        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs April 13, 2010

       STATE OF TENNESSEE v. LARQUIETTA TAYLOR-FISHER

              Direct Appeal from the Criminal Court for Shelby County
                     No. 08-07356    John T. Fowlkes, Jr., Judge


                 No. W2009-02040-CCA-R3-CD - Filed April 29, 2010


The defendant, Larquietta Taylor-Fisher, pled guilty in the Shelby County Criminal Court
to DUI, first offense, a Class A misdemeanor; leaving the scene of an accident, a Class B
misdemeanor; and three counts of reckless aggravated assault, a Class D felony, and was
sentenced by the trial court to an effective sentence of two years, with thirty days to serve
and the remainder of the time on supervised probation. In a timely appeal to this court, she
argues that the trial court abused its discretion in denying her request for judicial diversion.
Following our review, we affirm the sentencing determinations of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which JOHN E VERETT W ILLIAMS
and N ORMA M CG EE O GLE, JJ., joined.

Jennifer D. Fitzgerald (on appeal) and Brett Stein (at trial), Memphis, Tennessee, for the
appellant, Larquietta Taylor-Fisher.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Susan Taylor, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                           FACTS

       This case arises out of a December 14, 2007, Memphis traffic accident in which the
intoxicated defendant struck another vehicle, causing it to burst into flames, and then fled
from the scene.
       The defendant was indicted by a Shelby County Grand Jury on three counts of
aggravated assault; one count of DUI, first offense; one count of reckless driving; and three
counts of leaving the scene of an accident. On July 1, 2009, the defendant pled guilty to
three counts of reckless aggravated assault, one count of DUI, and one count of leaving the
scene of an accident in exchange for concurrent sentences of two years for each of the
reckless aggravated assault convictions, eleven months, twenty-nine days for the DUI
conviction, and one day for the leaving the scene of an accident conviction.1 The manner of
service of the defendant’s sentence, including whether she would be granted judicial
diversion for the assault offenses, was left to the trial court’s later determination. The
prosecutor recited the following factual basis for the pleas at the guilty plea hearing:

              Had this matter gone to trial, the State would have . . . shown that on
        December 14th of 2007, at 9:29 p.m., [the defendant] was involved in an
        accident at Lamar Avenue and Airways where she hit the . . . victim’s vehicle
        causing it to burst into flames and then left the scene.

               Post-office police officers in Unit Number 72 . . . observed the suspect
        leaving the intersection of the accident and followed her to [the residence of
        her in-laws] . . . where they observed her behind the steering wheel of the
        vehicle.

                They then observed her get out of the vehicle and go into [the
        residence] and they called for the [Memphis Police Department (“MPD”)] to
        make the scene. MPD officers made the scene and found the suspect laying
        [sic] in a bed in the front room of the house.

               Officers on the scene advised the suspect to get up out of the bed and
        she was unable to get up and needed help to get out of bed because she was too
        intoxicated.

                 She smelled strongly of alcoholic beverage, had slurred speech and was
        . . . unable to stand or walk on her own without assistance.

                 Once in custody, the suspect freed herself from her handcuffs and
        became enraged and abusive towards the officers. A DUI unit was called.
        They attempted to give her the [blood-alcohol content test,] but she refused to
        take it.



        1
         The State nolle prosequied two of the counts of leaving the scene of an accident and the reckless
driving count.

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              Three victims were injured in the other vehicle that the suspect hit and
       were transported to the [Regional Medical Center] in stable condition.

       At the sentencing hearing, the thirty-nine-year-old defendant testified that she had two
children and was currently separated from her husband. She said she had been employed at
Swift Transportation for nine years and was confident that she would be able to abide by the
conditions of probation, including the payment of probation fees and restitution.

        When asked by the trial court to describe how the accident occurred, the defendant
testified that she had been studying at home for her board examination for her master’s
degree, during which time she had drunk two glasses of wine, when her computer crashed,
which meant that she had to go to her office to complete her assignments. As she was
returning home, she noticed a car beside her that was weaving in and out of traffic, which
frightened her. The defendant explained that she had been receiving threatening telephone
calls since the previous weekend when her vehicle, containing her cell phone and
identification, had been stolen. Believing that the people in the erratically driven car were
the ones who had stolen her vehicle and threatened her, she sped up in an attempt to escape,
turned a corner wide without yielding to oncoming traffic, and struck the victim’s vehicle.

        The defendant testified that she returned to consciousness after the collision to hear
someone say, “[W]e’re going to kill this ‘B’.” She said she had been prepared to check on
the occupants of the other vehicle, but, after her life was threatened, she “just tried to secure
[herself]” and get to a safe place to call the police. For that reason, she drove to the home
of her in-laws, only two to three miles away, instead of to her own home in Millington. The
defendant insisted that she wanted to return to the accident scene, but the police would not
let her, which, she said, made her “very irate and livid.”

        Upon further questioning, the defendant testified that she did not call the police
because she could not find her cell phone and there was no telephone in her relatives’ home.
She said she became abusive with the police officer because he asked her what she was doing
in that area, which made her believe that he was “stereotyping [her].” In support for her
claim that the victims had threatened her life, the defendant related that the police officer
who had responded to the accident scene, whom she later encountered at the Regional
Medical Center, “said that he had to apprehend one of the suspects because he was . . . a
hothead.”

       At the conclusion of the hearing, the trial court found that the defendant was not a
suitable candidate for judicial diversion or full probation and therefore sentenced her to serve
thirty days in the county jail, with the remainder of her time on supervised probation.

                                         ANALYSIS

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       The defendant contends on appeal that the trial court did not afford enough weight to
the factors in her favor, including her lack of a serious criminal record and positive
educational, familial, and employment history. The State argues that the trial court’s denial
of judicial diversion or a sentence involving full probation was proper. We agree with the
State.

        Following a determination of guilt by plea or by trial, a trial court may, in its
discretion, defer further proceedings and place a qualified defendant on probation without
entering a judgment of guilt. Tenn. Code Ann. § 40-35-313(a)(1)(A) (Supp. 2008). A
qualified defendant is one who is found guilty or pleads guilty or nolo contendere to a
misdemeanor or Class C, D, or E felony; has not been previously convicted of a felony or a
Class A misdemeanor; and who is not seeking deferral for a sexual offense, a violation of
Tennessee Code Annotated sections 71-6-117 or 71-6-119, or a Class A or B felony. Id.
§ 40-35-313(a)(1)(B)(i). If the defendant successfully completes the period of probation, the
trial court is required to dismiss the proceedings against him, and the defendant may have the
records of the proceedings expunged. Id. § 40-35-313(a)(2), (b).

       The decision to grant or deny a qualified defendant judicial diversion lies within the
sound discretion of the trial court. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn.
Crim. App. 1998); State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997); State
v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993). As such, it will not be disturbed
on appeal absent an abuse of discretion. Electroplating, 990 S.W.2d at 229; Cutshaw, 967
S.W.2d at 344; Bonestel, 871 S.W.2d at 168. To constitute an abuse of discretion, the record
must be devoid of any substantial evidence in support of the trial court’s decision. Cutshaw,
967 S.W.2d at 344; Bonestel, 871 S.W.2d at 168; State v. Anderson, 857 S.W.2d 571, 572
(Tenn. Crim. App. 1992).

       In determining whether to grant diversion, the trial court considers (a) the accused’s
amenability to correction, (b) the circumstances of the offense, (c) the accused’s criminal
record, (d) the accused’s social history, (e) the accused’s physical and mental health, (f) the
deterrence value to the accused as well as others, and (g) whether judicial diversion will
serve the interests of the public as well as the accused. Electroplating, 990 S.W.2d at 229;
Bonestel, 871 S.W.2d at 168. A trial court should not deny judicial diversion without
explaining the factors in support of its denial and how those factors outweigh other factors
in favor of diversion. Id.

        The record reflects that the trial court considered each of the above factors in its
determination of whether the defendant should receive judicial diversion. The court noted
that the defendant had several “very positive factors” weighing in her favor, including the
fact that her physical health was good, she was well-educated, she had “had very solid jobs,”
and her family supported her. The court further noted that the defendant’s criminal record

                                              -4-
was minimal, consisting merely of a disorderly conduct charge that had been dismissed and
minor driving offenses that had occurred over ten years earlier. The court found, however,
that these positive factors were outweighed by the seriousness of the offense, the need for
deterrence in a county in which there were a substantial number of alcohol-related traffic
accidents, and the fact that the defendant had not evidenced real amenability to correction.
With respect to the defendant’s amenability to correction, the trial court stated in pertinent
part:

              But what is a truly true concern is the defendant’s amenability to
       correction.

                I know acceptance of the responsibility is not the controlling factor, but
       it is at least a factor to take into account.

              The prosecutor is correct in making the observation about the
       defendant. Although towards the end of her testimony she said that she
       accepts the responsibility.

               That was not demonstrated in her . . . testimony. Everyone else seemed
       to be at fault. People who were weaving in and out of traffic. Also, after the
       accident occurred, apparently someone said something that she heard.
       Although there’s nothing in the officer’s information that indicates and
       supports that.

              The officers that arrested her, they said something to . . . upset her. And
       she seems to place blame on everyone but herself.

              And so, in balancing the positive factors about the defendant and her
       history against the circumstances of the offense, amenability to correction,
       which just doesn’t seem as though I can place amenability to correction in the
       defendant’s favor, as well as deterrence value and whether diversion would
       serve the interests of the public or the defendant. Those negative factors far
       outweigh the positive factors about the defendant’s history.

       The record supports the trial court’s determination that those factors favoring the grant
of diversion were outweighed by those favoring denial. The intoxicated defendant struck
another vehicle occupied by at least three individuals, causing it to burst into flames; fled the
scene rather than attempting to render aid to the victims or call for assistance; was belligerent
with the police officers who arrived to arrest her; and later attempted to cast blame for the
accident and her subsequent behavior on others rather than accepting responsibility for her
own actions or expressing any genuine remorse. We, therefore, conclude that the trial court

                                               -5-
did not abuse its discretion in denying the defendant’s request for judicial diversion.

                                     CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the sentences imposed
by the trial court.

                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE




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