         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs April 11, 2006

                  STATE OF TENNESSEE v. RICHARD BARROM

                   Direct Appeal from the Criminal Court for Shelby County
                          No. 03-08316   James C. Beasley, Jr., Judge



                      No. W2005-01596-CCA-R3-CD - Filed July 28, 2006


Following a jury trial, the defendant, Richard Barrom, was convicted of assault by causing extremely
offensive or provocative physical contact, a Class B misdemeanor. The trial court deferred
sentencing, placed the defendant on diversion for eleven months, twenty-nine days, and ordered him
to perform thirty hours of community service work and complete an anger management program.
On appeal, he argues that: (1) the evidence is insufficient to support his conviction; (2) the trial court
erred in overruling his objection to hearsay testimony; (3) the trial court improperly removed a juror
based on race; and (4) his conviction was barred by prior jeopardy. Additionally, the State argues
that the trial court erred by granting judicial diversion. Following our review, we affirm the
judgment of the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J.C.
MCLIN , JJ., joined.

C. Michael Robbins (on appeal) and Ted Hansom (at trial), Memphis, Tennessee, for the appellant,
Richard Barrom.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
and Lance E. Webb, Assistant District Attorney General Pro Tem, for the appellee, State of
Tennessee.

                                               OPINION

                                                FACTS

        The defendant in this case is a Memphis police officer and his conviction is the result of his
conduct toward the victim, an Allright Parking lot attendant, on November 9, 2001, following a
dispute about the parking privileges of the defendant’s wife. The defendant was subsequently
indicted for Class A misdemeanor assault by causing bodily injury (Count 1) and Class B
misdemeanor assault by causing extremely offensive or provocative contact (Count 2). Count 2 was
nolle prosequied, and the jury convicted the defendant of the lesser-included offense of assault by
extremely offensive or provocative contact in Count 1.

                                            State’s Proof

         Annetta Jackson testified that she was employed as a clerk’s aide in the District Attorney
General’s office located in the Criminal Justice Center at 201 Poplar Avenue in Memphis. Shortly
after 8:00 a.m. on November 9, 2001, while taking a coffee break outside her office “[o]n the
Washington [Avenue] side,” she overheard a conversation between a pregnant woman and the
parking attendant, Danny Coleman, at the Allright Parking lot across the street. The woman told
Coleman that she wanted to place her $5 parking fee “in the slot” in the metal box, rather than give
it directly to him. Coleman informed the woman, who appeared agitated, that it was his job to
collect the $5 and that if she did not pay it, a barrel would be placed on her car. Jackson said she did
not see the woman give any money to Coleman, and if Coleman had “said something out of the way”
to the woman, she could have heard it. About ten minutes later, she saw the defendant come from
across the street and walk up behind Coleman. The defendant, using a raised voice and standing
“[n]ose to nose” to Coleman, said, “You don’t talk to my mother fucking wife like that. . . . She’s
pregnant.” Coleman backed up, but the defendant “kept getting in his face.” Coleman told the
defendant, “I didn’t say anything. She has to pay me. That’s why I’m out here.” The defendant then
pushed Coleman with both hands and “got into a Kung Fu mode, . . . and he just went to kicking at
[Coleman] and cursing him, pushing him.” Jackson saw the defendant strike Coleman three times,
“[m]aybe more.” A “white man” tried to break up the fight, but the defendant pushed him, so the
man “just threw his hands up” and walked away. Jackson said the defendant kicked Coleman and
“knocked him down to one knee.” She said the defendant was wearing glasses which never came
off but were “hanging . . . on one side” after the defendant hit himself. Several police officers
responded to the scene and “jumped” on Coleman. As Coleman was trying to get up, “a female
officer . . . had him down with a stick across his throat.” She said the victim was transported by
ambulance from the scene and the defendant “[s]tarted walking off.” Jackson said at the time she
did not know that the defendant was a police officer and he did not identify himself as such when
he walked up to Coleman.

        On cross-examination, Jackson testified that Coleman was wearing an Allright Parking shirt,
long pants, and a bandana and hat on his head that day. She acknowledged that when the woman
refused to give her money to Coleman, he raised his voice to her and said, “You have to give me the
$5. That’s why I’m standing here.” She said Coleman never swung at the defendant although she
told the police in her statement that Coleman did swing at him, explaining that Coleman was
“[p]rotecting himself.”

        Ralph Rosen testified that he had just gotten out of his truck in the parking lot when he heard
“some yelling, screaming” and saw the victim and the defendant arguing. He said the defendant
“looked pretty pissed” and told the victim “he’d beat him down, and he went on to say that he would
kill him.” Rosen then saw the victim and the defendant pushing each other and the defendant kick


                                                  -2-
the victim in the left hip. The victim “kind of stepped back . . . took his natural defenses and kind
of stood his ground.” Rosen said he stepped between the victim and the defendant to try to diffuse
the situation. However, the two men continued to curse each other, and the victim reached around
Rosen’s back and slapped the defendant, knocking the defendant’s glasses off in the process. Rosen
then stepped back and decided to “let them have at it.” He estimated the altercation lasted “[a]t the
most maybe two or three minutes” and said the defendant told the victim, “I’m going to fucking kill
you,” several times during the confrontation. Rosen said he did not know that the defendant was a
police officer until he separated the defendant and the victim and noticed the words “Memphis Police
Department” on the defendant’s “white polo shirt.” Asked if he noticed a mark or scratches on the
defendant’s face, Rosen replied, “Briefly I did just where like the nosepiece of the glasses would
have been, and something would have hit him.”

        Carolyn Mosby testified that she witnessed the altercation between the defendant and the
victim and heard the defendant tell the victim, “I’ll kick your fucking ass. . . . I’ll fucking kill you.
. . . My wife is fucking pregnant. You don’t fuck with my wife.” The defendant then kicked the
victim and told the victim “to hit him back.” The victim told the defendant, “Get up out of my face.”
The defendant kicked the victim “like he was a trained judo fighter” about ten times, but the victim
never struck the defendant. She saw Rosen try to separate the defendant and the victim but denied
that the victim reached around Rosen and struck the defendant. She said that after Rosen tried to
separate the two men and after the defendant had kicked the victim several times, the defendant
“knocked his own glasses off when he was jumping back.” She said the defendant was not in
uniform and never identified himself as a police officer. She said the victim was wearing “a parking
lot attendant outfit, blue with red writing on it” and the defendant was wearing “street clothes . . .
khakis and a t-shirt with a orange stripe around the collar.” She said the defendant was not injured
during the altercation, but the victim was lying on the street rubbing his leg.

        The victim, Danny Coleman, testified that he was working as a parking attendant at the
Allright Central Parking Lot located at Third and Washington Streets on November 9, 2001. He
explained that his job duties included collecting money from customers and placing a ticket on their
cars and said the appropriate time for customers to place their money in the metal box was when he
was not working. After parking her car in the lot, the defendant’s wife approached the pay meter and
Coleman, who was dressed in his work uniform, told her she had to pay him. Coleman said Mrs.
Barrom did not want to pay him “because she thought I was scheming trying to take her money. . .
. She thought I was a con artist maybe.” Coleman showed her his identification badge, and Mrs.
Barrom told him she had already put three dollars in the pay meter. Coleman told her she could put
the rest of her money in the pay meter and “didn’t give her a hard time” because she was pregnant.
However, Mrs. Barrom did not put any money in the meter; instead, she tore a piece of paper off the
folder she was carrying, wrote down Coleman’s name from his identification badge, told him she
was going to tell her husband that he had hassled her with parking, and left. Coleman said he paid
Mrs. Barrom’s $5 parking fee and placed a ticket on her car. He denied that he told Mrs. Barrom
her car would be towed or that a barrel would be placed on it.




                                                  -3-
        Coleman testified that, about ten to fifteen minutes later, the defendant approached him with
the same sheet of paper that Mrs. Barrom had written his name on, asked him what his name was,
and said, “If you ever give my pregnant wife a hassle parking again, I’m going to fucking kill you.”
The victim tried to tell the defendant that Mrs. Barrom did not want to pay him and that he did not
hassle her. The defendant responded, “I don’t want to hear that” and pushed the victim to the
ground. The victim stood up and told the defendant he was not going to fight him because he did
not want to lose his job. The defendant kicked him in the left hip and “was like a raging bull
basically.” The victim asked the defendant why he was kicking him, and the defendant kicked at him
again. At that point, Rosen got between the victim and the defendant, but the defendant “kicked
around” him. While trying to keep the defendant away from him by putting his arms out, the victim
accidentally knocked the defendant’s glasses off his face. When the defendant refused to stop, Rosen
gave up and returned to his truck. The victim said the defendant actually kicked him four times but
kicked at him more than ten times. He denied that he had threatened or provoked the defendant.

        The victim said that the defendant was wearing “a white or a cream-colored polo shirt [and]
“some cream-colored, jeans, khakis.” Asked if the defendant’s shirt had “Police” written across it,
the victim replied, “It probably did. I don’t know. I just really wasn’t paying no attention. It may
have did.” However, the victim acknowledged that in his statement to the police after the incident,
he had said the defendant was wearing a white polo shirt with “Police” written across it. He denied
that any officers threw him to the ground when they arrived at the scene.

        The victim said his injuries consisted of a bruised and swollen hip for which he was
prescribed pain medication. He also missed eight or nine days of work and was subsequently
terminated. The victim said that he was five feet, eight inches tall and weighed about 135 or 140
pounds at the time of the altercation.

        Tiffany Green, a dispatcher for the Memphis Police Department, testified that she was at
work on the twelfth floor of the Criminal Justice Center and that she could see the Allright Parking
lot from the windows in her office. After hearing someone say, “They’re fighting,” she looked out
a window and saw “a male black” and the defendant fighting and a man wearing a blue shirt trying
to break up the fight. After the man in the blue shirt was unsuccessful in stopping the altercation,
“the male black” pointed his finger in the defendant’s face, and the defendant kicked him in “the
middle-torso area” three times. Using her binoculars, she saw that uniformed police officers had
arrived at the scene and were taking a “male black into custody.”

         Sergeant Gwendolyn Terry-Cook of the Memphis Police Department testified that she
responded to a “fight call” at the corner of Washington and Third Streets between 8:30 and 9:00 a.m.
The defendant, whom she knew, was the only officer on the scene when she and her partner,
Celestina Moss, arrived. She said the defendant and the victim “were in a face off” but were not
touching each other. She and her partner put the victim on the ground, and “the people in the crowd
started yelling that [they] had the wrong guy.” The defendant told her that his wife had parked in
the lot and the victim had cursed her. The defendant said that while he and the victim were “having
words,” the victim walked into his “personal space.” The defendant told Sergeant Terry-Cook that


                                                -4-
he had pushed the victim out of his personal space, and the victim “came back into his personal
space and that’s when [the defendant] pushed him and struck him.” She said the defendant did not
appear to be injured, but he told her that his glasses had been broken during the scuffle. The victim
“was crying and complaining of pain” and was transported by ambulance to a hospital.

        Sergeant Greg Sanders of the Memphis Police Department testified that he was assigned to
the Security Squad of the Inspectional Services Bureau on November 9, 2001, and that the function
of the squad was to handle complaints against police officers. His inspector informed him that the
defendant had been involved in an altercation at the Allright Parking lot and requested that he go to
the scene. When he arrived, medical personnel were preparing to transport the victim and several
police officers were already present. Sergeant Sanders said the defendant’s wife, a patrol officer,
also came to the scene. The defendant told Sanders that his glasses had been knocked off during the
altercation, and photographs were taken of the glasses, as well as the victim’s jacket and cap which
were on the ground. Sanders said the defendant “had a speck of blood somewhere on his face,” but
he did not see any blood on the ground.

                                           Defense Proof

        Kimberly Barrom, the defendant’s wife and a Memphis police officer, testified that at the
time of the incident she was four months pregnant and was working in the Information Technology
Department located in the Criminal Justice Center. When she arrived for work on November 9,
2001, she parked her car in the Allright Parking lot and did not see an attendant although there was
usually an attendant present. After she had placed three of her five one-dollar bills in the meter box,
she heard the victim yelling at her, “Why you-all mother fuckers always fucking with me?” Mrs.
Barrom tried to give the victim her other two dollars, but he would not accept it, so she put it in the
box. She said the victim “kept getting madder” and refused to give her a receipt for her parking fee.
The victim told her, “This is my mother-fucking lot. I can do anything I want to on my mother-
fucking lot. I’ll do anything I want to, to these mother-fucking cars while they’re on my mother-
fucking [lot].” She asked the victim for his name and wrote it down after he showed her his
identification card. She called and reported the incident to Mary Marino at Allright Parking. She
then told her mother, who also worked in the Criminal Justice Center, about the incident, and her
mother telephoned the defendant. Mrs. Barrom told the defendant what had happened and that she
was concerned about her car being towed. She said she was extremely upset and fearful during the
incident with the victim.

       On cross-examination, Mrs. Barrom said she did not remember if the victim had been
wearing an Allright Parking uniform. She agreed that the victim’s behavior toward her constituted
disorderly conduct, but she did not issue a citation to him. Mrs. Barrom said she took the victim’s
comment that “he could do anything he wanted to on his lot” as a threat, and she filed a complaint
with the police department four days later.

      The defendant testified that he graduated from the police academy in 1989 and that he was
a member of the Army National Guard where he had received training in self-defense techniques.


                                                 -5-
Regarding martial arts training, the defendant said he possessed a yellow belt in Taekwondo. He
said that, on November 9, 2001, he was assigned to the Homicide Squad of the Memphis Police
Department located on the eleventh floor of the Criminal Justice Center. He said he was allowed
to wear casual attire on Fridays and had done so on November 9. He identified the shirt he wore that
day and said it had been in a sack in his closet and had not been inspected by an investigator. He
said his shirt was torn during the altercation with the victim.

         The defendant said that, on the day of the incident, he received a telephone call from his
mother-in-law and then spoke to his wife whose voice was “trembling.” After his wife told him that
the victim had threatened to tow and put a barrel on her car, he left his office to go move her car and
get the supervisor’s information of the individual who had upset his wife. The defendant said he was
not wearing his badge and did not have his gun with him when he went to the parking lot. He asked
the victim for the name of his supervisor and if he had “curse[d] a pregnant lady on this parking lot.”
The victim replied, “No, I did not curse that pregnant white lady.” The defendant informed the
victim that the “pregnant white lady” was his wife and the victim “closed up and put his chest up
against [the defendant’s].” The defendant said that the victim’s chest was touching him and that the
victim’s demeanor had been “escalating with every question asked.” The defendant then pushed the
victim away with his hand and told him to stay away. The victim “came right, right back up against
[the defendant’s] chest.” The defendant pushed the victim away again, stepped back, held up his
hands and said, “Stay out of my face,” using “a command voice.” The victim then knocked the paper
and pen from the defendant’s hands, pushed the defendant, “got back up in [the defendant’s] chest,”
“mumbled something,” and said he did not want to lose his job. The defendant pushed the victim
away, and the victim came toward the defendant with a “balled up” fist. Because he believed the
victim was going to hit him, the defendant kicked him in his hip area. He explained that he kicked
him instead of using his fists because he had been taught to neutralize a threat by kicking, rather than
fist-fighting. The victim then pulled his hat and jacket off, balled up his first, and “came right back
to [the defendant].” Rosen intervened and stepped between the defendant and the victim, saying,
“Hold. Hold.” The defendant told the victim, “You’re going to jail buddy,” and the victim reached
across Rosen’s left shoulder and punched the defendant, knocking his eyeglasses to the ground.
After the victim struck the defendant, Rosen stepped aside and the defendant told the victim to
“[b]ack off.” However, the victim came at the defendant again, and the defendant kicked him in the
thigh area. The defendant said he kicked the victim four times during the altercation and the entire
incident lasted “no more than five minutes.” The defendant said he had scratches on both wrists and
blood on his nose. He said that the victim used profanity “a couple of times” and that it was likely
he had done so as well. Asked if he had threatened to kill the victim, the defendant said, “I know
that during the initial confrontation before Mr. Rosen stepped in, I did not, absolutely did not, but
after he punched me in my face and I got angry, I very well might have. I don’t know.” He said that
all of the physical contact he had with the victim was in self-defense.

        On cross-examination, the defendant acknowledged that he never identified himself as a
police officer to the victim. The defendant said he was six feet, two inches tall and weighed about
240 pounds at the time of the incident. He estimated the victim’s height as five feet, eight inches
and his weight at about 180 pounds at the time. He acknowledged that he was several inches taller


                                                  -6-
and at least sixty pounds heavier than the victim. The defendant maintained that the victim
“presented a threat. He kept presenting himself into my personal space. He kept acting
aggressively.”

        Amy Sullivan, a dispatcher for the Memphis Police Department, testified that she was at
work on the twelfth floor of the Criminal Justice Center and saw, from the windows in her office,
the victim strike the defendant and the defendant then push the victim. The victim came at the
defendant again, and the defendant pushed him and kicked at him. She sent out a broadcast over the
radio to alert officers to the scene and identified an event chronology of the incident which reflected
that the broadcast went out at 8:38.35 a.m. and that the first officers arrived on the scene at 8:38.37
a.m. On cross-examination, she acknowledged that what she had witnessed may not have been the
first contact the defendant and the victim had with each other.

        Scott Alexander Tucker, a dispatcher for the Memphis Police Department, testified that he
witnessed the altercation from the windows in his twelfth floor office. He said the defendant and
the victim appeared to be “going off on each other yelling, . . . hollering.” He saw a man wearing
a blue shirt trying to separate the defendant and the victim, but the man got “fed up with it and said
forget it.” He described what he saw next: “The [defendant] took like a stance position like to
defend himself, and then the [victim] came at him, and he just took his foot and just kicked him right
around the middle of the chest. He just sort of doubled over and that was about it. That was the
confrontation that happened that I saw.”

       Officer Daniel Jacobs, a bicycle officer with the Memphis Police Department, testified that
when he arrived at the scene, the victim was lying on the ground and he observed a “gash,” which
he described as “[a] cut, a wound, an opening” on the defendant’s nose. To Officer Jacobs’
knowledge, the victim was never arrested.

        Lieutenant Tracy Gossett of the Memphis Police Department testified that she was a sergeant
in the Homicide Bureau on November 9, 2001, and worked with the defendant, whom she had
known for about seventeen years. She described the defendant as “a very truthful person.” On the
morning of the incident, she looked out her office window and saw the defendant and the victim in
“some sort of scuffle in the parking lot.” She went to the scene and saw that the defendant had “a
red abrasion as though he’d be[en] struck in the face” and “some scratches on his arms.” On cross-
examination, Lieutenant Gossett acknowledged that she only saw the end of the altercation as it was
being broken up by other officers.

        Sergeant Nathan Berryman of the Memphis Police Department testified that he had known
the defendant for about fifteen years and considered him a friend. He described the defendant as
“honest” and “one of the most stand-up, straight-up kind of guy I’ve ever met. . . . [Y]ou can trust
him with a million dollars.”

       Officer Tameko Fields of the Memphis Police Department, called by the State as a rebuttal
witness, testified that she responded to the scene and because “the call went out as [an] officer


                                                 -7-
involved in a fight with a possible armed party,” she grabbed the victim by the arm and told him to
get on the ground. She recognized the defendant as a police officer from the shirt he was wearing
which bore a police emblem. The defendant never told her that he had placed the victim under
arrest. When she arrived, the defendant and the victim were standing “toe to toe” with their arms
at their sides. She did not see the defendant and the victim exchange any blows or push each other.

                                             ANALYSIS

                                   I. Sufficiency of the Evidence

         The defendant argues that the evidence is insufficient to sustain his conviction. Specifically,
he argues that “[s]ince the jury found the defendant not guilty of an assault by knowingly causing
bodily injury; and, further, the evidence was uniformly to the effect that the defendant caused bodily
injury, the evidence is insufficient as a matter of law to sustain a conviction of the B misdemeanor
assault proscribed by Tenn. Code Ann. § 39-13-101(a)(3).”

        In considering this issue, we apply the familiar rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court is “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); see also Tenn. R. App. P. 13(e) (“Findings
of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”); State
v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn.
Crim. App. 1992). All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory
of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the
rationale for this rule:

               This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their demeanor
       on the stand. Thus the trial judge and jury are the primary instrumentality of justice
       to determine the weight and credibility to be given to the testimony of witnesses. In
       the trial forum alone is there human atmosphere and the totality of the evidence
       cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).


                                                  -8-
        The defendant was convicted of Class B misdemeanor assault, which occurs when a person
“[i]ntentionally or knowingly causes physical contact with another and a reasonable person would
regard the contact as extremely offensive or provocative.” Tenn. Code Ann. § 39-13-101(a)(3).
Relying on State v. Smiley, 38 S.W.3d 521, 525 (Tenn. 2001), the defendant argues that his physical
contact with the victim was not extremely offensive or provocative.

        Viewed in the light most favorable to the State, the proof at trial established that the
defendant, angered by the victim’s conduct toward his pregnant wife, left his workplace and went
to the parking lot where the victim worked. There, the defendant and the victim engaged in a heated
dispute, and the defendant cursed and threatened to kill the victim, pushed the victim, and kicked
him four times. Based on this evidence, we conclude that the jurors reasonably could have
determined that the defendant’s actions toward the victim satisfied the elements of Tennessee Code
Annotated section 39-13-101(a)(3).

                      II. Admission of Sergeant Terry-Cook’s Testimony

         The defendant next argues that the admission of Sergeant Terry-Cook’s testimony that people
in the crowd at the scene shouted to the police that they “had the wrong guy” when the officers took
the victim to the ground “necessarily implies that the aggressor in this conflict was the defendant.”
At trial, the defendant objected to this testimony as hearsay, and the following exchange occurred
during a bench conference:

               [DEFENSE COUNSEL]: I’m going to move to strike the comment from the
       record regarding the crowd and the comment as hearsay, obviously, and ask that it
       be stricken from the record and the jury be instructed.

                [THE STATE]: Judge, it’s not being offered to prove the truth of the matter.
       It’s just being offered to show why she acted the way she did.

               THE COURT: I’m going to overrule your objection, [defense counsel]. I
       think that’s proper comment, and I think I’ll allow it under those circumstances.

               [DEFENSE COUNSEL]: May I respond only that even if the Court feels that
       it was in some way relevant to this, I think 403 would indicate that it should be
       excluded.

              THE COURT: Well, I think there’s already been testimony to this effect from
       other witnesses who’ve already testified that when the officers arrived, what
       occurred, and they were telling the officers they had the wrong person. So I think it’s
       – I’m going to allow it. I think it’s proper.

         Hearsay is defined as “a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.


                                                 -9-
801(c). “Relevant evidence” is defined as “evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Tenn. R. Evid. 401. Rule 403 provides that “[a]lthough relevant,
evidence may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.” Tenn. R. Evid. 403. Questions as to the
admission of evidence generally lie within the sound discretion of the trial court and will not be
reversed on appeal absent a showing of an abuse of discretion. State v. Edison, 9 S.W.3d 75, 77
(Tenn. 1999).

         To place this matter into context, we note that, earlier in the trial, Annetta Jackson had
testified that the defendant had come up behind the victim, cursed him in a raised voice, pushed him
with both hands, kicked him, and knocked him to one knee. Ralph Rosen testified that he had seen
the victim and defendant pushing each other, and the defendant kicked the victim, who slapped the
defendant, knocking off his glasses. During the encounter, the defendant several times told the
victim, “I’m going to fucking kill you.” Carolyn Mosby testified that, although the victim did not
strike the defendant, the defendant kicked the victim several times and knocked off his own glasses.
As for specifics of the incident, Tiffany Green said that she saw the victim point his finger in the
defendant’s face, who responded by kicking the victim three times. Thus, by the time the jury heard
some in the crowd shout that officers “had the wrong guy,” as they had arrived and taken the victim
to the ground, there already was abundant testimony that the defendant had angrily confronted the
victim and loudly cursed, pushed, and kicked him. Thus, we conclude that even if the trial court
abused its discretion in allowing this short statement, the error was harmless in view of other
testimony from different witnesses to the same effect.

                                       III. Removal of Juror Williams

        The defendant argues that the trial court improperly removed Juror Martha Williams on the
basis of race,1 saying “the responses of Ms. Williams to the questions of the trial court revealed no
basis for removal for cause.”

       After the proof was presented, but before closing arguments and jury instructions, a deputy
informed the trial court that Juror Williams had told him that she had been robbed at gunpoint the
previous night and that her son was a Memphis police officer. The trial court explained its concern:

         My concern is first of all, she’s been a victim of an armed robbery what kind of frame
         of mind she’s in. Now, she didn’t say anything this morning, but she’s obviously
         said something to [the deputy] as they’re leaving. So that was my chief concern. The
         other came, as he put it, Page 2 of the conversation, and so that I thought needed to



         1
          Although not explicit in the record, it appears that the defendant and Juror W illiams are white and the victim
and the robber of Ms. W illiams are African-American.

                                                         -10-
        be brought to you-all’s attention. My concern is her emotional state after having
        someone put a gun in her face and rob her.

The trial court then conducted voir dire examination of Juror Williams, and she informed the court
that she had worked at a credit union for twenty-two years and had been “through several robberies”
which would not affect her ability to go forward with the case. She acknowledged that her son is a
Memphis police officer and said that would not affect her ability to hear the case and that she could
judge the police officers’ credibility like anyone else. The prosecutor then informed the trial court
that the man who had robbed Juror Williams was African-American. The court made the following
findings:

                Well, I’m going to do this because I have a concern. First of all, I have an
        extra juror, and that’s the whole purpose of me having an alternate. I have a juror
        who’s been the victim of an aggravated robbery. I am in the midst of trying a
        member of the Memphis Police Department, and I have many Memphis Police
        Department witnesses that have been testifying. I am just now finding out that she
        has a son who’s a member of the Memphis Police Department.

                 Even though she expresses no concern, no problem with going [f]orward with
        the trial and can still indicate that she can be fair and impartial, I have a real question
        of the standpoint of whether that’s the case or not. . . .

                 I’m going to excuse her, gentlemen. I’m . . . going to take the position that
        I think that that’s too close a call, and I’ve got an alternate, and there’s no reason in
        running any kind of risk of any kind of problem. . . . [I]t disturbs me, and it bothers
        me, and since I’ve got an alternate and it’s not going to affect my ability to go
        forward with the trial, and we all agree on the other thirteen, and I don’t know
        whether she would have been selected as the alternate or not.

                She’s not the designated alternate, but we have no designated alternate. So
        she could have been designated as the alternate and with the problems that have
        arisen, I’m going to excuse her, and we’re going to [go] forward with the remaining
        twelve.

         Although the defendant seeks to cast the removal of Juror Williams at least partially in a
racial light, we respectfully disagree that this was the case. The trial court explained that the concern
was for “her emotional state after having someone put a gun in her face and rob her.” Thus, we
conclude that the trial court did not abuse its discretion in excusing the juror because of her traumatic
experience the evening before. See State v. Mickens, 123 S.W.3d 355, 375 (Tenn. Crim. App.
2003).




                                                   -11-
                            IV. Conviction Barred by Prior Jeopardy

        The defendant argues that when Count 2 was nolle prosequied, the offense alleged in Count
2, assault by causing extremely offensive or provocative contact, was no longer before the jury.
Citing State v. Rush, 50 S.W.3d 424, 432 (Tenn. 2001), he contends that because the jury acquitted
him of assault by knowingly causing bodily injury as charged in Count 1, he “may only be retried
for ‘any offenses which qualify . . . as lesser-included offenses of . . . (assault by knowingly causing
bodily injury) that were not originally charged; or . . . were charged but which are lesser offenses
than (assault by extremely offensive or provocative physical contact).’”

       As we understand this argument, it is premised upon the defendant’s belief that the offense
of which he was convicted, Class B misdemeanor assault by extremely offensive or provocative
physical contact, is not a lesser-included offense of the charge for which he was indicted, Class A
misdemeanor assault resulting in bodily injury. He cites no authorities for this proposition and we
conclude that, in fact, the contrary is true. See Smiley, 38 S.W.3d at 525. Additionally, the
defendant’s argument assumes that this court will reverse his conviction and order a retrial.
However, since we affirm the conviction, there will not be a retrial of the charges.

                          V. State’s Issue Regarding Judicial Diversion

        The State argues that the trial court erred by granting judicial diversion, saying that the
defendant was not a suitable candidate for diversion and that the ends of justice and the best interests
of the public strongly favor denial of diversion.

        Tennessee Code Annotated section 40-35-313 provides that, 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). A qualified defendant is one who pleads guilty or is found guilty of a
misdemeanor or Class C, D, or E felony; has not been previously convicted of a felony or a Class
A misdemeanor; and is not seeking deferral for a sexual offense or a Class A or B felony. Id. §
40-35-313(a)(1)(B). 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), overruled on
other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). As such, it will not be disturbed on
appeal absent an abuse of discretion. State v. Turco, 108 S.W.3d 244, 246 n.5 (Tenn. 2003). 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).




                                                  -12-
        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.

       In granting diversion to the defendant, the trial court stated:

       I have considered the circumstances surrounding the case. The circumstances under
       which [the defendant] acted. I have considered [the defendant’s] lack of record.
       [The defendant’s] lengthy employment and work history as a member of the
       Memphis [P]olice [D]epartment. I believe that there’s every indication to believe
       that [the defendant] is not the kind of an individual that’s going to continue to violate
       the law.

               It appears to the Court based upon the testimony that was produced at trial
       that [the defendant], in my opinion, overreacted to a circumstance . . . . [The
       defendant] reacted not as a police officer should react, maybe as an irate husband
       would react. But be that as it may, it was still not proper whether it [was] as an irate
       husband or as a police officer. In this Court’s opinion he overreacted and he reacted
       in a way that was not only unprofessional but illegal. And I think the consequences
       that [the defendant] has suffered as a result of this are great. But it is a result of his
       own actions. And I find that [the defendant] is a person that I do not anticipate
       having problems with or anticipate that we will see down here again. And I do find
       based upon all of those factors that he is a proper candidate to [] be considered for
       diversion. I will therefore divert his sentence for a period of eleven months and
       twenty-nine days.

               ....


              Divert it for eleven months and twenty-nine days. I am going to require that
       [the defendant] perform thirty hours of community service work during that time
       period. And I’m also going to require that he complete an anger management
       program. I think that [the defendant] has some issues that need to be addressed.

       It is obvious that this case was well tried by both sides. The trial court had considerable
evidence before it, both from the trial and as additionally contained in the record. The court gave
thorough and careful consideration to the question and concluded that the defendant was an
appropriate candidate for judicial diversion. The record easily supports this determination.



                                                 -13-
                                  CONCLUSION

Based upon the foregoing authorities and reasoning, we affirm the judgment of the trial court.


                                               ___________________________________
                                               ALAN E. GLENN, JUDGE




                                        -14-
