        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 January 14, 2014 Session

                    STATE OF TENNESSEE v. IRIS A. JONES

                 Appeal from the Circuit Court for Cheatham County
                        No. 16332    Larry J. Wallace, Judge




                No. M2013-00938-CCA-R3-CD - Filed August 20, 2014




A Cheatham County jury convicted the Defendant, Iris A. Jones, of driving under the
influence (“DUI”), first offense, and vehicular assault. The Defendant filed an application
seeking judicial diversion. The trial court merged the DUI conviction into the vehicular
assault conviction and granted the Defendant’s motion for judicial diversion. On appeal, the
State contends that the trial court abused its discretion when it found that the Defendant was
eligible for judicial diversion. After a thorough review of the record and applicable
authorities, we conclude that the Defendant is not a “qualified defendant” for judicial
diversion. Accordingly, the case is reversed and remanded to the trial court for further
proceedings consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                    Remanded

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J ERRY L. S MITH,
J., joined. J OSEPH M. T IPTON, P.J., filed a concurring in part and dissenting in part opinion.

Chris Young, Ashland City, Tennessee (on appeal) and Dale M. Quillen and Kenneth D.
Quillen, Nashville, Tennessee (at trial) for the appellant, Iris A. Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young,
Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; Margaret F.
Sagi, Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION
                                           I. Facts
                                           A. Trial
        This case arises from a traffic accident involving the Defendant that resulted in the
serious bodily injury of a passenger in the other car involved in the accident. The Cheatham
County grand jury indicted the Defendant for DUI, a Class A misdemeanor, and for vehicular
assault, a Class D felony. At the Defendant’s trial on these charges, the parties presented the
following evidence:1 On August 24, 2010, Lindsay Howard, who was seventeen at the time
of the accident, was driving her 1992 Chrysler Lebaron home from school at around 3:30
p.m. Her fifteen-year-old brother, Jacob Howard, and her thirteen-year-old friend “Mika,”
were passengers in her car. Jacob Howard was sitting in the back seat. Ms. Howard was
stopped on a two-way road with her turn signal illuminated, waiting to turn left onto the road
where she lived, when the Defendant hit the back end of her vehicle. The impact of the
collision propelled Ms. Howard’s vehicle into the lane of oncoming traffic.

        The impact of the collision rendered Ms. Howard’s vehicle doors inoperable. Ms.
Howard climbed out of the vehicle through her driver’s side window. She then attempted
to assist Mr. Howard out of the rear passenger window, but Mr. Howard informed her that
his leg was broken and that he was unable to exit the vehicle. Ms. Howard retrieved her
telephone from the trunk of the car and called 911. Before emergency responders arrived,
Ms. Howard checked on the Defendant, who was sitting in the grass, and learned that she
was fine. Emergency responders used the “jaws of life” to open Ms. Howard’s vehicle’s
door and an ambulance transported Jacob Howard to the hospital, his femur broken. A
neighbor took Ms. Howard to the hospital.

       Trooper Julio Lassalle, who responded to the accident scene, asked the Defendant
questions about the accident. The Defendant stated that she did not notice Ms. Howard’s
vehicle before crashing into it. The trooper noticed that the Defendant’s eyes were red and
that she had “pin pointed” pupils. He asked the Defendant if she had consumed any alcohol,
and the Defendant denied any alcohol consumption. Trooper Lassalle did not notice the odor
of alcohol, so he asked the Defendant if she had taken any prescription medication. The
Defendant told him that she took Ativan three times a day and had been doing so for three
years.

       Trooper Lassalle noted that the Defendant was “lethargic,” “slow moving,” and had
slurred speech. She was slow to respond to his questions. The Defendant, who was sixty-
four years old, consented to undergoing field sobriety tests. Trooper Lassalle gave the
Defendant the “nine step walk and turn,” the “one-leg stand,” and the “finger to nose” tests.
The Defendant did not perform well on the tests, giving the officer multiple clues that she

        1
          As this is an appeal by the State, and in consideration of the issue before us, we briefly summarize
the facts presented at trial in the light most favorable to the State.

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was impaired. Trooper Lassalle video-recorded the field sobriety tests, and they were played
for the jury. Based on the totality of the circumstances, Trooper Lassalle determined that the
Defendant was impaired and should not have been driving a vehicle. He determined that the
Defendant’s impairment was the primary factor in the crash, and he arrested her for DUI.
The Defendant consented to a blood test. Malinda Quinn, a special agent forensic scientist
with the TBI and an expert in the field of toxicology, testified that the Defendant’s blood
contained 28.4 nanograms per milliliter of Lorazepam, the brand name of which was Ativan,
a member of the benzodiazepines class. This was within a normal or therapeutic dosage.
Ms. Quinn explained that this class of drug slows the signals to one’s central nervous system,
helping decrease anxiety or assisting in sleep. The drugs, however, also slow critical
judgment, meaning it would take one longer to see a threat in a roadway. The Defendant’s
blood tested negative for other drugs, including alcohol.

       The Defendant testified on her own behalf, stating that she was sixty-six years old and
married. She had five grandchildren, and she and her husband had custody of four of their
five grandchildren. She had three of the grandchildren, ages sixteen, twelve, and eleven,
with her at the time of the accident. The two younger grandchildren, who were seated in the
backseat of the car, were engaged in an argument immediately before the accident. The
Defendant said that this argument was what distracted her and caused her not to see Ms.
Howard’s vehicle. The Defendant stated that she had undergone knee replacement surgery,
causing one leg to be almost an inch shorter than the other leg. The Defendant stated that she
took her medication as prescribed and was not impaired by the medication.

      During cross-examination, the Defendant agreed she was driving a large SUV, a Ford
Expedition, at the time of the accident. The Defendant stated she was prescribed Ativan to
address her anxiety.

      Based upon this evidence, the jury convicted the Defendant of DUI, first offense, and
of vehicular assault. The trial court merged the DUI conviction into the conviction for
vehicular assault.

                            B. Motion for Judicial Diversion

       The Defendant filed a notice of mitigating factors, and the State responded with its
notice of enhancement factors. The Defendant then filed a motion for judicial diversion.
The trial court held a sentencing hearing, wherein it addressed the application for judicial
diversion, and during which the parties presented the following evidence: The Defendant’s
husband, Glen Jones, testified that he and the Defendant had been married for more than
twenty years. He described them as having a “good home” and attending church. He said
the Defendant was a good grandmother, noting that they had raised four of their

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grandchildren, sending them all to a Christian school. Mr. Jones said neither he nor his wife
consumed alcohol.

        Mr. Jones testified that the Defendant was upset and expressed remorse on the day of
the accident. She was upset that others were hurt but also that her own grandchildren could
have been injured. Mr. Jones said that the Defendant had never previously been convicted
of a crime and that the loss of her driver’s license would be “crippling” to them. He said he
considered her a “safe” driver.

       During cross-examination, Mr. Jones conceded that the Defendant had twice before
received speeding citations and had also been involved in one other car accident.

      During argument, defense counsel noted that the judicial diversion statute, Tennessee
Code Annotated section 40-35-313, did not exclude vehicular assault. The State countered
that DUI, the lesser-included offense in this case, was not an offense for which a defendant
would be eligible for judicial diversion per statute.

       The trial court found:

              The Court has thought long and hard about this situation . . . . It’s,
       obviously, not your typical case where you have somebody drinking and
       driving and that kind of situation, which is more often than not your typical
       DUI.

               Here we had a case of prescription medication over usage and . . . .
       Like I said, I thought long and hard about it yesterday and I continued to think
       long and hard about it today, and I appreciate the attorneys’ argument on both
       sides.

              In the case of State v. Eatherly, . . . of course, that case involved a
       typical DUI type case. And as I mentioned before, this involved prescription
       medication. Now that doesn’t make it any different necessarily, but it does
       make you look at it a little differently. Of course, in that case too, the
       defendant had a point 22 blood alcohol level.

             So, in this case, of course, this person had been found guilty of
       vehicular assault also and reckless aggravated assault and also driving on a
       suspended license. So, there’s a little bit of difference there.




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               In that case, though, the Court did find that the defendant was eligible
       for judicial diversion. Of course, having eligibility does not necessarily entitle
       the defendant to judicial diversion just as it stated in that case that I cited.

              The factors the Court looks to, of course, is the defendant’s criminal
       record, social history, mental and physical condition, attitude and behavior
       since arrest, emotion stability, current drug usage, past employment, home
       environment, marital stability, family responsibility, general reputation and
       amenability to correction as well as the circumstance of the offense, the
       deterrent effect and punishment upon other criminal activity, and the
       likelihood that diversion will serve the ends of justice and best interest of both
       the public and the defendant.

               And like I said, the Court has thought long and hard. The Court has
       looked at the driving history of [the Defendant] and she does have speeding
       tickets, but as [defense counsel] stated, that’s not necessarily unusual for most
       people in the courtroom. And then, of course, she did have two prior accidents
       several years ago in ‘03 and ‘05 that were just property damage accidents.
       That, in itself, is not necessarily unusual too. People have fender benders.
       Obviously, this was a lot more serious accident, though.

              So, considering all that, the Court is concerned about the driving history
       somewhat and medication usage and her age, too, to some extent, but
       considering all things, the Court is going to grant a diversion and – but I am
       going to put on some additional probation conditions.

              Her license will be seized, so to speak, for six months as part of the
       probation. It’s a two-year probationary period. After the six months has
       expired, the license will continue to be held until she’s able to re-test at the
       Department of Safety fully, written and driving test, and pass those tests. After
       which time if she’s able to do that, she will be able to get her license back after
       that period of time.

              If she’s not able to, then the license will continue to be held for the two-
       year – full two-year probationary period. Again, she’s to have to re-test fully
       the written and driving testing part. If she’s able to pass that, she can get her
       license after six months.

It is from this judgment that the State appeals.



                                               -5-
                                        II. Analysis

        On appeal, the State contends that the trial court abused its discretion when it found
that the Defendant was eligible for judicial diversion pursuant to Tennessee Code Annotated
section 40-35-313. Further, the State contends that the trial court erred when it granted the
Defendant judicial diversion. The Defendant counters first that this Court lacks jurisdiction,
as this appeal is not proper pursuant to Tennessee Rule of Appellate Procedure 3. Further,
she contends that the trial court properly found that the Defendant was eligible for judicial
diversion.

                      A. Tennessee Rule of Appellate Procedure 3

       The Defendant contends that this issue is not properly before this Court pursuant to
Tennessee Rule of Appellate Procedure 3. The State counters first that this issue is properly
before this Court pursuant to Rule 3(c)(4) because judicial diversion is a probationary
sentence. We agree with the State.

       Tennessee Rule of Appellate Procedure Rule 3(c) states:

       (c) Availability of Appeal as of Right by the State in Criminal Actions. In
       criminal actions an appeal as of right by the state lies only from an order or
       judgment entered by a trial court from which an appeal lies to the Supreme
       Court or Court of Criminal Appeals: (1) the substantive effect of which results
       in dismissing an indictment, information, or complaint; (2) setting aside a
       verdict of guilty and entering a judgment of acquittal; (3) arresting judgment;
       (4) granting or refusing to revoke probation; or (5) remanding a child to the
       juvenile court. The state may also appeal as of right from a final judgment in
       a habeas corpus, extradition, or post-conviction proceeding, from an order or
       judgment entered pursuant to Rule 36 or Rule 36.1, Tennessee Rules of
       Criminal Procedure, and from a final order on a request for expunction.
       (emphasis added).

Courts of this state, including the Tennessee Supreme Court, have previously reviewed a
grant of judicial diversion pursuant to Rule 3(c)(4). State v. Soller, 181 S.W.3d 645, 650
(Tenn. 2005); State v. Bilbrey, No. M2002-01043-CCA-R3-CD, 2004 WL 392587 (Tenn.
Crim. App., at Nashville, Mar. 3, 2004) no perm. app. filed. This Court in Bilbrey opined
the following with regard to judicial diversion:
        The term “judicial diversion” is an appellation used by the courts to distinguish
        it from section 40-15-105 pretrial diversion and is not used in the governing
        statute. Tenn. Code Ann. § 40-35-313; Norris, 47 S.W.3d at 462. Tennessee

                                             -6-
       Code Annotated section 40-35-313 is a probation statute with the
       distinguishing feature that the trial court may grant probation under this section
       without entering a judgment of guilt. Norris, 47 S.W.3d at 462. Obviously
       judicial diversion is a more favorable form of probation than serving one's
       sentence through an ordinary probation, but judicial diversion is nonetheless
       a probationary sentence.

2004 WL 392587, at *7. In accordance with these authorities, we conclude that we have
jurisdiction to hear this case pursuant to Tennessee Rule of Appellate Procedure 3(c)(4).

                                   B. Judicial Diversion


       When a defendant is eligible for judicial diversion, a judge has the discretion to defer
proceedings without entering a judgment of guilty. T.C.A. § 40-35-313(a)(1)(A) (2010).
The statute states that a trial court may grant judicial diversion in appropriate cases. Id.
Following a grant of judicial diversion, the defendant is on probation but is not considered
a convicted felon. Id. To be eligible for judicial diversion, a defendant must be a “qualified
defendant” as defined by the Tennessee Code section governing judicial diversion:

       (B)(i) As used in this subsection (a), “qualified defendant” means a defendant
       who

       (a) Is found guilty of or pleads guilty or nolo contendere to the offense for
       which deferral of further proceedings is sought;

       (b) Is not seeking deferral of further proceedings for a sexual offense, a
       violation of § 71-6-117 or § 71-6-119 or a Class A or Class B felony; and

       (c) Has not previously been convicted of a felony or a Class A misdemeanor.

T.C.A. § 40-35-313(a)(1)(B)(i). The case presently before us hinges on whether the
Defendant is a “qualified defendant” as defined by Tennessee Code Annotated section 40-35-
313(a)(1)(B)(i). We first note that, essentially, judicial diversion is similar to pretrial
diversion, State v. James C. Wolford, No. 03C01-9708-CR-00319, 1999 WL 76447, at *5
(Tenn. Crim. App., at Knoxville, Feb. 18, 1999), perm. app. denied (Tenn. Sept. 20, 1999),
the difference between the two being that judicial diversion follows a determination of guilt
and the decision to grant diversion rests with the trial court, not the prosecutor. See State v.
Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992). The pretrial diversion statute,
Tennessee Code Annotated section 40-15-105(a)(1), specifically excludes those persons

                                              -7-
charged with vehicular homicide by intoxication from eligibility. See State v. Burdine, 888
S.W.2d 463, 465 (Tenn. Crim. App. June 24, 1994), perm. app. denied (Tenn. 1994); see also
Availability of Pre-Trial Diversion in Vehicular Assault and Vehicular Homicide Cases,
Tenn. Op. Att’y Gen. No. 93-34 (Apr. 6, 1993).

        In Burdine, the defendant appealed the trial court’s ruling that the charge against her
was a nondivertible offense as a matter of law. The defendant was indicted for one count of
vehicular assault arising from an accident. Vehicular assault occurs when a person, as the
proximate result of intoxication, recklessly causes serious injury to another individual by
operation of a motor vehicle. The defendant, whose blood alcohol level was .348, was the
driver in an automobile accident in which her eight-year-old daughter was seriously injured.
The defendant was not also indicted for DUI.

        The defendant in Burdine requested pretrial diversion, and the District Attorney
denied the defendant’s request. The District Attorney denied pretrial diversion because, at
the time of the request, Tennessee Code Annotated section 40-15-105 specifically prohibited
pretrial diversion for DUI. Even though the offense of vehicular assault was not specifically
prohibited by the statute at the time of the accident, the District Attorney reasoned that DUI
is a lesser included offense of vehicular assault, and therefore, pretrial diversion could not
be granted in the case as a matter of law. The trial judge upheld the District Attorney’s
denial of diversion.

       On appeal, this Court held:

       When an individual is put on trial for an offense, that individual is also
       charged with any lesser included offenses. Strader v. State, 210 Tenn. 669,
       675-76, 362 S.W.2d 224, 227 (1962). An offense is a lesser included offense
       when it is impossible to commit the greater offense without committing the
       lesser offense. State v. Layne, 623 S.W.2d 629, 637-38 (Tenn. Crim. App.
       1981). D.U.I. is a lesser included offense of vehicular assault. Tennessee
       Code Annotated section 39-13-106 makes specific reference to the statute
       which criminalizes D.U.I. when it states, “A person commits vehicular assault
       who, as the proximate result of the person’s intoxication as set forth in § 55-
       10-401 [D.U.I.] . . . . For the purposes of this section, ‘intoxication’ includes
       alcohol intoxication as defined by § 55-10-408 [.10 blood alcohol level causes
       presumption of intoxication] . . . .” Tenn. Code Ann. section 39-13-106 (1991).

              Because D.U.I. is a lesser included offense of vehicular assault, the
       prohibition of pretrial diversion for D.U.I. applies to vehicular assault as well.
       We agree with the State when it argues that it makes no sense to prohibit

                                              -8-
pretrial diversion for D.U.I. and allow it for vehicular assault. It is very
doubtful that the legislature intended to extend eligibility for such
extraordinary relief to someone who was driving under the influence only if
they seriously injured someone.

        In State v. Netto, 486 S.W.2d 725 (Tenn. 1972), the Tennessee Supreme
Court stated that criminal statutes should not be construed so strictly as to
defeat the intention of the legislature when passing the law. State v. Netto, 486
S.W.2d 725, 728 (Tenn. 1972). The common law required a narrow
construction of criminal statutes. Estep v. State, 183 Tenn. 325, 333-34, 192
S.W.2d 706, 710 (1946). The current law, under the Criminal Sentencing
Reform Act of 1989, requires construction of criminal statutes “according to
a fair import of their terms, including references to judicial decisions and
common law interpretations, to promote justice, and effect the objectives of
the criminal code.” Tenn. Code Ann. section 39-11-104 (1991); State v.
Williams, 854 S.W.2d 904, 908 (Tenn. Crim. App. 1993).

        Construing this statute according to the fair import of its terms and to
effect the objective of the criminal code results in denying pretrial diversion
eligibility for vehicular assault. The clear objective of the legislature in
denying pretrial diversion for D.U.I. was to discourage driving under the
influence by asserting that the crime is a serious one, and the penalties are
harsh. By denying pretrial diversion for D.U.I., the legislature has
demonstrated that there is no leniency with regard to offenses of driving under
the influence. The legislature obviously determined that driving under the
influence is a serious problem in the state and did not believe that pretrial
diversion for such a crime would be an adequate deterrent to such behavior in
the future. Therefore, because D.U.I. is a lesser included offense of vehicular
assault, pretrial diversion should be denied for vehicular assault.

        Vehicular assault and vehicular homicide both specifically include
references to the D.U.I. statute and the definition of intoxication, and D.U.I.
is a lesser included offense. It stands to reason that the legislature also
intended to deny pretrial diversion to more serious offenses in which D.U.I. is
a lesser included offense. The present pretrial diversion statute specifically
excludes vehicular assault as well as vehicular homicide by intoxication.
Tenn. Code Ann. 40-15-105(a)(1) (Supp. 1993). This is further evidence that
the legislature intended for the exclusion to apply to offenses in which D.U.I.
is a lesser included offense.



                                       -9-
              Because D.U.I. is a lesser included offense of vehicular assault and
       construing the statute to include vehicular assault as a nondivertible offense
       furthers the purpose of the legislature, we agree with the decision of the trial
       court.

State v. Burdine, 888 S.W.2d at 464-65 (footnotes omitted). See also Wolford, 1999 WL
76447, at *5 (citing Burdine and holding that a defendant convicted of vehicular homicide
by reason of DUI was not “eligible for a grant of judicial diversion”).

        We recognize that there are cases that indicate that vehicular assault by reason of DUI
convictions are eligible for diversion. See State v. Kyte, 874 S.W.2d 631 (Tenn. Crim. App.
1983) (affirming the trial court’s denial of judicial diversion by stating “While the defendant,
as a first offender, qualifies for judicial diversion as to the vehicular assault, the
circumstances of the offense may alone serve as the basis for denial.”); State v. Eatherly, No.
M2009-01543-CCA-R3-CD, 2010 WL 2787703 (Tenn. Crim. App., at Nashville, July 14,
2010) (noting that the trial court found that the Defendant, who was convicted of vehicular
assault by DUI, was eligible for judicial diversion and then affirming the trial court’s denial
based upon the other circumstances present), perm. app. denied (Tenn. Dec. 8, 2010). In
neither of these cases, however, was the issue on appeal whether the trial court erred when
it deemed the defendant eligible for judicial diversion; rather, the issue presented was
whether the trial court erred when it denied judicial diversion. Accordingly, after our
thorough review of the applicable authorities addressing whether a defendant in these
circumstances is eligible for judicial diversion, we conclude that the authority confirms that
a defendant convicted of vehicular assault is not statutorily eligible for judicial diversion.
Because a defendant convicted of vehicular assault by reason of DUI would not be a
“qualified defendant” for judicial diversion, the trial court in this case abused its discretion
by deeming the Defendant eligible and, subsequently, granting her request for judicial
diversion. See Koon v. United States, 518 U.S. 81, 100 (1996) (holding that an error of law
is an abuse of discretion “by definition”); State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008)
(stating that “[r]eviewing courts will find an abuse of discretion only when the trial court
applied incorrect legal standards, reached an illogical conclusion, based its decision on a
clearly erroneous assessment of the evidence, or employed reasoning that causes an injustice
to the complaining party”) (internal citations omitted). The trial court’s decision is, therefore,
reversed.

                                       III. Conclusion

        Based on the aforementioned reasoning and authorities, we conclude that error exists
in the judgment of the trial court. The trial court’s judgment is, therefore, reversed, and the



                                              -10-
case is remanded for proceedings consistent with this opinion and for entry of an appropriate
sentence.

                                                   ___________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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