IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 6, 2008

STATE OF TENNESSEE v. DEVIN JAMES

 Appeal from the Criminal Court for Shelby County

No. 05-01624 Chris Craft, Judge

No. W2007-01118-CCA-R3-CD - Filed July 30, 2008

The Appellant, Devin James, appeals the sentencing decision of the Shelby County Criminal Court

after a jury found him guilty of the reckless homicide of Rodney Steward. After a sentencing

hearing, James received a thirty-month sentence in the “workhouse,” with all but ninety days

suspended, followed by five years of probation. On appeal, James argues: (1) that the trial court’s

denial of judicial diversion was error; (2) that the trial court erred in failing to grant him full

probation; and (3) that the trial court erred in enhancing his sentence six months beyond the

presumptive minimum and in imposing a probationary term of five years. After thorough review of

the record and the briefs of the parties, we affirm. 

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

DAVID G. HAYES, SR.J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES

CURWOOD WITT, JR., JJ., joined.

Gerald D. Skahan, Memphis, Tennessee, for the Appellant, Devin James.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;

William L. Gibbons, District Attorney General; Michelle Parks and Alanda Dwyer, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

Factual Background

A Shelby County grand jury indicted the Appellant for the offense of voluntary manslaughter

in connection with the death of the victim, Rodney Steward, which occurred on October 20, 2004.

The Appellant entered a plea of not guilty, and a jury trial was held on December 6, 7, and 8, 2006.

The proof at trial established that on the afternoon of October 20, 2004, the victim was

visiting at the home of a friend, Sigmond Donelson, when he received a phone call from the

Appellant. Donelson testified that the victim subsequently left his home, and that he appeared to be

unconcerned after receiving the phone call and normal in demeanor. The victim’s fiancé, Tamiko
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Jackson, testified that she knew the Appellant, and that the victim considered the Appellant a good

friend. She testified that she talked to the victim via cell phone as he drove to the Appellant’s home,

and that the victim told her that he had to pick up a package. Ms. Jackson testified that she heard

the Appellant’s voice fading away, and she also heard unfamiliar voices in the background, followed

later by the sound of sirens. 

Officer Thomas Johnson of the Memphis Police Department testified that he was the first

responding officer at the Appellant’s house around 3:00 p.m. When he arrived, Officer Johnson saw

the victim, Rodney Steward, lying face down in the yard. Officer Johnson stated that the Appellant,

who appeared calm, came out of the house to greet him. 

Officer Ricky Davison of the Memphis Police Department testified regarding photographs

taken at the crime scene and other evidence that was collected. Officer Davison testified that no

weapon was found on or about the victim. He identified photographs of spent nine-millimeter

casings that were found on the ground near the carport and driveway of the Appellant’s house.

Officer Davison also identified a photograph of a nine-millimeter handgun that he recovered on the

floor board of the Appellant’s Ford Taurus parked in the carport of the property. He further testified

that he found 2.4 grams of crack cocaine in the pockets of the victim. 

Officer William Woodard interviewed a neighbor of the Appellant, who stated that she heard

seven shots fired at the Appellant’s house on the date of the offense. Tennessee Bureau of

Investigation Agent Don Carman testified that the Appellant’s nine-millimeter pistol would hold six

rounds in the clip and one in the chamber, for a total of seven rounds. Agent Carman further opined

that the nine shell casings found at the scene came from the Appellant’s gun, as did three ninemillimeter bullets retrieved from the victim’s body. Shelby County medical examiner Dr. Karen

Chancellor opined that Rodney Steward died as a result of multiple gunshot wounds. She testified

that she observed a total of eight entrance wounds on the victim’s body. 

In his written statement to the police, the Appellant said that he and Rodney Steward

arranged a meeting at his house on the date in question. The Appellant claimed that after the victim

walked into the house through the front door, another man named Marcus Moffitt, nicknamed “Big

D,” walked into the house through the back door. The Appellant claimed that “Big D” told him to

“lay down[,] bitch,” and that the victim said they “were about to rob [his] punk ass.” The Appellant

claimed that “Big D” was armed with a nine-millimeter handgun, but that he was unsure if the victim

was armed. The Appellant stated that he ran into another room and got his own nine-millimeter

handgun. He claimed that when the victim and “Big D” saw his weapon, they ran out the back door.

The Appellant claimed that he tried to follow, but that “they fired shots, so [he] waited.” He stated

that he “ran out and they fired again.” The Appellant claimed that he feared for his life, and started

firing his own gun. Afterwards, he stated that he ran back into his house to call 911 but was unable

to use the phone inside. He went back out to his car to obtain his cell phone, and he claimed that a

white van or truck pulled up and someone inside the vehicle started shooting at him again. The

Appellant stated that he called 911, ran back into his house, and locked the door. 
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Sergeant Mullins testified that he investigated the area of the property in which the Appellant

claimed that “Big D” had fired his gun, and that he was unsuccessful in locating any shell casings

to corroborate these statements. Sergeant Mullins revisited the property to “double check” the scene

the following day, and he testified that he found no evidence of bullet strikes inside or outside the

house. He further indicated that neither of the vehicles parked at the property at the time of the

shooting had been struck by bullets.

The Appellant testified at trial, and hisrecollection of shooting the victim largely tracked his

written statement. He testified that “Big D” came in the back door and pulled a gun on him in the

living room, and he went back to his office and procured his own gun and two clips from a closet.

He related, “Well, they saw I had [the gun]. It was like a crazy set up. It’s like they ran out and

when I got out they started firing, so I was trying to get out just to secure my property and then shots

were fired again and then I fired.” The Appellant testified that he fired rapidly at both “Big D” and

the victim, emptying one clip of the gun, and that he put his second clip in the gun, which he also

emptied. 

The Appellant testified that he was twenty-four years old at the time of trial, and that he had

a four year old son of whom he had joint custody. He stated that he was a student at the University

of Memphis, that he ran a graphic design/marketing company, and that he was a licensed real estate

agent. The Appellant testified that he had been robbed on two previous occasions in his life. He

stated that after the most recent robbery in February of 2004, during which he was shot in the

shoulder, he bought a gun. The Appellant testified regarding his previous experience in the music

business, and specifically that he had written “gangster rap.” The Appellant explained that he was

no longer involved in the music business.

The State called one rebuttal witness, Marcus Moffitt, who affirmed that he was known by

the nickname, “Big D.” Moffitt denied that he was with the victim on the day he was killed, and he

testified that he did not rob the Appellant. Moffitt testified that he did not know the Appellant or

where he lived. He admitted a conviction for theft of property in 1999, arising from his purchase of

a stolen gun. Moffitt’s wife testified that she was at the home of her sister-in-law with Moffitt and

her children on the afternoon of October 20, 2004. 

Based upon the foregoing evidence, the jury found the Appellant guilty of the lesser offense

of reckless homicide. A presentence report was prepared, and a sentencing hearing was held. In

sentencing the Appellant as a Standard, Range One offender, the trial court imposed a split

confinement sentence of two years and six months, with ninety days to be served in confinement

followed by five years of probation. The Appellant filed a motion for new trial, which was denied,

and he timely filed a notice of appeal. 

Analysis

The issues raised by the Appellant on appeal relate to the length and manner of the sentence

imposed by the trial court. When an accused challenges the length, range, or manner of service of
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a sentence, this court has a duty to conduct a de novo review of the sentence with a presumption that

the determinations made by the trial court are correct. T.C.A. § 40-35-401(d) (2003); State v. Ashby,

823 S.W.2d 166, 169 (Tenn. 1991). This presumption is “conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant facts and

circumstances.” Ashby, 823 S.W.2d at 169. The burden is on the Appellant to show that the

sentencing was improper. T.C.A. § 40-35-401, Sentencing Comm’n Cmts. 

When conducting a de novo review of the sentence, this court must consider: (a) the

evidence, if any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the

principles of sentencing and arguments as to sentencing alternatives; (d) the nature and

characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors;

(f) any statement that the Appellant made on his own behalf; and (g) the potential or lack of potential

for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210 (2003); Ashby, 823 S.W.2d at 168.

Furthermore, we emphasize that facts relevant to sentencing must be established by a preponderance

of the evidence and not beyond a reasonable doubt. State v. Winfield, 23 S.W.3d 279, 283 (Tenn.

2000) (citing State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997)). 

I. Judicial Diversion

The Appellant argues that the trial court abused its discretion in denying him judicial

diversion. The Appellant contends that the trial court unfairly focused upon certain aspects of his

lifestyle, such as his former “financially successful involvement in the rap music business” and his

dropping out of high school, and that the trial court’s determination that the Appellant provided

untruthful testimony at trial is not supported by the record. 

A defendant is eligible for judicial diversion when he or she is found guilty or pleads guilty

to a Class C, D, or E felony and has not previously been convicted of a felony or a Class A

misdemeanor. See T.C.A. § 40-35-313(a)(1)(B)(i) (2003). With these requirements in mind, it is

undisputed that the Appellant is eligible for judicial diversion. When a trial court grants a defendant

judicial diversion, it defers further proceedings and places the accused on probation without entering

a judgment of guilty. Id. § 40-35-313(a)(1)(A). Ifthe defendant successfully completes the requisite

probationary period, the trial court is required to discharge the defendant and dismiss the

proceedings, id. § 40-35-313(a)(2), and the defendant may have the official records of the

proceedings expunged after dismissal of the proceedings. Id. § 40-35-313(b).

The decision of whether to grant a request of judicial diversion lies within the sound

discretion of the trial court, and this court will not disturb that decision on appeal absent an abuse

of discretion. State v. Robinson, 139 S.W.3d 661, 665 (Tenn. Crim. App. 2004). When a defendant

challenges the trial court’s denial of judicial diversion, we may not revisit the issue if the record

contains any substantial evidence supporting the trial court’s decision. State v. Cutshaw, 967 S.W.2d

332, 344 (Tenn. Crim. App. 1997); State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996).

In deciding whether to grant judicial diversion, the trial court must consider the following

factors: (1) the accused’s amenability to correction; (2) the circumstances of the offense; (3) the
The trial court’s reference was made with regard to the recordings written by the Appellant, entitled “Niggaz

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They Hate” and “Shoot First.”

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accused’s criminal record; (4) the accused’s social history; (5) the status of the accused’s physical

and mental health; and (6) the deterrence value to the accused as well as others. Parker, 932 S.W.2d

at 958. “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.; see also State v. Electroplating, Inc., 990

S.W.2d 211, 229 (Tenn. Crim. App. 1998). The record must indicate that the court has weighed all

of the factors in reaching its determination. Electroplating, Inc., 990 S.W.2d at 229. If the trial

court denied the request for judicial diversion, it should state in the record “the specific reasons for

its determinations.” Parker, 932 S.W.2d at 958-59. If the trial court “based its determinations on

only some of the factors, it must explain why these factors outweigh the others.” Electroplating,

Inc., 990 S.W.2d at 229.

At the sentencing hearing held in this case, the trial court clearly addressed the requisite

considerations in arriving at the decision to deny the Appellant judicial diversion. The trial court

noted that the Appellant had no prior convictions, and that he currently has “a good income.”

Although the trial court articulated concerns regarding the Appellant’s social history, specifically his

dropping out of high school, it noted that he obtained his GED and appeared to be supporting his

children. The trial court found the Appellant to be in “good physical and mental health as far as

being rehabilitated.” The court stated, “I do have a problem with the rap music that was played

during this trial that [the Appellant] was producing, talking about shooting and killing[,]” but the

court expressly noted, “I can’t punish [the Appellant] for being in the rap business because it’s a

legitimate business . . . .” 

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The trial court based its denial of diversion, in part, on the circumstances of the offense, in

that the Appellant admittedly shot the victim repeatedly as he ran away from the Appellant’s house.

The court found that “the physical evidence in the trial does not match the [Appellant]’s testimony”

with regard to the events that occurred at his home. The trial court noted that, despite the

Appellant’s testimony that Moffitt, who was allegedly armed, fired the initial gunshots and provoked

the Appellant to shoot the victim in self-defense, there was no evidence of another gun, aside from

the Appellant’s, having been fired inside or outside the house. This court has upheld the denial of

judicial diversion on the basis of untruthfulness. See State v. Anderson, 857 S.W.2d 571 (Tenn.

Crim. App. 1992). Moreover, in State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994),

we held that consideration of a defendant’s candor while testifying was probative of her prospects

for rehabilitation pursuant to T.C.A. § 40-35-103(5). The trial court also found that diversion was

not appropriate considering the deterrence value to the accused and others, and that diversion would

not serve the interests of the public. The court concluded, “So having weighed all those factors, I

just cannot see putting [the Appellant] on diversion for an unnecessary killing when he gets on the

stand and lies about it, and still is persisting in lying.” After review, we conclude that the record

contains substantial evidence to support the trial court’s denial of judicial diversion. 

II. Full Probation
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The Appellant argues that the trial court erred in denying full probation. “[A] defendant is

required to establish his suitability for full probation as distinguished from his favorable candidacy

for alternative sentencing in general.” State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999);

see also T.C.A. § 40-35-303(b) (2003). To meet the burden of establishing suitability for full

probation, the Appellant 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), overruled in part on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn.

2000). 

In determining one’s suitability for full probation, the court may consider the circumstances

of the offense, the defendant’s potential or lack of potential for rehabilitation, whether full probation

will unduly depreciate the seriousness of the offense, and whether a sentence other than full

probation would provide an effective deterrent to others likely to commit similar crimes. T.C.A. §§

40-35-210(b)(4), -103(5), -103(1)(B) (2003); see also Bingham, 910 S.W.2d at 456. Denial of

probation may be based solely upon the circumstances of the offense when they are of such a nature

as to outweigh all other factors favoring probation. Id. (citing Fletcher, 805 S.W.2d at 788-89). 

In determining whether to grant or deny full probation, additional considerations

include the defendant’s criminal record; social history and present condition of the

defendant, including his or her mental and physical conditions where appropriate;

defendant’s amenability to correction and general attitude, including behavior since

arrest, home environment, current drug usage, emotional stability, past employment,

general reputation, marital stability, family responsibility, and the best interests of

both the defendant and the public. 

State v. Blackhurst, 70 S.W.3d 88, 97 (Tenn. Crim. App. 2001) (citing State v. Washington, 866

S.W.2d 950, 951 (Tenn. 1993); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995)).

The Appellant did not submit an argument in support of full probation at sentencing, and the

trial court made no specific findings on this issue. Nonetheless, we conclude that the Appellant did

not satisfy his burden to establish that full probation would “subserve the ends of justice and the best

interest of both the public and the defendant.” Accordingly, we conclude that this issue is without

merit. 

III. Sentence Enhancement

The Appellant challenges the trial court’s imposition of an additional period of five years

probation, following his release from “workhouse” confinement, for his Class D felony conviction.

The Appellant cites statistical data on the average split confinement sentence length for felony

convictions in Tennessee and argues that “the single enhancement factor [applicable in his case] and

extensive mitigation should have produced a probation sentence in line with the median sentence,”

which he argues is substantially less than the five year probationary term imposed. In response, the
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State characterizes the Appellant’s reliance upon such statistical data as a request that this court

perform a comparative proportionality review of his sentence, as applicable in capital cases. 

We agree with the State that the Appellant’s argument is misplaced. Based upon the

application of one enhancement factor, and appropriately recognizing the applicable mitigating

factors, the trial court enhanced the Appellant’s sentence only six months beyond the minimum

sentence for a Standard, Range One offender convicted of a Class D felony, which istwo years. We

conclude that the nature and characteristics of the criminal conduct involved warrant the

enhancement of the Appellant’s sentence six months beyond the presumptive minimum. See T.C.A.

§ 40-35-210(b)(4) (2003). Insofar as the Appellant alleges error in the trial court’s application of

these factors, we conclude that such a challenge to this aspect of the sentence is unavailing. 

Moreover, the applicable sentencing law clearly supports the trial court’s decision to sentence

the Appellant to two years and six months’ incarceration, with all but ninety days suspended, as well

as its imposition of a probationary term of five years. The relevant subsection provides:

If the court determines that a period of probation is appropriate, the court shall

sentence the defendant to a specific sentence but shall suspend the execution of all

or part thereof and place the defendant on supervised or unsupervised probation

either immediately or after a period of confinement for a period of time no less than

the minimum sentence allowed under the classification and up to and including the

statutory maximum time for the class of the conviction offense.

T.C.A. § 40-35-303(c)(1) (2003). The Sentencing Commission comments provide that “even though

the length of the actual sentence is restricted to that required by the particular range, the judge may

fix the length of probation up to the statutory maximum for the class of the offense[,]” thus,

authorizing a trial court to impose a lengthier probation period for a defendant than the actual

imposed sentence. Id., Sentencing Comm’n Cmts. Moreover, trial courts are given much latitude

in fixing the length of probation. State v. Joseph Ray Evans, No. M2006-02748-CCA-R3-CD (Tenn.

Crim. App. at Nashville, Jan. 9, 2008). The maximum penalty for the Appellant’s Class D felony

conviction is twelve years. T.C.A. § 40-35-112(c)(4). Thus, because the trial court imposed a fiveyear term of probation in this case, the sentence is clearly authorized by statute. Accordingly, this

issue is without merit. 

CONCLUSION

Based upon the foregoing, the judgment of the Shelby County Criminal Court is affirmed.

___________________________________ 

DAVID G. HAYES, SENIOR JUDGE