        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  July 19, 2011 Session

       STATE OF TENNESSEE v. MICHAEL ANTHONY SAUNDERS

                  Appeal from the Circuit Court for Dickson County
                  No. 22CC-2008-CR-522      Robert E. Burch, Judge


              No. M2009-02462-CCA-R3-CD - Filed September 13, 2011


A Dickson County Circuit Court jury convicted the defendant, Michael Anthony Saunders,
of one count of aggravated assault, see T.C.A. § 39-13-104(a)(1)(B) (2006), and one count
of vandalism of property valued at $1,000 or more but less than $10,000, see id. § 39-14-408.
The trial court imposed concurrent sentences of three years and two years, suspended to
probation following the service of six months’ incarceration in the county jail. In addition
to contesting the sufficiency of the evidence to support his convictions, the defendant
contends on appeal that the trial court erred by (1) denying his motion for a mistrial based
upon inflammatory statements made by the victim, (2) denying his request for judicial
diversion, and (3) denying him full probation. Discerning no error, we affirm the judgments
of the trial court.

            Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and D. K ELLY T HOMAS, J R., JJ., joined.

B. Kyle Sanders, Dickson, Tennessee, for the appellant, Michael Anthony Saunders.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Dan M. Alsobrooks, District Attorney General; and Billy Henry Miller,
Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               On March 17, 2008, Dickson County Highway Department employee Jasper
Odell McEwin met the defendant, Michael Anthony Saunders, at the defendant’s home to
discuss the defendant’s report of a water drainage problem on his property. Another highway
department employee, Terry Weaver, accompanied Mr. McEwin to the defendant’s
residence. After the three men talked in the defendant’s yard for approximately 15 to 20
minutes, the defendant’s neighbor and victim, Shirley Jean Davis, arrived to discuss with the
defendant a property line dispute. Mr. McEwin testified at trial that the defendant became
“more angry” as he talked to the victim and that “[t]he hotter the argument got . . . [the
defendant] got to cussing” the victim. Mr. McEwin unsuccessfully tried to quiet the
defendant. He did not hear the victim “cuss” the defendant at any time during the argument,
but he did recall that both the victim and the defendant became “more agitated” as the
argument progressed.

               At one point during the argument, the victim showed the defendant a survey
“plat” indicating the location of their property lines. The defendant “got the paper, wadded
it up, pulled down his britches, wiped his behind, [and] throwed [sic] it down.” Then Mr.
McEwin and Mr. Weaver decided to leave. They drove “not hardly 100 yards” away when
they stopped because they “heard a racket.” Mr. McEwin saw the victim trying to turn her
car around while the defendant was “slinging something at her” that looked like a chopping
axe. The victim eventually drove to where Mr. McEwin’s truck had stopped and asked him
to call the police. He observed damage to the victim’s car caused by the axe.

               Mr. McEwin testified that he did see the defendant make a telephone call as
the victim approached his home, but he did not know whether the defendant telephoned 9-1-
1. He also maintained that he never saw the victim pull into the defendant’s driveway and
that the victim turned her car around in the street. At the conclusion of his testimony and
after being excused from the witness stand, Mr. McEwin unsolicitedly – and without
objection by either party – remarked, “I hope I don’t see this no more. Nobody acting like
these people act.”

              Terry Phillip Weaver testified that the defendant had “come to the [highway
department] shop raising a racket with . . . one of the secretaries up there about water getting
under his house.” He recalled that the defendant was “getting a little ill” with the secretary
and threatening to sue the county, so Mr. Weaver and Mr. McEwin drove to the defendant’s
home to discuss the reported drainage problem. While they were discussing the drainage
issue, Ms. Davis arrived, and she and the defendant “got to arguing.”

               Mr. Weaver recalled that the defendant was “getting a little more irritated [with
the victim] all the time” and was using some “pretty rough” language when speaking to her.
When the defendant stuck the survey down his pants and threw it on the ground, Mr. Weaver
decided that the argument had “done got out of hand,” so he told Mr. McEwin that they
needed to leave. As Mr. Weaver drove a short distance away, he heard the victim’s “blowing
the horn and hollering.” When the victim drove to where they had stopped, the two men
“called the law over there.” Mr. Weaver said that the police arrived quickly and that the

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defendant was still “hollering” at the victim from a distance. Because Mr. Weaver was
driving, he did not see the defendant swing anything at the victim’s vehicle, but he did see
the damage to the vehicle.

               The 67-year-old victim, Shirley Jean Davis, testified that she was “very much
afraid to go down [to the defendant’s home by herself] . . . because he ha[d] a violent nature.”
She decided to discuss the property line issue when she saw Mr. McEwin there because she
“felt like [she] would be safe.” Before she got out of her car, the defendant was already
“cussing” her. She recalled that the defendant called her “a ‘G’ ‘D’ trouble making ‘B’” and
that he “went nuts . . . started cussing [her].” The victim showed the defendant the survey.
He looked at the paper “for a pretty good while” then “bent over like that and wiped his
behind with the piece of paper” while uttering a stream of profanity at the victim. When the
victim did not react to his antics, the defendant “pulled his pants down, ex[pos]ed his butt[,
t]ook the paper again, and wiped his butt with the paper.”

                 The victim then decided it was time to go home. As she walked to her car, the
defendant said, “‘I sure hope you’re a light sleeper. There’s a whole lot goes on around here
at night.’” The victim got in her vehicle, and, as she began to turn it around, the defendant
approached her car with what “looked like a 50 pound splitting maul.” He began striking her
car, hitting it seven or eight times. The front end of her car sustained the most damage, and
the attack perforated the sheet metal in several areas. The victim did not initially move
because she was afraid the defendant would accuse her of assaulting him with her car. In an
effort to escape the defendant, the victim hit a water hydrant at least twice. The victim
testified that she “was really scared for [her] life.”

              On cross-examination, the victim maintained that she did not enter the
defendant’s driveway in an effort to turn her car around. She said that the defendant first
struck her car while she was still in park. The victim recalled that she tried to avoid the
defendant throughout the attack. She also stated that had she wanted to run over the
defendant, she could have, but she maintained that she was only trying to avoid the defendant
throughout the altercation.

               Fred Miller, general manager of Gene’s Body Shop, repaired the victim’s 2000
Chrysler 300M at the cost of $5,427.41, within $100 of totaling the vehicle. The car
sustained damage to the front bumper, headlights, hood, front fender, air conditioner
condenser, and radiator. The damage appeared to have been inflicted by a “sharp, heavy
object” like an axe or maul. The car also sustained damage to the rear end with red marks
consistent with paint from a fire hydrant.

              The defendant presented the testimony of Dickson County Sheriff’s Office

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Detective Chris Lewis. As a patrol deputy at the time, Detective Lewis responded to a “civil
standby” call made by the defendant because there had been “previous property disputes”
between the defendant and the victim. On his way to the scene, Detective Lewis received
a second call indicating that the defendant reported the victim tried to hit him with her car.
Detective Lewis arrived and spoke to the victim who told him that the defendant “started
hitting her car” when she tried to leave. The victim indicated a desire to press charges
against the defendant.

              Detective Lewis next spoke to the defendant, who was still standing in his yard
“agitated and cursing” so much that Detective Lewis “had to tell him numerous times to
lower his voice and stop cursing.” The defendant told Detective Lewis that the victim drove
toward him as he walked away from the argument, so he grabbed his axe and hit her car. The
defendant also indicated a desire to press charges against the victim. Detective Lewis
explained that he did not make any arrests at the scene because he “was unable to determine
the primary aggressor . . . due to the conflict in stories and statements.”

               Detective Lewis saw tire tracks that “went partially into the [defendant’s]
driveway,” but he could not determine when or by whom the tracks were made. He stated
that the victim testified consistently with her statement at the scene. He acknowledged that
the defendant admitted hitting the car with the axe but that the defendant claimed self-
defense.

                Based upon this evidence, the jury convicted the defendant of aggravated
assault with a deadly weapon and vandalism of property valued over $1,000 but less than
$10,000. At sentencing, the trial court denied the defendant’s request for judicial diversion.
The trial court imposed concurrent minimum sentences of three years for the aggravated
assault conviction and two years for the vandalism conviction and suspended the sentence
to probation following the service of six months’ incarceration in the county jail. On appeal,
the defendant contends that the evidence is insufficient to support his convictions, that the
trial court erred by denying his motion for a mistrial, and that the trial court erred by denying
his request for judicial diversion and, alternatively, by denying him full probation. We will
address each allegation in turn.

                                  Sufficiency of the Evidence

              We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324
(1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard

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applies to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011).

                When examining the sufficiency of the evidence, this court should neither re-
weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the evidence,
as well as all factual issues raised by the evidence are resolved by the trier of fact. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must afford the State
the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. Id.


              A conviction of aggravated assault, as relevant to this case, requires evidence
that a defendant “[i]ntentionally or knowingly commits an assault as defined in § 39-13-
101(a)(1) and uses or displays a deadly weapon.” T.C.A. § 39-13-102(a)(1)(B). Our Code
defines assault, as relevant to this case, as “[i]ntentionally or knowingly caus[ing] another
to reasonably fear imminent bodily injury.” Id. § 39-13-101(a)(2).


              The Code further provides “[a]ny person who knowingly causes damage to or
the destruction of any real or personal property of another . . . knowing that the person does
not have the owner’s effective consent is guilty of [vandalism].” Id. § 39-14-408(a).


               The defendant contends that the evidence is insufficient to support his
convictions arguing that “the weight of the evidence presented to the jury in this matter
showed that [he] was acting in self-defense when he took the actions he did.” We note that
the defendant cited no authority in support of his argument of this issue. For this reason, we
could deem the issue waived under this court’s rules. See Tenn. R. Ct. Crim. App. 10(b)
(“Issues which are not supported by the argument, citation to authorities, or appropriate
references to the record will be treated as waived.”).


              Nevertheless, in the light most favorable to the State, the evidence in this case
shows that the defendant engaged in a heated exchange with the victim immediately upon
her arrival. The defendant cursed the victim and was extremely rude and provocative in
dropping his pants and wiping the victim’s survey on “his bare butt.” When this behavior
prompted the victim and the county highway employees to leave, the defendant attacked the
victim’s car with an object described as an axe or a heavy splitting maul, a deadly weapon.
The victim testified that she did not drive toward the defendant and, in fact, tried to avoid


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him because she feared for her life. The victim’s car sustained substantial damage from the
attack. The jury accredited the testimony of the victim and rejected the defendant’s claim of
self-defense, as was within their province. Accordingly, we conclude that the evidence is
sufficient to support the defendant’s convictions of aggravated assault and vandalism.


                                           Mistrial


                Next, the defendant argues that the trial court erred by denying his request for
a mistrial after the victim made several inflammatory statements concerning the defendant’s
reputation for violence in the community and past violent encounters with the victim. The
State argues that the trial court’s denial of the defendant’s request for a mistrial was
appropriate because the trial court gave a thorough curative instruction concerning the
statements and also polled the jury to determined that the extraneous comments would not
affect their verdict.


               Whether to grant a mistrial is an issue entrusted to the sound discretion of the
trial court. See State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). The
burden of establishing the necessity for mistrial lies with the party seeking it. State v.
Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).


              Although Tennessee courts do not apply any exacting standard for determining
when a mistrial is necessary after a witness has injected improper testimony, we have often
considered (1) whether the improper testimony resulted from questioning by the State, rather
than having been a gratuitous declaration, (2) the relative strength or weakness of the State’s
proof, and (3) whether the trial court promptly gave a curative instruction. See State v.
William Dotson, No. 03C01-9803-CC-00105, slip op. at 9 (Tenn. Crim. App., Knoxville,
June 4, 1999).


               During the State’s direct examination of the victim, the victim made numerous
unsolicited comments. When explaining why she chose to speak to the defendant with Mr.
McEwin and Mr. Weaver present, she remarked that the defendant had “in days past, tried
to harm [her]” and had, on one occasion, “nearly caused [her] to wreck.” Upon objection,
the trial court advised the victim to answer only the question asked and to refrain from
unsolicited comments. At another point, the victim, while an objection was pending,
remarked that the defendant “ha[d] a violent nature and I do not wish to be around the man.
Not only is he violent, he’s nasty. His mouth is nasty.” Again, the trial court advised the
victim to answer only the questions asked and warned that if the victim continued with her

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unsolicited remarks, “I may have to declare a mistrial.”


               Following the victim’s apology and the prosecutor’s warning the victim to
relate only the facts of the offense and not to offer personal opinions, the victim testified at
some length without any further outbursts. Later during her testimony, however, the victim
stated that the defendant “had done that to someone else” in reference to the attack on her
vehicle. At this point, the defendant objected and moved for a mistrial. The trial court
instructed the jury to disregard the victim’s statement and polled the jury to ensure that the
verdict would not be affected by the extraneous information. The trial court also allowed the
prosecutor to treat the victim as a hostile witness, thereby allowing the prosecutor to ask
leading questions, in an effort to control the victim’s testimony and prevent any further
unsolicited comments.


               In consideration of the motion for mistrial, the trial court noted that “it [was]
obvious to the jury that these two people [were] feuding. They ha[d] a great deal of animus
toward each other.” The trial court also found the victim’s statements “probably hurt her
testimony more than it did [the defendant’s] case.” The statements made by the victim were
gratuitous. Both the trial court and the prosecutor went to great lengths to control the
extraneous comments. The strength of the State’s case was relatively great, yet still could
have been undermined by the victim’s obvious contempt for the defendant when considered
in the context of the defendant’s self-defense claim. Furthermore, the trial court’s curative
instruction and polling of the jury also mitigated any possible prejudice from the statements.
We agree with the State that the trial court did not abuse its discretion by denying the
defendant’s request for a mistrial.


                                 Sentencing Hearing Issues


               The victim testified at the sentencing hearing that the defendant was “very,
very violent, irrational and irresponsible” and asked the trial court to sentence the defendant
to “the hardest punishment possible.” The defendant stated that he only tried to protect
himself and admitted that he and the victim “both acted foolishly.” The parties stipulated the
accuracy of the presentence investigation report, showing that the defendant had no prior
convictions, and the amount of restitution as $243.68.


             The trial court found no enhancement factors to increase the defendant’s
sentence. Accordingly, the court imposed minimum sentences of three and two years for the
aggravated assault and vandalism convictions. The court also found the defendant’s

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“preposterous story of self defense . . . insulting to the jury’s intelligence and to mine.” The
court characterized the defendant’s actions as “simple retaliation.” The trial court denied
judicial diversion, reasoning that the defendant was still not “impressed with the
wrongfulness of his action.” The court also denied full probation, but it did grant a sentence
of split confinement, remarking that some incarceration was necessary to impress the
defendant with the wrongfulness of his actions and that a period of probation would be “more
effective to protect the victim” than a full term of incarceration.


                                     A. Judicial Diversion


               The defendant argues that the trial court erred by denying his request for
judicial diversion. The State contends that the court considered all principles applicable to
diversion and properly denied diversion based upon the defendant’s lack of remorse.


              The term “judicial diversion” refers to the provision in Tennessee Code
Annotated section 40-35-313(a) for a trial court’s deferring proceedings in a criminal case.
See T.C.A. § 40-35-313(a)(1)(A) (2006). Pursuant to such a deferral, the trial court places
the defendant on probation “without entering a judgment of guilty.” Id. To be eligible or
“qualified” for judicial diversion, the defendant must plead guilty to, or be found guilty of,
an offense that is not “a sexual offense or a Class A or Class B felony,” and the defendant
must not have previously been convicted of a felony or a Class A misdemeanor. Id. § 40-35-
313(a)(1)(B)(i)(b), (c). Having been convicted of Class C and D felonies and with no prior
criminal history, the defendant was eligible for judicial diversion.


              Eligibility, however, does not automatically translate into entitlement to judicial
diversion. See 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). The statute states that
a trial court may grant judicial diversion in appropriate cases. See T.C.A. § 40-35-
313(a)(1)(A) (court “may defer further proceedings”). Thus, whether an accused should be
granted judicial diversion is a question entrusted to the sound discretion of the trial court.
Bonestel, 871 S.W.2d at 168.


               “Tennessee courts have recognized the similarities between judicial diversion
and pretrial diversion and, thus, have drawn heavily from the case law governing pretrial
diversion to analyze cases involving judicial diversion.” State v. Cutshaw, 967 S.W.2d 332,
343 (Tenn. Crim. App. 1997). Accordingly, the relevant factors related to pretrial diversion
also apply in the judicial diversion context. They are:

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              [T]he defendant’s criminal record, social history, mental and
              physical condition, attitude, behavior since arrest, emotional
              stability, current drug usage, past employment, home
              environment, marital stability, family responsibility, general
              reputation and amenability to correction, as well as the
              circumstances of the offense, the deterrent effect of punishment
              upon other criminal activity, and the likelihood that [judicial]
              diversion will serve the ends of justice and best interests of both
              the public and the defendant.


Id. at 343-44; see also State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993). Moreover,
the record must reflect that the trial court has weighed all of the factors in reaching its
determination. Bonestel, 871 S.W.2d at 168. The trial court must explain on the record why
the defendant does not qualify under its analysis, and if the court has based its determination
on only some of the factors, it must explain why these factors outweigh the others. Id.

               On appeal, this court must determine whether the trial court abused its
discretion in failing to grant judicial diversion. Cutshaw, 967 S.W.2d at 344; Bonestel, 871
S.W.2d at 168. Accordingly, when a defendant challenges the denial of judicial diversion,
we may not revisit the issue if the record contains any substantial evidence supporting the
trial court’s decision. Cutshaw, 967 S.W.2d at 344; Bonestel, 871 S.W.2d at 168.


                The record in this case reveals that the trial court gave proper consideration to
all relevant factors in assessing the defendant’s suitability for judicial diversion. The trial
court placed significance on the defendant’s continued insistence that he was justified in his
actions as indicative of the defendant’s lack of remorse. The trial court remarked that the
defendant had “a dangerous state of mind” and ordered the defendant to complete an anger
management course as a condition of probation. The trial court also noted the deterrent
effect a period of confinement would have on the defendant’s behavior. We conclude that
the trial court did not abuse its discretion by denying judicial diversion in this case.


                                         B. Probation


              The defendant also argues, without citing to any authority, that the trial court
erroneously denied him full probation. Once more, we could deem the issue waived under
this court’s rules. See Tenn. R. Ct. Crim. App. 10(b) (“Issues which are not supported by
the argument, citation to authorities, or appropriate references to the record will be treated

                                               -9-
as waived.”). Nevertheless, we will address the defendant’s challenge to the trial court’s
denial of full probation.


                When considering challenges to the length and manner of service of a sentence
this court conducts a de novo review with a presumption that the determinations of the trial
court are correct. T.C.A. § 40-35-401(d)(2006). This presumption, however, “is conditioned
upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). The appealing party, in this case the defendant, bears the burden of
establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n
Comments; see also Ashby, 823 S.W.2d at 169. If our review of the sentence establishes that
the trial court gave “due consideration and proper weight to the factors and principles which
are relevant to sentencing under the Act, and that the trial court’s findings of fact . . . are
adequately supported in the record, then we may not disturb the sentence even if we would
have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). In the event the record fails to demonstrate the required consideration by the trial
court, appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.


              In making its sentencing decision, the trial court was required to consider:


              (1) The evidence, if any, received at the trial and the sentencing
              hearing;
              (2) The presentence report;
              (3) The principles of sentencing and arguments as to sentencing
              alternatives;
              (4) The nature and characteristics of the criminal conduct involved;
              (5) Evidence and information offered by the parties on the
              mitigating and enhancement factors set out in §§ 40–35–113 and
              40–35–114;
              (6) Any statement the defendant wishes to make in the
              defendant’s own behalf about sentencing.

T.C.A. § 40–35–210(b). The trial court should also consider “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” Id. § 40-35-103(5).


              Because, in this instance, the sentence imposed is ten years or less, the trial

                                              -10-
court was required to consider probation as a sentencing option. See T.C.A. § 40-35-303(a),
(b). Nevertheless, the defendant bears the burden of establishing his “suitability for full
probation.” State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999); see T.C.A. § 40-
35-303(b); State v. Bingham, 910 S.W.2d 448, 455-56 (Tenn. Crim. App. 1995), overruled
in part on other grounds by Hooper, 29 S.W.3d at 9-10. In consequence, the defendant must
show that probation will “subserve the ends of justice and the best interest[s] of both the
public and the defendant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)
(quoting Hooper v. State, 297 S.W.2d 78, 81 (1956)), overruled on other grounds by Hooper,
29 S.W.3d at 9-10.


               Among the factors applicable to probation consideration, and common to the
consideration of judicial diversion, are the circumstances of the offense; the defendant’s
criminal record, social history, and present condition; the deterrent effect upon the defendant;
and the best interests of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978). With reference to the previously discussed findings of the trial court
concerning the defendant’s overall sentencing, we conclude that the record supports the trial
court’s denial of full probation in this case.


                                          Conclusion


              The evidence is sufficient to support the defendant’s convictions of aggravated
assault and vandalism. The trial court did not abuse its discretion by denying the defendant’s
motion for a mistrial. Furthermore, the sentencing determinations of the trial court are
supported by the record in this case. The judgments of the trial court are affirmed.


                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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