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State v. Townsend

Court of Criminal Appeals of Tennessee, Jackson

April 13, 2017

STATE OF TENNESSEE
v.
WALTER TOWNSEND

          Assigned on Briefs August 2, 2016

         Appeal from the Circuit Court for Madison County No. 15201 Kyle Atkins, Judge

         After groping his twenty-five-year-old neighbor's crotch, eighty-two-year-old, Walter Townsend, the Defendant, entered a plea of nolo contendere to the offense of sexual battery, a Class E felony. The trial court placed the Defendant on judicial diversion pursuant to Tennessee Code Annotated section 40-35-313, and deferred prosecution for a period of eighteen months of supervised probation. [I: 108] Significantly, the trial court did not require the Defendant to register as a sexual offender under the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004 (the "Act"), pursuant to Tennessee Code Annotated sections 40-39-201 to -218. In this State appeal, the sole issue presented for our review is whether the trial court abused its discretion by not ordering the Defendant to register as a sexual offender. Upon review, we affirm the judgment of the circuit court.

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

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Benjamin C. Mayo, Assistant District Attorney General, for the Appellant, State of Tennessee.

          Joe H. Byrd, Jr. and Jennifer D. Free, Jackson, Tennessee, and Crews Townsend and David M. Barnes, Chattanooga, Tennessee, for the Defendant-Appellee, Walter Townsend.

          Camille R. McMullen, J., delivered the opinion of the court, in which John Everett Williams and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         Despite the meager record provided by the State in this appeal, it is clear that on September 20, 2014, the Defendant saw his adult male neighbor, the victim, walking his dog, and the Defendant invited them into his garage.[1] While in the garage, the Defendant "rubbed . . . [the victim's] knee . . . and continue[d] up his thigh toward his crotch. [The victim] . . . felt uncomfortable, so he stood up and [the Defendant] grabbed [the victim's] crotch area . . . and squeezed twice." [I: 59]. The Defendant told investigating officers that he told the victim that he was sorry, even though he later claimed to have no memory of the offense. As a result of this contact, the Madison County Grand Jury returned an indictment against the Defendant for sexual battery. After some preliminary motions were filed, the trial court ultimately allowed the Defendant to enter a plea of nolo contendere to the instant offense and deferred his sentence for eighteen months pursuant to Tennessee Code Annotated section 40-35-313, the judicial diversion statute. In its order declining to require the Defendant to register as a sex offender, the trial court stated:

the Defendant's conduct neither caused nor threatened serious bodily injury . . . [t]hat in reaching its decision, the Court considered the Presentence Report, which included the Defendant's physical and mental condition and social history, and the circumstances surrounding the offense and the nature of the criminal conduct involved . . . [t]hat in reaching its decision, the Court considered the Defendant's lack of criminal history, the likelihood that he would not commit any other crimes while on probation and the likelihood that he can be rehabilitated. [I: 108]

         ANALYSIS

         On appeal, the State argues that the trial court abused its discretion when it did not require the Defendant to register as a sex offender. The State's argument, which consists of three paragraphs on a single page, is that by receiving judicial diversion, the Defendant was convicted of a sexual offense, and thus, required to register as a sex offender under the Act. See T.C.A. § 40-39-201. [State's Br. 3]. In response, the Defendant argues that because he received judicial diversion, any conviction is diverted until he completes his probationary period; thus, he is not a convicted sex offender and is not required to register under the Act. For the reasons that follow, we agree with the Defendant and affirm the decision of the trial court.

         In State v. King, 432 S.W.3d 316, 324-25 (Tenn. 2014), the Tennessee Supreme Court held that the abuse of discretion standard of review accompanied by a presumption of reasonableness applied to appellate review of a trial court's decision to grant or deny judicial diversion. However, the court made clear that the application of the Bise standard of review does not abrogate the common law factors for judicial diversion set out in State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996), and State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998).

         Tennessee Code Annotated section 40-35-313 outlines the requirements for judicial diversion. A qualified defendant for judicial diversion is defined as a defendant who pleads guilty to or is found guilty of a misdemeanor or a Class C, D, or E felony; is not seeking diversion for a sexual offense or a Class A or Class B felony; and does not have a prior conviction for a felony or a Class A misdemeanor. T.C.A. § 40-35-313(a)(1)(B)(i)(c)-(d). After a qualified defendant is either found guilty or pleads guilty, a trial court has the ...


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