Assigned on Briefs August 2, 2016
from the Circuit Court for Madison County No. 15201 Kyle
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
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.
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.,
CAMILLE R. McMULLEN, JUDGE
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. 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]
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
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).
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 ...