IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

December 12, 2001 Session

STATE OF TENNESSEE v. ROBERT CARL HARBISON, 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 defendant was convicted of reckless aggravated assault and sentenced as a Standard Range I

offender to two (2) years, with all but ten (10) days suspended. Viewing the evidence in the light

most favorable to the State, we conclude there is sufficient evidence to support the jury’s finding

that the defendant acted recklessly in causing serious bodily injury to the victim. However,

applying the appropriate factors for consideration, we conclude that the defendant is eligible for

judicial diversion, and there is no substantial evidence to support the trial court’s denial of the

defendant’s request for judicial diversion. Accordingly, the judgment of the 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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOE G. RILEY and

JAMES CURWOOD WITT, JR., JJ., joined.

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

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney

General; and T. Michel Bottoms, District Attorney General, for the appellee, State of Tennessee.

OPINION

The defendant, Robert C. Harbison, Jr., was indicted for aggravated assault in violation

of Tennessee Code Annotated section 39-13-102. He was tried by a jury and convicted of

reckless aggravated assault in violation of Tennessee Code Annotated section 39-13-

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 supervised probation for

two years and ordered to pay $2200.00 restitution in addition to court costs. The defendant filed

a timely motion for new trial, which was denied by the trial court. In this appeal, the defendant

alleges that there is insufficient evidence to support his conviction; that the trial court erred by
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denying his request for judicial diversion; and that the trial court erred by sentencing the

defendant as a Standard Range I offender rather than as an especially mitigated offender. 

FACTS

The victim, Jeff Dodson, and his wife, Kim Dodson, lived across the street from Donna

Johnson, the co-defendant. At the time of the instant offense, Ms. Johnson was in the process of

divorcing Kim Dodson’s brother and was involved in a romantic relationship with the defendant.

The testimony 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 and the victim’s

testimony, the victim, his wife, and his father-in-law all testified at the Johnsons’ divorce

hearing. In addition, fourteen audiotapes of Ms. Johnson’s telephone conversations with various

people were introduced into evidence at the divorce proceedings. The conversations were

apparently intercepted with a police scanner while Ms. Johnson was using her cordless telephone

and were recorded without Ms. Johnson’s permission. On the day of the instant offense, the

victim and his wife were admittedly attempting to photograph Ms. Johnson with the defendant.

From the record, it appears that a few days before the incident, Ms. Johnson and her estranged

husband entered an agreed order prohibiting Ms. Johnson from seeing the defendant while her

divorce was pending. The victim, the defendant, and Ms. Johnson all testified at the trial. The

victim’s description of the events differed from that of the defendant and Ms. Johnson.

The victim testified that on the evening of June 19, 1999, he and his wife drove to Spring

Hill, Tennessee, where they decided to drive by the defendant’s residence on Wilkes Lane to see

if Ms. Johnson’s Suburban automobile was parked outside the defendant’s trailer. According to

the victim, they planned to take a photograph of the Suburban to prove that Ms. Johnson was

violating the court order prohibiting her from having contact with the defendant. However, they

did not find Ms. Johnson’s truck at the defendant’s residence so they decided to drive to

Columbia to get something to eat. As they were driving towards Columbia, the victim saw a

Suburban resembling Ms. Johnson’s parked at the Parkway Lanes bowling alley. He decided to

stop and go inside the bowling alley to see if Ms. Johnson was inside with the defendant. The

victim brought his camera inside and planned to take Ms. Johnson’s photograph if he found her

with the defendant. Immediately upon entering the establishment, Ms. Johnson apparently saw

the victim, ran towards him, leaped on top of him, and grabbed his camera. The victim “pushed

her off” and attempted to leave. However, Ms. Johnson called out to the defendant for

assistance.

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

camera. According to the victim, the defendant took the camera and tossed it to Ms. Johnson.

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 doors and into the foyer of the bowling

alley. The foyer contained a set of double glass doors leading outside the bowling alley and

another set leading into the bowling alley. There was also a pane glass window on each side of

the double glass doors. While the victim and the defendant were in the foyer, Ms. Johnson

jumped on the victim’s back and began clawing him. Then, according to the victim, Ms.
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Johnson and the defendant simultaneously pushed him backwards through one of the pane glass

windows, and he landed outside on the sidewalk. As a result, his leg was cut to the bone. The

victim was taken by ambulance to the Maury Regional Hospital where immediate surgery was

performed. He suffered permanent nerve damage to his leg, missed six (6) weeks of work, wore

a boot cast, and underwent six (6) weeks of physical therapy. 

On cross-examination, the victim acknowledged that he and the defendant were involved

in a mutual fistfight where each individual was struck a number of times. The victim denied that

both he and the defendant fell through the glass window. When questioned about whether he

listened to Ms. Johnson’s telephone conversations on the day of the incident, the victim admitted

that he had a scanner in his home but denied that he and his wife listened to Ms. Johnson’s

telephone calls on that day. He further denied any knowledge of the contents or origin of the

audiotapes of Ms. Johnson’s telephone conversations that were admitted into evidence at Ms.

Johnson’s divorce hearing. However, the victim admitted that he had twice testified, and that his

wife and father-in-law had also testified in Ms. Johnson’s divorce case. The victim maintained

that he and his wife went for a ride to College Grove, Tennessee, on the evening in question,

happened to have a camera with them, and spontaneously decided to drive to the defendant’s

house in Spring Hill. After determining that Ms. Johnson’s automobile was not at the

defendant’s home, the victim coincidentally decided to drive to the Columbia Krystal restaurant

for dinner. The victim persisted that he coincidentally saw Ms. Johnson’s automobile at the

bowling alley and entered to take a photograph. 

Richard McCrary testified that he was present at Parkway Lanes on June 19, 1999, and

that he saw the victim enter the bowling alley with a camera in his hand. He heard Ms. Johnson

yell, and observed her attempting to take the camera from the victim and then falling down. Mr.

McCrary stated that he saw the defendant grab the victim, and the two men began scuffling.

According to Mr. McCrary, Ms. Johnson also hit the victim. He testified that the defendant

pushed the victim, and both men went through the glass windowpane. Mr. McCrary observed

that the victim’s leg was cut very badly and that the bone was visible. Mr. McCrary did not

remember seeing any children involved 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 year after the incident, when he was

approached by someone from the district attorney’s office a week before the trial.

The defendant testified that he and Ms. Johnson were dating on June 19, 1999, and that

Ms. Johnson and the defendant’s son had made plans over the telephone to go bowling that

evening to celebrate Ms. Johnson’s twins’ recent birthday. The defendant telephoned Ms.

Johnson when he got off work, and they arranged to dine at the Krystal restaurant in Columbia

and then to go bowling. The defendant, Ms. Johnson, the defendant’s twelve-year-old son

Jonathan, Ms. Johnson’s twelve-year-old son Hank, and Ms. Johnson’s eleven-year-old twins

Casey and Jesse traveled in Ms. Johnson’s Suburban automobile. 

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

Carl,” and as he turned, he saw her “flying through the air.” The defendant then saw the victim,

whom he had never seen before, and was confused as to whether the victim was stealing Ms.
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Johnson’s pocketbook. The defendant quickly realized that the victim was taking photographs,

approached the victim, and struggled for possession of the camera. During the struggle, the

camera fell on the floor. The victim struck the first blow by hitting the defendant on the head,

and the two men began fighting. According to the defendant, it was the victim who pushed the

defendant through the glass window, causing the defendant to land 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 defendant stated he then re-entered the

foyer, scuffled with the 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 hitting the victim

until Ms. Johnson intervened and extricated the children from the altercation. The defendant

testified that Ms. Johnson never joined in the brawl. 

The defendant reiterated that he had previously never seen the victim, had never spoken

to him or had cross words with him, and did not have any problem with him. The defendant

explained that only three or four seconds elapsed from the time he first thought the victim was

assailing Ms. Johnson to the time he grappled with the victim. The defendant testified that he

initially approached the victim because he “didn’t know what was going on.” The defendant

agreed with the victim that the victim hit him first and that they were “basically wrapped

together” until the altercation was concluded. However, the defendant explained that he did not

believe the victim intended to push him through the window, but, rather, it was a “push/tug

situation” and that 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 victim was not trying 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 carrying a camera. Thereafter, he heard Ms. Johnson yell, “Get the

camera.” She ran over to the man and attempted to grab the camera. He saw Ms. Johnson fall to

the floor but was not certain if Ms. Johnson was thrown down or if she tripped and fell.

Jonathan testified that the defendant ran over and began scuffling with the man, and the two men

went through the glass window. He stated that the two men ended up back inside the bowling

alley and “slid down the wall.” Jonathan testified that the defendant went through the glass first

and then kicked the victim back inside. He stated that he and Ms. Johnson’s son, Jesse, also

joined in the fight by hitting and kicking the victim. He also indicated that Ms. Johnson was not

involved in the fight but tried to pull the two boys away from the fight. He observed that the

defendant sustained a couple of cuts on his knee and elbow as a result of the fight. 

Jesse Johnson, Ms. Johnson’s eleven-year-old son, testified that the victim and his wife

walked into the bowling alley and began taking pictures. His mother attempted to grab the

camera, and the victim threw her down. Jesse stated that the defendant and the victim began

fighting. Jesse also admitted that he kicked the victim. He testified that both men went through

a glass window, and the victim cut his leg. Jesse did not know who went through the glass first. 
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Ms. Johnson’s twelve-year-old son, Hank Johnson, testified that he also saw the

defendant and the victim fighting in the bowling alley. However, he did not see who went

through the glass window. Ms. Johnson’s eleven-year-old daughter, Casey Johnson, testified

that she recalled seeing a flash and her mother attempting to grab a camera from the victim. She

thought the victim might have pushed her. Casey then saw the defendant and the victim

fighting. She testified she did not see them go through the glass window, but saw the broken

glass and was aware the victim’s leg was cut. The defendant also had a couple of scratches.

Ms. Johnson, who was a co-defendant in the instant case, testified 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 cordless

telephone, and they discussed going bowling later that evening. Later that afternoon, Ms.

Johnson sat on the front porch and discussed the plans with the defendant over the telephone.

While she was talking to the defendant, the victim was outside his residence shooting guns. Ms.

Johnson testified that during her divorce proceedings, audiotapes of her telephone conversations

with the defendant and others were introduced.

Later that evening, Ms. Johnson and her children met the defendant and Jonathan at his

residence. They drove her Suburban to the Krystal restaurant in Columbia and then drove to

Parkway Lanes Bowling Alley. Ms. Johnson testified that she and the defendant were watching

the children bowl when she saw a flash. She turned around and saw the victim with a camera.

She walked up to the victim and tried to take the camera from him. The victim threw her down

on the floor, and she received a carpet burn on her knee. She yelled to the defendant, and he

walked over and began struggling with the victim for possession of the camera. The victim 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 defendant and the victim both went through a glass

window in the foyer, and the defendant kicked the victim back inside the foyer. She testified

that she did not strike 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 an agreed order

prohibiting her from 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 bowling alley.

According to Ms. Johnson, she was around the defendant one time after the order was entered

and that was at the bowling alley. She also verified that the defendant did not know the victim

prior to the altercation at the bowling alley.

ANALYSIS

The defendant alleges that there is insufficient evidence to support his conviction for

reckless aggravated assault; that the trial court erred by denying his request for judicial

diversion; and that the trial court should have sentenced the defendant to full probation as an

especially mitigated offender. 
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I. Sufficiency of Evidence

The defendant asserts that the evidence at trial was insufficient to support his conviction

for reckless aggravated assault. Specifically, he argues that no rational trier of fact could have

found the mens rea element of reckless. We disagree. When an accused challenges the

sufficiency of the evidence, an appellate court’s standard of review is whether, after considering

the evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 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 based upon direct

evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence.

In determining the sufficiency of the evidence, this Court should not re-weigh or

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

Nor may this Court substitute its inferences for those drawn by the trier of fact from the

evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 199 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 evidence 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 record, as well as all reasonable

inferences which may be drawn from the evidence. State v. Evans, 838 S.W.2d 185, 191 (Tenn.

1992). Likewise, should the reviewing court find particular conflicts in the trial testimony, 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. 1982). Because a verdict of guilt against a defendant removes the

presumption of innocence and raises a presumption of guilt, the convicted criminal defendant

bears the burden of showing that the evidence was legally insufficient to sustain a guilty verdict.

Id. 

The defendant was convicted of reckless aggravated assault. A person commits reckless

aggravated assault who recklessly commits an assault and causes serious bodily injury. Tenn.

Code Ann. §§ 39-13-101(a)(1), -102(a)(2)(A). In order for conduct to be considered reckless, it

must be shown that a person “acts recklessly with respect to circumstances surrounding the

conduct or the result of the conduct when the person is aware of but consciously disregards a

substantial and unjustifiable risk that the circumstances exist or the result will occur.” Tenn.

Code Ann. § 39-11-302(c). Disregard of this risk must constitute a gross deviation from the

standard of care that an ordinary person would exercise. Id. “Serious bodily injury” is defined

as bodily injury which 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. Tenn. Code

Ann. § 39-11-106(a)(34). 

There is sufficient evidence from which a jury could conclude that the defendant was

guilty of reckless aggravated assault. The testimony of the victim supports the finding by the

jury that he suffered serious bodily injury. In addition, the jury specifically found that the

defendant acted recklessly rather than knowingly or intentionally and thus convicted the

defendant of a Class D reckless aggravated assault rather than a Class C knowing or intentional
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aggravated assault. While we agree with the defendant that the uncontroverted evidence

established that the victim and the defendant were mutually engaged in a physical altercation, it

was within the jury’s discretion to find that the defendant’s pushing or kicking of the victim near

a glass window pane was reckless conduct. According to the defendant’s version of the events,

he kicked the victim back through the broken window. Therefore, his conduct admittedly caused

the victim’s serious injury. Although the defendant did not intend to cause serious injury to the

victim, his conduct could reasonably be viewed as reckless. The defendant seems to be arguing

that because the victim was also engaging in reckless conduct, the defendant cannot be held

accountable for causing serious bodily injury to the victim. However, regardless of the victim’s

equally reckless conduct, the evidence established that the defendant engaged in reckless

conduct, i.e. fighting near a pane glass window, and such reckless conduct caused serious bodily

injury to the victim. The jury was instructed on the issue of self-defense and defense of a third

person and obviously rejected those theories. This issue is without merit.

II. Judicial Diversion

The defendant next asserts that the trial court erroneously denied his request for judicial

diversion. Judicial diversion allows a defendant who meets certain eligibility criteria to be

placed on probation and subsequently have the charges dismissed, if the probationary period is

completed successfully. 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) “is

found guilty or pleads guilty to . . . a Class C, D or E felony,” (b) has not previously been

convicted of a felony, and (c) consents to 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 which the person is charged.” This Court has consistently recognized that 

[t]he fact that an accused meets these prerequisites does not entitle

the accused to judicial diversion as a matter of right. The statute

states that a trial court “may” grant judicial diversion in

appropriate cases . . . . Thus, whether an accused should be granted

judicial diversion is a question which addresses itself to the sound

discretion of the trial court. This Court, . . . will not interfere with

the refusal of the trial court to grant judicial diversion if there is

“any substantial evidence to support the refusal” contained in the

record.

State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993) (quoting 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 deny 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 granted judicial diversion, the trial court

should consider the defendant’s criminal record, social history, mental and physical condition,

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 pretrial diversion will serve the

ends of justice and best interests of both the public and the defendant. Bonestel, 871 S.W.2d at

168. If, after assessing all relevant factors, the trial court chooses to deny judicial diversion, the
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court must articulate on the record both the specific reasons 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 found that the defendant “didn’t use a weapon.” While

acknowledging that the defendant “got into a fight he shouldn’t have gotten into,” the trial court

pointed out that “there were two men engaged in this fight, and either one of them could have

had their leg cut by this window.” The trial court also found that the circumstances of the

offense were so unusual as to be unlikely to be repeated. In addition, the trial court found that

the defendant had six years of regular employment prior to his conviction. Finally, the trial court

recognized that defendant “was committing adultery, and that’s maybe an immoral 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 concern 

that there had been a jury trial; that there has been considerable

application of State resources through the District Attorney’s

office and the judicial department of the State; a number of people

inconvenienced during jury selection, and the remaining jurors

actually selected missed work that day, and employers and others

were inconvenienced. 

The trial court went on to deny the defendant’s request for judicial diversion stating that the

defendant’s conduct at the bowling center, “and his continued involvement with Miss Johnson,

while these court orders were in effect and while she was a married woman, suggests that he is

not that ideal good citizen . . . .” The trial court added 

I think the Court will grant [judicial diversion] some day, and

maybe grant it even on a crime involving violence, when the Court

finds that the victim was sufficiently involved in the provocation

as existed in this case.

 And I do regret that [the defendant] may lose his long-term

employment with the Williamson County Schools, because of this.

At the same time, he may be able to appeal, and get this Court’s

judgment reversed, as to this Court’s denial of diversion, or even

the denial of the judgment of acquittal.

 We first note that it appears from the record that in denying judicial diversion, the trial

court placed great weight on the fact that there had been a jury trial. However, any consideration

of the fact that there had been a jury trial was erroneous because Tennessee Code Annotated

section 40-35-313(a)(1)(A) clearly allows judicial diversion for an eligible defendant “who is

found guilty or pleads guilty.” Although we acknowledge the trial court’s obvious struggle to

reach the correct decision, our review of the record reveals no substantial evidence to support the

denial of judicial 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. The defendant has been employed as a school bus driver

for six years and also owns a tree service. The defendant provides his children with health

insurance through his employment as a bus driver. 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).
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With respect to the circumstances of the offense, the record reveals that the offense did

not involve a weapon and that the victim provoked the defendant by striking him first.

Additionally, the trial court found that the victim and defendant were engaged in a mutual

physical altercation when the injury occurred and that either man could have been 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 that a sustained intent to violate the law motivated the defendant’s conduct.

Finally, the ends of justice would not be served were the defendant to lose his long-term

employment due to a felony conviction for an offense which occurred under circumstances such

as the ones in this case, i.e., the victim was significantly involved in the provocation, the victim

and the defendant were engaged in a mutual physical fight, and the defendant did not act

intentionally or knowingly. 

There is no proof contained in the record that the trial court considered the required

factors for determining whether a defendant should be placed on judicial diversion. We

acknowledge the trial court’s finding that the defendant was having an affair with a married

woman while a court order was in place that prohibited her from having contact with the

defendant. 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 outweigh the other positive factors in favor of granting judicial diversion or rise to the level

of substantial evidence in support of the trial court’s denial of judicial diversion. Considering all

of the required criteria for determining the defendant’s suitability for judicial diversion, we

conclude that the trial court abused its discretion by denying the defendant’s request for judicial

diversion. Accordingly, the judgment of the trial court is reversed.

CONCLUSION

Based upon our review of the record, we conclude that there is sufficient evidence to

support the defendant’s conviction for reckless aggravated assault. However, considering the

appropriate factors for analyzing a defendant’s request for judicial diversion, there is no

substantial evidence 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

determined that the defendant should be placed on judicial diversion, we need not address the

issues raised by the defendant with regard to the sentence imposed. The judgment of the trial

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

___________________________________ 

JOHN EVERETT WILLIAMS, JUDGE