        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 14, 2015

                   STATE OF TENNESSEE v. DAVID LEWIS

                   Appeal from the Criminal Court for Shelby County
                      No. W14-00214     Paula Skahan, Judge


                No. W2014-02549-CCA-R3-CD - Filed August 7, 2015


The defendant, David Lewis, entered pleas of guilty to two counts of aggravated assault
and one count of possession of a handgun while intoxicated. He was sentenced to
concurrent sentences of four years at 30% for the first count of aggravated assault, three
years and six months at 30% for the second count, and eleven months and twenty-nine
days for possession of a handgun while intoxicated. The trial court denied his request for
judicial diversion or a suspension of his sentences, and his sole issue on appeal is that the
court erred in these determinations. Having carefully reviewed the record, we affirm the
judgments of the trial court but remand for entry of a corrected judgment in Count 3 to
reflect the defendant‟s conviction offense as possession of a handgun while intoxicated.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                amd Remanded for Entry of Corrected Judgment

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR. and NORMA MCGEE OGLE, JJ., joined.

Sharon Fortner, Memphis, Tennessee, for the Appellant, David Lewis.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Pam Stark, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

                                          FACTS

       Witnesses at the sentencing hearing were the defendant and the arresting officer,
Christopher Gibson, of the Memphis Police Department.
       The defendant testified that he was currently unemployed, lived with his father,
grandmother, wife, and nine-year-old son and had not completed high school.
Previously, he had been convicted of reckless driving, for which he received a probated
sentence.

        He said that he had a pistol in his car at the time of his arrest for protection and
that he had a permit to carry a firearm. He had his firearms removed from his home, and
his brother will keep them upon his return to Memphis. He said he pled guilty because of
his wife‟s heart condition and because it would be “devastating to them” if he were to be
jailed. He was attending classes at CAAP, a program similar to Alcoholics Anonymous,
where he was being taught to keep his “mind off of alcohol and drugs and how to cope
with wanting to do them.”

       The defendant further testified that, at the time of his previous arrest, he had been
employed as a licensed armed security officer and had been on his way home when he
was arrested. Regarding his arrest for the most recent charges, the defendant said he had
been driving around, planning to meet a friend, when he noticed a car “coming down the
road at a high rate of speed.” So, he pulled into a driveway and saw a woman standing in
it, motioning to him to come forward, which he did. He removed his pistol from his
waistband, placed it on the passenger seat, got out of the car, and walked toward the
woman with his car key, attached to a knife he used at work, in his hand. The woman
then “freaked out and started screaming.” A man with a large knife emerged from the
house and ordered the defendant to lie down on the ground, which he did. The defendant
said that he still had his key and knife in his hand when the officer approached him, but
he denied that he slashed at the officer. The defendant said he had purchased the bag of
urine found in his car to use to pass a drug test at his place of employment.

       Officer Christopher Gibson testified that the night of the defendant‟s arrest, he had
received an armed party call to the location where the defendant was being held. Upon
arriving at the scene, he saw the defendant‟s vehicle parked immediately behind the
vehicles in the garage. He approached the defendant and told him the officers were going
to take him into custody. The defendant had a dagger in his left hand and made a jabbing
motion “to come back towards [the officer‟s] left leg.” Officer Gibson pinned the
defendant‟s left hand with his foot and took him into custody. The defendant‟s speech
was slurred, and he said he had come to his boss‟s house to get a job, but he “didn‟t know
who his boss was,” or the address. Officer Gibson did verify that the defendant‟s boss
lived “one to three miles away.”

       Officer Gibson searched the defendant‟s car and saw on the passenger seat an FN
5.7 pistol “mainly designed to go through body armor.”

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                                      ANALYSIS

       The single issue raised by the defendant on appeal is that the trial court should
have granted judicial diversion or, in the alternative, a suspended sentence, and in
denying both of these, the court “gave insufficient weight to the relevant factors.” The
State responds that the court properly sentenced the defendant.

       In State v. Bise, 380 S.W.3d 682 (Tenn. 2012), the Tennessee Supreme Court
reviewed changes in sentencing law and the impact on appellate review of sentencing
decisions. The Tennessee Supreme Court announced that “sentences imposed by the trial
court within the appropriate statutory range are to be reviewed under an abuse of
discretion standard with a „presumption of reasonableness.‟” Id. at 708. This standard of
review extends to alternative sentences as well. State v. Caudle, 388 S.W.3d 273, 278-79
(Tenn. 2012) (“[T]he abuse of discretion standard, accompanied by a presumption of
reasonableness, applies to within-range sentences that reflect a decision based upon the
purposes and principles of sentencing, including the questions related to probation or any
other alternative sentence.”). A finding of abuse of discretion “„reflects that the trial
court‟s logic and reasoning was improper when viewed in light of the factual
circumstances and relevant legal principles involved in a particular case.‟” State v.
Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242
(Tenn. 1999)). To find an abuse of discretion, the record must be void of any substantial
evidence that would support the trial court‟s decision. Id. at 554-55; State v. Grear, 568
S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App.
1980). The reviewing court should uphold the sentence “so long as it is within the
appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-
10. So long as the trial court imposes a sentence within the appropriate range and
properly applies the purposes and principles of the Sentencing Act, its decision will be
granted a presumption of reasonableness. Id. at 707.

       The trial court provided an extensive explanation why the defendant would not be
granted judicial diversion:

              As far as looking at the considerations for [j]udicial [d]iversion, his
      amenability to correction, we have someone still in [his] 20s, Mr. Lewis,
      who according to his own testimony has been drinking since he was 12
      years old, drinking alcohol to excess so much that he has the D[Ts] when
      . . . he‟s not able to have access to alcohol. Has been smoking marijuana
      and apparently has also been abusing morphine at least before he was 21 or
      up to the time he was 21 years old.

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       The circumstances of the offense I think are frightening. . . . He
does have a criminal record. He has previously been placed on probation
for a reckless driving. His social history is . . . he does have some work
history definitely. But he also has that prior history of serious alcohol
abuse and drug abuse. . . .

       ....

       As set out in the Presentence Report, we do have some issues with I
believe it was nerve damage in the lower feet and legs. Some problems
with hips and lower back I believe. [The defendant] testified that he had
fallen down some stairs when he was intoxicated. Mental health, according
to the testimony given by [the defendant,] his demeanor, testimony
regarding his being told by doctors and providers at M.M.H.I. as well as
Charter Lakeside that they could not help him there, I do agree with [the
prosecutor‟s] assessment having spoken to many psychologist[s] over the
years regarding my own clients, those facing death row and others, that [the
defendant] most likely is a sociopath. And it‟s not his fault but that just
appears to be what we‟re dealing with here, who we‟re dealing with. So
mental health is not good in this situation.

       Deterrence value to the accused as well as others . . . .

       ....

        We cannot send a message that this type of behavior is to be
tolerated and that we can place people on diversion with that. Whether
judicial diversion will serve the interest of the public as well as the accused,
placing [the defendant] on diversion would allow him to have a gun permit
and that is definitely not what we need in this situation. Weighing all of
these factors, the Court is denying judicial diversion.

      And as far as an appropriate sentence, [the defendant] is a Range I
Offender. He does have a prior misdemeanor conviction.

       As far as enhancement factors, I do find that he has a previous
history of criminal convictions as I stated and criminal behavior involving
the use of illegal drugs including marijuana and morphine.

       ....

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              . . . And the victim in the aggravated assault was a law enforcement
       officer, and the victim was performing an official duty and the defendant
       knew or should have known the victim was such an officer, then that is also
       an enhancement factor. So as far as the aggravated assault against Officer
       Gibson which is Count 1, that will apply. So I think those – the one
       enhancement factor applies to all three. And then on Count 1, the second
       enhancement factor applies also. I do not believe consecutive sentencing
       applies in this case.

               What I‟m going to do on the two – well, on Count 1, aggravated
       assault, I sentence [the defendant] to serve four years as a Range I Offender
       in the Shelby County Correctional Center.

              Count 2, aggravated assault, sentence [the defendant] to serve three
       years, six months. To be served concurrently.

             And possession of a handgun while intoxicated, I sentence him to
       serve 11 months, 29 days at the workhouse. Also to be served
       concurrently.

              All right. I need for [the defendant] to serve some jail time and
       that‟s what I‟m trying to determine at this time. And a four year sentence
       on an aggravated assault, I‟m not really sure exactly what he would serve. .
       ..

              ....

               Mr. Lewis, the problem is you‟ve just gotten out of control. You‟ve
       just gotten totally out of control. And I just have this real fear that you‟re
       going to do some very real harm. And I‟m trying to determine the best way
       to try to prevent that. And I think you need a real reality check from prison.

       It is clear that the court considered the sentencing law and principles. The record
supports the court‟s determination that the defendant had a “prior history of serious
alcohol abuse and drug abuse” and that his mental health was “not good.” The court
noted that, regarding his recent criminal episode, the female victim testified that the
defendant was “behaving in a very bizarre way, grunting, [and] just looking at her.”
According to the court, his explanation of the events was “bizarre,” and the court
observed that, as the defendant was sitting in the courtroom, he had “his hands together
and [was] just shaking.” Given all of this, and the fact that, as the court further observed,
“placing the defendant on [judicial] diversion would allow him to have a gun permit . . .
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is definitely not what we need in this situation,” the record easily supports the court‟s
decision to deny judicial diversion. See State v. King, 432 S.W.3d 316, 327 (Tenn.
2014).

       As for sentencing, the court determined the defendant was a Range I offender, had
a previous history of criminal convictions, and had engaged in additional criminal
behavior, the use of illegal drugs. An additional enhancement factor was that the
defendant knew one of the victims was a law enforcement officer engaged in his official
duties. Given all of this, we conclude that the court further did not abuse its discretion in
sentencing the defendant and denying suspension of the sentences. See State v. Caudle,
388 S.W.3d 273, 278-79 (Tenn. 2012).

                                     CONCLUSION

      We affirm the judgments of the trial court but remand for entry of a corrected
judgment in Count 3 to reflect the defendant‟s conviction offense as possession of a
handgun while intoxicated.

                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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