IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 20, 2015

STATE OF TENNESSEE v. RANDY SHAWN MOORE

Appeal from the Criminal Court for Knox County

No. 103877 G. Scott Green, Judge

No. E2014-01790-CCA-R3-CD – Filed July 15, 2015

The Defendant-Appellant, Randy Shawn Moore, entered guilty pleas to two counts of 

aggravated assault and received an effective sentence of 8 years with the manner of 

service to be determined by the trial court. On appeal, the Defendant-Appellant argues 

that the trial court abused its discretion in denying his application for judicial diversion. 

Upon our review, we affirm the judgment of the trial court. 

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and D. KELLY THOMAS, JR., J., joined.

Mark E. Stephens, District Public Defender, and Jessica Green, Assistant Public 

Defender, Knoxville, Tennessee, for the Defendant-Appellant, Randy Shawn Moore.

Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant 

Attorney General; Charme Allen, District Attorney General; and Zane Scarlett, Assistant 

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

OPINION

On July 14, 2014, the Defendant entered guilty pleas to two counts of aggravated 

assault against his then-wife, Alta Galloway, the victim in this case. The underlying 

facts, as summarized by the State at the plea submission hearing, are as follows:

[The victim] and the [D]efendant . . . . were separated [at the time of 

the offenses]. And on [April 12, 2014][,] [the victim] went back over to the 

house to get some clothes, and she . . . went with a friend. When they 

arrived in the car, [the Defendant] . . . was visibly upset, started screaming 
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at them. [The victim] and her friend both got out of the vehicle. But when 

they saw things were getting worse, they got back into the vehicle. 

[The Defendant] went over to his vehicle and got a gun, came back 

over, and pointed i[t] right at [the victim] who was in . . . the passenger 

seat. [The Defendant] . . . put the gun to her throat . . . [and the victim] 

indicated that maybe she [did not] think the gun [was] loaded, so he fired 

the gun up into the air showing that it was loaded, then put it back to her 

forehead and fired up into the air again, and then put the gun back onto her. 

And finally he started shooting the gun several times. At that point[,] [the 

victim and her friend] were able to leave that area before he could get the 

gun reloaded. But then he started shooting at them as they were going 

away.

He was arrested on that matter and bonded out. Apparently, things 

got better because on June 23[, 2014,] . . . [the victim] and the [D]efendant . 

. . were together again. They got into another argument. This time [the 

Defendant] tried to strangle her. He put his hands around her neck, 

restricting her breathing. She was able to get free. He then put her in a 

chokehold to the point where she started losing her vision. She was able 

then to push him off and get free and leave the residence. 

Pursuant to the negotiated plea agreement, the Defendant received a sentence of five 

years for count one and three years for count two, to be served consecutively for an 

effective sentence of eight years. The Defendant agreed to the length of the service but 

sought judicial diversion and probation. 

At the September 3, 2014 sentencing hearing, the State introduced the Defendant‟s 

presentence report and argued that judicial diversion was not appropriate in this case 

given the violent nature of the offenses and the fact that the Defendant committed the 

second offense while on bond for the first offense. The victim testified and asked the 

trial court to have “mercy” on the Defendant. She stated that the Defendant is “a 

wonderful person” who “deserves rehabilitation.” When the court explained that as a 

condition of probation or judicial diversion, the Defendant would not be allowed to have 

contact with her, she stated, “That‟s why I filed for divorce. . . . [H]e is to be out of my 

life and go on with his and be successful.” The Defendant acknowledged that he “did 

something really stupid” and told the court that he did not want to go back into custody. 

He stated, “I love [the victim] with all my heart, but I had to let her go. That‟s all.” 

Following the hearing, the trial court denied the Defendant‟s application for 

judicial diversion and instead imposed a sentence of split confinement, suspended after 
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the service of 90 days. Subsequently, the Defendant filed a timely notice of appeal to this 

court. 

ANALYSIS

On appeal, the Defendant challenges the trial court‟s denial of judicial diversion. 

He argues that the trial court abused its discretion by failing to consider the required 

factors and failing to identify the factors applicable to the Defendant‟s case before 

determining whether judicial diversion was appropriate. The State responds that the trial 

court properly denied judicial diversion. We agree with the State. 

In State v. King, 432 S.W.3d 316, 324-25 (Tenn. 2014), the Tennessee Supreme 

Court held that the abuse of discretion standard of review accompanied by a presumption 

of reasonableness, which was delineated in Bise and its progeny, applied to appellate 

review of a trial court‟s decision to grant or deny judicial diversion. However, the court 

made clear that the application of the Bise standard of review does not abrogate the 

common law factors for judicial diversion set out in State v. Parker, 932 S.W.2d 945, 958 

(Tenn. Crim. App. 1996), and State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. 

Crim. App. 1998). 

Tennessee Code Annotated section 40-35-313 outlines the requirements for 

judicial diversion. After a qualified defendant is either found guilty or pleads guilty, a 

trial court has the discretion to defer further proceedings and place that defendant on 

probation without entering a judgment of guilt. T.C.A. § 40-35-313(a)(1)(A) (2006). A 

qualified defendant is defined as a defendant who pleads guilty to or is found guilty of a 

misdemeanor or a Class C, D, or E felony; is not seeking diversion for a sexual offense or 

a Class A or Class B felony; and does not have a prior conviction for a felony or a Class A 

misdemeanor. Id. § 40-35-313(a)(1)(B)(i) (2006). Upon the qualified defendant 

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

against him. Id. § 40-35-313(a)(2) (2006). The qualified defendant may then request that 

the trial court expunge the records from the criminal proceedings. Id. § 40-35-313(b) 

(2006).

Eligibility for judicial diversion does not entitle the defendant to judicial diversion 

as a matter of right. King, 432 S.W.3d at 323; State v. Parker, 932 S.W.2 945, 958 (Tenn. 

Crim. App. 1996). Rather, the statute states that a trial court “may” grant judicial 

diversion in appropriate cases. See T.C.A. § 40-35-313(a)(1)(A) (2012). The trial court 

must consider the following factors in deciding whether a qualified defendant should be 

granted judicial diversion: (1) the defendant‟s amenability to correction; (2) the 

circumstances of the offense; (3) the defendant‟s criminal record; (4) the defendant‟s 

social history; (5) the defendant‟s physical and mental health; (6) the deterrence value to 
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the defendant and others; and (7) whether judicial diversion will serve the interests of the 

public as well as the defendant. Electroplating, Inc., 990 S.W.2d at 229 (citing Parker, 

932 S.W.2d at 958; State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993) 

(citation omitted), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10 

(Tenn. 2000)). The trial court may consider the following additional factors: “„[the 

defendant‟s] attitude, behavior since arrest, prior record, home environment, current drug 

usage, emotional stability, past employment, general reputation, marital stability, family 

responsibility and attitude of law enforcement.‟” State v. Washington, 866 S.W.2d 950, 

951 (Tenn. 1993) (quoting State v. Markham, 755 S.W.2d 850, 852-53 (Tenn. Crim. App. 

1988) (citations omitted)). The trial court must weigh all of the factors in determining 

whether to grant judicial diversion. Electroplating, Inc., 990 S.W.2d at 229 (citing 

Bonestel, 871 S.W.2d at 168). Finally, “a trial court should not deny judicial diversion 

without explaining both the specific reasons supporting the denial and why those factors 

applicable to the denial of diversion outweigh other factors for consideration.” State v. 

Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997) (citing Bonestel, 871 S.W.2d at 

168). 

In King, the court explained how the Bise standard of review is applied to the trial 

court‟s consideration of the Parker and Electroplating factors: 

Under the Bise standard of review, when the 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.

If, however, the trial court fails to consider and weigh the applicable 

common law factors, the presumption of reasonableness does not apply and 

the abuse of discretion standard, which merely looks for “any substantial 

evidence” to support the trial court‟s decision, is not appropriate. See

Pollard, 2013 WL 6732667, at *11 (“Where, as here, the trial court fails to 

provide adequate reasons on the record for imposing consecutive sentences, 

the appellate court should neither presume that the . . . sentences are 

reasonable nor defer to the trial court‟s exercise of its discretionary 
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authority.” (emphasis added)); see also Messer, 2014 WL 259706, at *3 n. 3 

(“If . . . Pollard has any application to [judicial diversion], it would be to 

express that traditional notions of parameters, guidelines, or factors apply to 

inform and review discretionary decisions. For purposes of judicial 

diversion, those parameters, guidelines, and factors are embodied in 

existing caselaw . . . .”). In those instances, the appellate courts may either 

conduct a de novo review or, if more appropriate under the circumstances, 

remand the issue for reconsideration. 

King, 432 S.W.3d at 327-28 (internal footnote omitted). 

Turning to the case sub judice, the Defendant argues that a proper review of the 

required factors shows that he is a favorable candidate for judicial diversion. 

Specifically, he notes that he is a veteran of the United States Army, has held stable 

employment throughout much of his life, and has a supportive family willing to aid in his 

rehabilitiation. Further, his criminal history is minimal and he expressed remorse for his 

actions in the instant offenses. Additionally, he maintains that he suffers from back pain 

for which he has had multiple surgeries and takes medication and that he has been 

diagnosed with post-traumatic stress disorder, depression, and anxiety. He acknowledges 

that domestic violence is a “serious problem” but asserts that it is not “unique” to his 

marriage and argues that granting judicial diversion in this case would serve as “a signal” 

to others that rehabilitation is possible. 

In denying judicial diversion, the trial court acknowledged that the Defendant had 

“led an otherwise law abiding life” and “appear[ed] to be a person that a lot of people 

care about.” The court noted that the Defendant served in the military and suffered 

“some physical and emotional maladies” as a result. The court stated, however, that 

these factors must be balanced against the “two very, very serious offenses that were 

committed here.” With regard to the offenses, the court stated,

A situation in April where a gun was used, and thank goodness nobody was 

hurt, but, you know, one person flinches the wrong way and we‟re standing 

here on a homicide charge instead of an aggravated assault charge. Couple 

that with the fact that 90 days later while [the Defendant was] on bond for 

that offense he suffers and commits a second violent offense against the 

same victim. Chokes her to the point where she is starting to lose her 

vision, and starting to lose consciousness . . . And nobody disputes the 

facts. 
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The court explained, “I‟ve wrestled with, and I‟ve struggled with, . . . but I‟ve got to be 

able to put my head on a pillow at night, and I can‟t under those facts agree to judicial 

diversion. I just can‟t do it.” 

Initially, we acknowledge that the trial court did not explicitely state each factor 

on the record during its review, and in that regard, we note that the better course for the 

trial court is to more specifically discuss each factor on the record to aid in appellate 

review. However, the trial court is not required to “utilize any „magic words‟ or 

specifically reference the case names „Parker‟ and „Electroplating‟ when discussing the 

relevant factors in order to receive the presumption of reasonableness.” King, 432 

S.W.3d at 327 n. 8. Our review of the record establishes that the court considered and 

weighed the required factors, identified those most relevant to the case at hand, and 

placed on the record its reasons for denying diversion. See id. Thus, the trial court‟s 

decision is afforded a presumption of reasonableness, and we must only determine 

whether there is “any substantial evidence” in the record to support the trial court‟s 

decision. See id. 

The Defendant was 48 years old at the time of the offense and, as highlighted by 

the trial court, had led a substantially law-abiding life until the instant offenses. Although 

several factors weighed in favor of judicial diversion, including his social history and 

family support, minimal criminal record, and poor physical and mental health, the trial 

court was rightly concerned with the circumstances of the offense and the Defendant‟s 

amenability to correction. In the first incident, the Defendant repeatedly pointed a loaded 

gun directly at the victim‟s face and neck, intermittently firing the gun in the air to assure 

the victim that the gun was loaded, and fired several shots towards the victim‟s vehicle as 

she and her friend drove away from the scene. In the second incident, the Defendant 

attempted to strangle the victim and placed her in a chokehold until her vision became 

blurred and she almost lost consciousness. The circumstances of these offenses are very 

disturbing and weigh heavily against judicial diversion. See State v. Parson, 437 S.W.3d 

457, 496 (Tenn. Crim. App. 2011) (affirming denial of judicial diversion where 

Defendant‟s amendability to correction and the circumstances of the offense “weighed 

heavily” against judicial diversion despite the satisfactory remaining factors) (citing State 

v. Jonathan B. Dunn, No. M2005-01268-CCA-R3-CD, 2006 WL 1627335, at *9 (Tenn. 

Crim. App. June 12, 2006) (affirming denial of judicial diversion where, even though 

factors (3), (4) and (5) weighed in the defendant‟s [favor], the circumstances of the 

offense were “particularly troublesome” where defendant held a gun six inches from the 

victim‟s head)); State v. Brian Carl Lev, No. E2004-01208-CCA-R3-CD, 2005 WL 

1703186, at *3 (Tenn.Crim.App. Mar. 22, 2005) (“The denial of judicial diversion may 

be based solely on the nature and circumstances of the offense, so long as all the other 

relevant factors have been considered, and this factor outweighs others that might 

favorably reflect on the [defendant]‟s eligibility.”) (citing State v. Curry, 988 S.W.2d 
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153, 158 (Tenn.1999)). Further, while the Defendant asserts that he is amenable to 

correction, the trial court clearly disagreed, highlighting the fact that the Defendant 

committed a second violent offense against the same victim while on bond for the first 

offense. The trial court determined, and we agree, that these factors outweighed the other 

factors considered by the court. Accordingly, we conclude that the trial court did not 

abuse its discretion in denying the Defendant judicial diversion. He is not entitled to 

relief. 

CONCLUSION

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

trial court. 

_________________________________ 

CAMILLE R. McMULLEN, JUDGE