IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 4, 2016

STATE OF TENNESSEE v. BRANDON DEPRIEST FULLER, JR.

 Appeal from the Circuit Court for Madison County

No. 15-351 Donald H. Allen, Judge

No. W2016-00456-CCA-R3-CD – Filed December 7, 2016

The defendant, Brandon Depriest Fuller, Jr., was convicted of reckless aggravated 

assault, a Class D felony. The trial court denied his request for judicial diversion and 

imposed a sentence of three years in the Department of Correction. On appeal, he argues 

that the trial court erred in denying judicial diversion and imposing a sentence of full 

confinement. After review, we affirm the judgment of the trial court denying the 

defendant‟s request for judicial diversion and imposition of a sentence of confinement. 

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

ALAN E. GLENN, J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN

and TIMOTHY L. EASTER, JJ., joined.

George Morton Googe, District Public Defender; and Gregory D. Gookin, Assistant 

Public Defender, for the appellant, Brandon Depriest Fuller, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; 

James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant 

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

OPINION

FACTS

The defendant was indicted for aggravated assault arising out of an altercation 

with his mother‟s then-boyfriend, Tyjuan Snowden, the victim, during which the victim 

sustained serious injuries. 

The victim testified that he was previously engaged to the defendant‟s mother, 

Demetria Clark-Love, and considered the defendant to be his stepson. They all lived 
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together for some time. On March 2, 2015, the victim, Ms. Clark-Love, and the 

defendant and his three brothers were living on Seaver Road in Madison County. That 

morning, Ms. Clark-Love woke up the victim and told him that the defendant was upset 

about something. The victim told her that he would talk to the defendant after she went 

to work because he and the defendant had “better conversations” when she was not 

around. 

The victim went outside and was talking to the defendant‟s younger brother who 

had missed the school bus. The defendant came around from the back of the house and 

said something like, “„I should have been whupped you.‟” The victim was not concerned 

because he was not scared of the defendant and told the defendant to “chill out.” The 

next thing he remembered was waking up in the Jackson hospital. The victim‟s mother 

and Ms. Clark-Love were in the hospital room, but he could not talk due to his injuries. 

He was transferred to the Regional Medical Center in Memphis, where he stayed for two 

days. 

The victim stated that he suffered “head trauma injuries” and had to undergo oral 

surgery to have scar tissue removed. His injuries included blurred vision in his left eye, a 

“busted kneecap,” nerve damage on the left side of his body, and a speech impediment. 

He was undergoing treatment for anxiety. He had become wary of crowds and had 

trouble sleeping. The pain in his leg was ongoing because of the “screws and pins in it.” 

The numbness in the bottom of his foot caused him to be off-balance. In total, he had 

knee surgery, oral surgery, and leg surgery. He also had upcoming appointments for 

MRIs and with his primary care physician. He did not know the total of his medical bills

and was still receiving bills at the time of trial. He still suffered pain every day. 

The victim recalled that, on three different occasions when he was leaving the 

house in the days prior to the attack, he saw the defendant standing near the back shed 

staring at him. He elaborated that the defendant had “this real sinister look like he was 

building something or making something back there.” 

The victim did not know what precipitated the attack. He denied hitting or 

swinging at the defendant that day. One week earlier, he saw the defendant with six 

cooked sausages in his hand, and he asked the defendant what if his mother wanted some 

breakfast in the morning but he had eaten all of the sausages. The defendant “snapped” 

and “threatened to kill [him], promised he was gonna hit [him].” The victim recalled that 

he and the defendant‟s mother first got together several years earlier because the 

defendant had his mother “balled up in the corner about to attack her,” and the victim 

“got [the defendant] under control.” The victim had no idea why the defendant assaulted

him. The defendant sometimes got upset when the victim told him to clean up the house, 

but “it was never out of hand.” 
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The victim recalled that the defendant was twenty or twenty-one years old at the 

time of trial. When the defendant was eighteen years old, his mother sent him to live 

with a relative in Texas, but the relative “ended up sending him back.” The defendant 

lived with an aunt and then an uncle upon his return to Tennessee, but neither situation 

“work[ed] out” and the defendant “ended up coming back home.” The defendant had 

been living with the victim and Ms. Clark-Love for approximately one month before the 

attack. 

The victim denied making fun of the defendant for being “upset” and “crying” 

after driving in an ice storm a few days before the incident. The victim said that he was 

sure that the defendant did not hear what he said about the defendant to Ms. Clark-Love 

because he “did everything appropriately” as the defendant “had already threatened to 

beat [him] up.” The victim said that he was not supposed to start a job the day of the 

attack because he had failed a drug test and had been told he would not be hired. 

Deputy Shane Paar with the Madison County Sheriff‟s Office testified that he was 

dispatched to the scene in response to a call “that there was a man down, possible assault 

having occurred.” When he arrived, he saw two African-American men in the carport 

area of the house. One of the men was “severely hurt,” and there was “a substantial 

amount of blood on and around the subject and in the carport.” The victim was unable to 

speak due to his injuries. The defendant was sitting in an upright position with his legs 

spread on the ground and the victim‟s head cradled in his arms. Deputy Paar took a 

photograph to document the original scene. Deputy Paar did not see anyone else at the 

house, specifically not a minor child. 

Deputy Paar testified that it was obvious that the victim had suffered head and 

facial trauma. However, there was “too much blood” for him to determine the exact 

location of the victim‟s injuries. He did not observe any injuries on the defendant. He 

attempted to speak to the defendant, but the defendant “was in a state where he was very 

concerned about [the victim] and was unable to answer questions completely.” The only 

response Deputy Paar was able to get from the defendant was that he was inside the 

house and did not see or hear anything. After the emergency medical personnel 

transported the victim to the hospital, Deputy Paar obtained a brief, written statement 

from the defendant. In his statement, the defendant wrote that he saw two men running 

away from the scene, and he wanted to chase them, but the victim was bleeding badly. 

Lieutenant Felicia Stacy, an investigator with the Madison County Sheriff‟s 

Office, testified that the victim had already been transported to the hospital when she 

arrived on the scene, but the defendant was still at the house. Lieutenant Stacy learned 

from Captain Fitzgerald and the deputies that spoke with the defendant that the defendant 
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had informed them that two people had attacked the victim in a possible attempted 

burglary. Lieutenant Stacy took photographs of the area. There was a large amount of

blood on the carport floor and blood spatter on a nearby vehicle, on the bottom of two 

doors, and on the ceiling of the carport. After looking around, Lieutenant Stacy 

concluded that the attack occurred only in the carport. Inside the home, Lieutenant Stacy 

saw a bloody glove and a bloody towel in the living room. Lieutenant Stacy and other 

officers looked around the scene in an attempt to determine the weapon that caused the 

victim‟s injuries. They inspected multiple yard tools, pieces of wood, shovels, and rakes, 

but none of them appeared to have been used as the weapon. 

Lieutenant Stacy did not recall seeing any injuries on the defendant. No other 

family members or residents of the home were at the location while she was there. 

Deputy Terry Stewart with the Madison County Sheriff‟s Office testified that he 

received a call from his supervisor concerning the incident and went to the hospital to 

interview the victim. When he arrived, the victim was in the emergency room, sedated 

and unconscious on a gurney. Deputy Stewart observed multiple injuries on the victim‟s 

head but was not able to see the rest of his body. The victim was unconscious the entire 

hour that Deputy Stewart was at the hospital. Deputy Stewart took photographs of the 

victim‟s head injuries. The victim‟s girlfriend arrived at the hospital while he was there. 

Later that day, Deputy Stewart went to the residence and saw a large amount of 

blood in the carport. He searched the entire area of the residence but did not find any 

item that appeared to be the weapon used in the attack. 

Sergeant T.J. King with the Madison County Sheriff‟s Office testified that he

participated in the interview of the defendant around 10:20 a.m. the day of the incident, 

and he also took photographs of the defendant. The defendant had “[l]ots of blood” on 

his clothing and boots, “signs of a fight on his knuckles,” and was “visibly upset.” At the 

time, Sergeant King was not aware that the victim had been lying on the defendant‟s legs 

when officers arrived at the scene. Prior to talking to the defendant, deputies told 

Sergeant King that the defendant had said two people had attacked the victim. However, 

in his statement to Sergeant King, the defendant told a completely different story. 

The defendant told Sergeant King that the victim wanted to use his cell phone, 

“had an attitude, and demanded the phone before 9 a.m.” The defendant and the victim 

began to argue about something that had happened on a prior day when the victim 

laughed at the defendant “regarding an accident.” The defendant also said that the victim 

wanted to use the defendant‟s urine for a drug test because the victim was supposed to 

start a new job that day. 
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The defendant stated that he and the victim went to the carport where they 

continued to argue, and the victim swung at the defendant but missed. The defendant 

“remembered getting the victim on the ground, punch[ing] the victim repeatedly, in 

which the [defendant] described as ground and pound” for approximately fifteen seconds. 

Sergeant King explained that “[g]round and pound” is a term used in mixed martial arts 

for when “you get somebody on the ground [and] you just pound their head.” The 

defendant said that, as he got up, the victim grabbed his leg so he “kicked [the victim] in 

the face with [his] right foot.” The defendant was wearing steel-toed boots at the time of 

the assault, and he admitted that he had “mixed martial arts training in the past.” The 

defendant told Sergeant King that the victim was a “Shotgun Crip,” but the defendant 

denied any gang affiliation. Sergeant King could not recall if the defendant told him that 

the victim had been “dry snitching” on him, and Sergeant King did not know what that 

meant. 

The day after the incident, Sergeant King went to the hospital to see the victim and 

observed that he had several facial injuries and that his face was “very swollen.” The 

victim was able to talk, but “he was muffled” and “unable to tell [Sergeant King] much of 

anything.” Shortly after Sergeant King arrived, the victim was transported to the 

Regional Medical Center in Memphis. 

Demetria Clark-Love, the defendant‟s mother, testified on behalf of the defendant. 

Mrs. Clark-Love said that, prior to the incident, she and the victim had dated for three 

years and had lived together most of that time. At the time of trial, she and the victim 

were no longer dating. She said she had three other sons in addition to the defendant, 

ranging in age from twelve to sixteen. 

Ms. Clark-Love denied that the defendant had ever threatened her physically. He 

moved to Texas for a period of time in order to attend college. He had to live there for 

six months before he could be considered a resident, so he lived with his aunt. He stayed 

for approximately three months before returning to Tennessee because “it just wasn‟t 

working out.” The defendant lived with other relatives, but he ultimately returned to live 

with his mother because of transportation issues and financial problems.

Ms. Clark-Love stated that, one or two weeks before the incident, the defendant 

was driving and slid on a patch of ice. The defendant was “hysterical” about having 

almost gotten into a wreck, and he walked home “crying” and “very emotional about it.” 

The victim “[f]ound it hilarious” and laughed about it. 

Ms. Clark-Love recalled that the day before the incident, the victim returned from 

church with one of his friends. The victim was talking about all that had gone on at 

church when “all of a sudden, he said . . .[,] „Well, you must think I‟m afraid of your 
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son.‟” The defendant was home at the time, and the victim said it loudly enough for the 

defendant to hear it. The victim and Ms. Clark-Love went for a drive, and she asked the 

victim not to talk about her children when they were in the house but to instead pull her 

aside if he had something to say. Before the victim and Ms. Clark-Love left for the drive, 

the defendant told Ms. Clark-Love that he wanted to move out “because he didn‟t want 

no . . . trouble.” 

On the day of the incident, Ms. Clark-Love went to work at 8:30 a.m. The victim 

and the defendant were at the house, but the other boys had gone to school. The 

defendant was sleeping on the couch, and Ms. Clark-Love woke him up to ask him for 

the keys to the truck. Ms. Clark-Love got the keys because she knew the victim was 

going to a job interview and drug screen. 

Sometime after Ms. Clark-Love arrived at work, she received a phone call from 

the defendant. The defendant told her that the victim had been attacked by two strangers. 

He said that he was coming out of the bathroom and saw “two strange people running 

off.” The defendant told her that he had called the police and for an ambulance and that 

both were already there. Ms. Clark-Love went to the hospital and observed the injuries to 

the victim‟s face. The next day, Ms. Clark-Love learned that the defendant‟s story was 

not true when she called the police department and heard that he was being held as a 

suspect. 

The defendant testified that, during the course of his mother‟s and the victim‟s 

relationship, he and the victim got along “[p]retty often” but had “lots of disagreements.” 

However, nothing physical occurred between them prior to March 2, 2015. The 

defendant recalled that the victim harassed the defendant‟s brothers at times, and he 

would intercede. When the victim told the defendant‟s brothers to do something and they 

did not listen, the victim “put his hands on them” or “cussed them out.” The victim‟s 

actions upset the defendant. The defendant moved to Texas to live with his aunt and 

uncle because he and the victim were not getting along. However, he did not stay there 

long because he did not get along with his aunt and uncle. 

The defendant recalled that the victim did things to provoke him. For example, 

two weeks before the incident in this case, he almost had a car accident on an icy road 

and was “real emotional” thinking that he “could have lost [his] life,” and the victim 

laughed at him because he thought it was “hilarious.” Then, a day or two before the 

incident in this case, the defendant overheard the victim tell Ms. Clark-Love that he had 

laughed at the defendant because the defendant had disrespected him. The defendant did 

not know what the victim was talking about. However, after hearing that, the defendant 

told his mother that the defendant needed to move out. 
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The defendant testified that, on March 2, 2015, his mother woke him up asking for 

the truck keys. He gave her the keys, straightened up the room, and then began making 

calls in an attempt to find a job. The victim came in and said that he needed to use the 

phone to find out if he needed to report to work. The defendant told the victim that he 

was using the phone and went outside. The victim followed him and “shot off about the 

situation, what happened about the car wreck situation . . . that h[e] and my mother 

w[ere] talking about something totally different or whatever. Basically, he was just . . . 

telling me a lie.” The defendant said that he “was just trying to squash everything” 

because he knew the victim was lying, but then he said to the victim, “Well, what you 

done was a bitch move.” After that, the victim “shot off” and “snapped.” 

The defendant admitted that he had taken martial arts lessons for a period of eight 

years, starting at the age of eleven. He said that the martial arts that he studied were for 

self-defense. The defendant recalled that long before his altercation with the victim, the 

victim told him that he was a former boxer. The defendant thought the victim was trying 

to scare him. 

The defendant said that he already had on his steel-toed boots before he went 

outside. The defendant admitted that he put on the glove that was later found at the scene 

when he was “preparing” himself for the victim to swing at him. He said that he already 

had the glove in his back pocket and that it was a work glove, not a boxing glove. 

When the victim “snapped,” the two “had it out” and started fighting. The victim 

swung at the defendant, but the defendant ducked “and took him down.” The defendant 

weighed approximately 170 pounds at the time, and the victim weighed about 240 

pounds. The defendant said that, when the victim swung at him, he was afraid that the 

victim was going to beat him up. When the defendant took the victim down, he 

“ground[ed] and pound[ed]” the victim. He believed he hit the victim six times in fifteen 

seconds. The defendant denied knocking the victim out with the first punch. The 

defendant acknowledged that the victim never struck him during the fight. 

The defendant testified that, when he got off the victim, the victim grabbed his leg 

like he was trying to get up, so he kicked the victim in the face. The fight ended at that 

point. The defendant went inside to calm down, but he saw the victim through the 

window asking him for help. The defendant helped the victim “just to show the

kindness” of his heart and to “show mercy.” The defendant called 911. 

The defendant acknowledged that he initially lied to the police about two strangers 

attacking the victim, explaining that he was “paranoid” and “scared” and “wishing that . . 

. all this never happe[ne]d.” The defendant said that he followed the 911 operator‟s 

instructions and “basically tried to take care of [the victim].” He held the victim‟s head 
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in his lap until the emergency medical personnel arrived. He knew that the victim was 

seriously injured, and he “really just felt bad like [he] wish[ed] [it] never happened.” 

When he went to the police station, he told the officers what had really happened. 

The defendant denied coming from behind the house and jumping on the victim or 

standing behind a shed and glaring at the victim. The defendant said that on the morning 

of the incident, the victim asked to use the defendant‟s urine for a drug screen at work, 

and the defendant told him no. The defendant denied hitting the victim in the knee, 

explaining that the victim‟s knee injury occurred when the victim fell while with 

emergency personnel. 

Following the conclusion of the proof, the jury convicted the defendant of the 

lesser-included offense of reckless aggravated assault. Thereafter, the trial court 

conducted a sentencing hearing at which the victim recounted his injuries for the court 

and said that he had incurred medical bills thus far totaling $12,000 due to the 

defendant‟s attack. The defendant relied on the certification showing that he qualified for 

judicial diversion and asked the court to recall his and his mother‟s trial testimony. After 

considering the defendant‟s application for judicial diversion, the presentence report, the 

evidence presented at trial and the sentencing hearing, as well as the principles of 

sentencing, the trial court denied the defendant‟s request for judicial diversion and 

imposed a sentence of three years in confinement. The defendant appealed. 

ANALYSIS

On appeal, the defendant argues that the trial court erred in denying his request for 

judicial diversion and in imposing a sentence of confinement.

Following a determination of guilt by plea or by trial, a trial court may, in its 

discretion, defer further proceedings and place a qualified defendant on probation without 

entering a judgment of guilt. Tenn. Code Ann. § 40-35-313(a)(1)(A). A qualified 

defendant is one who is found guilty or pleads guilty or nolo contendere to the offense for 

which deferral of further proceedings is sought, is not seeking deferral of further 

proceedings for a sexual offense, a violation of section 71-6-117 or section 71-6-119, or a 

Class A or Class B felony, and who has not been previously convicted of a felony or a 

Class A misdemeanor. Id. § 40-35-313(a)(1)(B)(i). If the defendant successfully 

completes the period of probation, the trial court is required to dismiss the proceedings 

against him, and the defendant may have the records of the proceedings expunged. Id. § 

40-35-313(a)(2), (b).

Mere eligibility does not entitle a defendant to judicial diversion. State v. Parker, 

932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). Instead, the decision to grant or deny a 
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qualified defendant judicial diversion “is entrusted to the trial court.” State v. King, 432 

S.W.3d 316, 326 (Tenn. 2014) (citation omitted) In determining whether to grant 

diversion, the trial court is to consider the following 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, (f) 

the deterrence value to the accused as well as others, and (g) whether judicial diversion 

will serve the interests of the public as well as the accused. State v. Electroplating, Inc., 

990 S.W.2d 211, 229 (Tenn. Crim. App. 1998). 

A trial court‟s decision regarding the grant or denial of judicial diversion is 

reviewed under the State v. Bise, 380 S.W.3d 682 (Tenn. 2012), presumption of 

reasonableness standard so long as there is evidence the trial court considered and 

identified the relevant Electroplating factors in rendering its decision: 

Under the Bise standard of review, when a trial court considers the 

Parker and Electroplating factors, specifically identifies the relevant factors, 

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

diversion, the appellate court must 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. 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. 

King, 432 S.W.3d at 327 (footnote omitted). 

Under the revised Tennessee sentencing statutes, a defendant is no longer 

presumed to be a favorable candidate for alternative sentencing. State v. Carter, 254 

S.W.3d 335, 347 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the 

“advisory” sentencing guidelines provide that a defendant “who is an especially mitigated 

or standard offender convicted of a Class C, D or E felony, should be considered as a 

favorable candidate for alternative sentencing options in the absence of evidence to the 

contrary.” Tenn. Code Ann. § 40-35-102(6).

A defendant shall be eligible for probation, subject to certain exceptions, if the 

sentence imposed on the defendant is ten years or less. Id. § 40-35-303(a). A defendant 

is not, however, automatically entitled to probation as a matter of law. The burden is 

upon the defendant to show that he is a suitable candidate for probation. Id. § 40-35-
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303(b); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs, 

932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet this burden, the 

defendant “must demonstrate that probation will „subserve the ends of justice and the best 

interest of both the public and the defendant.‟” State v. Bingham, 910 S.W.2d 448, 456 

(Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. 

App. 1990)).

There is no bright line rule for determining when a defendant should be granted 

probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires 

a case-by-case analysis. Id. Factors to be considered include the circumstances 

surrounding the offense, the defendant‟s criminal record, the defendant‟s social history 

and present condition, the need for deterrence, and the best interest of the defendant and 

the public. Goode, 956 S.W.2d at 527.

In determining if incarceration is appropriate in a given case, a trial court should 

consider whether:

(A) Confinement is necessary to protect society by restraining a defendant 

who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the 

offense or confinement is particularly suited to provide an effective 

deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently 

been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1). Furthermore, the defendant‟s potential for 

rehabilitation or lack thereof should be examined when determining whether an 

alternative sentence is appropriate. Id. § 40-35-103(5).

In determining the defendant‟s sentence, the trial court first noted that the 

defendant had no prior criminal record and had passed drug tests, including one given 

during the sentencing hearing. The court found that the criminal conduct in the case was 

a “very, very serious matter” because it involved an aggravated assault that caused 

serious bodily injury to the victim. The court considered the defendant‟s testimony that 

he acted in self-defense. It noted that the jury‟s finding the defendant guilty of 

aggravated assault by reckless conduct implied that the jury rejected the defendant‟s 

claim of self-defense. The court next considered the defendant‟s potential for 

rehabilitation and treatment. The court noted that the defendant had no prior felony 
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record and would be considered a Range I offender subject to a sentence of two to four 

years. 

The trial court stated that it had considered the question of judicial diversion “very 

carefully.” The court reviewed the facts of the case and the exhibits introduced at trial, 

especially the photographs that showed “the numerous injuries that the victim suffered.” 

The court recalled the victim‟s testimony at trial and the sentencing hearing about his 

injuries. The court also noted that the victim testified that the defendant threatened to kill 

him two weeks prior to the attack. For those reasons, the court found the facts and 

circumstances of the offense to be “a serious matter” and that they weighed “heavily 

against the granting of diversion in this case.” 

The trial court considered whether the defendant was amenable to correction. In 

doing so, the court again acknowledged that the defendant had no prior criminal record 

and noted his age – 20 at the time of the offense and 21 at the time of sentencing. The 

court concluded that the factors relative to the defendant‟s amenability to correction 

weighed in favor of diversion. 

The trial court found that the defendant‟s social history and mental health weighed 

against granting diversion. The court stated that it was “very, very, very obvious” that 

the defendant “has some severe anger problems.” It noted that the defendant “acted with 

anger” toward the victim, taking his aggression out on the victim and causing serious 

injuries, for no other reason than he was mad at the victim “apparently because the victim 

may have made fun of him a couple of weeks prior to [the assault].” 

The trial court considered the deterrent effect and found that it weighed against 

granting diversion “for this [d]efendant.” The court also found that granting diversion in 

this case would not serve the interests of justice both for the defendant and the public 

“because of the nature and the extent of the injuries that [the defendant] caused to [the 

victim].” 

The trial court then turned to the enhancement factors in the case and determined 

that the defendant treated the victim with exceptional cruelty during the assault. The trial

court recalled that the defendant approached the victim “unprovoked” and committed the 

aggravated assault. The court noted that the victim remembered waking up in the 

hospital in “tremendous pain” and that he suffered some serious and permanent injuries. 

The court gave that factor “great weight.” 

The trial court implicitly accredited the victim‟s testimony that the defendant 

previously had threatened to kill him and threatened to beat him up one to two weeks 

before the aggravated assault. The court recalled that the defendant overheard a 
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conversation between the victim and the defendant‟s mother and felt that the victim was 

making fun of him for crying. The court concluded that the defendant “waited until the 

opportunity to get some type of revenge against [the victim].” 

The trial court considered the facts and testimony and found that the defendant 

“was not honest about anything.” It recalled that, when the officers arrived at the scene, 

the defendant told them that two strangers had assaulted the victim and gave a written 

statement to that effect. The court concluded that his statement was “totally fabricated.” 

The court considered the defendant‟s second version of events in which he claimed that 

the victim attacked him and he acted in self-defense. The court noted that the “proof 

doesn‟t show that by any means,” questioning why the defendant “would . . . go and put 

on a glove” if he acted in self-defense. The court determined that the defendant “was 

totally unprovoked in this attack.” For those reasons, the court concluded that the 

defendant “ha[d] not been very truthful or honest to any extent.” The court observed that 

the jury did not believe the defendant‟s assertion that he acted in self-defense, recalling 

the defendant‟s testimony that “he had grounded and pounded the victim‟s head . . . 

[w]hile [the victim] laid there on the concrete, this [d]efendant was grounding and 

pounding for about 15 seconds the victim‟s head.” 

The trial court also recalled the fact that the defendant was wearing steel-toed 

boots when he kicked the victim “numerous times after he attacked him and knocked him 

to the ground.” The court observed that the boots could be considered a deadly weapon 

in that they were used to kick someone in the face and head area. The court opined that 

the defendant may have also kicked the victim in the kneecap, given that the victim‟s

kneecap was broken. 

The trial court revisited the defendant‟s claim of self-defense and that the 

defendant‟s only allegation was that the victim swung at him but did not hit him. Despite 

the fact that he was not hit, the defendant “committed this serious assault.” The court 

recalled that the defendant testified, “At some point, I helped him up so that I could show 

him some mercy.” The court questioned how that made any sense if the defendant acted 

in self-defense. 

The trial court considered the mitigating factors but found that none applied. It 

noted that the defendant had not expressed any remorse for his actions. The court 

considered the defendant‟s age but determined “he‟s old enough to know that you don‟t 

commit such an egregious assault against anyone for any reason.” 

The trial court noted that in determining the defendant‟s sentence, it considered 

the presentence report, the defendant‟s physical and mental condition, his social history, 

the facts and circumstances of the offense, and the defendant‟s previous actions and 
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character. It concluded that the appropriate sentence was a mid-range sentence of three 

years. In considering whether the defendant was a good candidate for alternative 

sentencing, the court found that the defendant‟s “untruthfulness at trial” and “his clear 

anger issues” weighed against an alternative sentence. The court noted that the defendant 

had moved away from home for a period of time and that “there had to be some issues 

involved why he would leave Jackson.” The court concluded that a sentence of probation 

“would unduly depreciate the seriousness of this offense.” The court summarized, “I 

can‟t emphasize enough that he‟s not been truthful before the jury. He‟s not been truthful 

before the Court. He‟s expressed no remorse for the injuries and the pain and the 

suffering that he‟s caused to [the victim].” Accordingly, the court determined that it 

would be “appropriate” for the defendant to serve his sentence in confinement. 

The record reveals that the trial court properly exercised its discretion in its 

consideration and weighing of the Parker and Electroplating factors in reaching its 

decision to deny the defendant‟s request for judicial diversion. It considered the 

defendant‟s amenability to correction and found that that factor weighed in favor of 

diversion. The court considered that the defendant had no criminal record, which 

weighed in favor of diversion. 

On the negative side, however, the trial court determined that the circumstances of 

the offense weighed “heavily against the granting of diversion in this case.” The court 

concluded that the defendant‟s social history weighed against granting diversion, 

apparently from the issues surrounding his living with relatives in Texas for a period of 

time. The court determined that the defendant‟s mental health weighed against diversion, 

noting that it was “very, very, very obvious” that the defendant “ha[d] some severe anger 

problems,” and how he lashed out at the victim “apparently because the victim may have 

made fun of him a couple of weeks prior to [the assault].” The defendant asserts that no 

“mental health professional testified that [the defendant] was mentally ill.” However, the 

court‟s conclusion was based on the testimony and the court‟s viewing of the defendant‟s 

demeanor, and not on a finding that the defendant was mentally ill. The court also 

considered and determined that the deterrence value and the ends of justice for the public 

as well as the defendant weighed against diversion. 

The defendant argues that the trial court did not “fully articulate reasons in favor 

of or against each of the Electroplating factors.” Regardless of whether the trial court 

provided explicit reasoning for each and every factor, the record shows that the court 

considered each factor and concluded that the factors against diversion outweighed the 

factors in favor of diversion, as was a proper exercise of the court‟s discretion and 

entitled to a presumption of reasonableness. 
-14-

In addition, the trial court properly exercised its discretion in imposing a sentence 

of confinement. The court based the denial of an alternative sentence on the defendant‟s 

lack of honesty, “clear anger issues,” and lack of remorse. The court reiterated the 

circumstances of the offense that the defendant, acting unprovoked, caused the victim 

serious and permanent injuries by “grounding and pounding” him and kicking him in the 

face while wearing steel-toed boots. The court concluded that a sentence of probation 

“would unduly depreciate the seriousness of this offense.” The court considered all of 

the factors to be used when determining whether to impose a sentence of confinement 

and put its findings on the record. The record supports the trial court‟s determination.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the 

trial court denying the defendant‟s request for judicial diversion and imposition of a 

sentence of confinement. 

_________________________________ 

ALAN E. GLENN, JUDGE