### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs O ctober 1, 2002, at Ja ckson STATE OF TENNESSEE v. ROBERT S. LUT RICK Appeal from the Circuit Court for Giles County No. 9809 Robert L. Jones, Judge

No. M2001-02720-CCA-R3-CD - F iled December 31, 2002

After a Giles County Circuit Court jury convicted the defendant, Robert S. L utrick, of aggravate d assault, a Class C felony, he applied to the c ourt for an order of diversion. The trial court denied the request and sentenced

the defe ndant to th

e minimum Ra

nge I sentenc e of three y ears, to be served on probation. The defendant now appealsthe denia

l of judici al diver sion. Upon review, we affi

rm.
Tenn. R. App.P. 3; Judg ment of t he Circui t Court is

Affirme d.
J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which D AVID H. W ELLES and A LAN E. G LENN , JJ., joined. Claudia Jack (at trial), Pulaski, Te

nnessee ; and R. H. S tovall, Jr. (on appeal), Columbia, Tennessee, for the Appellant, Robert S. Lutrick.
P aul G. Summers , Attorne y General & Repor ter; Thom as E. Willia

ms, II I, As sistant A

ttorne y Genera l; T. Michel

Bottoms , District Att orney Ge neral; and Richard H. Dunavant and Patrick Butler , Assistant District Attorneys Gener al, for the Appellee, State of Tennessee. OPINION The defendant’s difficulties began on July 5, 2000, at a Dairy Queen in Ardmore. At the end of June, the defendant had taken his two young sons on a scheduled visitation to Jackson, Mississippi

. He and his ex-wife, Lori Huey , who is now the victim’s wife, had arranged to meet a t the Dairy Queen at 2:00 p.m. on July 5 to exchange the boy s following the visitation.

Appare ntly Lori Huey bec ame upset when she learned that the defendant would be eight hours late in meeting her. At 10:00 p.m., Lori Huey went to the Dairy Q

ueen, accompanied by her hus ban d, G eor ge I. Huey, Jr., who is the victim, and by her four-y ear-old daughter, father ed by the victim. After the defendant ar rived, he and Lori Huey

left their respective vehicles and conversed. According to the victim, the defendant was ag itated, and the victim decided to get out-2-

of his car. The defendant and the victim had w ords, and the victim testified that the defendant rushedtoward h

im, although the defendant essentially denied moving toward the victim. At any rate, at some point, the victim, who is a larger man than the de fe nd an t, sh ov ed th e d ef en da nt . U lt im at el y, according to the victim, the defendant went to his vehicle, retrieved a handg un, pointed it at the victim, and said, “I am going to kill you. You are g oing to die.” The victim testified at trial that he was scared

for his lif e. After a couple of minutes, the defendant pulled the gun away

and returned to his car. The victim testified that before the defendant depar ted, the defendant

said, “I ’m going

to kill you, and it’s not a matter of ‘if.’ It’s a matter of when.”

On cross-examination, the victim essentially admitted that the defendant’s dislike of the victim began some y ears before when the defe ndant discovered that the victim had impregnated Lori Huey , who was at the time the defendant’s wife.

The defendant testified

that, af ter the victim shoved him twice, the defendant went to his car to leave; however, the victim followed him to his car. The defe ndant believed that the victim was going to ass ault him

and that t he victim w as too clo se to allow the defe ndant time

to get into his vehicle. The defendant reache d into the vehicle, grabbed a pistol, a nd sh owed it to the victim. He denied that he ever pointed the weapon a t the victim. He admitted that, after he replaced the pistol in his vehicle, he and the victim exchanged words, and he thre atened the victim. The defendant testified that the pistol was not loaded.

After the jury convicted the defendant of aggr avated assault, the trial court conducted a sentencing hearing. The de fendant testified that he had never been arrested or convicted

of a crime, was curren

t in pay ing his child

support, and was gainfully employed as a g

raphics designer. He was 38 years of

age and did not use alcohol or drugs. He lived in Alabama, where he own ed a home. Prior to the date of the offen se, the State of Alabama had issued him a permit to carry a handgun; however, the defendant had since sold the handgun to a co-worker. He te stified that he had no other firearms, had never committed a violent act, and cha racteristically

avoided confrontations. His job supervisor testified that the defendant had sold the pistol to a co-worker and that the defendant was a goo d employee who had never been known to lose his temper or act viole nt ly. A f

ormer employe

r also testified that the defendant has a calm persona lity and is not violent.
On the ba sis o f his b ackgr ound, the defendant sought judicial diversion. At the conclusion of the senten cin g hearin g, the t rial c ourt d enied the req uest. The tr ial j udge acknowledged

that the “case was provoked by the conduct” of the victim and that the victim was the initial aggre ssor in the July 5, 2000 episode; nevertheless, the judg e found that the defendant “went well bey ond what waspermitte d in this ca se by p ulling a deadly weapon a

nd threa tening t o use it.” The judge noted that the defendant should have ne ver inserted a firearm into a “very emotional environment.” Based upon this finding, the court held that the crime was serious and that the charge should not be

diverted. The court commented that, as a convicted fe lon, the defendant would be prohib ited from

possessin g a fir

earm. Al so, the tr

ia l judge found the defendant’s-3-

contention that the gun was unloaded to be inc re dible. In summarizing his rationale for deny ing diversion, t he trial j udge sa id, “[T]his man should not be trusted with a gun again, and it’s not an appropriate case for diversion.”

The tr ial cour

t imposed the minimum Class C, Range I sentence of three yea rs but probated the entire sentence.

The Sente

ncing Re form Act of 1989 pr

ovides:
If any person w

ho has not

previously been c onvicted of a felony or

a Class A misdeme anor is f ound gui lty

or plead s guilty

to . . . a Cla ss C, D, or E felony, the

court may, without enter ing a jud g ment of guilty and with the co nsent of suc h pers on, de fer fur ther p roceed ings and place the person on probation upon such reas onable conditions as it may require

and for a period of time not le ss than the period of the maximum sentence . . . of the felony with which he is charged. .

. . Tenn. Code Ann. § 40-35-313(a)(1) (1997). This procedure, commonly known as judicial diversion, is similar to pretrial diversion; however, judicial diversion follows a determination of guilt, and the decision to grant diversion rests with the trial court, not the prosecutor. State v. Ande rson , 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992).

The lower court's denial of judicial d iversion is subject to

revers al on appe al only

if that court abused its discretion. State v. Hammersley , 650 S.W.2d 352, 356 (Tenn. 1 983). An a buse of discretion o ccurs when the trial court’s denial of judicial diversion is unsupported by any substantial evidence. Id. ; State v. Parker , 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996).

In determining whe

ther to grant judicial diversion, the trial court must consider (a) the accused’s amenability to correction, (b) the circumstances of the offense, (c) the accused’s criminal rec ord, (d ) t he ac cu se d’ s s oc ia l h is to ry, (e) the accused’s phy sical and mental health, (f) the deterrence value to the a ccused as well as others, and-4- (g) whether judicial diversion will serve the interests of the public as well as the accused. Parker , 932 S.W.2d a

t 958; S tate v. B onestel , 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper , 29 S.W.3d 1, 9 (Tenn. 2000). Moreover, the record must reflect that the court has weighe d all of the factors in reaching its determination. Bonestel , 871 S.W.2d at 168. The court mus t explain on the re cord why

the defe ndant doe s not quali fy

under its analy sis, and if the court has based its determination on only some of the facto

rs, it must explain why these factors outweigh the others. Id.

In essence, the trial court in the present case ba sed its decision t o deny judicial diversion on a sing le facto r – the ci rcumsta nces of the offense. The trial court focused upon the circumstance that the defendant had brandished a gun dur ing an emotion-steeped situation. The trial judge did not specifically mention the other f actors that should be considered; howe ver, the tri al judge’s comments reflect that he announced his diversion and sentencing decisions together after he had taken a considered a

pproach to the total dispo sition of th e defendant’s c ase. The

comments reflect that, in ordering full probation, the judge considere d the defendant’s positive social hi st or y, his lack of a criminal record, and h is am en ab il it y t o corre ction . At on e poin t, th e tria l jud ge comment ed that the defendant did not need counseling in ang er management as a condition o f probatio n, and this comment reflects that the judge considered the state of the defendant’s mental health. Thus, although the trial court determined that the defendant merited a fully probated sentence and that he should be supervised for only the first year

of the three-y ear probation, the court, at the sametime, obviously thought that the circumstanc es of the offense outweighed all other factor s in determining the diversion issue.

The trial court’s de termination is supp orted by substantial evidenc e in the record. The t rial judge was troubled, as are we, by the fact that the aggra

vated assault was committed in th e presenceof three children. The offense wa s exacerbated by the defendant’s threats to do harm to the victim in the future.

As mentioned, we review t he denia l of judici al diver sion for a n abuse of discretion. Becau se subs ta ntial evidence supports the lower court’s decision, we ca nnot find that the court abusedits discretion. Under our law, this means that even if we would have preferr ed a different result, we are constrained to uphold the trial court in the exercise of its legitimate discretion and judgment. Thus, the lower court’s judgment is affirmed.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE