IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

December 10, 2019 Session

STATE OF TENNESSEE v. NIKKI BODIE PATE

Appeal from the Circuit Court for Sequatchie County

No. 2017-CR-129 Justin C. Angel, Judge

No. M2018-02266-CCA-R3-CD

The Defendant, Nikki Bodie Pate, pleaded guilty to two counts of custodial interference.

Following a sentencing hearing, the trial court granted the Defendant’s request for judicial 

diversion and placed the Defendant on probation for eighteen months. On appeal, the 

State contends that the trial court erred when it granted the Defendant judicial diversion. 

After a thorough review of the record and applicable law, we reverse the trial court’s 

judgment and remand for further proceedings consistent with this opinion.

Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and 

Remanded

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which ROBERT L.

HOLLOWAY, JR. and TIMOTHY L. EASTER, JJ., joined.

B. Jeffery Harmon, District Public Defender; Vanessa D. King, Assistant District Public 

Defender, Jasper, Tennessee, for the Appellee, Nikki Bodie Pate.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant 

Attorney General; James Michael Taylor, District Attorney General; and Steven H. Strain, 

Assistant District Attorney General, for the Appellant, State of Tennessee.

OPINION

I. Background and Facts

In 2017, the Defendant was indicted by a Sequatchie County grand jury for two 

counts of custodial interference, a Class E felony. In 2018, the Defendant pleaded guilty 

to the charges with the Defendant’s request for judicial diversion to be determined at a 

02/24/2020
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sentencing hearing.

The State recited the following facts as the basis for the acceptance of the 

Defendant’s guilty plea:

If this came to trial, the State would be calling Mr. Stephen Bodie. 

He would testify that he was previously married to the Defendant, they have 

two children, [X.B.] and [M.B.]. They are both under the age of 18, at all 

times relevant to these proceedings.

That in 2017, Mr. Bodie began steps to obtain custody of the children. 

That various papers were filed in circuit court. That [the Defendant] had 

actual knowledge of these proceedings. On April the 18th, 2017, the Court . 

. . granted Mr. Bodie custody. Part of the elements the Court recited was 

that [the Defendant] had improperly removed the children from Tennessee. 

Once the custody order was obtained, Mr. Bodie made attempts to find the 

Defendant and his children. Initial thought was that she had gone to North 

Carolina, however, she was later apprehended in the State of Colorado, with 

the minor children. This was the latter part of last year. She was taken into 

custody by the Colorado authorities. She waived extradition and was 

transported back to Tennessee. The children were with her at the time. Mr. 

Bodie now has physical custody of the children and they are back here.

At a sentencing hearing to determine the issue of judicial diversion, the Defendant 

testified that she was married and living in Colorado at the time of the hearing and had 

resided there for approximately six months. The Defendant stated that she worked in a 

nursing home, where she had been employed for two months; previously she worked in a 

fast food restaurant. 

The Defendant testified that she would comply with any requirements imposed by 

the trial court. She stated that she had not spoken with her children in a year, after raising 

them for thirteen years. She stated that the absence of contact with her children had been 

“very hard.” The Defendant stated that she only wanted what was best for her children 

and asked that she be permitted to have contact with them.

On cross-examination, the Defendant agreed that she had not had contact with her 

children since her arrest in Colorado. The Defendant had taken the children to Colorado,

where they lived with her for a year before she was arrested. She agreed that Mr. Bodie

was the children’s father and stated that he had regular contact with the children while they 

were in Colorado. She agreed that she had not provided Mr. Bodie with her location and 

that she had given Mr. Bodie a letter notifying him that she and the children would be 
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relocating to North Carolina. She did not provide a letter informing him of the move to 

Colorado because Mr. Bodie was threatening to take her children away from her. The 

Defendant stated that she was fearful for her children. 

The trial court questioned the Defendant about whether she had any feelings of 

remorse for removing the minor children to another state; she stated that she did not have 

remorse and felt that she had done what was necessary. She denied that Mr. Bodie had 

ever threatened or abused her or their minor children. She agreed that a custody order was 

in place. 

At the close of the hearing, the trial court stated:

The Court has reviewed the factors as to whether or not to grant or 

deny the request for diversion. The Court does find that, based upon the 

certification from the Tennessee Bureau of Investigation, that [the 

Defendant] does qualify for diversion. 

This is one of these cases where . . . in my heart, I will absolutely 

disagree with the law. I will disagree with the actions the Defendant took. 

. . . .

And I think that, under the classifications, under the factors in this 

case and everything considered, this is the lowest level of felony that our 

state has, that I do think the main factor that applies that really had me 

leaning in this case about whether or not to grant [diversion] is the deterrent 

[factor] and the best interest of society. We cannot have parents just taking 

their kids away, three or four states away from other parents for a year or so 

at a time. That is not what we need in our society.

. . . .

You have no remorse for what you did. Again, I do not like what you 

did. If I had my druthers, I would render a much different sentence today, 

but I think the law of the State of Tennessee and the case law actually favors 

granting you diversion in this case and that’s what I’m going to do.

The trial court entered an “Order of Deferral (Judicial Diversion)” granting judicial 

diversion and placing Defendant on probation for eighteen months. It is from this 

judgment that the State now appeals.

II. Analysis
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The State argues on appeal that the trial court erred when it granted the 

Defendant’s application for judicial diversion pursuant to Tennessee Code Annotated 

section 40-35-313. The State contends that the trial court neither considered or weighed

the common-law factors, found in State v. Electroplating, Inc., 990 S.W.2d 211 (Tenn.

Crim. App. 1998); State v. Parker, 932 S.W.2d 945 (Tenn. Crim. App. 1996), nor did it 

articulate the reasoning behind its judgment. Thus, the State contends that our standard 

of review is de novo without any deference to the trial court’s decision. The State 

further argues that the record weighs against the granting of judicial diversion. The 

Defendant contends that the trial court clearly engaged in the process of evaluating the 

Defendant’s request in light of the required factors. The Defendant states that if this 

court is to conclude that the trial court erred, the case should be remanded for the trial 

court to clarify its reasoning. 

When a defendant is eligible for judicial diversion, a trial court has the discretion to 

defer proceedings against the defendant without entering a judgment of guilt. T.C.A. § 

40-35-313(a)(1)(A) (2019). The statute states that a trial court may grant judicial 

diversion in appropriate cases. Id. Following a grant of judicial diversion, the defendant 

is on probation but is not considered a convicted felon. Id. To be eligible for judicial 

diversion, a defendant must be a “qualified defendant” as defined in relevant part by the 

Tennessee Code section governing judicial diversion:

(B)(i) As used in this subsection (a), “qualified defendant” means a 

defendant who

(a) Is 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, . . . or a Class A or Class B felony; 

(d) Has not previously been convicted of a felony or a Class A 

misdemeanor for which a sentence of confinement is served; 

and

(e) Has not previously been granted judicial diversion under 

this chapter or pretrial diversion.

T.C.A. § 40-35-313(a)(1)(B)(i). Eligibility does not automatically entitle the defendant to
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judicial diversion. 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).

Once a defendant is deemed eligible for judicial diversion, the trial court must 

consider several factors when deciding whether to grant judicial diversion. Due to the 

similarities between pre-trial diversion, which is administered by the district attorney 

general, and judicial diversion, courts draw heavily from pre-trial diversion law and 

examine the same factors:

[A court] should consider the defendant’s criminal record, social history, 

mental and physical condition, attitude, behavior since arrest, emotional 

stability, current drug usage, past employment, home environment, marital 

stability, family responsibility, general reputation and amenability to 

correction, as well as the circumstances of the offense, the deterrent effect of 

punishment upon other criminal activity, and the likelihood that [judicial] 

diversion will serve the ends of justice and best interests of both the public 

and the defendant.

State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997).

When the trial court “specifically identifies the relevant factors and places on the 

record its reasons for granting or denying judicial diversion,” this Court will “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.” State v. King, 432 S.W.3d 316, 

327 (Tenn. 2014). Our Supreme Court has stated:

Although the trial court is not required to recite all of the Parker [932 S.W.2d 

945 (Tenn. Crim. App. 1996)] and Electroplating [990 S.W.2d 211 (Tenn.

Crim. App. 1998)] factors when justifying its decision on the record 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.

Id. Failure to consider the common law factors results in loss of the presumption of 

reasonableness, and this Court is required to conduct a de novo review or remand to the 

trial court for reconsideration. Id.

The record in this case does not indicate that the trial court considered the Parker 

and Electroplating factors or identified those specifically applicable to this case. Given 
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that the trial court did not address these factors, and did not explain why the factors 

supporting the granting of diversion outweighed the factors supporting the denial of 

diversion, we are compelled to reverse the judgment of the trial court and remand the case 

for the trial court to explain adequately on the record the specific factors it considered and 

its weighing process of these factors in addressing the request for judicial diversion. We

reiterate that the trial court is not required to recite its consideration of each factor relevant

generally to judicial diversion but only those it found relevant to this case. See King, 432 

S.W.3d at 327. 

III. Conclusion

After a thorough review of the record and relevant authorities, we reverse the trial 

court’s judgment and remand the case for further proceedings consistent with this opinion.

_________________________________

ROBERT W. WEDEMEYER, JUDGE