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State v. Gibson10/7/2005
BACKGROUND
At the time of the defendant's request for pretrial diversion, there were two indictments pending against him for sexual battery. The first charge, sexual battery by an authority figure, a non-divertable offense, arose during a divorce proceeding, the victim being the defendant's stepdaughter. The second charge of sexual battery arose subsequently and involved a thirteen-year-old friend of the defendant's stepdaughter. The application for pretrial diversion was made solely on the second divertable offense. In the application, the defendant maintained that the alleged offense never occurred.
The prosecutor denied the defendant's application for pretrial diversion. The denial stated the following:
The District Attorney General Fifteenth Judicial District, by and through the undersigned Assistant District Attorney, hereby denies the Defendant's application for pretrial diversion. In support of its decision, the State responds as follows:
A. Evidence that the State would prove to the Court
The State will prove that that the crime of sexual battery, (T.C.A. §39-13-505(a)(2)), occurred on October 26, 2002 at 680 Shipper Road in Wilson County, Tennessee. The Defendant made sexual contact with victim, [D.K.] The extent of the sexual contact was hugging, kissing her on the lips, chest , and shoulders. The Defendant also humped her with his clothes on.
The State will also prove that the crime of sexual battery by an authority figure, (T.C.A. §39-13-527), occurred at the same address in the late winter or early spring of 2003 to victim [R.J.] This incident happened in an upstairs bedroom in the early morning. The victim's mother was not home and Defendant lay down on the victim's bed, beside the victim, and placed his penis on her leg. At the time of the offense, the State will show that the Defendant had supervisory or disciplinary power over the victim by being the stepfather of the victim and used such power to accomplish the sexual contact.
B. Factors That Determine Whether the Defendant Will Be a Repeat Offender
The Defendant's age (DOB 04/05/1948) suggests that he would not be a repeat offender, however, there are two current charges against him. This type of crime is troubling in that it indicates multiple and recent incidents of sexual battery. This causes concern for his future conduct if he is placed in the position of trust with young girls to commit or attempt to commit sexual battery again.
C. The Circumstances of the Offense Same as paragraph A.
D. The Criminal History of the Defendant
According to the Defendant's criminal record, the Defendant has been convicted of three crimes; possession of marijuana, in which he received a 30 day suspended sentence and a fifty dollar fine[;] selling of a controlled substance, in which he received eleven months and twenty-nine days, along with a thousand dollar fine[;] and a fraud charge.
E. The Social History of the Defendant
It is apparent that the Defendant has not had a stable family life; he has been married four times since 1968. The Defendant has five children, one of those deceased and the four still living are adults. He is a graduate of Mt. Juliet High School. He holds an Associate Degree in Architectural Engineering and an Associate Degree in Mechanical Engineering, both from the University of Tennessee. The Defendant has lived in Wilson County, Tennessee for the last eighteen years and has been self-employed since 1974. There is no record of work related or social problems until this incident.
F. The Mental and Physical Condition of the Defendan
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