State of Tennessee v. Calvin M. Courter

07/12/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
April 13, 2021 Session
STATE OF TENNESSEE v. CALVIN M. COURTER
Appeal from the Criminal Court for Davidson County
No. 2019-B-1419 Steve Dozier, Judge
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No. M2020-00470-CCA-R3-CD
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The Defendant-Appellant, Calvin M. Courter, pleaded guilty to reckless aggravated
assault, see Tenn. Code Ann. § 39-13-102, for which he received a three-year probationary
sentence, with an additional 30 days to be served on weekends. On appeal, the Defendant
argues that the trial court erred in denying his request 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 JOHN EVERETT
WILLIAMS, P.J., and JAMES CURWOOD WITT, JR., J., joined.
Jay Umerley, Nashville, Tennessee, for the Defendant-Appellant, Calvin M. Courter.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Jeffrey George, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
On January 9, 2020, the Defendant entered an open plea to one count of reckless
aggravated assault, a Class D felony. The underlying facts, as summarized by the State at
the plea submission hearing, are as follows:
[O]n March 31st, 2019, the victim and the [D]efendant[,] who were
friends[,]1 were at McDonald[’]s at 1201 Broadway here in Nashville,
Davidson County. And inside the McDonald[’]s[,] they got into a verbal
1
We note that the Defendant testified at the sentencing hearing that he did not know the victim prior to the
assault.
argument[,] which le[]d to the [D]efendant punching the victim . . . in the
face[,] causing the victim to fall to the ground, which was witnessed by
multiple people inside the McDonald[’]s.
The [D]efendant then walked . . . out of the restaurant into the parking
lot[,] and the victim got up from the ground and followed him to the parking
lot[,] and several of the witnesses, including employees from the
McDonald[’]s [began] to try to deescalate the situation.
Once outside, the [D]efendant and the victim began to tussle[,] and
the [D]efendant hit the victim[,] causing him to fall to his knees. And while
the victim was on his knees, the [D]efendant kicked the victim in the face [,
causing] him to fall on his back. Multiple witnesses stated that at this point[,]
the victim was completely unconscious on the ground. At which point the
[D]efendant stomped on the victim’s head with his boot[,] which caused the
victim to suffer a skull fracture and sever[e] hemorrhage on his brain and that
was treated at Vanderbilt Hospital.
The Defendant acknowledged that the facts as recited by the State were “basically
true[.]” The sentencing hearing was set for February 20, 2020, “to determine the length
and manner of service.”
At the sentencing hearing, Randy Russel, the victim’s father, testified that the victim
suffered a “fractured skull and hemorrhage on the brain[, and] his face was swollen
throughout.” The victim spent two days in the Intensive Care Unit at Vanderbilt Hospital,
and his father testified that the assault “really changed [the victim’s] personality” and
caused him to have a “fear of coming to Nashville and getting out[.]”
The victim’s mother wrote a victim impact statement, which was read into the
record. She informed the court that the victim “has had to be on seizure medication” since
the assault, and he was “not the same young man [as] he was before this happened[.]”
The presentence report and the preliminary hearing testimony of Mr. Mark Finkle,
a witness to the assault, were entered as exhibits. The State then concluded its proof.
Paige Courter, the Defendant’s mother, testified that she was “shocked” when she
learned what the Defendant had done to the victim. She conceded that she did not know
about the Defendant’s previous DUI arrests.
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Christian Brandt testified that he had known the Defendant “pretty much [his] whole
life[.]” He explained that the Defendant lived with him continuously since being released
on bond and “would be allowed to . . . continue living there[.]” Mr. Brandt testified that
he had not noticed the Defendant’s drinking alcohol or staying out late.
The Defendant testified that he first began drinking alcohol at the age of 16 or 17.
He affirmed that he had been arrested twice for driving under the influence and was
convicted of reckless driving in both instances. The Defendant stated that he was currently
employed as a “drive apprentice” for “the second largest food distributor in the country[.]”
He explained that he expected to “sign a two[-]year cont[r]act” with the company “for them
to send [him] to school and pay for [his] commercial driver’s license[.]” He testified that
he had not had a drink since the assault and was “volunteering with the counseling center”
but was not in counseling. The Defendant spent 102 days in jail before making bond and
described it as “unimaginable.” The Defendant described the assault as his “overstepping
a boundary and clearly making a mistake[.]” He recalled that he initially struck the victim
“out of fear” and then “blacked out” from “fear or rage or alcohol[.]”
When asked about judicial diversion, the Defendant testified that the assault
conviction should be expunged from his record because he “should be given an opportunity
to redeem [himself], show [his] true character and allow [himself] to move forward in [his]
life without a single mistake forever holding [him] down and altering [his] life.” He further
opined that the assault should not remain on his permanent record because he had “no
violent record whatsoever” prior to the assault and was “very sympathetic and sorry for
what [he] did[.]”
On cross-examination, the Defendant conceded that he was unsure whether the
victim ever struck him. He described his state during the assault as a “blackout rage.” The
Defendant explained that he did not know the victim prior to the assault.
Following the close of all proof, the trial court made the following findings:
The Court’s read the presentence report, reviewed the information that the
State was submitting. I’ve heard before when [the Defendant] testified at the
bond hearing both here and in sessions. And obviously heard the testimony
today.
I mean, this is a reduced charge of reckless aggravated assault where
[the Defendant] is looking at two to four years as a range-one offender, what
sentence is imposed and how that sentence is served. I do find that the
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enhancing factor and personal injuries inflicted upon [the victim] were
particularly great beyond that necessary to commit a reckless agg[ravated]
assault.
I mean it wasn’t—I know the plea bargain process ended up—a
reckless agg[ravated] assault. But Mr. Finkle[.] [The victim] that previously
testified about what he recalls, it’s more than a reckless agg assault and I say
that because the appellate courts . . . allow the Court to consider what really
occurred factually.
I mean, I can remember hearing Mr. Finkle describe the gurgling
blood sounds and being kicked in the head lasting 20 plus seconds. And [the
victim] having his hands out in the Jesus position and his head bouncing back
and forth off of the pavement. So that enhancing factor is present.
I mean . . . in terms of mitigating factors, [the Defendant] maybe under
the catchall provisions has quit drinking, maybe that could be considered,
assuming that that’s true. There is no proof that it isn’t. He hasn’t gotten
arrest[ed] again. But . . . regardless of what he says about the prior DUIs,
he’s arrested and plead[ed] guilty to two reckless driving convictions from
DUI arrests, been on probation, supposedly gone to DUI school.
So in the Court’s opinion[,] he has a drinking problem obviously to
the point of blacking out this particular night an[d] inflicting the injuries that
[the victim] had. Brain bleed, fractures, blacken[]ed eyes, cuts above his
eyes. I mean it’s just you know called for obviously and [the Defendant] put
himself in that position by thinking he could handle drinking, well, he
couldn’t. And he’s ended up here before a Court because of that.
Thankfully, as Mr. Russell, the father[,] testified and mother by way
of a letter, thankfully the witnesses or who[m]ever ran him off and it ended
before [the victim] was hurt further. But based on that enhancing factor
which is present and sort of meshes into the sentencing considerations under
40-35-102 and then purposes for sentencing, rehabilitation under 102 . . . the
Court’s going to impose a three-year sentence.
In terms of how that sentence is served, it is [the Defendant’s] first
felony conviction, and I will get to 40-35-313 here in a moment. But the
statute talks about depreciating the seriousness of the offense[,] and [the
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Defendant] here today has not tried to do that. But I have to factor in the
serious nature of the offense and the sentencing and the 40-35-313, which
some—those factors [defense counsel] has mentioned [are] similar to
whether its probation or not. But as I’ve stated, I don’t know if he currently
has—[the Defendant] currently has an alcohol problem or not, but he had an
extensive one in 2019 that le[]d to this horrible incident.
It wasn’t a mishap, I think is what [the Defendant] said. He doesn’t
want to have any more mishaps. That’s true, but this was more than a mishap.
....
In terms of the 40-35-313, the Court does not think that this is
appropriate based on the nature of the offense and the injuries inflicted on
[the victim] that it be removed down the road. I mean, [the Defendant] made
the decision to drink and put himself in that position. And he and everybody
else needs to know that there [are consequences] as a result of it.
ANALYSIS
The Defendant asserts that the trial court “denied diversion without identifying
which factors it used to render the decision” and “failed to consider the Electroplating
factors[.]” The Defendant further requests “a de novo review or a remand.” The State
responds that the trial court identified the relevant factors in denying judicial diversion and
was not required to recite all of the Electroplating factors. The State also asserts that even
if this court were to conduct a de novo review, the denial of diversion would still be
appropriate based on the trial court’s findings. 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. State v. Bise, 380
S.W.3d 682 (Tenn. 2012). 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. A qualified defendant is defined as a defendant who pleads guilty to or is found
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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 B felony; and does not have a prior conviction for a felony or a
Class A misdemeanor. Tenn. Code Ann. § 40-35-313(a)(1)(B)(i). After a qualified
defendant either pleads guilty or is found guilty, a trial court has the discretion to defer
further proceedings and place that defendant on probation without entering a judgment of
guilt. Tenn. Code Ann. § 40-35-313(a)(1)(A). Upon the qualified defendant completing a
period of probation, the trial court is required to dismiss the proceedings against him. Tenn.
Code Ann. § 40-35-313(a)(2). The qualified defendant may then request that the trial court
expunge the records from the criminal proceedings. Tenn. Code Ann. § 40-35-313(b).
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 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)). 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
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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 (internal footnote omitted).
In the instant case, the Defendant argues that because he was a “qualified
[D]efendant]” for purposes of judicial diversion, the trial court was required to weigh the
Electroplating factors “against each other and explain its ruling on the record.” Our review
of the record reflects that the trial court did consider the Parker and Electroplating factors
in denying judicial diversion, and it also considered mitigating factors. Despite the
Defendant’s complaint that the trial court did not properly weigh the factors against each
other and explain its ruling on the record, we note that 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. Therefore, we afford the trial court’s
denial of diversion a presumption of reasonableness, and we must only determine wether
“any substantial evidence” exists in the record on appeal to support the trial court’s denial.
The record reflects that the trial court listened to defense counsel’s arguments as to
why each of the Electroplating factors favored the trial court’s granting the Defendant
judicial diverison. In denying diversion, the trial court stated that it had to “factor in the
serious nature of the offense and the sentencing and the 40-35-313 . . . those factors that
[defense counsel] has mentioned [are] similar to whether it’s probation or not.” Though
the trial court did not utilize “magic words” or reference the Electroplating factors by name,
our review of the records reflects that the trial court considered at least factors (2), (3), and
(6). In explaining why it was denying diversion, the trial court noted the circumstances of
the assault, referencing the victim’s head “bouncing back and forth off the pavement” as
the Defendant kicked him in the head; that the assault was the Defendant’s “first felony
conviction,” though he had two previous DUI arrests; and explained that the Defendant
“and everybody else needs to know that there [are consequences] as a result of” their
actions. The trial court also noted “in terms of mitigating factors” that the Defendant’s
alleged cessation of consuming alcohol could be considered “under the catch all
provision[.]”
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The record shows that the Defendant became intoxicated and assaulted the victim
so severely that he suffered a skull fracture and brain hemorrhage and had to be prescribed
anti-seizure medication. The Defendant continued to assault the victim even after he was
rendered unconscious. While the trial court did not deny judicial diversion solely because
of the circumstances of the offense, the record supports the trial court’s decision on this
ground alone. See State v. Moore, No. E2014-01790-CCA-R3-CD, 2015 WL 4314107, at
*4 (Tenn. Crim. App. July 15, 2015) (affirming the denial of judicial diversion and finding
that “[t]he circumstances of the offenses [were] very disturbing and weigh[ed] heavily
against judicial diversion”); State v. Parson, 437 S.W.3d 457, 496 (Tenn. Crim. App. 2011)
(affirming denial of judicial diversion where Defendant’s amenability 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 153, 158 (Tenn. 1999)). We conclude that the trial court properly considered and
weighed the Parker and Electroplating factors on the record and accordingly did not abuse
its discretion in denying the Defendant’s request for judicial diversion. The Defendant is
not entitled to relief.
CONCLUSION
Based on the foregoing reasoning and analysis, the judgment of the trial court is
affirmed.
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CAMILLE R. MCMULLEN, JUDGE
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