        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                              September 14, 2010 Session

             STATE OF TENNESSEE v. ANDREW COLIN HICKS

                  Appeal from the Criminal Court for Shelby County
                       No. 08-04403     Paula Skahan, Judge


               No. W2009-02058-CCA-R3-CD - Filed February 8, 2011




The Defendant, Andrew Colin Hicks, appeals as of right from the trial court’s denial of
judicial diversion following his guilty plea to facilitation of attempted aggravated arson, a
Class C felony. Following a sentencing hearing, the trial court imposed a sentence of three
years probation. The Defendant contends that the trial court erred by denying his application
for judicial diversion. Following our review, we affirm the judgment of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which A LAN E. G LENN and
J. C. M CL IN, JJ., joined.

Charles W. Gilchrist, Jr., Memphis, Tennessee, for the appellant, Andrew Colin Hicks.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Betsy Lynn Carnesale,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION


       The record reflects that the Defendant and four co-defendants were indicted for
attempted aggravated arson, a Class B felony. The offense arose from the March 23, 2008,
burning of a homeless man, Jeffrey Martin, in Shelby County, Tennessee. On that night, the
Defendant met with his four co-defendants and drove them in his truck to go watch “street
races.” The record reflects that the four co-defendants consumed various amounts of alcohol
that night, but the Defendant testified that he did not have any alcohol because he was
driving. At some point that evening, the men discussed a prior confrontation between one
of the co-defendants and a homeless man who lived behind the Lowe’s home improvement
store in Bartlett, Tennessee. The defendants decided to go and confront the homeless man.
The Defendant drove his co-defendants to the Lowe’s parking lot. When they arrived, he and
the others went into the wooded area behind the store and found a campsite and tents that the
victim and another homeless man, Brenner Holleman, were living in. The defendants
confronted Mr. Holleman and threatened to take his bicycle. One of the defendants urinated
in his campsite, and someone threw a log or rock at his tent. Mr. Holleman, fearing for his
safety, picked up a board and came towards the defendants causing them to run away from
his campsite.

       After the defendants returned to the truck, co-defendant Tyler Eggleston suggested
that they make Molotov cocktails and burn down the victims’ tents. The Defendant then
drove to a gas station and Mr. Eggleston filled two beer bottles with gasoline. The Defendant
then drove back to the crime scene where his four co-defendants got out of the truck. The
Defendant admitted that he stayed in the truck to serve as the “getaway driver.” Co-
defendants Michael Grace and Wesley Ray stayed near the truck while Mr. Eggleston and
co-defendant Zachary Parrish went toward the victims’ campsite with the Molotov cocktails.
The victim, who had been away from the campsite during the initial confrontation, came up
behind Mr. Parrish. Mr. Parrish spun around striking the victim in the face with the Molotov
cocktail, causing it to explode, and engulfing the victim in flames. The co-defendants fled
the campsite and returned to the truck where the Defendant drove them away. One of the co-
defendants told the Defendant that they had set a man on fire. The Defendant drove his four
co-defendants back to their cars, then drove home and went to sleep. No one attempted to
help Mr. Martin or called for help. Mr. Martin suffered second and third degree burns over
his face, chest, and arms.

          The Defendant testified at his sentencing hearing that he served as a volunteer with
the Macon Volunteer Fire Department and worked at a sandwich shop. The Defendant also
testified that he voluntarily paid child support for his daughter and maintained a “working”
relationship with her mother. The Defendant stated that he wanted to become a commercial
pilot, a paramedic, or join the military. The Defendant testified that he had been enrolled at
Southwest Tennessee Community College but that he dropped out because of his arrest. The
Defendant stated that he wanted to be placed on judicial diversion because if he had “any
kind of felony or anything on [his] record . . . there’s no chance in becoming anything of
what [he] want[s] to be.” When asked what he has learned from this experience, the
Defendant responded “[h]ow quickly your life can go down hill . . . everything’s on the line
. . . I can lose everything.” The Defendant explained his actions by stating that “[f]or some
odd reason that night [he] decided to be a follower and not a leader.”

       In deciding whether to grant the Defendant’s application for judicial diversion, the

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trial court found that the Defendant was very amenable to correction. The trial court found
that the Defendant’s social history, physical health, and mental health were all good.
However, the trial court found the circumstances of the offense to be “horrendous” and that
to deny diversion would serve as a strong deterrent to others. The trial court stated that
whether judicial diversion would serve the interest of the public as well as the accused was
“the stumbling point.” The trial court then stated that “in this case I’m going to lean a little
bit more heavily with the interest of the victim . . . .” The trial court found that the
Defendant, in his role as the driver, was more culpable than co-defendants Gracie and Ray.
Ultimately the trial court concluded that “I do think we need to send a message even for
somebody who did not have the [Molotov] cocktail but was actively involved in assisting
those that did in carrying out this horrible act.” The trial court denied the Defendant’s
application for judicial diversion and sentenced him to three years probation with the
requirement that he perform 50 hours of community service with a homeless shelter.

                                          ANALYSIS

       The Defendant contends that the trial court abused its discretion in denying his
application for judicial diversion. The Defendant argues that all of the factors considered
weigh in favor of judicial diversion except for the deterrence value to others. The Defendant
also contends that the trial court failed to adequately explain why the factors supporting
denial of judicial diversion outweighed the factors supporting granting judicial diversion.
The State responds that the trial court properly considered and evaluated all of the relevant
factors and that the record supports the trial court’s decision.

        There is no dispute that the Defendant is eligible for judicial diversion. See Tenn.
Code Ann. § 40-35-313(a)(1)(B). The decision to grant judicial diversion lies within the
discretion of the trial court and will not be disturbed on appeal unless it is shown that the trial
court abused its discretion. State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996).
A denial of judicial diversion will not be overturned if the record contains any substantial
evidence to support the trial court’s action. Id. When making a determination regarding
judicial diversion, the trial court must consider the following factors: (1) the defendant’s
amenability to correction, (2) the circumstances of the offense, (3) the defendant’s criminal
record, (4) the defendant’s social history, (5) the defendant’s mental and physical health, and
(6) the deterrent effect of the sentencing decision to both the defendant and other similarly
situated defendants. State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997).

        The decision should be based on whether the grant of diversion will serve the ends of
justice for both the public and the defendant. Lewis, 978 S.W.2d at 566. The record must
reflect that the trial court considered and weighed all these factors in arriving at its decision.
State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998). Additionally,

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“[t]he 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. (citing State v. Bonestel, 871 S.W.2d 163, 168 (Tenn.
Crim. App. 1993)). However, “[t]he denial of judicial diversion may be based solely on the
nature and circumstances of the offense, so long as all of the other relevant factors have been
considered, and this factor outweighs all others that might favorably reflect on the
[d]efendant’s eligibility.” State v. George William King, No. M2001-02026-CCA-R3-CD,
2002 WL 31520648, at *4 (Tenn. Crim. App. Nov. 13, 2002) (citing State v. Curry, 988
S.W.2d 153, 158 (Tenn. 1999)).

        The record reflects that the trial court considered and weighed all of the required
factors in arriving at its decision. The trial court found the Defendant, in his role as the
driver, more culpable than two of his co-defendants. The nature and circumstances of this
offense are horrific, the Defendant actively participated in setting a homeless man on fire,
and this factor alone could have outweighed all the other factors reflecting favorably on the
Defendant’s eligibility. However, the trial court did not rely solely on the horrendous nature
of the crime but also held that the deterrence value to others and the interests of the public
weighed against granting judicial diversion. The trial court explained on the record why
these factors outweighed the others and expressed her concern that crimes against animals
are often treated more seriously than crimes against the homeless. The trial court concluded
that given the Defendant’s culpability in the offense, the denial of his application for judicial
diversion would send a message that crimes against the homeless are taken seriously.
Following our review, we conclude that the trial court did not abuse its discretion in denying
the Defendant’s application for judicial diversion. Accordingly, we affirm the judgment of
the trial court.

                                       CONCLUSION

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




                                                     _________________________________
                                                     D. KELLY THOMAS, JR., JUDGE




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