         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     April 5, 2005 Session

                STATE OF TENNESSEE v. HAROLD L. CASSELL

                Direct Appeal from the Criminal Court for Davidson County
                       No. 2004-A-292   J. Randall Wyatt, Jr., Judge



                     No. M2004-01784-CCA-R3-CD - Filed August 5, 2005


The defendant, Harold L. Cassell, entered an agreed plea to domestic assault, a Class A
misdemeanor, and applied for judicial diversion, pursuant to Tennessee Code Annotated section 40-
35-313. The trial court imposed a sentence of 11 months and 29 days to be served on probation and
denied the application for judicial diversion. On appeal, the defendant challenges the denial of
judicial diversion. Upon review, we reverse the judgment of the trial court and grant judicial
diversion. The cause is remanded for the imposition of conditions of the probationary term.


      Tenn. R. App. P. 3; Judgment of the Criminal Court is Reversed and Remanded.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which J.C. MCLIN , J., joined.
DAVID H. WELLES, J., filed a dissenting opinion.

James Robin McKinney, Jr., Nashville, Tennessee, for the Appellant, Harold L. Cassell.

Paul G. Summers, Attorney General & Reporter; Preston Shipp, Assistant Attorney General; Victor
S. Johnson, III, District Attorney General; and James D. Sledge, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                             OPINION

               The defendant in this case stands convicted of domestic assault. See Tenn. Code Ann.
§ 39-13-111 (2003). He was charged originally with aggravated assault of his wife, see id. § 39-13-
102, but pursuant to a plea agreement with the state, he submitted a guilty plea to the lesser charge.
The factual basis for the plea appears in the transcript of the plea submission hearing, included in
the record before us.

               GENERAL SLEDGE: . . . On July the 2nd of 2003, Metro Police
               Officer George Frogge was summoned to 5016 West Durrett Drive
               in Nashville, Davidson County. Upon arrival, he was informed that
               the complaining victim, Mrs. Ruth Cassell, was taken to Southern
               Hills Hospital Emergency Room.

                       The officer called for Detective Joe Towers in Domestic
               Violence. And together, they interviewed the complaining victim at
               the hospital. She told them, at that time, that once she told the
               defendant that she wanted a divorce, he got mad and began hitting her
               in the face. The officers observed and took photographs of large
               bumps to her forehead, over her right eye. She had bruising around
               her neck in the form of fingerprints, a laceration to her chin and
               scratches to her upper chest and left shoulder. Photographs were
               taken of this and would have been submitted at trial.

                Pursuant to the plea agreement, the defendant was to receive a sentence of 11 months
and 29 days. The parties stipulated that the defendant was eligible for judicial diversion; therefore,
the only sentencing decision reserved for the trial court was whether the defendant should be placed
on judicial diversion as opposed to traditional probation. The court conducted a separate hearing on
this matter at which time the defendant and the victim testified.

                The defendant testified that he was sorry about his actions and accepted full
responsibility. The defendant had never been previously arrested and had no criminal history, as
corroborated by a certification of the Tennessee Bureau of Investigation. The defendant had already
contacted his probation officer and scheduled an initial meeting.

               The defendant had attended Middle Tennessee State University (MTSU) until his
senior year, when he took a leave from college. He planned to return to MTSU and complete the
hours needed to graduate. He testified that he was an active member of Two Rivers Baptist Church.
On his own initiative, the defendant had completed an anger-management class and had participated
in several counseling sessions.

                The defendant described his physical and mental health as good. He testified that he
had never used drugs and that he had worked steadily for many years. At the time he testified, he
was employed by Wal-Mart on the maintenance staff. Since his arrest, he and his wife had divorced,
and he had not communicated with or contacted her. The defendant had not violated the law or been
arrested since the assault.

                On cross-examination, the defendant testified that three years earlier, while he and
his wife were living in Indianapolis, his wife confessed to a sexual liaison with a co-worker. The
defendant said that he wanted to leave but that his wife called E-911 and reported that he was
threatening to commit suicide. When the police arrived, they transported the defendant to a hospital
where he was evaluated and released.




                                                 -2-
              The state concluded its examination of the defendant by introducing, over defense
objections, photographs of the victim’s injuries. The defendant admitted to causing the
photographed injuries and admitted that in the past he had studied martial arts for which he achieved
a black belt.

                 The victim testified that she and the defendant were married four and one-half years.
The victim identified her medical records from the hospital where she was treated for the injuries
that the defendant had inflicted. The victim testified that she sustained a head injury, for which she
was currently seeing a neurologist. Although she testified that her foot had a hairline fracture, the
emergency room discharge report states, “You have a sprained ankle. This is a tearing of the
ligaments that hold the joint together. There were no broken bones seen on the X-ray.” The victim
testified that she had been diagnosed with rheumatoid arthritis in her neck area where the defendant
had strangled her, and a disc in her back was possibly injured because of how hard she was shaken
and banged against the wood floor. These claims were unsupported by medical diagnoses or
opinions.

              The victim explained why she opposed the defendant receiving judicial diversion.
She spoke of her permanent medical injuries from the attack, and she described being afraid of the
defendant.

               I did him no harm. And when I’m with my family, and they wake me
               up, I jump and I scream out of my sleep, because I’m afraid
               somebody’s going to kill me. . . . And I’m sure he is sorry, but the
               thing is that it happened to me. I have to look over my corner -- the
               corner of my shoulder every time I, even, walk down the street in
               daylight. He doesn’t have to worry about that. . . . And I -- I don’t
               think it would be fair for probation to be erased. . . .

               After hearing the testimony, the trial court issued its ruling and denied placing the
defendant on judicial diversion. The court began its ruling by acknowledging that the defendant
appeared to be genuinely sorry and remorseful. The court then continued,

               [T]he Court believes in this case that there’s some accountability that
               has to be present. This man is involved in this thing. He’s pled
               guilty. He’s been placed on probation on the state’s recommendation.
               I think to further just treat this as if it didn’t even happen is to
               depreciate the seriousness of it, which I don’t think is not serious. I
               think it is serious. . . .

                      So the Court is of the opinion . . . the circumstances of the
               offense, and -- and the past circumstances, Indianapolis, wherever it
               may be, that giving probation to this man is . . . more than adequate,



                                                 -3-
                in terms of the consideration that needs to be given as a first offender.

                 Aggrieved of the sentencing decision, the defendant has appealed and claims that the
trial court erred by not granting judicial diversion.

                “Judicial diversion” is a reference to Code section 40-35-313(a)’s provision for a trial
court’s deferring proceedings in a criminal case. See Tenn. Code Ann. § 40-35-313(a)(1)(A) (2003).
The result of such a deferral is that 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
be found -- or plead -- guilty to 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). Diversion requires the consent of the qualified
defendant. Id. § 40-35-313(a)(1)(A).

                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. Tenn. Code Ann. § 40-35-313(a)(1)(A) (2003) (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:

                [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 344; see State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993). Moreover, the record must
reflect that the court has weighed all of the factors in reaching its determination. Bonestel, 871
S.W.2d at 168. The 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.




                                                  -4-
                On appeal, this court must determine whether the trial court abused its discretion in
failing to sentence pursuant to the statute. 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 defendant argues that the trial court abused its discretion because it improperly
assigned controlling weight to the circumstances and seriousness of the offense as grounds to deny
judicial diversion when all other criteria supported diversion. Although vague, the trial court’s
remarks reasonably can be interpreted as agreeing that the defendant possessed numerous favorable
attributes supporting the award of judicial diversion, and the record clearly shows the existence of
those attributes. The record does not, however, reflect why the trial court believed that the
“seriousness” of the offense outweighed all other factors.

                Domestic assault is unquestionably a “serious” offense. However, as observed in
State v. Curry, 988 S.W.2d 153, 158 (Tenn. 1999), “The facts and circumstances of nearly all
criminal offenses are by definition serious,” and “only by analyzing all of the relevant factors,
including those favorable to the defendant, can appropriate candidates for this legislative largess be
identified in a manner consistent with the purpose of the . . . diversion act.” As things presently
stand, the offense of domestic assault is not punishable as a felony; it is graded as a Class A or B
misdemeanor. Whether this statutory classification depreciates the seriousness of the criminal
conduct is a question that must be directed to the legislature, not the courts.

                The state argues that in denying judicial diversion, “the trial court may look behind
a plea agreement and consider the true nature of the offense committed.” State v. Rufus Steven
Johns, No. M2002-00599-CCA-R3-CD, slip op. at 5 (Tenn. Crim. App., Nashville, Dec. 31, 2002).
The state’s legal assertion is correct, but even so, piercing the plea-agreement veil in this case does
not reveal more egregious conduct. Granted the defendant was originally charged with aggravated
assault. See Tenn. Code Ann. § 39-13-102(a) (2003). Aggravated assault, in the context of this case,
would have been of the “serious bodily injury” mode. See id. §§ 39-13-102(a), -11-106(a)(34).

               The Code defines “serious bodily injury” as bodily injury that involves:

               (A) A substantial risk of death;

               (B) Protracted unconsciousness;

               (C) Extreme physical pain;

               (D) Protracted or obvious disfigurement; or

               (E) Protracted loss or substantial impairment of a function of a bodily
               member, organ or mental faculty[.]


                                                  -5-
Id. § 39-11-106(a)(34). The state’s factual recitation at the plea submission did not establish that the
victim had sustained serious bodily injury, as opposed to simple bodily injury. The state described
the injuries as consisting of “large bumps to her forehead, over her right eye,” “bruising around her
neck in the form of fingerprints,” “a laceration to her chin,” and “scratches to her upper chest and
left shoulder.” Nor do the victim’s medical records that were introduced establish serious bodily
injury. The intake form reports the victim’s symptoms as “possible LOC [loss of consciousness] for
a couple of seconds,” “swollen feeling head & ankle,” and “0 numbness or tingling.” The nurse’s
notes show that the victim was admitted at 15:08, that “pt has small laceration on chin” and
“swelling noted on pt forehead,” and that the victim was discharged at 17:30 “to home w/ scripts &
pain med.” The emergency room discharge report states that “no broken bones [involving the ankle
were] seen on the X-ray.”

                 The record in this case contains an oversized, closeup color photograph of the
victim’s face and neck. The state writes on appeal that the photograph depicts, inter alia, “a large
cut on the victim’s jaw.” We disagree. The blood along the victim’s jaw is a dried blood smear
emanating from a “small laceration” on the victim’s chin, just as described in the nurse’s notes. To
be sure, the victim in this case sustained bodily injury, but the photographic evidence, in our opinion,
does not support a finding of serious bodily injury.

                 We are mindful that the victim testified that she was seeing a neurologist and that she
had rheumatoid arthritis in her neck where the defendant had strangled her. This testimony falls
short of establishing the defendant’s assault as proximate causation for neurological or orthopaedic
injuries, if any. Without more, and in the absence of any explanatory medical evidence, testimony,
or records, this testimony is incapable of reliable evaluation. Consequently, we are unable to
conclude that the record contains substantial evidence of the seriousness of the offense such as to
outweigh all other factors favoring judicial diversion.

                In conclusion, the record does not contain substantial evidence of the seriousness of
the offense such as to outweigh all other factors favoring judicial diversion. Accordingly, we reverse
the judgment of the trial court and remand with instructions that the defendant be placed on judicial
diversion.1 See, e.g., State v. Jared Singleton, No. M2002-02392-CCA-R3-CD, slip op. at 3 (Tenn.
Crim. App. Nashville, Mar. 5, 2004) (“When the trial court fails to place reasons for denial of
[judicial] diversion on the record, . . . this court must review the entirety of the evidence to
‘determine whether the trial court reached the correct result, notwithstanding its failure to explain
its reasoning.’”).




         1
           Our disposition makes it unnecessary to reach the defendant’s second issue that the trial court should not have
admitted and considered the photographs of the victim’s injuries. The trial court was well within its authority to receive
and consider this type of evidence. W e simply do not believe that this evidence demonstrated the “seriousness” of the
offense to such a degree as to warrant the denial of judicial diversion.

                                                           -6-
________________________________________
JAMES CURWOOD WITT, JR., JUDGE




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