                                                                                            08/13/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                February 27, 2018 Session

               STATE OF TENNESSEE v. WILLIAM H. YOUNG

                Appeal from the Criminal Court for Hamilton County
                    No. 293343    Thomas C. Greenholtz, Judge


                             No. E2017-00913-CCA-R3-CD


The Defendant, William H. Young, appeals as of right from the Hamilton County
Criminal Court’s denial of his request for judicial diversion. The Defendant was
convicted following a bench trial of criminally negligent homicide, and he was sentenced
to eighteen months of supervised probation. On appeal, the Defendant contends that the
trial court abused its discretion by relying solely on the circumstances of the offense in its
decision to deny judicial diversion to the exclusion of other supporting factors.
According to the Defendant, the trial court’s decision to deny his request for judicial
diversion was based on the offense that he was convicted of rather than the applicable
factors. Discerning no error, we affirm the judgment of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Lee Davis and Janie Parks Varnell, Chattanooga, Tennessee, for the appellant, William
H. Young.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; M. Neal Pinkston, District Attorney General; and AnCharlene D.
Davis and Kristen D. Spires, Assistant District Attorneys General, for the appellee, State
of Tennessee.

                                     OPINION
                               FACTUAL BACKGROUND

     Based upon the Defendant’s involvement in a March 20, 2014 fatal car crash on
Highway 58, the Hamilton County Grand Jury charged the Defendant with vehicular
homicide of Donna Marie Giarrusso (“the victim”), reckless aggravated assault of T.G.,1
and reckless endangerment of the public at large. See Tenn. Code Ann. §§ 39-13-102, -
103, -213. The Defendant proceeded to a bench trial in October 2016.

       Just before sunrise on the morning of March 20, 2014, at approximately 6:56 a.m.,
the victim was driving her thirteen-year-old son, T.G., to middle school in her Toyota
Camry. She was traveling on Champion Road, as she did daily. T.G. testified that his
mother stopped at the intersection of Highway 58, a four-lane divided highway, that
twelve to eighteen cars went by before his mother began crossing Highway 58 from
Champion Road, and that she was headed for the median towards the northbound lanes.
T.G. opined that there “was plenty of time to get through the gap” to the median.
However, as they were going across, T.G. looked to his left and “saw these two
headlights” before “everything just went black.”

       Although the speed limit was fifty miles per hour, the Defendant’s Dodge Ram
approached “very rapidly” from the southbound lanes of Highway 58. When the
Defendant realized that the victim was going straight rather than turning right into the
southbound lanes, he applied his brakes, skidding ninety-three feet and swerving “really
hard” from the right lane towards the left lane in an effort to avoid the crash. According
to the Defendant, he was “thinking and hoping and praying to God that she would just
stop,” but the car did not stop. He claimed that there was no way to avoid the crash.

        The Defendant hit the driver’s side door of the victim’s car, and his Dodge Ram
lifted off the ground high into the air, seemingly about to flip over. The airbags in the
Camry did not deploy because of the side impact rather than front-end collision. The
force of the collision knocked the victim’s vehicle 253 feet from the point of impact—
crossing multiple lanes, including turning and emergency lanes, the grass median, and the
highway shoulder, and coming to rest in a field where a wooden pole that was concreted
into the ground with a cable attached to it stopped the car’s movement. The driver’s side
compartment of the victim’s car was not visible. The Defendant’s truck intruded more
than two feet into the victim’s car—the passenger doors would not close; the roof was
distorted; the front windshield was “crinkled”; and the back window had been knocked
out. The Defendant’s truck traveled 170 feet after impact and came to rest in the
northbound lanes of Highway 58.

       According to the Defendant, he got out of his truck, and upon examining himself,
he realized that he was “pretty much okay.” The Defendant and bystanders went to
render aid. The victim’s neck appeared broken; her chin was lacerated; and she had no
pulse. T.G. was knocked unconscious. He suffered a concussion and required “a lot of
stitches” to his head. He also had a “nasty gash” on his leg.

1
    It is the policy of this court to protect the identity of minors.
                                                          -2-
        When the police arrived, the Defendant was asked, “[H]ow fast were you going
down this hill?” to which he replied, “[A]bout 50, 55 as far as I know. I mean, I [was]
just going with the traffic.” Days after the accident, the Defendant, in a recorded phone
call, told his insurance agent that he was driving about fifty miles per hour prior to the
crash, that the victim pulled out in front him, and that he was unable to avoid the
accident. The Defendant claimed that he was driving “along with the traffic,” but he
acknowledged that none of the other cars on the roadway that day were involved in the
accident because they were able to stop prior to any impact.

       Two crash reconstruction experts, Investigators Joe Warren and Stephen York
from the Chattanooga Police Department’s traffic division, testified. The last five
seconds of the Defendant’s movements were recorded on his Dodge Ram’s event data
recorder. The Camry also had a data recording system. From these event data
recordings, the investigators calculated that the Defendant was traveling at eighty-nine
miles per hour and the victim at ten or eleven miles per hour prior to impact. The event
data recorder from the Defendant’s Dodge Ram showed that he was driving at
approximately seventy-three miles per hour five seconds before impact; that he then
accelerated to around eighty-nine miles per hour by pushing the accelerator to the floor
and driving at “100 percent throttle”; and that he applied his brake for the first time only
1.2 seconds before the crash. The Defendant braked for over one second, but when the
anti-lock brakes tried to engage, the tires locked up. He hit the victim’s vehicle driving at
around eighty miles per hour.

        Although the event data recorder provided that he was only traveling at
approximately seventy-two miles per hour at the time of impact, this was incorrect due to
wheel lockup, according to Investigator Warren. Investigator Warren also explained that
the “dip” in acceleration reflected on the event data recorder at 2.9 seconds prior to
impact was the result of a “shift change” in the transmission, meaning that the Defendant
was likely trying to “trick the transmission” into “downshifting” to force further
acceleration. Investigator Warren asserted that it would have been difficult for the victim
to perceive the Defendant’s speed due to the “low-light conditions” that morning, which
required headlights. Moreover, the crash would not have occurred if the Defendant had
been traveling at the posted speed limit, according to Investigator Warren. He asserted
that the Defendant would have been around 330 feet away from the intersection and
would have been able to come to a complete stop. Investigator Warren further submitted
that, if the Defendant had been driving at sixty-miles per hour, ten miles above the speed
limit, he would still have been more than 100 feet away from the intersection when the
victim attempted to cross though it.

       While Investigator Warren agreed that the Defendant could have been attempting
to accelerate around the victim, Investigator Warren opined, “It wouldn’t be a choice I

                                             -3-
would make, but that is a potential interpretation.” He clarified, “I guess it could be an
option. I just can’t imagine what someone would hope to gain from that.” According to
Investigator York, the “road evidence” showed that the Defendant was braking and
swerving to avoid the crash and not in attempting to accelerate to avoid the victim.

        A crash history analysis of this intersection was admitted as an exhibit. The report
showed that twenty-four crashes had occurred at this intersection between November 1,
2011, and March 4, 2014, including one fatal accident occurring just seventeen days
before this collision. The Defendant testified that he was “very familiar” with Highway
58 and became familiar with the intersection at issue because he drove this route to work
every day for two years. He also stated that, “because they had so many situations” in
this area, a lane had been added so an individual could “build their speed up going up the
hill to merge into traffic.” He claimed that he thought the victim was trying to merge into
the southbound lanes, not go across the highway, and that he accelerated to allow her to
complete this perceived maneuver.

        Lenita Jeffers testified at trial that, just prior to the accident, she was traveling in
the right lane headed south on Highway 58 when the Defendant “came quickly in
between [her] and the [car] in the left lane” before he pulled in front of her in the right
lane to pass. According to Ms. Jeffers, there were at least two or three other cars in the
left lane at that time. Ms. Jeffers described that the Defendant was “going rapidly” by her
down the hill. Although Ms. Jeffers was driving the posted speed limit, the Defendant’s
speed made her think she was driving “very slow.” Furthermore, Ms. Jeffers testified
that, when she was at the top of the hill on Highway 58, she saw the victim stopped at the
intersection on Champion Road.

        Deborah McCoy stated in her 9-1-1 call, “[T]he truck that hit the car was going on
[highway] 58 . . . and the car was trying to cross in front and pulled out right in front
him.” At trial, Ms. McCoy testified that she was in a group of cars traveling down
Highway 58 just before the accident. She estimated that she was driving approximately
fifty-five to sixty miles per hour as she was coming down the hill in the right lane when
the Defendant passed her. The Defendant did not change lanes again before the collision.
Ms. McCoy averred that she had no concerns about the Defendant’s driving at that time,
believing that “he was driving his car safely and with the proper . . . due regard for the
other drivers” around him. According to Ms. McCoy, the Defendant’s truck was very
close to the intersection when the victim tried to cross it, and “the gap was too little for
someone to try and make that entry onto Highway 58[.]” She further testified that she did
not see the victim stop at the stop sign on Champion Road. Ms. McCoy also did not
believe that there was anything the Defendant could have done to avoid the accident.

      Heather Randolph called 9-1-1 and reported, “There was just a wreck on Highway
58 and Champion Road, a car just pulled out in front of a truck.” At trial, Ms. Randolph
                                              -4-
testified that “traffic was pretty heavy” when “all of the sudden” the victim “just started
out” across the intersection. She explained, “I don’t even know that the truck saw the
other car pull out. It happened fast and that late.” Ms. Randolph further stated that she
thought the Defendant was “[t]raveling with the flow of traffic,” that she did not believe
he was speeding, and that there was nothing he could have done to avoid the crash. She
further opined that she did not observe any reckless or dangerous driving by the
Defendant that morning.

        Also, Heidi Andress called 9-1-1: “It was a white car that pulled out of Champion
Road in front of a truck going down Highway 58. It pulled off of Champion Road in
front of him and he was going straight.” At trial, Ms. Andress testified, “The truck was
way too close to that car for that car to feel like they, in my opinion, were going to make
it.” Ms. Andress said that the victim did not come to a complete stop before proceeding
through the intersection. Ms. Andress also asserted that she always tried to “pay
attention” at this “dangerous” intersection because people frequently pulled out across
Highway 58 from Champion Road often causing accidents. According to Ms. Andress,
she did not observe any dangerous, risky, or reckless driving by the Defendant that
morning, and she did not think he was speeding. She believed that the Defendant’s
“driving was reasonable and safe under the circumstances as [she] observed them” that
day.

       Quanda Little stated that she was driving northbound on Highway 58 that morning
when she observed the victim fail to come “to a complete stop” before proceeding across
Highway 58. Ms. Little explained that the victim’s car “just shot out.” She opined that
the Defendant was traveling at “a regular speed,” that his speed was not concerning to
her, that he “was keeping up with traffic,” and that the victim’s actions were “unsafe.”
Ms. Little did not think that there was anything the Defendant could have done to avoid
the crash. In addition, Ms. Little stated that she had just moved to the area and had seen
cars frequently cross that intersection without stopping. Ms. Little said she asked her
coworkers about the intersection, and they instructed her to “be careful in that particular
area.”

       Pamela Barnes testified that traffic was “real, real heavy” on the morning of
March 20, 2014. The accident had already occurred when she passed through the
intersection and stopped to assist. She saw that the victim’s car “was smoking really
bad,” and she was afraid that it was going to catch on fire. Ms. Barnes thought the
Defendant appeared “very sincere” as he attempted to help the victim and T.G. Ms.
Barnes said that the Defendant told her “that the car pulled out in front of him.”

       The Defendant presented proof that the victim had suffered from a pink eye
infection about a week before the accident. However, the State called the victim’s
husband, who was living in Louisiana at the time of the accident, in rebuttal. Mr.
                                            -5-
Giarrusso testified that his wife did not inform him of any illness, including any pink eye
infection.

       After the conclusion of proof, the trial court found the Defendant guilty of
criminally negligent homicide as a lesser-included offense of vehicular homicide and
acquitted the Defendant of reckless aggravated assault and reckless endangerment. See
Tenn. Code Ann. §39-13-212. The following facts were adduced at the sentencing
hearings held on January 25, and April 11, 2017. The Defendant’s biographical
information in the presentence report reflected that he had been married for twenty-eight
years, that he had six brothers, that he had obtained a college degree in nuclear
engineering technology, and that he was employed with the Tennessee Valley Authority
(“TVA”) doing mechanical maintenance from 2001 until his arrest at work on these
charges, which caused him to seek early retirement. The Defendant reported no major
health problems and no substance abuse of any kind. He also stated that his childhood
was “great” and that “he was raised by a family who loved the Lord and loved helping
people.” According to the presentence report, the Defendant’s criminal record included
two speeding tickets and one citation for following too closely.

        The presentence report also contained the Defendant’s November 22, 2016
statement regarding the incident. In the six-page, typewritten letter written after trial and
in preparation for sentencing, the Defendant detailed his premature birth; his early family
life, during which he was taught “many spiritual values”; his early medical difficulties,
including a hernia and “a heart problem”; and the power of “divine healing” that cured
his ailments. He then chronicled his middle school history, including the loss of a friend
due to his win in competitive running and how the desegregation of schools affected him.
He continued with a recount of his time in high school, including his acceptance of Jesus
Christ as his savior and his disdain for using alcohol or illegal drugs. Furthermore, the
Defendant relayed that, at the age of twenty-two, he began his service as a minister.
Next, he detailed how he met his wife, went to college, and obtained employment with
the TVA, including his on-the-job dedication to safety. After providing his life history,
the Defendant described the car crash as follows:

               So, on March the 20th, 2014, on my way to work, I had no unsafe
       practices as I drove to work that morning. Every step that morning was to
       ensure that I and any other motorist could go to their destination. Many
       vehicles that morning passed by me and some didn’t, which are the ones
       that stopped at the light with me. The light changed for us to proceed, I
       was in the left lane as we approached the top of the hill with a car on my
       right side. I proceeded pas[t] the vehicle on the right to get in the right lane
       so that I would be in the correct lane as I approached the three-lane section
       near, what is now the Animal Clinic on Highway 58. Continuing down the

                                             -6-
       hill right before getting to the off-ramp, I noticed a car approaching the
       intersection. My first thought was that it was going southbound because of
       how fast it was moving. So, then I checked my mirror and accelerated
       because of [a] car near my blind spot. This was to move back to the left
       lane and allow the vehicle to merge going southbound. When I looked
       back from checking my mirror is when I noticed the car wasn’t going
       southbound but crossing the highway towards the median. I slammed on
       [my] brakes trying to stop, hoping the car would stop and I could possibly
       miss the car, even if I had to go in the median to do so; but would be able to
       avoid a collision. The driver crossing the highway didn’t appear to notice
       my vehicle, or the situation, and continue to come forward. I called out to
       God to protect me because I didn’t see any other action that I could have
       done to avoid a collision.

        Next, the Defendant detailed his behavior after the accident in helping the victims
despite his own injuries, rude behavior by a police officer following the crash, his
retention of a lawyer upon his release from the hospital, how his injuries affected his
ability to work, and his arrest at work in front of his co-workers. The Defendant then
made the following declarations:

               Later I talked to [my attorney] and asked him what was going on.
       He told me that they had evidence from my black box indicating I was
       traveling at an excessive[ly] high speed (90 mph). I said there was no way
       that I was traveling that fast. I asked what did her black box report of her
       doing. He stated that the investigators had reported that her vehicle didn’t
       have a black box. . . . I realized . . . that the investigation had been only to
       find things concerning what I may have done to incriminate me. [My
       attorney] filed a motion to request that the other vehicle’s black box report
       be submitted and the 911 witnesses be found. The report came back
       showing a starting speed of 24 mph going to zero. Then, witnesses stated
       in court that she had run the stop sign, and all that time I had been trying to
       figure out what happened that morning. . . . It wasn’t until after this
       accident, that I was made aware of how dangerous that section of Hwy 58
       was at Champion Road. . . . So, I am now looking at 5 seconds of my life,
       a 3 second decision to accelerate and change lanes another second to
       remove my feet from the gas to the brakes, and 0.70 second to impact of a
       vehicle crossing into oncoming traffic. During that little glitch of time in
       my life, trying to do what I thought would help avoid a collision, is now
       determining my whole future. Beyond the hurt and trauma of a life being
       lost that day, I know I’ll never forget what happened. There have been so


                                             -7-
       many questions left unanswered, but none of them will heal the suffering
       and the trauma the two families experienced that tragic morning.

       There were also five victim impact statements written by the victim’s family
members that were attached to the presentence report—one from the victim’s husband
and son, one from her daughter, one from her sister, one from her father, and one from
her mother. Therein, they detailed the impact the victim’s death had on each of them,
and their contempt for the Defendant given his excessive speed that morning and his lack
of acceptance of responsibility.

        Also made an exhibit to the sentencing hearing were twelve character reference
letters written on behalf of the Defendant. Letters were submitted by his wife, his sister-
in-law, his TVA foreman, two fellow TVA employees, a fellow church member, a
family-member who was a police officer, a long-time friend, his brother, several school
system employees, a United Parcel Service worker, and a pastor. The various letters
extolled the Defendant’s virtues as a husband, worker, Christian, and friend.

       The victim’s husband, Chris Giarrusso, testified that he met the victim when she
was twenty years old, that they had been together for thirty-four years prior to her death,
and had one son, T.G., who was in the car with the victim. Mr. Giarrusso thought about
his wife constantly and had difficulty sleeping after the accident, and his friends feared
that he might try to kill himself. In addition, Mr. Giarrusso described T.G.’s injuries
from the collision: “[H]e was hit on the left side of his head. . . . He had a head
concussion. He was in intensive care. He had . . . a nice abrasion on his leg. He still has
a scar from it.” According to Mr. Giarrusso, the impact of the accident on T.G. “ha[d]
been intense,” and even three years later, T.G. was still very angry and unable to talk
about the accident or go to counselling. Moreover, T.G. was concerned that Mr.
Giarrusso might also be involved in a car crash and called Mr. Giarrusso incessantly.

       In addition to T.G., the victim had a daughter from a prior marriage, Jennifer
Turea. Ms. Turea lived in Louisiana and had three children of her own. According to
Mr. Giarrusso, the family was moving to Louisiana so the victim could be closer to her
grandchildren. Due to this crash, Ms. Turea had lost both of her parents in car accidents.
Furthermore, the victim’s parents were “still . . . in deep depression about” the loss of
their daughter, and they also lost another daughter to breast cancer a year and half after
the crash.

       Regarding the intersection where the crash occurred, Mr. Giarrusso said,

       So, I mean it affected me thinking how you can kill somebody driving 90
       miles an hour when you know [its] a 50-mile-an-hour speed zone coming
       down a hill. And [the Defendant] said he knew, he did it every day. I told
                                            -8-
       my wife and I told myself coming down that hill, you know, you be careful.
       And . . . I just . . . don’t understand it.

Mr. Giarrusso also thought that the Defendant was lying at trial when he said he was
driving fifty miles per hour before the crash. Mr. Giarrusso further testified that the
“hardest part” of trial was hearing the Defendant’s speaking with the insurance agent and
the insurance agent’s having to ask the Defendant if anyone was hurt. Additionally, Mr.
Gairrusso noted that the Defendant had never apologized, and he thought that the
Defendant’s receiving diversion was “ridiculous.”

       The Defendant’s wife of twenty-eight years, Marthel Ireta Young, testified.
Although the couple never had any children of their own, they had “a close, extended
family,” including “devout parents,” multiple siblings, and nieces and nephews. They
also attended church on a regular basis and “always, always cared for others.” Mrs.
Young described the Defendant as a “man of God” that was beloved by his family and as
a compassionate, dependable, balanced, anchored, honest, trustworthy, and caring
individual. She maintained that the Defendant “did not hesitate to minister to others in
their hour of need” and that the Defendant’s word was “his bond.” In addition, she
averred that the Defendant did not drink alcohol or smoke and did not use profanity or
raise his voice. According to Mrs. Young, their lives had been “very peaceable[,] [v]ery
spiritual, and very connected to the Lord.”

      Regarding this accident, Mrs. Young said that the Defendant had “completely”
cooperated with the investigation. The Defendant told her,

       He never saw the car. Why would a car just pull out. He said, I didn’t even
       see it coming. It just came from out of nowhere. . . . I was going down the
       road with the rest of traffic and then this car came out from nowhere. And
       it wouldn’t stop. He said, it just wouldn’t stop. And all I could do was say,
       Jesus.

She remarked, “[T]his has been a very devastating tragedy that has touched all of our
lives in such a devastating way.” She continued, “We don’t know why this has
happened. We have been just devastated by it. We’re so sorry about what has happened.
He has wept. And he has been crushed by this.” According to Mrs. Young, the
Defendant had changed after the accident and had become “very reserved.” Mrs. Young
also opined that the Defendant was remorseful, explaining, “I know he is remorseful in
the fact that if he had to do it all over again, he said, I don’t know what I could have done
differently because the car just kept coming.”

      Michelina Ralston testified that she was employed by the State of Tennessee,
working in the probation arena. She complied a “Risk and Needs Assessment” of the
                                             -9-
Defendant, which report was admitted as an exhibit. The Defendant’s “risk level” for re-
offense was determined to be “low.” In the report, it was stated, among other things:
“Subject accepts responsibility for his/her behavior.”; and “Subject is taking specific
steps toward changing his/her lifestyle.” When asked how the Defendant was changing
his lifestyle, Ms. Ralston replied that an option had to be selected and that was “the most
suitable” because the Defendant “indicated nothing that . . . demonstrate[d] that he’s not
taking positive steps toward change.”

        After hearing all of the testimony and the trial court’s concerns about the
Defendant’s remorse and acceptance of responsibility, the Defendant testified. He told
the court that, given the opportunity, he would say to Mr. Giarrusso, “I am so very sorry
that this happened to cost your wife [her] life. I had no intention for this to happen. I
know it’s a loss to him, a loss to his family, a loss to his friends. And I’m just sorry for it.
And I see my part in it. I accept my part in it.” When asked what was his part, the
Defendant responded,

       That I was driving that vehicle, and at the time I was driving I didn’t feel
       like I was doing what they say I was doing. It was new to me, the vehicle’s
       new to me. Maybe I didn’t understand the feel versus my old vehicle. But
       I’m not arguing against what’s been said against me.

He asserted that he had only been driving the vehicle for two days before the accident.
He continued, “I’m doing everything safe. I mean, I just didn’t think I was doing
anything wrong. And at this point of making a judgment that I thought was the correct
judgment turned out to be the wrong judgment.”

        The Defendant agreed that the victim was “dead because of [his] actions[.]” He
also claimed that he was saddened by his inability to help T.G. or to reach out to the
Giarrusso family. The Defendant exclaimed, “How did we get to this part where for five
seconds of a day it ruined two families . . . [?] Why[?] I can’t sleep at night. . . . I did
this. If I had not been there, this wouldn’t have happened.” The Defendant described,
“It’s a true tragedy.”

        On cross-examination, the Defendant was asked about his November 22, 2016
letter. He explained that he wrote the letter thinking that he was supposed to talk about
himself and how he felt about the situation.

        After hearing the evidence and the arguments of the parties, the trial court assessed
the applicable enhancing and mitigating factors and sentenced the Defendant to eighteen
months for his Class E felony conviction. The trial court also denied the Defendant’s
request for judicial diversion. In denying the Defendant’s request for judicial diversion,
the trial court reasoned as follows:
                                             -10-
               However, being qualified for judicial diversion is not the same as
       being entitled to it, and the appellate courts have held that this [c]ourt
       instead should look to the factors identified in both State [v.] Parker and
       State [v.] Electroplating cases . . . , which focus on the defendant’s
       amenability to correction, the circumstances of the offense, the defendant’s
       criminal record, including unconvicted criminal behavior[,] [t]he
       defendant’s social history, the defendant’s physical and mental health, the
       deterrence value to the defendant and others then to whether judicial
       diversion would serve the ends of justice essentially meaning whether it’s
       in the interest of the public as well as the interest of the accused.

        The trial court then assessed each factor “one at a time for purposes of the
record[.]” Regarding the Defendant’s amenability for correction, the trial court found
that it did “not believe” that the Defendant would commit additional offenses or that the
Defendant was “a menace to society.” However, the trial court was concerned with the
Defendant’s acceptance of responsibility and lack of remorse because of the Defendant’s
“own view of the matter”:

              I believe he thinks that the accident occurred because [the victim]
       pulled out in front of him, not because he was otherwise doing anything
       wrong. . . . [The Defendant] does not believe he was speeding at the time,
       and the [c]ourt is just having trouble with that, candidly.

               . . . . The [c]ourt does believe fundamentally that you are remorseful
       at least about the circumstances in which you find yourself and probably as
       to the harm that the family has suffered. The [c]ourt really wonders still
       whether that recognition is a recognition on your part that would be similar
       to the scientific evidence in this case that suggested that had you been
       going the speed limit you would have stopped 50 feet short even if [the
       victim] had been parked in the middle of the lane. . . .

              I don’t think there’s been that level of acceptance of responsibility[.]

Ultimately, the trial court concluded, “[O]n balance, I think amenability of correction
probably weighs . . . positively or at worse neutrally in the analysis.”

        Next, the trial court considered the circumstances of the offense, noting as
“positive factors” that the Defendant rendered aid to the victims even though he was
injured himself, which reflected “a selflessness and a concern for others[,]” and that the
Defendant’s behavior was “likely a result of an isolated instance and not part of a
longstanding, continuous pattern of reckless driving.” Turning to the “negative factors,”
the trial court found that “the nature of the offense [was] horrendous in itself,” remarking
                                            -11-
that multiple victims were present, including the victim’s son; that there was
“[u]ndisputed evidence from the event data recorder that shortly prior to the time of the
collision the throttle was at 100 percent,” meaning “that the gas pedal quite l[i]terally
[was] to the floor of the truck” while the Defendant was traveling downhill; the
Defendant’s speed was approaching ninety miles per hour in a fifty-miles-per-hour zone;
that the crash occurred during low-light conditions at a time of day that the highway was
“heavily traveled”; that there was “[u]indisputed evidence” that, had the Defendant “not
been traveling in excess of the speed limit[,] the accident would not have occurred”; and
“[t]he nature of the intersection itself[,]” where “there had been numerous other collisions
or incidents” and a prior fatal crash had occurred in that same month. Considering “all of
those circumstances together,” the trial court concluded that the circumstances of the
offense weighed heavily against diversion.

        The trial court next determined that the Defendant’s lack of a criminal record
“undoubtedly” weighed in his favor “because it show[ed] a strong likelihood that [the
Defendant] [was] not likely to reoffend.” The trial court also decided that the
Defendant’s social history weighed in his favor, noting that the Defendant had a “strong
employment history” with the TVA, that he had obtained a college degree, that he had
been married for over twenty-eight years, that he attended church and was “active in the
ministry[,]” and that there was no history of alcohol or drug abuse. Regarding the
Defendant’s mental and physical health, the trial court found that there were “no issues
that would prevent [the Defendant] from fulfilling the terms and conditions of probation,”
so that factor was considered to be neutral.

       Next, the trial court assessed the deterrence value to the Defendant and to others.
The trial court noted that there was “less of a need . . . for specific deterrence” in this case
because the Defendant testified that “he’s much more careful now in driving” and the
validated risk and needs assessment report indicated that the Defendant’s “conduct [had]
changed.” Concerning the need for “general deterrence,” the trial court noted the
“dangerousness of that intersection.” The trial court concluded that deterrence was
neutral in this case but that, “if it were weighed at all,” it would weigh negatively against
the Defendant, though “only very slightly.”

       Finally, in assessing “whether judicial diversion would serve the ends of justice
including the interest[s] of the public as well as the interest[s] of the accused,” the trial
court remarked that diversion was almost always in the best interests of the accused, as it
was here. Regarding the public’s interests, the trial court noted that the Defendant was
“charged with a more serious offense,” which could be considered despite the presence of
reasonable doubt. The court concluded that the interests of the public weighed negatively
against diversion.


                                             -12-
       The trial court then restated the weight it was assigning each of the seven factors
and denied diversion. The trial court granted the Defendant’s request for an alternative
sentence, placing him on supervised probation. The Defendant now appeals, challenging
only the denial of judicial diversion.

                                        ANALYSIS

       According to the Defendant, the trial court abused its discretion in denying judicial
diversion because relying heavily on the circumstances of the offense was not supported
by the record. The Defendant submits that the trial court erred by crediting the data from
the event data recorder recovered from the Defendant’s vehicle over the contradictory
eyewitness testimony that the Defendant was not “driving at an excessive speed” but was
driving “safely and appropriately on Highway 58” when “the victim pull[ed] out in front”
of him. He maintains that

       [t]here is more than one way to understand the few seconds of information
       found on the event data recorder[.] . . . One view is that the [D]efendant
       accelerated down the hill with criminal negligence. Another is that the
       [D]efendant saw the victim pull out in front of him and reflexively tried to
       accelerate around the car but then hit the brakes just before impact.

The Defendant concludes, “Because the event data recorder is limited to a few seconds
before a crash and witnesses saw events over a much longer period of time, rejection of
witness testimony was error in the resulting denial of diversion.”

        In addition, the Defendant asserts that there was no evidence to support the trial
court’s finding “that the [D]efendant knew of the dangerousness of the intersection.”
According to the Defendant, “[i]t is logical to assume that motorists living in this area,
who travel from the side street daily [i.e., the victim], would be in a better position to be
aware of the danger posed than vehicles traveling inbound on Highway 58.” The
Defendant continues: “That a fatal crash occurred at this same intersection a month
earlier, contrary to the trial court’s conclusion, is a factor that supports the [D]efendant’s
request for diversion, not diminishes it”; and “If something is inherently dangerous about
this intersection, that weighs in [the Defendant’s] favor, as it is outside his control,
especially if there is no proof that he was aware of the danger.”

        In summation, the Defendant states that the “same proof that supported a
conviction,” i.e. “the circumstances of the offense,” was also relied upon by the trial court
in denying diversion. According to the Defendant, “[t]he proof required to persuade the
trial court that the circumstances of the offense here are sufficient to grant diversion
appears to be proof of actual innocence, an impossible standard for any defendant to
meet.” Finally, the Defendant argues that the circumstances of the offense in this case
                                            -13-
are not “especially violent, horrifying, shocking, reprehensible, offensive or otherwise of
an excessive or exaggerated degree,” citing State v. Trotter, 201 S.W.3d 651, 654 (Tenn.
2006), to outweigh all other factors.

      The State responds that the trial court did not abuse its discretion. According to
the State, “[t]he record supports the trial court’s ultimate determination that the
circumstances of the offense, the public[’s] interest[s], and the need for deterrence
combined to justify denial of judicial diversion.” The State surmises, “[t]he court looked
beyond the [D]efendant’s criminally negligent speed and relied on more than just the
circumstances of the offense to deny diversion.”

        There is no dispute that the Defendant was eligible for judicial diversion. See
Tenn. Code Ann. § 40-35-313(a)(1)(B). However, simply because a defendant meets the
eligibility requirements does not automatically entitle him or her to judicial diversion.
State v. Bonestal, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993). “Traditionally, the
grant or denial of judicial diversion has been left to the sound discretion of the trial
court.” State v. King, 432 S.W.3d 316, 323 (Tenn. 2014). When deciding whether
judicial diversion is appropriate, a sentencing court must consider seven common-law
factors in making its determination. Those factors are:

       (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, and (f) the deterrence value to
       the accused as well as to others. The trial court should also consider
       whether judicial diversion will serve the ends of justice—the interests of
       the public as well as the accused.

State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998) (citing State
v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996)); see also King, 432 S.W.3d at
326 (reaffirming that the Electroplating requirements “are essential considerations for
judicial diversion”). The trial court must weigh the factors against each other and explain
its ruling on the record. King, 432 S.W.3d at 326 (citing Electroplating, 990 S.W.2d at
229). If the trial court adhered to these requirements, “the determination should be given
a presumption of reasonableness on appeal and reviewed for an abuse of discretion.” Id.
at 319. This court will “not revisit the issue if the record contain[ed] any substantial
evidence supporting the trial court’s decision.” Electroplating, 990 S.W.2d at 229; see
also Parker, 932 S.W.2d at 958.

        A trial court is “not required to recite all of the Parker and Electroplating factors
when justifying its decision on the record in order to obtain the presumption of
reasonableness.” King, 432 S.W.3d at 327. However, “the record should reflect that the
trial court considered the Parker and Electroplating factors in rendering its decision and
                                            -14-
that it identified the specific factors applicable to the case before it.” Id. If the trial court
“fails to consider and weigh the applicable common law factors, the presumption of
reasonableness does not apply and the abuse of discretion standard . . . is not
appropriate.” Id. “In those instances, the appellate courts may either conduct a de novo
review or . . . remand the issue for reconsideration.” Id. at 328.

       Here, the trial court extensively considered all of the Parker and Electroplating
factors and explained on the record which factors it relied upon in denying the
Defendant’s request for judicial diversion. Therefore, the trial court’s decision is entitled
to the presumption of reasonableness, and this court must affirm that decision if there is
any evidence to support it. See King, 432 S.W.3d at 327.

       Initially, we conclude that the record belies the Defendant’s claim that the trial
court’s decision to deny his request for judicial diversion was based solely on the offense
that he was convicted of rather than the applicable factors. Instead, the trial court placed
great weight on the circumstances of the offense. The trial court found that “the nature of
the offense [was] horrendous in itself,” specifically addressing the presence of two
victims in the car, the Defendant’s actions leading up to the collision, and the prevalence
of accidents at that intersection. The trial court relied on evidence from the event data
recorder “that shortly prior to the time of the collision the throttle was at 100 percent,”
meaning “that the gas pedal quite l[i]terally [was] to the floor of the truck” while the
Defendant was traveling almost ninety miles per hour downhill in a fifty-miles-per-hour
zone. Also, the trial court observed that the crash occurred during low-light conditions at
a time of day that the highway was “heavily traveled.” According to Investigator
Warren, the accident would not have occurred except for the Defendant’s traveling at an
excessive speed.

        The Defendant’s Dodge Ram lifted off the ground high into the air as it collided
with the victim’s Camry, and his truck appeared to be about to flip over. The force of the
collision knocked the victim’s vehicle 253 feet from the point of impact. The
Defendant’s truck intruded more than two feet into the victim’s car—the passenger doors
would not close; the roof was distorted; the front windshield was “crinkled”; the back
window had been knocked out; and the driver’s side compartment of the victim’s car was
not visible. T.G. was originally knocked unconscious, and he suffered a concussion,
required stitches to his head, and had a gash in his leg.

       The Defendant argues that the trial court erred by crediting the data from the event
data recorder recovered from the Defendant’s vehicle over the contradictory eyewitness
testimony. However, the appellate courts do not “reweigh or reevaluate the evidence,”
and questions regarding “the credibility of witnesses [and] the weight and value to be
given the evidence . . . are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). The trial court, as trier of fact at sentencing hearings, has the
                                              -15-
opportunity to observe the manner and the demeanor of the witnesses, and this court
gives great weight to the determinations made by the trial court concerning the credibility
of the witnesses unless the evidence contained in record clearly preponderates against
them. State v. Raines, 882 S.W.2d 376, 383 (Tenn. Crim. App. 1994).

       The trial court credited the evidence from the event data recorder in the
Defendant’s vehicle, the testimony of the accident reconstruction experts, and several eye
witnesses, including T.G. Furthermore, Ms. Jeffers testified that she was driving fifty
miles an hour when the Defendant passed her and that his speed made her think that she
was driving very slow. The Defendant passed several vehicles and changed lanes
multiple times before colliding with the victim. There was testimony at trial that the
victim stopped at the stop sign before proceeding into the intersection. Both experts said
that she was only traveling ten or eleven miles per hour at impact. T.G. opined that his
mother had “plenty of time to get through the gap.” Because the evidence does not
clearly preponderate otherwise, we will not disturb the trial court’s credibility
determinations on appeal.

        Additionally, the trial court concluded that the general deterrent effect of the
sentencing decision weighed “very slightly” against granting the Defendant judicial
diversion because of the “dangerousness of that intersection.” The Defendant claims on
appeal that he was not aware of the dangerousness of the intersection notwithstanding his
own trial testimony that he was “very familiar” with Highway 58 and familiar with this
intersection passing through it daily for over two years on his way to work. The
Defendant went so far as to say that, “because they had so many situations” in this area, a
lane had been added so an individual could “build their speed up going up the hill to
merge into traffic.” According to the trial court, there had been numerous “other
collisions or incidents” at the intersection, and a fatal crash had occurred previously in
the month. The crash history analysis introduced at trial supported this finding. Also,
several witnesses testified at trial that they were familiar with the intersection because it
was so dangerous.

       Next, regarding whether diversion would serve the interests of the public, the trial
court determined this factor weighed negatively against the Defendant because he could
have been charged with a more serious offense. See, e.g., State v. Cory Willis, No.
W2008-02720-CCA-R3-CD, 2010 WL 3583961, at *5 (Tenn. Crim. App. Sept. 15, 2010)
(noting as a proper consideration when taking into account the public’s interests). The
Defendant was originally charged with three offenses with a mens rea of recklessness,
including charges for the injuries suffered by T.G. and endangering the public at large,
but the trial court found him only guilty of negligent behavior. There was ample proof
for the trial court to consider the Defendant’s behavior leading to the original charges
even though the trial court determined that they were not established beyond a reasonable

                                            -16-
doubt. “[F]acts relevant to sentencing need be established only ‘by a preponderance of
the evidence and not beyond a reasonable doubt.’” State v. Cooper, 336 S.W.3d 522, 524
(Tenn. 2011) (quoting State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000)).

        Finally, while the trial court did find that the Defendant was amenable to
correction and that this weighed in favor of granting diversion, the trial court was
concerned with the Defendant’s failure to accept responsibility for his behavior and his
lack of remorse. See State v. Joseph W. Denton, No. M2009-02546-CCA-R3-CD, 2010
WL 4069264, at *5 (Tenn. Crim. App. Oct. 19, 2010) (determining that a defendant’s
lack of remorse or refusal to accept responsibility for his or her actions relates to the
amenability to correction and is an appropriate factor to consider in deciding whether to
grant or deny judicial diversion) (citations omitted). The Defendant did not believe he
was speeding at the time of the accident, and he maintained that he was operating his
vehicle in a safe manner that morning. The Defendant consistently focused on the
victim’s actions rather than his own despite evidence that, had he been going the speed
limit, the accident would not have occurred. Also, the victim’s family members were
distraught by the Defendant’s failure to admit that he was speeding, and they adamantly
opposed his request for diversion. See State v. Dennis Miller, No. M2016-02302-CCA-
R3-CD, 2017 WL 4582047, at *4 (Tenn. Crim. App. Oct. 13, 2017) (holding that the trial
court, in its decision to deny judicial diversion, was entitled to consider the victim impact
statement as it reflected on the circumstances of the offense (citing State v. Blackhurst,
70 S.W.3d 88, 95 (Tenn. Crim. App. 2001) (noting that a victim impact statement could
be considered reliable information relevant to the nature or circumstances of the offense
or any other sentencing consideration))).

        As such, we conclude that there was substantial evidence supporting the trial
court’s denial of the Defendant’s request for judicial diversion. The Defendant is not
entitled to relief. See, e.g., State v. Daniel T. Maupin, No. M2016-01483-CCA-R3-CD,
2017 WL 4331053, at *10 (Tenn. Crim. App. Sept. 28, 2017) (affirming the denial of
judicial diversion in a criminally negligent homicide case where the trial court placed
particular importance on the circumstances of the offense and the defendant’s lack of
hesitation in committing a crime when the risk to human life was high, given the
defendant’s conduct in creating a high risk to others by operating a large commercial
vehicle on a busy highway with insufficient sleep and after taking a non-prescribed
medication and a narcotic drug, and where the trial court also expressed the need for
deterrence to others and found that confinement was necessary to avoid depreciating the
seriousness of the offense).




                                            -17-
                                    CONCLUSION

        In consideration of the foregoing and the record as a whole, the judgment of the
trial court is affirmed.



                                                 _________________________________
                                                 D. KELLY THOMAS, JR., JUDGE




                                          -18-
