### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Ja nu ary 13 , 20 10 Ses si on

STATE OF TENNESS EE v . GARY VINCENT EL MORE

Appeal f rom the Cr im inal Cou rt for Davidson Coun ty No. 2007-C- 2022 Cheryl Blackbu rn, Judge

No. M2008- 00076-CCA -R3-C D - F iled May 13, 2010

The Davidson County Gra nd J ury indicted Appellant, Gar y Vincent Elm o re , for one count of statutory rape

. Appellant enter ed a best interest plea to the offe nse as char g ed with the provision that he would serve a sentenc e of one y ear on probation and that the trial court would hold a hear ing to consider his elig i b i l i t y for judicial diversion. At the hear ing, Appellant testified that he had previously been convicted of driving under the influence (“D UI ”) in Kentucky

. His testimony was the only evidenc e reg arding this convict i o n

. Appellant arg ued that the DUI conviction would be considere d a C lass C misdemeanor, while the S tate arg ued that i t s h o u l d b e consi dere d a C lass A misdemeanor. A previous Class A misdemeanor would disqualify Appellant from being elig ible for judicial diversion. At th e co n cl u s i o n of the hear ing, the trial court deter mined that he was not elig ible for judicial diversion beca use the prior DUI conviction from Kentucky would be considere d

a Class A misdemeanor in Tenne ssee. Appellant now appea ls t h e t ri al court’s denial of judicial d i v ersion. We conclude that Appellant’s testimony reg arding the prior DUI conviction wa s sufficie nt pr oof and that the trial court corr ectly based its de termination of the classifica tion of the Kentucky offe nse on the elements of the offe nse as opp o s ed t o t h e acc ompany ing sentenc e. There fore , we a ffirm the tria l court’s de nial of judicial diversion.

T e n n . R

. A p p . P

. 3 A p p e a l a s o f R i g h t ; J u d g m e n t o f t h e C r i m i n a l C o u r t i s A f f i r m e d

.

J E R R Y L

. S M I T H , J

. , d e l i v e r e d t h e o p i n i o n o f t h e c o u r t , i n w h i c h D A V ID H

. W E LLE S a n d R O B E R T W

. W E D E M E Y E R , J J

. , j o i n e d

.

R o b M c K i n n e y , N a s h v i l l e , T e n n e s s e e , f o r t h e a p p e l l a n t , G a r y V i n c e n t E l m o r e

.

R o b e r t E

. C o o p e r , J r

. , A t t o r n e y G e n e r a l a n d R e p o r t e r ; C l a r k B

. T h o r n t o n , A s s i s t a n t A t t o r n e y G e n e r a l ; V i c t o r S

. J o h n s o n , D i s t r i c t A t t o r n e y G e n e r a l
, a n d M a t t h e w P i e t s c h
, A s s i s t a n t D i s t r i c t A t t o r n e y G e n e r a l
, f o r t h e a p p e l l e e , S t a t e o f T e n n e s s e e

.O P I N I O N

F a c t u a l B a c k

g r o u n d

Appellant was a member of an adult-only subscription social internet website. Throug h his participa tion in the website he beca me acquai n t ed with the victim. They exchang ed e-ma ils and
eventua lly met in person. The victim was fourteen y ear s old at t h e t i m e o f t h eir friendship. As a result of this rela tionship, the Davidson County Gra nd J ury indicted Ap p el l an t for one count of statutory rape . On Aug ust 4, 2008, Appellant enter ed a best-intere st ple a to one count of statutory rape

. Pursuant to the plea agre em en t , Appellant was place d on probation for one y ear

. The
ag ree ment also prov i d ed that the t rial court would hold a hearing to deter mine whether Appellant

was e ligible f

or judicial diversion unde r Tenne ssee Code A nnotated sec tion 40-35-313.

The trial court held the hear i ng on November 7 and 25, 2008. At the conclusion of the hear ing the trial court denied diversion b ec au s e Appellant had a previous conviction for DUI in Kentucky . Appellant filed a timely notice of a

ppeal.

ANALYSIS

J udicial diversion is simil ar t o pretria l diversion. Howeve r, judicial diversion follows a deter mination of g uilt, and the decision to g rant judicial diversion is initiated by the trial court, not the prosec utor. State v. Anderso n , 857 S.W .2d 571, 572 (Tenn. Crim. App. 1992). J udicial diversion allows a defe ndant who is judge d g uilty to, “upon succe ssful completion of a div er s i o n prog ram, rec eive an expungeme nt from all ‘off icial rec ords’ any rec ordation rela ting to ‘ar rest, i ndictment or information, trial, finding of g uilty
, and dismiss al and discharg e’ pursuant t o t h e diversio n s t at u t e. ” State v. Schindler
, 986 S.W .2d 209, 211 (Tenn. 1999) (quoting T.C.A. § 40-35-313( b)). “The eff

ect of discharg e and dismiss al under the diversion statute ‘is to restore the
person . . . to the status the person oc cupied be fore such ar rest or indictment or inf

ormation.’” Id. (quoting T.C.A. § 40-35-313( b)). A final dispositi on of the case does not occur u n t i l ei t h er the defe ndant succe ssfully completes the diversion prog ram or violates a condition of his rele ase. State v. Teresa Docke ry , No. E2001-01493-CCA-R3-CD, 2002 W L 1042187, at *2 (Te nn. Crim. App., at Knox ville, May 23, 2002), perm. app. denied
, (Tenn. Nov. 4, 2002); State v. Glenna Kidd
, No. 01C01-9808-CR-00344, 1999 WL 298309, at *1 (Tenn. Crim. App., at Nashville, May 13, 1999). J udicial diversion m ay be order ed only with the consent of a “qualifie d defe ndant.” T.C.A. § 40-35-313( a ) ( 1 ) ( A )

. T e n n e s s e e Co d e A nnotated section 40-35-313 states that a defe ndant must meet the following require ments to be elig ible for judicial diver sion:

A qualified de fenda

nt is one who:

(a) I s found g uilty of or pleads g uilty or nol o co ntender e to the offe nse for which defe rra l of furthe r proc eeding s is sought;

-2-(b) I s not seeking defe rra l of further proce eding s for a sexual offe nse or a Class A or

Class B fe lony ; and

(c) Has not pre viously

been c onvicted of a

felony or a Class A misdemea

nor.

T.C.A. § 40-35-313( a)( 1)(B )(i)( a), (b), & (c)

. Statutory rape is not one of the sex u al o ff en s es

enumer ated in the statute that disqualifies a defe ndant for judicial divers i o n

. T.C.A. § 40-35-313( a)( 1)(B )(ii).

Abuse of discretion is the proper standard upon which to revie w the denial of an application for judicial diver sion. State v. Paul David Cable
, No. 03C01-9409-CR-00349, 1995 WL 328796,
at *2-3 (Tenn. Crim. App., at Knoxvi lle, J une 1, 1995). When a defenda nt contends that the t ri al court commit ted error in ref using to g rant judi cial diversion, we must deter mine wheth er t h e t ri al
court abused its discretion by deny ing the defe ndant' s reque st for j u d i ci al d i v ersion. State v. Cutshaw
, 967 S.W .2d 332, 344 (Tenn. Crim. App. 1997). I n other words, we may not revisit the issue if the rec ord contains any substantial evidenc e supporting the trial court’s decision. Id. ; State v. Parke r , 932 S.W .2d 945, 958 (Tenn. Crim. App. 1996)

.

The criter ia that the trial court must consider in deter mining whe ther a

qualified de fenda

nt should be g rante d judicial diversion are simil ar to those considere d by the prosec utor in deter mining suitabilit y for pretria l diversion and includes t h e fo l l o wing : “(1) the defe ndant’s amena bility to

corr ection; (2) the circ umstances of t h e o ff en s e; (3) the defe ndant’s criminal rec ord; (4) the defe ndant’s social history ; (5) the defe ndant’s phy sical and mental health; and (6) the d et er renc e value to the defendant and others.” Parker
, 932 S.W .2d at 958; see also Cutshaw
, 967 S.W .2d at 343-44. An additional consideration is whether judicial diversion will serve the ends of justice, i.e., the interests of the public as well as of the defe ndant. See Parker
, 932 S.W .2d at 958; Cutshaw
, 967 S.W .2d at 344; State v. Bonestel
, 871 S.W .2d 163, 168 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hoope r , 29 S.W .3d 1, 9-10 (Te nn. 2000).

Appellant arg ues that the trial court err ed in deny ing his reque st for judicial div e r s io n b eca use the State failed to supply an officia l rec ord of Appellant’s prior DUI conviction in Kentucky and thus the evidenc e is insufficient to support the deter mination that there was a conviction and the Kentucky DUI conviction should be considere d a Class C misdemeanor based upon the punishment proscr ibed as opposed to a Class A misdemea nor base d upon the eleme nts of the Kentuc ky offe nse.

Evid ence of K entucky DUI Conviction

We first addre ss Appellant’s arg ument that the r e was not sufficie nt proof of Appellant’s prior DUI conviction to support his disqualifica t i o n from judicial diversion. The State was unable to produce an officia l rec ord of Appellant’s prior conviction for DUI

. The State contac ted the authorities in Kentucky but was informed that the ag ency in question did not have the rec ords from the y ear of the conviction. Appellant testified at the hear ing reg arding the conviction. He testified

-3-t h at h e wa s arr ested for DUI and spent the night in jail. He also stated that he pled g uilty t o t h e

offe nse, paid a

fine, a nd had his driver ’s license suspended f or at lea st six months.

This Court addre s s ed a simil ar situation in State v. W anda Kill ian
, No. 03C01-9711-CC00513, 1999 WL 2835 (Tenn. Crim. App., at Knoxvi lle, J an. 6, 1999), perm. app. denied
, (Tenn. J un. 14, 1999). I n W

anda Kill ian
, the defendant was denied judicial diver sion based upon a prior conviction for passing a worthless chec k, a Class A misdemeanor. Id. at *1. As in the case at hand, the sole evidenc e of the conviction was the defe ndant’s testimony

. The previous conviction was not proven by an off

icial re cord f

rom the county

of convic tion. W e stated, “ Ba sed on t he defenda nt’s testimony
, the trial court could re as onably conclude the defe ndant was convicted of a Class A misdemeanor . . . .”

Ba sed on this prior decision of our Court, we conclude that Appellant’s testimony of his prior DUI conviction was suf

ficient e vidence to support the trial court’ s finding of a prior c onviction.

Classif ication of Kentucky DUI Off ense

As stated above, if t h e defe ndant has a previous conviction of a felony or Class A misdemeanor he is ine ligible for judicial diversion. At the hear ing, Appellant testified that he had been co nvicted of DUI in 1983 in Kentucky

. Appellant’s attorney asser ted that the conviction constituted a C l as s C m i sdemea nor based upon the punishment for DUI in Kentucky

. The State
arg ued that the elements of the Kentucky statute and the Tenne ssee statute are substantially simil ar and, there fore
, the Kentucky DUI conviction should be considere d a Class A misdemeanor. The trial court de termined that the K entucky DUI conviction s hould be consider ed a Class A misdemea nor for pur poses of Te nnessee Code Annotated se ction 40-35-313.

Appellant does not a

rg ue that the e lements of the Ke ntucky and Te nnessee statutes are not simil ar. I nstead, Appellant arg ues that the deter mination of whether the Kentucky DUI conviction 1 should be a Class A misdemeanor or Class C misdemeanor should be based upon the puni shment

acc ompany ing the conviction rather than the elements of t he o ff ense. There is no issue prese nted

as to whether the two offe nses have the same elements. There fore
, the question we must answe r is

Appel la nt doe s not ci te to the K ent ucky DUI st at ute in his bri ef

. T he Sta te poi nts us to K ent ucky 1
Revise d Sta tut e 189A.0 10 whic h st at es tha t “No per son sha ll ope ra te a m oto r vehicl e anywher e in thi s st at e whil e unde r the inf

lue nce of al coh ol or any oth er sub st anc e whic h m ay impair one ’s dri ving abi li ty.” K RS 189A.0 10( 1) (19 85)

. T he a cco m pan ying punis hm ent fo r a fi rs t o ff ens e is impris onment in the cou nty j ai l for no les s that for ty- ei ght hours but no more tha n t hir ty days an d a fi ne o f a tl eas t $ 200, but not m ore th an $500

. K RS 189A.0 10( 2)( a) (19 85)

. T he ear li est avail abl e versi o n o f the K ent ucky DUI st at ute tha t is

a va i la ble on We st la w is fr om the 1985 Sta tut ory Com pil at ion and st at es tha t it is ef fe ct ive as of J u l y 1 3
, 1984

. I n Commonwe alt h v. Bal l
, 691 S.W .2d 207 (K y. 1985 ), the Supr eme Cour t of K ent ucky spe ci fi cal ly
st at ed tha t K ent ucky Revise d Sta tut e 189A.0 10 as ena ct ed ef fe ct ive J uly 13, 1984 did not cr eat e a new cr ime of DUI
, but m er el y enh anc ed the puni shment for DUI

. 691 S.W .2d at 208-09. T her ef ore , we con cl ude tha t the el ements of DUI in th e 19 85 s ta tut e wer e t he s ame at t he t ime Appel la nt was ar re st ed.

-4-whether the trial court err ed in rely ing on the elements of the offe nses as opposed to the punishment

for the of fense s to determine the de g ree of the off ense.

U nfortunate ly
, Tenne ssee Code Annotated section 4 0

- 3 5

- 3 1 3 d o e s n o t a d d r e s s h o w th e c o u

r ts should deter

mine if out-of-state convictions are to be considere d felonies or Class A misdemeanors. There fore
, we must turn to other sections of our statutes for g uidance in interpre ting the provisions of Tenne ssee Code Annot at ed section 40-35-313. I n State v. McG ouey , 229 S.W .3d 668 (Tenn. 2007), our supreme court set out the principles of statutory construction and the standard of revie w on appea l:

Provisions of the criminal code should be “construe d acc ording to the fair import of th e ir te r ms , in c lu ding ref

ere nce to judicial decisions and common law interpre tations,
to promote justice, and eff ect the objectives of the criminal code.” Tenn. Code Ann. § 39-11-104 (2003 ). The role of t his Court in construing statutes “is to g ive effec t to the leg islative intent without unduly restric ting or expanding a statute’s cover ag e bey ond i ts intended scope.” State v. Flemming
, 19 S.W .3d 195, 197 (Tenn. 2000) (c i t i ng State v. Butler
, 980 S.W .2d 359, 362 (Tenn. 1998)). The construction of statutes and application of the law to the fa cts of a c ase a re questions of law. State v. Benham
, 113 S.W .3d 702, 704 (Tenn. 2003). As such, the a ppellate standa

rd of revie w is de novo without any presumption of corr ectne ss g iven to the lower courts’ conclusions of law

. State v. Je nnings , 130 S.W .3d 43, 45 (Tenn. 2004)

.

229 S.W .3d at 672.

Another section of the criminal code wher e prior out-of-state convictions are often addre ssed is in deter mining a defe ndant’s rang e of punishment for sentenc ing purposes. When deter mining the
appropr iate rang e of punishment, our statutes require that “[p] rior convictions include convictions under the laws of a

ny other state, g overnme nt, or country which, if c ommitt ed in this state, would have constituted an offe nse cog niza b l e b y t h e laws of this state.” T.C.A. §§ 40-35-106( b)(5)
, - 107(b)( 5), -108(b) (5). When the out-of-state conviction is not a named offe nse in Tenne ssee,

acc ording to our statutes, “the elements of the offe nse shall g overn to deter mine what classifica tion the offe nse is g iven.” Id. This same definitio n o f prior conviction with reg ard to out-of-state convictions is included in Tenne ssee Code Annotated secti o n 4 0 -35-121, which provides for enhanc ed p u n i s h m en t for criminal g ang offe nses. T.C.A. § 40-35-121( a)( 4)(B )(ii). The judicial diversion provisions are included at Tenne ssee Code Annotated s ection 40-35-313. Those provisions are in the s am e t i t l e an d chapte r of the code in which we find the above ref ere nced
sentenc ing provisions. For these reasons, we conclude t hat t he same definition and analy sis must apply to out-of-state c onvictions when dete rmining the classifica tion of the offe nse.

We have applied this analy sis when deter min i ng the classifica tion of prior out-of-state convictions on sever al occa sions. I n fac t, we have specific ally stated, “The leng th of sentenc e a

-5-defe ndant rec eives for an out-of-st at e co nviction, howeve r, is not deter minative of what g rade of felony the out-of-state offe n s e m i gh t b e assig ned under Tenne ssee laws

. . . .” State v. Jasper L. Vick
, No. W20005-00467-CCA-R3-Cd, 2006 WL 722173, at * 1 0 (Tenn. Crim. App., at J ackson, Mar. 22, 2006)

.

There fore
, the trial court corr ectly deter mined the classif

i cation of Appellant’s prior conviction for DUI by rely ing on the elements of t h e DU I o ff en s e as opposed to the punishment require d. Under

the law of

this State, Appellant’s Ke ntucky DUI conviction would be c onsidered a Class A misdemeanor , and for this reason, Appe llant is not eligible for judicial diversion.

CONCLUSION

For the forg oing r easons, we aff irm the trial cour

t’s denial of judicia l diversion.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J E R R Y L

. S M I T H
, J U D G E

-6-