 

victim, reported setting of rules for engagement and the reported 

instructions that the activities be secret are most concerning as they are 
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consistent with predatory behavior rather than an innocent occurrence of 

misjudgment as [Defendant] indicated. 

(emphasis in original). 

In his victim impact statement, the victim indicated that he had received death 

threats, lost certain friendships and relationships, struggled with depression, and he had 

just begun to regain his mother’s trust. He also described the situation with Defendant as 

a “nightmare.” The victim stated, “there is [n]othing that can possibly fix how I feel.” 

The victim’s mother also submitted a victim impact statement in which she stated that the 

entire family had been a victim of the incident. She noted that the victim’s virginity, his 

innocence, and his friends had been taken from him by Defendant’s actions. The victim’s 

mother further said: 

This woman mother of soon to be 7 lives has stolen the childhood from 

numerous kids, and has been [portrayed] as a victim. This has been on 

the news, other parents have seen or heard, and don’t want their children 

around my son, because they just want their children safe. I understand 

this. That is all I ever wanted for my children. That is why they were 

never [allowed] to go anywhere unless a parent was home, and I had to 

meet the parents! How do you protect your children if you can’t even 

trust another mom??

Analysis

Defendant argues on appeal that the trial court should have granted judicial

diversion or, in the alternative, sentenced her to less than the maximum sentence. The 

State responds that the court properly denied judicial diversion and correctly sentenced 

Defendant to four years suspended, to be served on probation. 

In State v. Bise, 380 S.W.3d 682 (Tenn. 2012), the Tennessee Supreme Court 

reviewed changes in sentencing law and the impact on appellate review of sentencing 

decisions. The Tennessee Supreme Court announced that “sentences imposed by the trial 

court within the appropriate statutory range are to be reviewed under an abuse of 

discretion standard with a ‘presumption of reasonableness.’” Id. at 708. This standard of 

review extends to alternative sentences as well as decisions involving judicial diversion. 

State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (“[T]he abuse of discretion 

standard, accompanied by a presumption of reasonableness, applies to within-range 

sentences that reflect a decision based upon the purposes and principles of sentencing, 

including the questions related to probation or any other alternative sentence.”); State v. 

King, 432 S.W.3d 316, 324 (Tenn. 2014)(“the abuse of discretion standard accompanied 

by a presumption of reasonableness applies to all sentencing decisions, including the 

grant or denial of judicial diversion, when the trial court properly supports its decision on 
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the record in accordance with the purposes and principles of sentencing”). A finding of 

abuse of discretion “‘reflects that the trial court’s logic and reasoning was improper when 

viewed in light of the factual circumstances and relevant legal principles involved in a 

particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. 

Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of discretion, the record must 

be void of any substantial evidence that would support the trial court’s decision. Id. at 

554-55; State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 

395, 398 (Tenn. Crim. App. 1980). The reviewing court should uphold the sentence “so 

long as it is within the appropriate range and the record demonstrates that the sentence is 

otherwise in compliance with the purposes and principles listed by statute.” Bise, 380 

S.W.3d at 709-10. So long as the trial court imposes a sentence within the appropriate 

range and properly applies the purposes and principles of the Sentencing Act, its decision 

will be granted a presumption of reasonableness. Id. at 707.

Tennessee Code Annotated section 40-35-313 outlines the requirements for 

judicial diversion. After a qualified defendant is either found guilty or pleads guilty, a 

trial court has the discretion to defer further proceedings and place that defendant on 

probation without entering a judgment of guilt. T.C.A. § 40-35-313(a)(1)(A). A

qualified defendant is defined in relevant part as a defendant who:

(a) [i]s found guilty of or pleads guilty or nolo contendere to the offense 

for which deferral of further proceedings is sought;

. . .

(c) Is not seeking deferral of further proceedings for a sexual offense, a 

violation of § 71-6-117 or § 71-6-119, driving under the influence of an 

intoxicant as prohibited by § 55-10-401, vehicular assault under § 39-13-

106 prior to service of the minimum sentence required by § 39-13-106, 

or a Class A or B felony;

(d) [h]as not previously been convicted of a felony or a Class A 

misdemeanor for which a sentence of confinement is served; and

(e) [h]as not previously been granted judicial diversion under this 

chapter or pretrial diversion.

(ii) As used in subdivision (a)(1)(B)(i)(c), “sexual offense” means conduct

that constitutes:

(a) Aggravated prostitution, as described in § 39-13-516;

(b) Aggravated rape, as described in § 39-13-502;
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(c) Aggravated sexual battery, as described in § 39-13-504;

(d) Aggravated sexual exploitation of a minor, as described in § 39-17-

1004;

(e) Attempt, as described in § 39-12-101, solicitation, as described in § 

39-12-102 or conspiracy, as described in § 39-12-103, to commit any of 

the offenses enumerated in this subdivision (a)(1)(B)(ii);

(f) Especially aggravated sexual exploitation of a minor, as described in § 

39-17-1005;

(g) Rape, as described in § 39-13-503;

(h) Rape of a child, as described in § 39-13-522;

(i) Sexual battery by an authority figure, as described in § 39-13-527;

(j) Sexual exploitation of a minor, as described in § 39-17-1003; or

(k) Statutory rape by an authority figure, as described in § 39-13-532.

T.C.A. § 40-35-313(a)(1)(B)(i)-(ii). 

Eligibility for judicial diversion does not entitle the defendant to judicial diversion 

as a matter of right. State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). 

Rather, the statute states that a trial court “may” grant judicial diversion in appropriate 

cases. See T.C.A. § 40-35-313(a)(1)(A). When making a determination regarding 

judicial diversion, the trial court must consider the following factors: (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 mental and 

physical health, (6) the deterrent effect of the sentencing decision to both the defendant 

and other similarly situated defendants, and (7) whether judicial diversion will serve the 

interests of the public as well as the defendant. State v. Electroplating, Inc., 990 S.W.2d 

211, 229 (Tenn. Crim. App. 1998) (citing Parker, 932 S.W.2d at 958). The record must 

reflect that the trial court considered and weighed all these factors in arriving at its 

decision. Electroplating, Inc., 990 S.W.2d at 229 (citing 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, 9-10 (Tenn. 2000)). 
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As noted above, our supreme court in King has concluded that the proper standard 

of review for judicial diversion decisions is that established in Bise. The King Court 

explained, 

[W]hen the trial court considers the Parker and Electroplating factors, 

specifically identifies the relevant factors, and places on the record its 

reasons for granting or denying judicial diversion, the appellate court 

must apply a presumption of reasonableness and uphold the grant or 

denial so long as there is any substantial evidence to support the trial 

court’s decision. Although the trial court is not required to recite all of 

the Parker and Electroplating factors in order to obtain the presumption 

of reasonableness, the record should reflect that the trial court considered 

the Parker and Electroplating factors in rendering its decision and that it 

identified the specific factors applicable to the case before it. Thereafter, 

the trial court may proceed to solely address the relevant factors. 

If, however the trial court fails to consider and weigh the applicable 

common law factors, the presumption of reasonableness does not apply 

and the abuse of discretion standard, which merely looks for “any 

substantial evidence” to support the trial court’s decision, is not 

appropriate. . . . In those instances, appellate courts may either conduct a 

de novo review or, if more appropriate under the circumstances, remand 

the issue for reconsideration.

King, 432 S.W.3d at 328-29 (internal citations omitted) (footnote omitted).

The trial court in this case provided an extensive explanation why the defendant 

would not be granted judicial diversion:

In looking at that issue I’ve had the opportunity to carefully review the 

victim impact statement of the victim and his mother, and then also 

reviewed the psychosexual evaluation, which was just handed up today. 

And in looking at judicial diversion the Court has to consider the 

Defendant’s criminal record, social history, mental and physical 

condition, attitude and behavior since arrest, emotional stability, 

reputation and amenability to correction, the circumstances of the 

offense, the deterrent effect of the punishment on other criminal activity 

in the likelihood that diversion would serve the ends of justice and the 

best interest of both the public and the Defendant. 

Certainly, the victim impact statement is clear of the harm to the victim 

and his family, certainly, as a high school student and that environment 

that was created. In looking at the psychosexual evaluation the 
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concerning parts of that are the concerns for the actions consistent with 

the sex offending behavior of grooming. 

There were six counts of the statutory rape, counts one through six. This 

was something that continued over a period of time and - - that involved 

the text messages, and spending money on the victim, buying presents 

and that kind of thing; and also very concerning that [Defendant] 

involved her own child to access the victim. 

The other part of the psychosexual evaluation that is concerning is that 

the activities, the reports, the instructions, the text messages that the 

activities be kept secret, don’t tell anybody about this, those are 

consistent with predatory behavior rather than just kind of misjudgment. 

Again, this wasn’t a one[-]time thing, this happened over a period of 

time. 

So in applying all of those factors to consider I find that the 

circumstances of the offense, the deterrent effect of the punishment and 

the likelihood that diversion would serve the ends of justice and the best 

interest of the public, I think those outweigh and I am not going to grant 

diversion. 

It is clear that the trial court considered the sentencing law and principles. The 

record reflects that the trial court considered and weighed all of the required factors in 

arriving at its decision and recited the relevant factors to its decision. See State v. 

Adinolfi, No. E2013-01286-CCA-R3-CD, 2014 WL 2532335, at *4 (Tenn. Crim. App. 

June 2, 2014) (A review of the entire record establishes that the court considered and 

weighed the required factors, identified those most relevant to the case at hand, and 

placed on the record its reasons for denying diversion). The trial court explained on the 

record why it denied Defendant’s request for judicial diversion and explained why the 

circumstances of the offense outweighed the other factors and concluded that judicial 

diversion would not serve the interests of the public or Defendant. We also find, as 

pointed out by the State, the record shows that Defendant had little remorse for her 

actions. She seemed more concerned about the effect of her actions on her family and 

herself rather than the victim. Defendant also blamed the victim’s family for the times 

that her children have been bullied, and she also blamed the victim for the offenses 

stating that he began pursuing her, and she eventually gave in to him. Lack of remorse is 

a proper consideration in denying judicial diversion. See State v. Oakes, No. E2006-

01795-CCA-R3-CD, 2007 WL 2792934, at *9 (Tenn. Crim. App. Sept. 27, 2007)(lack of 

remorse where the defendant “seemed more concerned about the fate of her teaching 

career than about the impact of the incident on the victim and his family”). Accordingly, 

the trial court’s decision is entitled to a presumption of reasonableness. Defendant is not 

entitled to relief on this issue. 
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In determining a specific sentence within a range of punishment, the trial court 

should consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of punishment is the 

sentence that should be imposed, because the general assembly set the 

minimum length of sentence for each felony class to reflect the relative 

seriousness of each criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as 

appropriate, by the presence or absence of mitigating and enhancement 

factors set out in §§ 40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c).

Although the trial court should consider enhancement and mitigating factors, the 

statutory enhancement factors are advisory only. See T.C.A. § 40-35-114 (2010 & Supp. 

2013); see also Bise, 380 S.W.3d at 699 n. 33, 704; State v. Carter, 254 S.W.3d 335, 343

(Tenn. 2008). “[A] trial court’s weighing of various mitigating and enhancement factors 

[is] left to the trial court’s sound discretion.” Id. at 345. In other words, “the trial court is 

free to select any sentence within the applicable range so long as the length of the 

sentence is ‘consistent with the purposes and principles of [the Sentencing Act].’” Id. at 

343. “[Appellate courts are] bound by a trial court’s decision as to the length of the 

sentence imposed so long as it is imposed in a manner consistent with the purposes and 

principles set out in sections -102 and -103 of the Sentencing Act.” Id. at 346.

In this case, Defendant pleaded guilty to six counts of statutory rape, a Class D 

felony, and one count of solicitation of a minor, a Class E felony. T.C.A. § 39-13-

506(d)(3), -528(c). The authorized sentence for a Range I, standard offender, convicted 

of a Class D felony is between two and four years. T.C.A. § 40-35-112(a)(4). The 

authorized sentence for a Class E felony is between one and two years. T.C.A. § 40-35-

112(a)(5). Defendant was sentenced to four years for each count of aggravated statutory 

rape and two years for solicitation. All sentences were ordered to run concurrently for an 

effective four-year sentence. As for the length of the sentence, the court found:

So then that takes us to sentencing. There’s already been the agreement 

that there would be no jail time or no split confinement. I do find that 

the enhancement factors of seven and 14 are applicable in this case, that 

the Defendant was motivated by a desire to - - the offense was 

committed to gratify her desire for sexual pleasure or excitement and that 

she, certainly, abused a position of public trust with this victim. And, 

again, I think just the issues of the deterrent effect and that just serving 
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the ends of justice, so the sentence will be on probation, supervised 

probation, counts one through six, the class D felony, we’ll do four years 

but all concurrent, and then count seven, two-years on probation, also 

concurrent. [Defendant] will be required to have victim impact 

treatment and sex offender treatment. 

The trial court properly applied the two enhancement factors in this case: “the offense . . . 

was committed to gratify the defendant’s desire for pleasure or excitement,” and “the 

defendant abused a position of public or private trust.” T.C.A. § 40-35-114(7) and (14). 

Defendant argues that the trial court erred by applying factor (14) because it is “not 

supported by the evidence.” However, we find that the factor was appropriately applied. 

Regarding a position of trust, the Tennessee Supreme Court has stated:

The position of parent, step-parent, babysitter, teacher, coach are but a 

few obvious examples. The determination of the existence of a position

of trust does not depend on the length or formality of the relationship, 

but upon the nature of the relationship. Thus, the court should look to 

see whether the offender formally or informally stood in a relationship to 

the victim that promoted confidence, reliability, or faith.

State v. Kissinger, 922 S.W.2d 482, 488 (Tenn.1996) (emphasis added). In this case, the 

victim was a friend of Defendant’s son, and he would spend time at Defendant’s house in 

her care as a friend’s mother. The summary of Defendant’s psychosexual evaluation 

notes a concern that Defendant’s actions were consistent with the sex offending behavior 

of “Grooming: spending money on potential victim, buying presents, going to movie, and 

setting up rules to not tell and progression of sexual contact. It is also concerning there is 

indication in the reports that [Defendant] involved her teenage son for access to her 

alleged victim.” Defendant’s first sexual encounter with the victim occurred while the 

victim was in Defendant’s care while he was at her home visiting her son. In any event, 

even if this factor had been inappropriately applied, the misapplication of an 

enhancement factor neither removes the presumption of reasonableness nor does it 

invalidate the sentence. Bise, 380 S.W.3d at 706, 709. Defendant also contends that the 

trial court erred in not applying certain mitigating factors. As noted by the State, 

Defendant did not specifically argue for any mitigating factors at the sentencing hearing. 

The trial court in its discretion declined to apply any mitigating factors, and we do not 

find that any apply in this case. 

Because the trial court properly considered the evidence offered by the parties, 

stated on the record what enhancement and mitigating factors were considered, and 

complied with the purposes and principles of sentencing and imposed a within range 

sentence, the trial court did not abuse its discretion in enhancing Defendant’s sentence 

and sentencing her to an effective four-year sentence. Defendant is not entitled to relief.
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CONCLUSION

After a thorough review of the record and briefs, we affirm the judgments of the 

trial court.

 _______________________________________

THOMAS T. WOODALL, PRESIDING JUDGE