IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

March 10, 2015 Session

STATE OF TENNESSEE v. ORLANDO E. BOURRAGE

Appeal from the Circuit Court for Williamson County

No. II-CR096708 Timothy L. Easter, Judge1

No. M2014-01194-CCA-R3-CD – Filed May 26, 2015

Appellant, Orlando E. Bourrage, pleaded guilty to simple possession of marijuana and 

was sentenced to eleven months, twenty-nine days, suspended to probation. In pleading 

guilty, he reserved a certified question of law challenging the trial court‘s denial of his 

motion to suppress evidence seized as a result of an allegedly illegal detention. On 

appeal, he argues that the arresting officer unreasonably prolonged the initial traffic stop

and that the trial court erred by denying his request for judicial diversion. Following our 

review, we affirm the judgment of the trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROGER A. PAGE, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,

JR., and CAMILLE R. MCMULLEN, JJ., joined.

Doug Thurman (on appeal), Jim Todd (on appeal), and Edward Stephen Ryan (at plea 

hearing), Nashville, Tennessee, for the appellant, Orlando E. Bourrage.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior 

Counsel; Kim R. Helper, District Attorney General; and Carlin Charles Hess, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts

This case began as a traffic stop on Interstate 65 in Williamson County and 

resulted in appellant‘s being charged with driving under the influence, driving under the 

 

1

 Judge James G. Martin III presided over the suppression hearing. 
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influence/child endangerment, and simple possession of marijuana. Appellant moved to 

suppress the evidence seized on the basis that the detention was unreasonable in duration. 

The trial court ruled in favor of the State. Subsequently, appellant pleaded guilty to 

simple possession of marijuana, a Class A misdemeanor, and the other two counts were 

dismissed. As part of his plea, he reserved a certified question of law. Appellant 

requested judicial diversion, but the trial court denied his request and sentenced him to 

eleven months, twenty-nine days, suspended to probation. 

A. Motion to Suppress Hearing

At the suppression hearing, Williamson2 County Sheriff‘s Deputy David Borden 

testified that he was patrolling on Interstate 65 on May 28, 2012, when a Chevrolet 

Impala passed him on the left. He followed the vehicle and observed that it did not have 

a license plate. He continued following the vehicle through a construction zone and 

noticed that the vehicle crossed over the lane divider lines ―a couple of times.‖ Deputy 

Borden initiated a traffic stop after the vehicle left the construction area. He testified that 

the ―main reason‖ he stopped the vehicle was because of the missing license plate. 

Deputy Borden said that when he approached the vehicle, he realized that a license plate 

was on the vehicle but had been folded down. He stated that he moved the license plate 

to its proper position. Deputy Borden then approached the driver, appellant. Deputy 

Borden testified that appellant ―had some slurred speech, some bloodshot watery eyes[, 

and he] was having some real difficulty trying to find his paperwork.‖ Deputy Borden 

said that he obtained appellant‘s Mississippi driver‘s license, returned to his patrol car,

and processed the license through the National Crime Information Center (―NCIC‖). He 

learned that the license was valid, and he returned to appellant‘s car. He testified that he 

had considered asking appellant to perform field sobriety tasks, and when asked whether 

anything made him ―more sure [about the tasks] when [he] approached the vehicle 

again,‖ he stated, ―The second time I could smell what appeared to be unburnt marijuana 

coming from the vehicle.‖ Deputy Borden further testified that he had encountered 

unburnt marijuana more than fifty times in his career. Deputy Borden said that he asked 

for appellant‘s consent to search the vehicle. He agreed that obtaining consent generally 

―help[s] to alleviate any potential conflict.‖ Deputy Borden testified that appellant 

consented to the search and that he had both appellant and appellant‘s twelve-year-old 

son exit the vehicle. Deputy Borden searched the vehicle and found two packs of 

cigarillos ―placed behind the glove box[,] in a crack behind it.‖ He said that some of the 

cigarillos were ―wrapped up with some marijuana.‖ Deputy Borden asked appellant 

whether the marijuana was his, and he admitted that it was. Deputy Borden testified that

he found $3,907 in appellant‘s trunk but found nothing else in the vehicle. 

 

2

 At the hearing, Deputy Borden was erroneously introduced as a deputy of the Lewis County Sheriff‘s 

Department. 
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On cross-examination, Deputy Borden testified that during the five-minute period 

that he followed appellant, he saw appellant touch or cross the center line twice. He 

agreed that the movement was not ―pronounced or exaggerated.‖ Deputy Borden said 

that he noticed the absence of a license plate before he ―noticed the failure to maintain a 

lane.‖ He further said that failure to maintain a lane indicated to him that the driver was 

possibly impaired. Deputy Borden testified that he was able to understand appellant 

―some of the time‖ but that he could not recall the exact words he was unable to 

understand. Deputy Borden agreed that he did not smell alcohol at any point in his 

encounter with appellant and that he did not smell unburnt marijuana when he first 

approached the vehicle. Deputy Borden also agreed that the second time he talked to 

appellant, he asked whether appellant had anything illegal in his vehicle, and he 

explained that he asked the question because he had smelled marijuana. Deputy Borden 

testified that he asked for appellant‘s consent to search the vehicle without telling him 

that he had smelled marijuana or that he had probable cause to search. Deputy Borden 

said that appellant originally denied consent to search but that he gave his consent after 

Deputy Borden told him that he would just take a ―quick look.‖ Deputy Borden 

explained that in the process of searching the vehicle, he did not find the marijuana 

immediately and stopped searching so that he could ask appellant where the marijuana 

was located. He agreed that he also told appellant that he would ask for a dog to come 

search appellant‘s vehicle. Appellant‘s counsel played the video in court of the traffic 

stop from time marker 1:50:36 to 2:03:16. Deputy Borden agreed that there was no 

exaggerated weaving shown in the video. He further agreed that he stopped appellant‘s 

vehicle at 1:55:38 and walked back to his patrol car after speaking with appellant at 

2:03:11. On re-direct examination, Deputy Borden said that during half of his initial 

conversation with appellant, appellant was ―fooling around with paperwork in the car.‖ 

Having reviewed the video, we note that during this initial conversation, Deputy Borden 

and appellant discussed appellant‘s reason for traveling, whether a particular football 

team had won its game, and the fact that appellant could not find his registration. 

Because neither party explicitly provided an exact timeline through Deputy 

Borden‘s testimony, we include the following table to illustrate the timing of events 

shown in the traffic stop video through Deputy Borden‘s finding the marijuana:

Event Time on Video Time Elapsed from First 

Event

Blue lights activated 1:55:35

First approach of 

appellant‘s car

1:57:29 1 minute, 54 seconds

Discussion about purpose of 

stop, request for driver‘s 

license and paperwork, 

appellant‘s search for 

1:57:40 2 minutes, 5 seconds
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registration

Deputy returns to patrol car 2:03:11 7 minutes, 36 seconds

Second approach of 

appellant‘s car

2:09:45 14 minutes, 10 seconds

Deputy asks for consent to 

search car

2:10:23 14 minutes, 38 seconds

Search begins 2:11:49 16 minutes, 14 seconds

Deputy pauses search to ask 

appellant where his 

marijuana is; appellant 

attempts to explain why the 

deputy has smelled 

marijuana

2:16:15 20 minutes, 26 seconds

Deputy resumes search and 

finds marijuana within the 

following three minutes

2:23:05 27 minutes, 30 seconds

The trial court took the matter under advisement and later issued a detailed ruling

denying appellant‘s motion to suppress. In its order, the trial court stated that after 

reviewing the video of the traffic stop, it concluded that the only legitimate basis for the 

stop was the absence of the license plate. The trial court questioned the credibility of 

Deputy Borden because the deputy gave differing accounts of appellant‘s driving prior to 

the stop; however, the trial court explicitly found that Deputy Borden was credible when 

he testified that he smelled green, unburnt marijuana upon his second approach of 

appellant‘s vehicle. The trial court stated, ―The odor of green, unburnt marijuana, 

however, gave Deputy Borden reasonable suspicion, based upon specific and articulable 

facts, that [appellant] had committed, or was committing, criminal activity[,] which 

authorized the detention of [appellant], the prolongation of the stop, and the search of 

[appellant‘s] vehicle.‖ 

C. Plea Hearing and Judicial Diversion Hearing

At the plea hearing, appellant pleaded guilty to simple possession of marijuana,

reserving the following certified question of law: 

Whether the initial seizure of the defendant for improper display of the 

vehicle‘s license plate, which is not contested, became unreasonable where 

the detention became longer than necessary to effectuate the purpose of the 

stop thereby making the subsequent search of the [d]efendant‘s vehicle 

illegal and in violation of the Fourth Amendment to the Constitution of the 

United States and/or section 7, Article I of the Constitution of the State of 

Tennessee.
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The State dismissed his other two charges. For the factual basis, the State relied on the 

affidavit of complaint, which is not included in the appellate record. After pleading 

guilty, appellant requested judicial diversion. He submitted a certificate of eligibility for 

diversion from the Tennessee Bureau of Investigation and testified on his own behalf. 

Appellant testified that he was thirty-nine years old at the time of the hearing. He 

lived in De Kalb, Mississippi, and worked as a service representative for the Social 

Security Administration. He had never before been arrested or convicted of any crime. 

Appellant agreed that if he were placed on probation he would be able to follow the rules, 

take random drug screens, maintain his employment, and pay fines, fees, and costs. 

On cross-examination, appellant agreed that he lied to Deputy Borden when the 

deputy asked whether he had anything illegal in his vehicle. He said that he did not think 

Deputy Borden would find it and that it was a small amount. He said that he estimated 

that there were seven grams of marijuana in the miniature cigars and that he had 

purchased the marijuana from his sister‘s boyfriend while visiting family in Cincinnati, 

Ohio. He said that he smoked marijuana with his family that weekend but that his 

twelve-year-old son, who was with him when Deputy Borden stopped him, did not know 

that he smoked marijuana. Appellant testified that he smoked marijuana once or twice 

per week, depending on his level of stress from work. He said that the last time that he 

had smoked marijuana was April 27 because his hearing was in thirty days. He believed 

that he would pass a drug test on the day of the hearing. 

Upon questioning by the trial court, appellant agreed that he would be able to 

refrain from smoking marijuana for a year if it were required of him. He agreed that he 

knew it was against the law to possess marijuana in Mississippi but said that possession 

was allowed for pharmaceutical purposes. However, he did not have any medical issues 

requiring him to use marijuana. Subsequently, the court ordered that appellant be 

immediately screened for drugs, and the test showed that appellant was positive for 

marijuana. 

The trial court denied appellant‘s request for judicial diversion after making the 

following findings: 

There are several factors which a [s]entencing [c]ourt is to keep in 

mind when considering the question of an expungeable or [d]iverted 

sentence, beginning with the Defendant‘s amenability to correction. Based 

upon his failure of the drug screen today and what I believe is a fudging of 

the truth with the Court today on his last use of marijuana[,] I find then that 

his amenability to correction is lacking. And that weighs as a negative 

factor for [j]udicial [d]iversion. 
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Another factor the Court is to consider is the circumstances of the 

offense. And based upon the information that the State produced both 

during its statement of facts in this case as well as the cross[-]examination 

of the Defendant while he was testifying, I‘m satisfied that the 

circumstances of this case particularly involving a minor who was in a very 

dangerous situation placed there by his father which is troubling and his 

lack of candor with law enforcement causes the circumstances of this 

offense to become a weight against [d]iversion. 

Certainly his criminal record is a positive factor for [d]iversion. He 

has no prior record. His social history, I know very little about other than 

he enjoys smoking marijuana with his family and seems to – belittles the 

fact that it is against the law. Social history therefore would weigh against 

granting him diversion. 

He does have employment, seems to have been gainfully employed 

for a number of years. That would weigh in favor of diversion. His 

physical and mental health, other than the fact that he apparently abuses 

marijuana, appear to be factors that would be neutral. 

The deterrence value to the accused as well as others[,] I find would 

weigh against the granting of diversion in this case because someone who 

comes into Court with an illegal substance in their system, the same 

substance for which they have been convicted needs to understand that 

would send a horrible message to the rest of the community that you can 

conduct yourself in that kind of way and not be held accountable for that. 

So, the deterrence value – and need to be held accountable for it in a 

meaningful way – and giving diversion would not be in [a] meaningful 

way. 

So, the deterrence value speaks for a denial of [d]iversion and the 

Court specifically finds that the interest of [j]ustice in this case would not 

be well[-]served if the Court granted [d]iversion. So, the Defendant‘s 

request for [j]udicial [d]iversion is denied. 

Subsequently, the trial court sentenced appellant to eleven months, twenty-nine 

days, suspended to supervised probation. Appellant now appeals his conviction, via the 

certified question of law reserved in his plea, and the denial of judicial diversion. 
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II. Analysis

A. Certified Question

As part of his plea agreement, appellant reserved the following certified question 

of law: 

Whether the initial seizure of the defendant for improper display of the 

vehicle‘s license plate, which is not contested, became unreasonable where 

the detention became longer than necessary to effectuate the purpose of the 

stop thereby making the subsequent search of the [d]efendant‘s vehicle 

illegal and in violation of the Fourth Amendment to the Constitution of the 

United States and/or section 7, Article I of the Constitution of the State of 

Tennessee.

We note that the State on appeal has conceded that appellant presented a properly 

certified question. 

Rule 3(b)(2) of the Tennessee Rules of Appellate Procedure permits a defendant to 

plead guilty while reserving the right to appeal a certified question of law that is 

dispositive of the case. In doing so, a defendant must also comply with the requirements 

of Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure and State v. Preston,

759 S.W.2d 647, 650 (Tenn. 1988). Having concluded that the certified question in this 

matter meets these requirements, we now address the question of whether the prolonged 

detention of appellant violated appellant‘s constitutional rights. 

B. Suppression of the Evidence

On appeal, appellant contends that his initial, valid detention became unreasonably 

prolonged by Deputy Borden when the deputy did not either write him a citation or send 

him on his way when the only reason for stopping his vehicle was an improperly 

displayed license plate. The State responds that the length of the detention was 

reasonable and that the deputy had probable cause to search appellant‘s vehicle. 

In reviewing the trial court‘s decision on a motion to suppress, we review the trial 

court‘s legal conclusions de novo. State v. Northern, 262 S.W.3d 741, 747 (Tenn. 2008). 

In doing so, we give deference to the trial judge‘s findings of fact unless the evidence 

preponderates otherwise. Id.; see State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001); State 

v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). ― ̳[C]redibility of the witnesses, the weight 

and value of the evidence, and resolution of conflicts in the evidence are matters 

entrusted to the trial judge as the trier of fact.‘‖ Northern, 262 S.W.3d at 747-48 (quoting 

Odom, 928 S.W.2d at 23). In reviewing the findings of fact, evidence presented at trial 
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may ― ̳be considered by an appellate court in deciding the propriety of the trial court‘s 

ruling on the motion to suppress.‘‖ State v. Garcia, 123 S.W.3d 335, 343 (Tenn. 2003) 

(quoting State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)). The prevailing party on the 

motion to suppress is afforded the ― ̳strongest legitimate view of the evidence and all 

reasonable and legitimate inferences that may be drawn from that evidence.‘‖ Northern, 

262 S.W.3d at 748 (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)); see State 

v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000); Odom, 928 S.W.2d at 23.

Traffic stops constitute seizures, entitling a vehicle‘s occupants to the full 

protections of the United States and Tennessee Constitutions. Whren v. United States, 

517 U.S. 806, 809-10 (1996); State v. Brotherton, 323 S.W.3d 866, 870 (Tenn. 2010); 

State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993). Thus, law enforcement must act 

reasonably when initiating a traffic stop. Whren, 517 U.S. at 809-810. In other words, 

authorities must have at least an ―articulable and reasonable suspicion‖ to believe that a 

traffic violation has occurred when they initiate a traffic stop. Brotherton, 323 S.W.3d at 

870 (quoting Whren, 517 U.S. at 810). ―Reasonable suspicion exists when  ̳specific and 

articulable facts . . . taken together with rational inferences from those facts, reasonably 

warrant that intrusion.‘‖ Id. (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). ―An 

investigatory traffic stop under Terry  ̳is a far more minimal intrusion [than an arrest 

pursuant to probable cause], simply allowing the officer to briefly investigate further. If 

the officer does not learn facts rising to the level of probable cause, the individual must 

be allowed to go on his way.‘‖ Id. (quoting Illinois v. Wardlow, 528 U.S. 119, 126 

(2000)). 

Our supreme court has explained that reasonable suspicion is ―a particularized and 

objective basis for suspecting the subject of a stop of criminal activity.‖ State v. Binette, 

33 S.W.3d 215, 218 (Tenn. 2000). Applying the ―reasonable suspicion‖ standard, our 

supreme court has held that it is constitutionally permissible to stop a vehicle for an 

equipment violation in Tennessee. State v. England, 19 S.W.3d 762, 766 (Tenn. 2000) 

(approving this court‘s holding that a violation of the license plate light law, Tennessee 

Code Annotated section 55-9-404, created a reasonable suspicion to warrant a traffic 

stop). Once stopped, if an officer has probable cause to believe that a vehicle contains 

contraband, the officer is authorized to search the vehicle without a warrant under the 

―vehicle exception‖ to the warrant requirement. State v. Saine, 297 S.W.3d 199, 207 

(Tenn. 2009) (citing Carroll v. United States, 267 U.S. 132, 149 (1925)). 

The record on appeal indicates that Deputy Borden executed a traffic stop of 

appellant‘s vehicle due to an equipment violation. The traffic stop, in and of itself, was 

constitutional, as appellant concedes. However, appellant maintains that Deputy Borden 

should have either written him a citation or let him go after realizing that his license plate 

was actually on the car, just not in its proper position. When Deputy Borden instead 
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prolonged the detention, appellant argues that the detention became unreasonable and that 

the subsequent search was therefore illegal. 

 ̳―[A] reasonable traffic stop can become unreasonable and constitutionally invalid 

 ̳if the time, manner or scope of the investigation exceeds the proper parameters.‘‖ State 

v. Troxell, 78 S.W.3d 866, 871 (Tenn. 2002) (quoting United States v. Childs, 256 F.3d 

559, 564 (7th Cir. 2001)). In this case, Deputy Borden realized that the license plate was 

actually on the vehicle upon his initial approach. He explained to appellant why he had 

stopped him and asked for appellant‘s license, insurance, and registration. While 

appellant was looking for his registration paperwork, they conversed about the purpose of 

appellant‘s traveling, the fact that he could not find his registration, and football. Deputy 

Borden asked appellant whether he had anything illegal in the car, to which appellant 

responded in the negative. This conversation lasted several minutes, and we note that 

appellant‘s inability to find his registration and his incessant talking significantly 

impacted the length of time this stage of the encounter lasted. When appellant could not 

find his registration, Deputy Borden returned to his patrol car to process appellant‘s outof-state driver‘s license through NCIC. The encounter thus far had lasted approximately 

six minutes. It took just under eight additional minutes for Deputy Borden to process the 

license. He then returned to appellant‘s vehicle. We conclude that there was nothing 

unreasonable about the detention from the time Deputy Borden initiated the stop until he 

returned to the vehicle. ― ̳[R]equests for driver‘s licenses and vehicle registration 

documents, inquiries concerning travel plans and vehicle ownership, computer checks, 

and the issuance of citations are investigative methods or activities consistent with the 

lawful scope of any traffic stop.‘‖ State v. Harris, 280 S.W.3d 832, 840 (Tenn. Crim. 

App. 2008) (quoting State v. Gonzalo Garcia, No. M2000-01760-CCA-R3-CD, 2002 WL 

242358, at *21 (Tenn. Crim. App. Feb. 20, 2002), overruled on other grounds by State v. 

Garcia, 123 S.W.3d 335 (Tenn. 2003)). Therefore, Deputy Borden‘s actions were within 

the scope of the traffic stop when he initially approached the vehicle and while he 

processed appellant‘s license.

We now examine the traffic stop from the time that Deputy Borden returned to 

appellant‘s vehicle. At this point, Deputy Borden claimed that he smelled unburnt 

marijuana in appellant‘s vehicle. The trial court explicitly credited Deputy Borden‘s 

testimony on this claim, despite reservations about the deputy‘s credibility in general. 

Having reviewed the video and the testimony in this case, we cannot conclude that the 

evidence preponderates against the trial court‘s credibility finding. Thus, when Deputy 

Borden smelled the unburnt marijuana, he had ―probable cause to believe that a crime 

other than the traffic violation had been committed‖ and could search the vehicle under 

the vehicle exception to the warrant requirement. Saine, 297 S.W.3d at 207. Thus, we 
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conclude that the detention of appellant was reasonable and that the search of his vehicle 

was proper.3 He is without relief as to this issue. 

C. Judicial Diversion

In this case, appellant requested and was denied judicial diversion. On appeal, he 

contends that the factors in favor of judicial diversion outweighed the factors against the 

granting of judicial diversion. The State responds that the trial court did not abuse its 

discretion in denying appellant‘s request for judicial diversion. 

―Judicial diversion is a form of  ̳legislative largess‘ available to qualified 

defendants who have entered a guilty or nolo contendere plea or have been found guilty 

of an offense without the entry of a judgment of guilt.‖ State v. King, 432 S.W.3d 316, 

323 (Tenn. 2014) (citations and footnote omitted). Eligibility does not ―constitute 

entitlement,‖ however, and the trial court is vested with the discretion to grant or deny 

judicial diversion. Id. In making its decision, the trial court must consider several 

common law factors: 

(a) the accused‘s amenability to correction, (b) the circumstances of the 

offense, (c) the accused‘s criminal record, (d) the accused‘s social history, 

(e) the accused‘s physical and mental health, and (f) the deterrence value to 

the accused as well as others. The trial court should also consider whether 

judicial diversion will serve the ends of justice — the interests of the public 

as well as the accused.

Id. at 326 (quoting State v. Parker, 932 S.W.2d 945, 958 (Tenn. 1996)). ―[T]he trial 

court must weigh the factors against each other and place an explanation of its ruling on 

the record.‖ Id. (citing State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. 

App. 1999)). 

When the trial court considers the common law factors, ―specifically identifies the 

relevant factors, and places on the record its reasons for granting or denying judicial 

 

3

 Both the United States and Tennessee Supreme Courts issued opinions after the oral arguments in the 

case sub judice that consider whether law enforcement officers unreasonably prolonged traffic stops. In 

State v. Mechelle Montgomery, the Tennessee Supreme Court ruled that under the circumstances of that 

case, a police officer did not unreasonably prolong a detention while waiting for a second officer to 

arrive. Montgomery, No. M2013-01149-SC-R11-CD, 2015 WL 1408914, at *4-5 (Tenn. March 27, 

2015). The United States Supreme Court, on the other hand, ruled that officers cannot prolong a 

detention for the purpose of allowing a K-9 to sniff a vehicle for drugs when the officers do not have any 

reasonable suspicion of criminal activity and when the officers have already completed investigation of 

the traffic violation warranting the stop. Rodriquez v. United States, 575 U.S. ---, 135 S.Ct 1609, 1614-17 

(2015). Both cases are factually distinguishable from this case, and their holdings do not affect the 

decision of this court that the length of the traffic stop was reasonable. 
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diversion,‖ then this court will ―apply a presumption of reasonableness and uphold the 

grant or denial so long as there is any substantial evidence to support the trial court‘s 

decision.‖ Id. at 327. Our supreme court has stated: 

Although the trial court is not required to recite all of the Parker and 

Electroplating factors when justifying its decision on the record in order to 

obtain the presumption of reasonableness, the record should reflect that the 

trial court considered the Parker and Electroplating factors in rendering its 

decision and that it identified the specific factors applicable to the case 

before it. Thereafter, the trial court may proceed to solely address the 

relevant factors.

Id. Failure to consider the common law factors results in loss of the presumption of 

reasonableness, and this court is required to conduct a de novo review or remand to the 

trial court for reconsideration. Id. at 327-28.

In this case, the trial court clearly considered the common law factors, weighed the 

factors, and placed its ruling on the record. Thus, we review its decision for abuse of 

discretion and afford the decision a presumption of reasonableness. We will affirm the 

trial court‘s decision if there is any substantial evidence to support it. Appellant contends 

that the trial court erred in its weighing of the relevant factors. However, the record 

shows that there was substantial evidence to support the findings of the trial court in that 

appellant lied to Deputy Borden, tested positive for marijuana at the judicial diversion 

hearing, admitted to smoking marijuana frequently, and had his son with him during the 

stop. Because the trial court did not abuse its discretion in its consideration of the factors, 

we leave the weighing of those factors to its sound discretion. Therefore, we affirm the 

trial court‘s denial of judicial diversion.4

CONCLUSION

Based on the arguments of the parties, their briefs, the record, and the applicable 

law, we affirm the judgment of the trial court. 

_________________________________ 

ROGER A. PAGE, JUDGE

 

4

 We note that had we ordered the imposition of judicial diversion, appellant‘s certified question would 

have been preempted by State v. Norris, 47 S.W.3d 457 (Tenn. Crim. App. 2000) (concluding that a 

defendant on probation through judicial diversion cannot appeal as of right through a certified question).