        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 18, 2009

                 STATE OF TENNESSEE v. JOHN C. HOWARD

            Direct Appeal from the Circuit Court for Montgomery County
                      No. 40800338     Michael R. Jones, Judge




                             No. M2009-00465-CCA-R3-CD - Filed January 18, 2011


Appellant, John C. Howard, was indicted for three counts of aggravated child abuse.
Appellant subsequently pled guilty to two counts of aggravated assault in an open, best
interest plea. After a sentencing hearing, a five-year split confinement sentence was
imposed. The trial court ordered Appellant to serve one hundred twenty days in incarceration
for each offense, followed by five years of probation, and ordered the sentences to be served
concurrently. The trial court further denied judicial diversion. Appellant seeks a review of
the trial court’s denial of diversion. Because we determine that the trial court did not abuse
its discretion in denying judicial diversion, we affirm the judgments of the trial court.

   Tenn. R. App. P. Appeal as of Right; Judgments of the Circuit Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
C AMILLE R. M CM ULLEN, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, (on appeal); Edward Dewerff and Sharon Massey,
Clarksville, Tennessee, (at trial), for the appellant, John C. Howard.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; and Robert J. Nash, Assistant
District Attorney General, for the appellee, the State of Tennessee.

                                         OPINION

I. Background

       In accordance with the policy of this Court, we will refer to the minor victim by the
victim’s initials. Appellant was indicted by the Montgomery County Grand Jury in March
of 2008 with three counts of aggravated child abuse for injuries sustained by G.H. At the
time of the indictments, Appellant was in a relationship with the mother of G.H. G.H. was
less than eight months of age when the incidents that gave rise to the indictments took place.

       In November of 2008, Appellant entered a best interest plea to two counts of
aggravated assault. The remaining count of the indictment was dismissed. There was no
agreement as to the sentence or manner of service of the sentence. Appellant sought judicial
diversion from the trial court.

        The following facts were given at the plea acceptance hearing by the State’s attorney.
On September 24, 2007, G.H.’s mother noticed that G.H. was not moving one of her legs and
that the leg appeared swollen. The leg was sensitive to touch. She took the child, who was
approximately four months old at the time, to her pediatrician, who ordered x-rays.

       The x-rays revealed that G.H. had a fracture of the left femur that was less than one
week old. In addition, G.H. had healing fractures in the left tibia and fibula that were
approximately four to six weeks old. G.H. also had a tibial fracture in the right leg that
appeared older than four to six weeks. G.H. had new bone formation in the left upper arm
and forearm. This new bone formation indicated some type of past trauma that could not be
confirmed as a fracture. There were also three rib fractures that appeared to be healing.

       After the x-rays, the Department of Children’s Services (DCS) was notified of the
findings. During the investigation, Appellant made statements indicating that he was often
rough with G.H. during diaper changes and that the injuries must have occurred during diaper
changes. Appellant stated that any injuries were not intentional. Appellant stated that he
knew of no other family member that could have caused the injuries to G.H. State experts
concluded that normal child care and routine diaper changing could not have caused the
injuries suffered by G.H.

        At the conclusion of the plea acceptance hearing, the trial court accepted the plea and
set the matter for sentencing, during which the trial court would also determine whether
Appellant would receive judicial diversion. At the sentencing hearing, G.H.’s mother
explained that she met Appellant in the summer of 2005 while she was a student worker for
a high school program at Austin Peay University entitled “Upward Bound.” Appellant was
a teacher in the program. The two worked together in the summer of 2005 and 2006 and
became a couple in August of 2006, when G.H.’s mother moved to Jackson, Tennessee, to
start school at Lane College.

      G.H.’s mother discovered she was pregnant in the fall of 2006. After her first
semester of college, she returned to Clarksville and moved in with Appellant. When G.H.

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was born, her mother’s parents assisted with childcare because both Appellant and G.H.’s
mother worked.

       After G.H. was born, her mother took her to the doctor several times because she was
“crying constantly.” The victim’s mother noticed that the child cried “hysterically” when
Appellant picked her up and that Appellant often “got upset” when he could not calm the
child down. Appellant also got “very frustrated” when he was told that he was “being too
rough or to hold [G.H.] in a certain way.” The child’s mother described two incidents in
which Appellant displayed anger toward G.H. On one occasion, she noticed finger imprints
on the child’s shoulders, and on another occasion the child would not stop crying and
Appellant “tossed her on the bed where [G.H.’s mother] was laying.”

        After the injuries were discovered, the child was temporarily placed in the custody of
the child’s maternal grandparents. The child was eventually returned to the care of her
mother and has suffered no further injuries. Appellant has provided financially for G.H.
since his separation from the victim’s mother in December of 2007. After the indictment,
G.H.’s mother received several letters from Appellant in which he stated that it was never
his intent to hurt G.H. She did not know if this was Appellant’s way of apologizing, but
described Appellant as “very full of anger.”

      Appellant presented witnesses to testify on his behalf. Capri Griffy-Elliot attended
church with Appellant and had known him for “about four years.” Ms. Griffy-Elliot saw
Appellant a few times a week at church and claimed that Appellant had a reputation for
peacefulness and had a good character. She had never seen Appellant get upset or angry but
had never witnessed his interaction with G.H. at home.

       Clifford Greer also testified. He described himself as a “fraternity brother” and “close
friend” of Appellant. They have known each other for about eleven years. Mr. Greer has
never seen Appellant lose his temper over anything and has witnessed Appellant interacting
with G.H. “on occasion.” He also described Appellant as a peaceful person.

        Cheryl Durham, the executive director of NIA Association in Clarksville, became
acquainted with Appellant during his employment with NIA. NIA is an agency that provides
services for “individuals with mental retardation.” Appellant was fired from his job because
of the pending charges. She further testified that he could reapply for his job “if there is no
evidence of a felony or a substantiated case of abuse.”

       Appellant’s pastor, Dennis Lawson, described Appellant as a peaceful person.
Reverend Lawson had known Appellant for about four or five years and saw him several
times a week at church.

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        Summer Carney, Appellant’s ex-wife, explained that she and Appellant were still
friends despite their divorce. The couple met in 1995, married in 1997, and divorced in
2001. The couple remained in a relationship after their divorce until 2006. Appellant
continues to help Ms. Carney raise her twelve-and-a-half year old daughter, even though he
is not the child’s biological father. Ms. Carney described Appellant as a “wonderful father”
who had never lost his tempter with her daughter.

      At the conclusion of the testimony, pursuant to Tenn. Code Ann. § 40-14-101,
Appellant made the following unsworn statement on his own behalf:

       [T]his whole situation, it has been heavy on my heart. . . .

              I have not had the opportunity to be a father to [G.H.]. I have had the
       opportunity to be a father to [Ms. Carney’s daughter], and she’s almost thirteen
       August 20th of this year. . . . [S]ome of the things are damaging towards me but
       I am truly sorry that the situation has happened to. . .[G.H.].

               When the situation did happen, when I was able to get counseling and
       I first had a psychological assessment done to make sure that I wasn’t this
       monster that - - you know, was on paper or anything like that and I also
       received counseling from November of ’06 to - - I’m sorry, November ’07 to
       June of ’08, and the reason why I couldn’t continue counseling because
       number one, I didn’t have a job any more and you know, my insurance ran out
       so once again, Your Honor, I just wanted you to understand as well as the
       Court, I have sent [G.H.’s mother] a letter apologizing to her for the pain that
       I have caused her and [G.H.], in her eyes, and I just wanted the Court to
       understand that I am truly sorry.

       At the conclusion of the hearing, the trial court commented that the age of the child
“bears heavily upon [the court’s] mind.” The trial court considered Appellant’s amenability
to correction and determined that Appellant would probably not commit crimes in the future
but was unable to determine whether Appellant was “accepting responsibility for these
injuries.” The trial court also determined that the circumstances of the offense were “very,
very serious” because there were “at least two different sets” of severe injuries to a child that
was less than five months old. The trial court noted that Appellant had a good social history
and no criminal history. The trial court commented that there was no proof in the record
about Appellant’s physical status and limited information about Appellant’s mental health,
except for Appellant’s own claim that he voluntarily undertook counseling. The trial court
opined that while there was no deterrent value to Appellant by denying judicial diversion,
there was a great deal of deterrent value to the public by denying judicial diversion.

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      The trial court examined Appellant’s attitude and concluded that it was hard to gauge
Appellant’s attitude based on the record before the court. The trial court concluded by
denying diversion, stating:

                The Court believes that the circumstances of this offense are so great
       that it just really and truly outweighs all of these other factors considerably.
       This is not an ordinary aggravated assault case. This is a charge of aggravated
       assault when a victim is very, very small. Even - - and that’s not an element
       of the offense as this case was settled or a plea was entered. So I believe that
       the circumstances are so great that the post-trial diversion, particularly does not
       serve the interests of justice whatsoever, therefore, I am not going to grant
       [j]udicial [d]iversion.

Finally, the trial court also noted two enhancement factors, including the fact that the victim
was particularly vulnerable due to her age and that Appellant abused a position of private
trust.

       Appellant filed a timely notice of appeal, challenging the trial court’s denial of judicial
diversion.

II. Analysis

                                       Judicial Diversion

        Appellant contends that the trial court abused its discretion in denying judicial
diversion. A defendant is eligible for judicial diversion if he or she is convicted of a Class
C, D, or E felony or lesser crime and has not previously been convicted of a felony or a Class
A misdemeanor. See T.C.A. § 40-35-313(a)(1)(B)(I). Judicial diversion allows the trial
court to defer further proceedings without entering a judgment of guilt and to place the
defendant on probation under reasonable conditions. Id § 40-35-313(a)(1)(A). When the
probationary period expires, if the defendant has completed probation successfully, the trial
court will dismiss the proceedings against the defendant with no adjudication of guilt. See
id. § 40-35-313(a)(2). The defendant may then apply to have all records of the proceedings
expunged from the official records. See id. § 40-35-313(b). A person granted judicial
diversion is not convicted of an offense because a judgment of guilt is never entered. See id.
§ 40-35-313(a)(1)(A).

       When a defendant challenges the manner of serving a sentence, this Court conducts
a de novo review of the record with a presumption that “the determinations made by the court
from which the appeal is taken are correct.” Id. § 40-35-401(d). However, when the

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defendant challenges the trial court’s denial of a request for judicial diversion, a different
standard of appellate review applies. Because the decision to grant judicial diversion lies
within the sound discretion of the trial court, this Court will not disturb that decision on
appeal absent an abuse of discretion. State v. Electroplating, Inc., 990 S.W.2d 211, 229
(Tenn. Crim. App. 1998). Upon review, we will give the trial court the benefit of its
discretion if “‘any substantial evidence to support the refusal’ exists in the record.” State v.
Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992) (quoting State v. Hammersley, 650
S.W.2d 352, 356 (Tenn. 1983)).

        In determining whether a defendant is qualified for judicial diversion, the trial court
should consider: (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 physical and mental health; (6) the deterrence value to the defendant as well as
others; (7) whether judicial diversion would serve the interests of justice; (8) the defendant’s
attitude; (9) the defendant’s behavior since arrest; (10) the defendant’s home environment;
(11) drug usage; (12) emotional stability; (13) past employment; (14) general reputation; (15)
family responsibility; and (16) attitude of law enforcement. Cutshaw, 967 S.W.2d at 343-44.
 In addition, “the record must reflect that the court has weighed all of the factors in reaching
its determination.” Electroplating, Inc., 990 S.W.2d at 229. If the trial court refused to grant
judicial diversion, it should state in the record “the specific reasons for its determinations.”
Parker, 932 S.W.2d at 958-59.

       The trial court herein found that Appellant was amenable to correction but that the
circumstances of the offense weighed against judicial diversion. Specifically, the trial court
found that the injuries were “very serious” and happened to a very young victim. In other
words, the circumstances of the offense were egregious and justified the denial of judicial
diversion despite Appellant’s favorable personal history. The trial court found several
factors that weighed in Appellant’s favor, including his lack of a criminal record, his social
history, his behavior since arrest, his past employment, his continued support of the victim’s
care, and his reputation. The trial court concluded, however, that judicial diversion was not
appropriate.

       On appeal, Appellant characterizes the trial court’s reliance on the circumstances of
the offense as the equivalent of a categorical policy of denying diversion based on the type
of crime committed. We determine that this argument is not supported by the record or
Appellant’s reliance on State v. McKim, 215 S.W.3d 781 (Tenn. 2007), and State v. Curry,
988 S.W.2d 153 (Tenn. 1999).

       In McKim, the supreme court held that the district attorney’s office abused its
discretion in denying an application for pretrial diversion “in part based upon its individual

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and irrelevant determination that criminally negligent homicide should not be a divertible
offense.” 215 S.W.3d at 787. The court concluded that the prosecutor substituted his own
opinion of what legislative policy should be “‘contrary to the policies formulated in the
Pretrial Diversion Act.’” Id. at 788 (quoting Hammersley, 650 S.W.2d at 356).

       In Curry, the supreme court addressed the denial of pretrial diversion where the
prosecutor improperly based the denial on the circumstances of the offense without weighing
or even addressing the “essential factors,” including those favorable to the defendant. 988
S.W.2d at 158. The court determined that there was an abuse of discretion because the denial
of diversion was not based on a consideration of “all relevant factors . . . , in particular, those
factors relevant to amenability for rehabilitation.” Id. at 159.

        In the case herein, the trial court did not base the denial of diversion on personal
opinion or a determination that the offense was not divertible. Further, the trial court
considered all of the relevant factors prior to making its determination. Moreover, contrary
to Appellant’s assertion, there is absolutely no evidence that the trial court was swayed by
the prosecutor’s comments about Appellant’s choice to submit a statement of allocution
rather than testify. In fact, the trial court did not even comment on Appellant’s choice in
making its determination. Based on our review of the record, we conclude that the trial court
adequately explained its reasons for denying Appellant’s request for judicial diversion and
carefully considered the factors necessary, both those favorable to Appellant and those
weighing against the grant of diversion. There is substantial evidence in the record that
supports the trial court’s denial of judicial diversion, including the trial court’s reliance on
the egregious nature of the offense. See State v. Kyte, 874 S.W.2d 631, 634 (Tenn. Crim.
App. 1993) (observing that the nature and circumstances of an offense alone may support a
denial of judicial diversion). Appellant is not entitled to relief on this issue.

                                        CONCLUSION

       After a thorough review, we affirm the trial court’s denial of Appellant’s request for
judicial diversion.

                                                      _________________________________
                                                      THOMAS T. WOODALL, JUDGE




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