### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE December 12, 2001 Session

STATE OF TENNESS EE v. ROBERT CARL HARBISO N, JR.

Direct Appeal from the Circuit Court for Maury County

No. 11567 Robert L. Jones, Judge

No. M2001-00421-CCA-R3-CD - Filed April 26, 2002

The d ef endant was convicted of reckless aggravated assault and sentenc ed as a Standard Range I offender to two (2) years, with all but ten (10) days suspe nd ed. Viewing the evidence in the light
most favorable to the

State, we conclud

e there is suffic

ient evidence to s

u pport th e jury’s finding that the d ef endant acted recklessly in causing serious bodily injury to the victim. However, applying the appropriate

factors for con

sid er ation, we conclude that the defendant is eligible for judicial diversion, and there is no su bstantial evidence to support the trial court’s denial of the defendant’s request for judicial diversion. Accordingly , the judgment of t

he trial court is affirmed in part and reversed and remanded in part.

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

J OHN E VERETT W ILLI AMS , J., delivered the opinion of the court, in which J OE G. R I LEY and J AMES C URWOOD W ITT , J R ., JJ., joined.

Eric L. Davis, Franklin, Tennessee, for the appellant, Robert C. Harbison, Jr.

Paul G. S um mers, Attorney General and Reporter; Jennifer L . Bledsoe, Assistant Attorney General; and T. Michel Bottoms, District Attorney General, for the appe llee, State of Tennessee.

OPINION

The defendant, Robert C. H arbison , Jr., was indicted for aggravated assault in violation of Tennessee Code Annotated sec tion 39- 13-102. He was tried by a jury a nd convicted of reckless aggravated assault in violation of Tennessee Code Annotated section 3 9-13

- 102(a)(2 )(A), a Class D felony. He was sentenced as a Range I Standard offender to two (2 ) years, with all but ten days suspended. The defendant was placed on supe rvise d probation for
two years and

ordered to pay

$2200.00 restitutio

n in additi on to court costs. The defendant filed

a timely motion f

or new trial, whic

h was denied by

the trial court. I

n this appeal, t he defendant alleges that there is insufficient evidence to support his conv ictio n; that the trial court erred by-2-

den yi ng his request for judicial diversion; and that the trial court erred by sentencing the defendant as a Standard Range I offender ra ther than as an especially mitigated offender.

FACTS

The v ictim, Jeff Dodson, and his wife, Kim Dodson, lived across the street from Donn a Johnson, the co-defendant. At the time of the instant offense, Ms. Johnson was in the process of divorcing Kim Dodson’s brother a nd was involved in a

romantic relatio

nship with the defe

ndant. The t estimony at

trial and sentencing revealed that the Johnsons’ divorce proceedings lasted almost a year and that there was a great deal of animosity between Ms. Johnson and the Dodson’s, which stemmed from the divorce. According to both Ms. Johnson’s an d t he victim’s
tes tim ony, the victim, his wife, and his father

- in-law all testified at the Johnsons’ divorce hearing. In addition, f

ourteen audiotap

es of Ms. Johnson’s te

lephone convers

atio ns with various
peop le were introduced into evidence at the divorce proceedings. The conversa tions were apparently

intercepted with

a police scanne

r while Ms

. Johnson was using her cordless telephone andwere record ed withou t Ms. Johnson’s permission. On the day of the instant offense, the victim and his wife were

admittedly a

ttempting to photog

raph Ms. Johnson with t

he defendant. From the record, it appears that a few days before t he incident, Ms . Johnson and her estranged husband entered an agreed order prohibiting Ms. Johnson from seeing the defendant while her d ivorce was pending. The victim, the defen

dant, and Ms. Johnson a

ll testified at t

he trial. Th e victim’s description of the events differed from that of the defendant and Ms. Johnson.

The victim testified tha

t on the evening o

f June 19, 1999, he a

nd his wif

e drove to Spring Hill, Tennessee, whe

re they dec

ided to drive by the

defendant’s residence on Wilkes Lane to see if Ms. John son’s Suburb an automobile was parked outside the

defendant’s tra

iler. According

to the victim, they p

lanned to take a p

hotograph of the

Suburban to prove t

h at Ms. Johnson was violating the court order p rohibiting her f

rom having conta

c t with the defendant. However, they didnot find Ms. Johnson’s t ruck at t he defenda nt’s residence s o they decid

ed to drive to Columbia to get something

to eat. As they

were driving to

wards Columbia, the victim saw a Suburban resembling Ms. Johnson’s parked at the Parkway Lane s bowling alley. He dec ided to stop and go inside the bowling alley to see i f Ms. Johnson was inside with the defendant. The victim brought his cam era inside andplanned to take Ms. Johnson’s photograph if he found her with the defe ndant. Immediately upon entering the establishment, Ms. Johnson apparently saw the victim, ran towards hi m, leaped on top of him, and grabbed his camera. The victim “pushed her off” and attempted to leave. However, Ms. J ohnson called out to the defendant for assistance.

The defendant walked over and he and the victim began struggling f or possession of the

camera. According to the victim, the defen

dant took the came

ra and tossed it to M

s . John son. The victim then punched the defendant in the head and the two men began fighting. They eventually

fought their way through a set of double glass door s and into the foyer of the bowling all ey. The foyer

contained a set of

double glass door

s leading outsi

de the bowling alley and another set lea din g int o th e bo wli ng al ley. There w as also a pane glass window on each side of the double glass doors. While the victim and the defendan t were in the foyer, Ms. Johnson jumped on the victim’s back and began clawing him. Then, according to the victim, M s.-3-

Johnson and the def

endant s imultaneously

pushed him backwa

rds through one o

f the pane glas s windows, and he landed outs ide on the sidewal

k. As a result, his le

g was cut to the b one. The victim was taken by ambulan

ce to the Ma

ury Regional Hospital where immediate surgery was performed. He suffered permanent nerve damage to his leg , mis sed six (6) weeks of work, wore a boot cast, and underwent six (6) weeks of physical therapy

.

On cross-examination

, the victim acknow

ledged that he a

nd the defendant

w er e involved in a mutual fistfight where each individual was struck a number of times. The vict im de nied that bothhe and the defendant fell through the glass wind ow. When questioned about whether he listened to M s. Johnson’s telephone conversations on the day of the incident, the victim admitted that he had a scanner

in his home but denie

d that he and his wif

e listened to

Ms. Joh nson’s telephone calls on that day . He further den

ied any know

ledge of the co

ntents or origin

of th e audiotapes of Ms. Johnson’s teleph one conversations tha t were admitted in

to evidence at Ms. Johnson’s divorce hearing . However, the vi c tim adm itted that he had tw ice testified, an

d that his wife and father-in-law had also testified in Ms. John so n’s divorce case. The victim maintained that he and his wife we

nt for a ride to Co

llege Grove, Ten nessee, on the evening in question, happened to have a camera with them, and spontaneously decided to drive t o the defendant’s house in Spring Hi ll. Af

ter determining that Ms. Johnson’s automobile was not at the defendant’s home, the victim coinciden tal ly decided to drive to the Columbia Krystal restaura nt for dinner. The victim persisted that he coincidentally saw Ms. Johnson’s aut omobile at the bowling alley and entered to take a photograph.

RichardMcC rary t estified that he was present at Parkway La nes on June 19, 1999, and that he saw the victim enter the bowling al ley with a camera in his hand. He heard Ms. Johnson yell,and observed he r attempting to take the camera from the victim and then falling down. Mr. McCrary stated that he saw t

he defendant grab the vict im, and the two men began scuffling. Accord ing to Mr. McCrary, Ms. Johnson also hit the victim. He testified that the defendant pushe d the victim, and both men went through the glass windowpane. Mr. McCrary obse rv e d that the victim’s leg was cut very badly and that the bone was vis ible. Mr. McCrary did not remember

seeing any ch

ildren involve d in the altercation. He did not know the defendant or the victim and did not give a statement to police on the date of the incident. Mr. McCrary testified that he did not give a statement to anyone until over a y ear after the inc ident, when he was approached by

someone from the d

istrict attorney

’s office a wee

k before the tria

l.

The defen dant testified that he and Ms. Johnson were dating on June 19, 1999, and tha t Ms. Johnson and the defendant’s son ha d made plans over the telephone to go bowling that evening to celebrate Ms. Johnson’s twin s’ recent birthday . The defendant t

elephoned Ms. Johnson when he got off work, and they

arranged to di

ne at th e Krystal r

estaurant in Columbia andthen to go bowling. The de fendant, M s. Johnson, the defendant’s twelve-year-old son Jonathan, Ms. Johnson’s twelve-year-old son Hank, and Ms. Johnson’s eleven-yea r-old twins Casey and Jesse traveled in Ms. Johnson’s Suburban automobile.

The defendant was watching the children bowl when he he ard Ms . Johnson say, “

Carl, Carl,” and as he turned,

he saw her “flying t hrough the air. ” The defendan t then saw the victi

m, whomhe had never seen before, and was c onfused as to whet her the victim was

stealing Ms.-4-

Johns o n’s pocketbook. The d efendant quickly

realized that the v

ictim was taking p

hotographs, approached

the victim, and s trug gled for possession of the camera. During the struggle, the

camera fell on the floor.

The victim struck th

e fir st b low by hitting the defendant on the head, andthe two men began fighting. According to the defenda nt, it was the victim who pushed the defendant through the glass window, causing the defendant to lan d on his back on the sidewalk. The defendant explained that the victim came through the glass on top of him, and he kicked the victim off of him and back through the glass panel. The defend ant stated he then re-entered the foyer, s cuffled with t he victim, and grasped him in a headlock. The defendant also stated that his son, Jonathan, and Ms. Johnson’s son, Jesse , came to his aid by

kicking and hittin

g the victim
unt il Ms. Johnson intervened and extricated the children from the altercation. The defendant testified that Ms. Johnson never joined in the brawl.

The defendant r

eite rated that he had previously never seen the victim, had never spoken
to him or had cross wo

rds wit h him, and did

not have any problem with him. The defendant explained that only three or four seconds elapsed fro m the ti me he first thought the victim was assailing Ms. Johnson to the time he grappled with the victim. The defen dant testi fied that he initially approached the victim because he “didn’t know what was going on .” The defendant agreed w ith the victim

that the victim hit him first and that they were “basically wr apped tog ether” until the altercation was concluded. However, the defendant explained that he did not believe the victim i

ntend ed to push him through the window, but, rather, it was a “push/tug situ ation” and t hat he went through the window first. The defendant sustained cuts to his elbow, back, shoulder, and knee.

On cross-examination, the defendant acknowledged that Ms. Johnson was prohibited from seeing him as a result of a Williamson County court order. The defendant also conceded that by the time he reached the victim, he realized that the v ictim was not try

ing to take Ms. Johnson’s purse.

Jonathan Harbison, the defendant’s thirteen-year-old son , testified that he saw a man walk into the bowling alley carry ing a camera. Thereafter, he heard Ms. Johnson yell, “Get the

ca mera.” She ran over to the man and attempted to grab the camera. He saw Ms. Johnson fall t o the floor but was not certain if Ms. Johnso n was thrown down o

r if she tripped a

nd fell. Jonathan testified that the defendant ran over and began scuffling with the m a n, and the two men

wen tthrough the glass window. He stated that the two men ended up back inside the bowlin g alley and “slid down the wall.” Jonathan testified that the defendan t went through the glass first andthen kicked the victim ba ck inside. He state d that he and Ms. Johns on’s son, Jesse, also joined in the fight by hitting and kicking the victim. H e also indicated that Ms. Johnson was not involved in the fight but tried to pul l the two boys away from the fig ht. He observed that the defendant sustained a couple of cuts on his knee and elbow as a result of the fight.

JesseJohnson, Ms. Johnson’s elev en-y ear-old son, testified that the victim and his wife walkedinto the bowling alley and began taking pictures. His mother attempt ed to grab the
camera, and the victim thre w her down. Jesse sta

te d that the defendant and the victim began fighting. Jesse also admitted t hat he kicked the

victim. He te stified that both men we nt through a glass window, and the victim cut his leg. Jesse did not know who went through the glass first.-5-

Ms. Johnson’s twelve-year-old son, Hank Johnson, testified that he also saw the defendant and th e victim fighting in the bowling alley. However, he did not see who w ent throu gh the glass window. Ms. Johnson’s eleven-year-old daughter, Casey Johnson, testified that sh e recalled seeing a flash and her mother attempting to grab a camera f rom the victim. She thought the victim might have pushed her. Casey then saw the defend ant and the victim fighting. She testified she d i d not see them go through the glass window, but saw the broken glass and was aw

are the victim’s l

eg was cut. The

defendant also h

ad a couple of sc

ratches.

Ms. Johnson, who was a co -defendant in the

inst ant case, tes tified that on June 19, 1999, around 11:00 a.m. or 12:00 p.m., she spoke with the defendant’s son, Jonathan, on her cordles s telephone, and they discussed going bo wli ng later that ev

ening. Late

r that afternoon

, Ms. Johnson sat on the front porch and discussed the plans with the defen dant over th e telephone. Whil e she was talki ng to the defend ant, the victim was

outside his reside

nce shooting gu

ns. Ms. Johnson testified that dur ing her divorce proceedings, audiotapes of her telephone conversa tions with the defendant and others were introduced.

Later that evening, Ms . John son and her childr en met the defend

ant and Jonathan at h

is residence

. They drove her Suburban to the Kry stal restaurant in Columbia and then drov e t o Parkway Lanes Bowling Alley. Ms. Johnson testified that she and the defen dant we re watching the c hildren bowl wh en she saw a flash. She turned around and saw the victim with a camera. Sh e walked up to the vic tim and tried to take

the camera fro

m him. The victim th

rew her dow n

on the floor, and she received a carpet burn on her knee. She yell ed to the defendant, and he walkedover and began struggling with the victim for possession of the camera. The victi m hit the defendant on the head, and the two men began fighting. They struggled with one another into the foyer. Ms. Johnson testified that the defe ndant and the v ictim both went thro ugh a glass window in the foyer

, and the defenda

nt kicked the vic

tim back insid

e the foyer. She testified that she did not strik

e the victim

but indicated that Jonathan and Jesse had joined in the fight, and that she tried to pull them away.

On cross-examination, Ms. Johnson admitted that she had entered anagree d order prohibiting h er f

rom being around the defendant. She stated that the order was entered on June 15. However, it had not yet been filed at the time of the incident at the bow ling alley

. According to Ms. Johnson, she was around the defendant one time after the order was enter ed andthat was at the bowling alley . She also verifie d that the defenda

nt did not know the vic

tim pri or t o th e al ter cat ion at t he b owl ing a lle y.

ANALYSIS

The defendant alleges that there is insufficient evidence to support his co nv iction for reckless aggravated assault; that the trial court erred by denying hi s request fo r judicial diversion; and that the trial c ourt should have sentenced the defendant to full probation as an especially mitigated offender.-6-

I. Sufficiency of Evidence

The defendant

asserts that the evidence at trial was insufficient to support his conviction for reckless aggravated assault. Specifically , he arg ues th at no rational trier of fact could have found the mens rea e lement of reckless. We disagree. When an accused challenges the suffic ien cy

of the evidence, an appellate court’s standard of review is whether, after c onsidering the evidence in the li

g ht most favor able to the prosecution, any rational trier of fact could have found the essential ele

ments o f the crime beyond a reasonable doubt. Jackson v. Virgini a , 443 U.S. 307, 324, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979 ); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt bas ed upon direct evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence.

In determining the sufficiency of the evidence, this Cour t s hould not re-weigh or

re-ev aluate

the evidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990 )

. Nor may this Court subs titute its inferences for those drawn by the trier of fact fr om the evidence. State v. Buggs , 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. Sta te , 1 99 Tenn. 298, 286 S .W .2d 856, 859 (Tenn. 1956) . Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues raised by the ev idence are resolved by the trier of fact. Liakas

, 286 S.W .2d at 859. This Court must afford the prevailing party the strongest legitimate view

of the evidence

contained in the r

ecord, as well

as all reaso

nable infer ences whi ch may be drawn from the evidence. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Likewise, sho

uld the reviewing

court find partic

ular conflicts in t

he tria l te sti mon y, the
court must resolve them in favor of the jury verdict or trial court judgment. State v. Tuggle , 639 6S.W.2d 913, 914 (Tenn. 198 2). Because a

verdict of guilt

against a

defen dant removes the
presu mpt ion of innocence and raises a presumption of guilt, the convicted criminal defendant bears the burden of show ing that the evide nce was legall

y insufficie

nt to sustain a guil

ty verdict. Id.

The def

endant was convicted of reckless aggravated assault. A person c ommits reckl es s aggravated

assault who recklessly commits an assault and causes serious b odily injury. Tenn. Code Ann. §§ 39-13-101(a)(1), -102(a)(2)(A). In order for conduct to be considered re ckle ss, it

mu st be shown th at a person “ acts reckles sly with respe ct to circum stances sur rounding t h e conduct or the result of the

conduct when th

e p erson is aware o

f but consciously

disregards a substantial and unjustifiable risk that the ci rcumstances exist or the result will occur.” Tenn. Code Ann. § 39-11-302(c). Disregard of this risk m ust consti tute a gross deviation from the standardof care that an ordinary person would exercise. Id. “Se rio us b odi ly i nju ry” is defined

a s bod ily i njury which

involves: (A) a substantial risk of de ath; (B) protra

cted unconscious

ness; (C) extreme physical pain; (D) protracted or obvious disfigur ement ; or (E) protracted loss or substantial impairment of a function of a bodily member, organ or mental fac ulty. Ten n. Code Ann. § 39-11-106(a)(34).

There is suffici ent evidence from which a jury could conclude that the defe ndant was guilty of rec kless aggrav ated assault. The testimony of the victim supports the finding by the jury that he suffered serious bodi ly inju ry. In addition, the jury specifically found that the defendant acted r eckles sly rather than knowingly or intentionally and thus convicted the defendan t of aClass D reckless aggravated assault rather than a Class C knowing or intentional-7-

aggravated

assault. While we agree with the defendant that the uncontrover ted eviden ce establishedthat the victim and the defendant were mutu ally enga

ged in a phy

sical altercati

on, it

was within the jury’s discretion to fi nd th at the defendant’s pushing or kicking of the victim near

a glass window pane was reckless conduct

. According to the defendant’s ve

rsion of the event

s, he kicked the victim back through the broken window. Therefo re, his conduct admittedly caused the vi ctim’s ser ious injury. Although the defendant did not intend to cause serious injury to the victim, h is cond uct could reasonably be viewed as reckless. The def endant seems to be arguing that bec ause the victim wa s also engagin

g in reckless co

nduct, the defen

dant cannot be he

ld accountable

for causing se

rious bodily i

njury to the v

ictim. However, r

egardle ss of

the victim’s equally reckle ss con duct, the evidenc e established tha

t the defendant e

ngaged in rec

kless conduct, i.e. fighting near a pane glass wi ndow, and such reckless co nduct caused ser

ious bodily injury to the victim. The jury was instructed on the issue of self-defense and defe nse of a third person and obvious

ly rejecte d those theories. T

his issue is without me

rit.

II. Judicial Diversion

The defendant next asserts that the trial court erroneously denied his request for judicial diversion. Judicial diversion allows a defendant wh o meets certain eligibility criteria to be placed on probation and subsequently have the charges dismissed, if the p robatio nary perio

d is completedsuccessfully. Tenn. Code Ann . § 40-35-313. Tennessee Code Annotated section 40 -35-313(a)(1)(A) provides that a defendant is eligible for judicial diversion if he or she (a) “i s found guilty or pleads guilty to . . . a Class C, D or E fe lony,” (b) has not pre

vi ously been convictedof a felony

, and (c) consen

ts t o the deferment of proceedings and placement on probation “for a period of time . . . not more than the period of the maximum sentence of the felony with w

hich the person is c

harged.” This C

ourt has consisten

tly recog nized that [t]he fact that an accused meets these prerequisites do es not entitle the accused to judicial diversion as a matter of right. The statute states that a trial court “may” grant judi cial diversion in appropriate

c ases . . . . Thus, whether an accused should be granted judicial diversion is a question which addresses itself to t he sound discretion of the trial cou rt. This Court, . . . w ill not interfere

with the refusa

l of the trial court to grant judicial diversion if there i s “any substantial evidence to suppor t the refusal” contained in the record. Statev. Bonestel , 871 S.W.2d 163, 168 (Ten n. Cri m. App. 199 3) (quotin g State v. Oscar Anderson , 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992)).

In reviewing the decision of a trial court to grant or den y judicial diversion, this Court applies an abuse of discretion standard. Bonestel , 871 S.W.2d at 168; Anderson , 857 S.W.2d at 572. In determining whether an accused should be gra nted judicial diversion, the trial court sho uld con sider the defendant’s criminal record, social history, mental and phy sical condition, andamenability to correction; as well as the circumstances of the o ffense, t he deterrent effect of punishmentupon other criminal activity, and the likelihood that pretrial diversion will serve the ends of justice and best inter ests of bot h the public and the defendant. Bonestel , 871 S.W.2d at 168. If, after a

ssessing all rele

vant factors, the

trial court choos

e s to den y judicial diversion, the-8-

court must articulate on the rec ord bot h the specific re asons supporting

the denial and why

those factors applicable to the denial of diversion outweigh the other factors for consideration. Id.

In the instant case,

the trial court fo

und that the defen

dant “didn’t use a

weapon.” While

a cknowledgingthat the defendant “got into a fight he shouldn’t have gotten into,” the trial cour t pointed out that “there were two men engaged in this fight, and either one of them could ha ve hadtheir leg cut by this window.” The trial court also fou nd that the circumstances of the offense were so unusual as to be unlikel yto be repeated. In addition, the trial court found that the defendant

had six y ears of regular employment prior to his conviction. Finally , the trial court recognized

that defendant “was committing adultery, and that’s may be an im moral act but it was not an illegal act. It wasn’t even in violation of the Williamson County [divorce] court order.”

After making the foregoing findings, the trial court expressed concer n that there had b een a jury trial ; that there has be en considerable application of State resources through the District Attorney’s off ice and the judicial de

partment of the Sta

te; a number of pe

ople inconvenience d during jury selection, and the remaining jurors actually select ed missed work that day, and employers a nd others were inconvenienced. The trial court went on to deny the defendant’s request for judicial diversion stating tha t the defen dant’s c onduct at the bowling center, “and his continued involvement with Miss Johnson, while these court orders were in effect an d w hile she was a mar

ried woman, sugg

ests that he is not that ideal good citizen . . . .” The trial court added

I think the Court will g rant [ju di cial diversion] some day, and maybe grant it even on a crime involvi ng violen ce, when the Court finds that the v ictim

was sufficiently involved in the provocation as existed in this case.

And I do regret that [the de fendant] may lose his long-term employment

with the Williamson Cou nty Schools, b

ecause of this

. At the same time, he may be abl e to a ppeal, and get this Court’s judgment reversed, as to this Court’s denial of diversion, or even the denial of the j udgment of acqu ittal.

We first note that it appears from the record that in denyin

g judicial diversion, the trial
court placed great

weight on the fa

ct that there had

been a jury

trial. How ever , an y consideration of the fact that there had been a jury trial was errone ous becau se Tennessee Code Annotated section 40-35-313(a)( 1)(A) clearly allows judicial div

ersion for an eli

gible defenda

nt “who is found guilty or pl

eads gui lty.” Althoug

h we acknowledg

e the trial court’ s obvious strugg le to reach the correct decision, our revi ew of the re cord reveals no substantial evidence to support the denial of jud icia l diversion. The defendant has no criminal record. He is the divorced father of four children and pays $698.25 a month for child support . The defendant does not use alcohol or drugs and is in good physical condition. Th e defendant has been employed as a school bus driver for six years and also owns a tree service. The defendant provides his ch ildren with h ealth insurance through his employ ment a s a bus driv er. All of these factors weigh in favor of granting judicial diversion. State v. Lewis , 978 S.W.2d 558, 566-67 (Tenn. Crim. App. 1997).-9-

With respect to the circumstances of the offense, the record reveals that t he offense did
notinvolve a weapon and that the victim provoked the defenda nt by striki ng him first. Add iti ona lly, the trial court found that the victim and defendant were engaged in a mutual physical alterc ation when the injury occurred and that either man could have bee n cut by the broken glass. With respect to the deterrent effect, the offense did not involve an intentional or knowing act, but rather involved reckless conduct occurring under such unusual circumstances that it is unlikely t

hat a sustained int

ent to violate the la

w motivat ed the defendan t’s conduct. Fin all y, the ends of justice would not be served were the defendant to lose h is long -term employment

due to a fel ony c onv iction for an offense which occurred under circumstances such

as the ones in this cas

e, i.e., the victim was sig nificantly i nvolved in the prov

ocation, the victi

m andth e defenda nt were engaged in a mutual physical fig ht, and the defendant did not act intentionally or knowingly.

There is no proof contained in the record that the trial court co nsi dered the required factors for dete

rmining w

hether a d

efendan t should be

placed on

judicial d

iversion. We ackno wledge the trial court’s finding that the defendant was having an affair with a married

woman while a court order was in pl ace that prohibited her from having contact with the def endant. However, we also recognize, as did the trial court, that the defendant was not under such court order and therefore, did not violate it. As such, we find the defendant’s conduct does
not o utweigh the othe

r positive factor

s in favor of gra

nting judicial div

ersion or rise to th

e leve l of substantial evide

nce in support o

f the trial court’s denial of judicial diversion. Considering all of the required criteri a for determining the defendant’s suitability for judicial diversion, we conclude that the trial cour t abused its discre

tion by deny

ing the defenda

nt’ s request for judicial diversion. Accordingly, the judgment of the trial court is reverse d.

CONCLUSION

Based up on our r eview of the rec ord, we conclude

that there is suff

icient evidence

to support the defendant’s conviction for reckless aggravated assault. Ho wever , considering the appropriate

f actors for analyzing a defendant’s request for judicial diversion, there is no substant ial evidenc e to support the denial of judicial diversion. Therefore, the judgment of the trial court with respect to the issue of judicial diversion is reversed. Because we have determinedthat the defenda nt should be place

d on judicial diver

si on, we neednot address the issues raised by the defendant wi th regard to th

e sentence imposed. The judgment of the trial court is affirme

d in part and reve

rsed and remand

ed in part.

___________________________________ JOHN EVERETT WILLIAMS, JUDGE