State of Tennessee v. Ronald Ailey

08/19/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

January 23, 2019 Session

STATE OF TENNESSEE v. RONALD AILEY

Appeal from the Criminal Court for Hamblen County

No. 14CR619 Alex E. Pearson, Judge

No. E2017-02359-CCA-R3-CD

The Defendant, Ronald Ailey, was convicted by a jury of two counts of aggravated

assault. Thereafter, the trial court imposed concurrent terms of four and one-half years,

denied the Defendant’s request for judicial diversion, and ordered the Defendant to serve

six months’ incarceration before being released on supervised probation. Upon the

Defendant’s motion for new trial, he argued that he received ineffective assistance of

counsel due to trial counsel’s failure to call exculpatory witnesses, failure to investigate

and prepare for trial, failure to impeach certain State’s witnesses, failure to prepare the

Defendant to testify, failure to object to improper questioning of the Defendant on cross-

examination, and failure to adequately advise the Defendant during plea negotiations. On

appeal, the Defendant contends that the trial court erred by denying him judicial diversion

or total probation and by applying certain enhancement factors. He also challenges the

trial court’s ruling that he received the effective assistance of counsel at trial. Upon a

thorough review of the record and the applicable law, we affirm the judgments of the trial

court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Wade V. Davies (on appeal and at sentencing), Knoxville, Tennessee; and Jonathan M.

Holcomb (at trial), Morristown, Tennessee, for the appellant, Ronald Ailey.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;

Dan E. Armstrong, District Attorney General; and Kimberly L. Morrison, Assistant

District Attorney, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

On August 21, 2014, a confrontation occurred in a rural area outside Morristown

known as “Boatman Mountain,” during which the Defendant fired his handgun four

times. Thereafter, the Hamblen County Grand Jury indicted the Defendant for two

counts of aggravated assault by knowingly causing a ten-year-old girl (“the minor

victim”) and her thirty-three-year-old brother (“the adult victim”), to fear imminent

bodily injury by displaying a deadly weapon. See Tenn. Code Ann. § 39-13-102.

Following a jury trial, the Defendant was convicted as charged.

1. Trial. The 911 calls recounting the incident were entered into evidence at the

beginning of trial. The first call was placed by the adult victim at 8:00 p.m., and he

relayed to the operator that the Defendant had shot at him four times. Also at 8:00 p.m., a

call came in from a neighbor, who lived at 1736 Boatmans Ridge Road, wherein the

caller stated that a man in a white truck “just pulled up and started yelling” and shots

were fired. This caller also said that the noise “could’ve been a firecracker.” The next

call came from the victims’ father at 8:01 p.m. The operator asked the victims’ father

what was “the reason why [the man] was shootin’ off the gun?” The victims’ father

replied, “I don’t know the whole story[.]” The victims’ father said that the shooter was

“supposedly” the Defendant. The victims’ father also told the operator:

I mean I don’t really know what happened. I live down here. That

was my little girl and my boy, and (unintelligible) said there were gunshots

fired. And some people up here seen it [sic], and I’m down here calming

my little girl down, and he was hollering. I don’t know if my, the lady

came up there and jumped all over him, and he called her a b---h or what,

but my God, that doesn’t give him right to come out here with a gun.

The adult victim called again at 8:12 p.m. to see how much longer before the officers

arrived.

The Defendant’s wife called 911 at 8:15 p.m. She relayed her version of events

and informed the 911 operator that her husband had returned home. At 8:20 p.m., an

officer phoned the Defendant’s residence and spoke with the Defendant, telling “him to

stay put[.]” While this officer was speaking with the Defendant, the Defendant stated, “I

hate that it happened. He just started coming towards me, and I just shot in the ground, I

didn’t know what to do. I didn’t want to shoot him. . . . I just didn’t like someone

walking on my private property.”

The adult victim testified that, at the time of this confrontation, he had lived with

his parents for thirty-one years in their house on Buggy Road, just off Boatmans Ridge

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Road. He was five feet, eleven inches tall and weighed around 195 pounds. According

to the adult victim, he had walked around Boatmans Mountain over the years, and he had

never “had any issues” walking on other people’s property. He stated that he took regular

afternoon walks with his ten-year-old sister, the minor victim, because “[i]t was her

favorite thing to do[.]”

The adult victim explained that, while walking through this area, he had regularly

cut through an open gate on the Aileys’ property using their driveway to reach another

residence. According to the adult victim, this gate was an approximate fifteen-minute

walk from his home. The adult victim stated that he had worked “plenty of times” for the

Coffmans who lived in the residence past the Aileys’ home. He claimed that he was not

aware of any other way to get to the Coffmans’ residence. When asked if he was aware

that the driveway was private property, the adult victim replied, “I thought it was a right-

of-way road out there. And I have walked out there and rode bicycles out there for thirty

plus years.” The adult victim indicated that he never saw a “no trespassing” sign posted

at the gate. The adult victim further maintained that he had seen garbage trucks drive

down the road, so he assumed that the driveway was an access road open to the public.

The adult victim explained that his family had to move their garbage cans to the end of

their driveway because the collection trucks would not drive down the driveway.

On August 21, 2014, he and his sister went for a walk. Because the temperature

outside was around ninety degrees, the adult victim carried “a kid’s backpack” on his

shoulders that was full of bottles of water, granola bars, and some Yoo-hoos. He

described the backpack as “a two-shoulder backpack” that was approximately ten to

twelve inches in length and similar to a book bag in which someone would put books and

carry to school. He asserted that it was not a “duffel bag[.]”

According to the adult victim, he and his sister had passed the Aileys’ gate and

were walking along the roadway when some dogs, which appeared to be Labrador

Retrievers, came “running” at them from the direction of the Aileys’ house. The adult

victim stated that the minor victim was “very scared and started crying” because “she

thought the dogs were going to eat her up.” The adult victim tried to reassure his sister

that the dogs would not harm her, so he went towards them to try to pet them. The adult

victim knelt down “where the pavement stopped” and tried to call the dogs over to them.

The adult victim relayed that Mrs. Ailey emerged at that time. The adult victim asserted

that he had the backpack on his shoulders when they encountered Mrs. Ailey.

According to the adult victim, as Mrs. Ailey started to walk towards them, she was

“hysterical” and yelled, “[Y]ou are on private property, leave, get out of here, get off my

property, you are not supposed to be here.” The adult victim provided Mrs. Ailey with

his father’s name and told her that he had lived nearby for thirty years and that he and his

sister were “just walking.” The adult victim maintained that he “tried to talk” to Mrs.

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Ailey, “but she wasn’t having it.” She insisted that they leave immediately, so he and his

sister “turned around” and started back the way they came. The adult victim testified

that, while he and his sister continued to retreat, Mrs. Ailey followed them, repeatedly

telling them that they were on private property and needed to leave. The adult victim

retorted to Mrs. Ailey that “she didn’t have to be mean about it and be a b---h about it.”

According to the adult victim, it took them “maybe thirty seconds” before they started to

leave the Aileys’ property, and they began walking back towards the gate as soon as Mrs.

Ailey told them to leave.

The adult victim testified that, when he and his sister got “out on top of Boatmans

Ridge there right past the gates,” they heard a vehicle approaching rapidly. This

frightened the minor victim, and because she became “hysterical[,]” she urged her brother

to hide with her in some nearby bushes. He explained to her that there was no reason to

hide. However, she was crying, so he relented and hid behind a tree with her. From his

vantage point, the adult victim saw the Defendant speed by in a white pickup truck.

According to the adult victim, once the Defendant was out of sight, the victims resumed

walking.

When the victims got close to the residence of Timmy and Misty Loven, which

was on the right-hand side of Boatmans Ridge, the victims intended to veer from the road

and cut through a field on the left-hand side to go home. However, the adult victim then

noticed the Defendant’s truck stopped in the road approximately 500 to 600 yards away.

According to the adult victim, they were “just right off the road” maybe ten to twenty feet

when the Defendant sped towards them. He recognized the Defendant and told his sister

that the Defendant “probably want[ed] to talk to [them].” When asked what he thought

the Defendant wanted to talk about, the adult victim responded that he believed the

Defendant would say not to walk on his property or talk to the Defendant’s wife.

The adult victim stated that the Defendant stopped abruptly as he neared them.

The adult victim maintained that he put down the backpack he was carrying and placed

his shirt, which he had been carrying over his shoulder, on top of it. He then pulled his

sister close to him. When the Defendant exited the truck, he was brandishing a firearm

and was “[v]ery angry.” According to the adult victim, the Defendant announced, “I’m

going to kill you[,]” and fired his weapon towards the victims, “blowing dirt all over”

them. The Defendant said that he was going to kill the adult victim for speaking with the

Defendant’s wife. The adult victim raised his hands in the air and pleaded, “Hey look,

I’ve got a kid here[,]” to which the Defendant replied, “I don’t give a damn. You talked

to my wife.” The adult victim told the Defendant, “Look, I don’t want no [sic] trouble[,]”

but the Defendant fired the gun twice more, saying each time, “I’m going to kill you.”

The adult victim said that he sent the minor victim home after the third shot, instructing

her to “run home and don’t look back.” The minor victim complied. The adult victim

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explained that he “thought [he] was going to die that day”; that he “was in fear of [his]

life”; and that, following the third shot, “[he] threw [his] hands in front of [his] face

because [he] knew it was it[.]” After the Defendant fired at him a fourth time, the

Defendant got inside his truck, according to the adult victim. When the adult victim

asked the Defendant to identify himself, the Defendant provided his name and said,

“[Y]ou know who I am.” After the Defendant drove away, the adult victim phoned 911.

The adult victim testified that he saw Mr. Loven out there that day. According to

the adult victim, Mr. Loven was standing in his yard on the other side of his pickup truck

and was watching the events unfold. The adult victim described that Mr. Loven’s house

was “right across from where [the Defendant] was parked.”

The adult victim testified that the Defendant only got out of his truck once, having

his weapon in hand at that time, and that the Defendant never returned to the truck before

getting inside and leaving. The adult victim also maintained that he did not walk towards

the Defendant, other than possibly taking one step, because he “froze” when he saw the

gun. According to the adult victim, the Defendant never asked to see his hands.

Moreover, the adult victim asserted that he was not in possession of a weapon during this

encounter with the Defendant and that he had nothing in his hands. The adult victim also

averred that he did not throw rocks at Mrs. Ailey.

When asked how he had been affected by this incident, the adult victim responded,

“It’s affected me pretty bad. I have missed work over it. I actually lost my job, the job I

had for three years. I had to take antidepressants, anxiety medication. It has affected me

pretty bad, and my family, especially [the minor victim].” The victims, along with their

parents, had filed a civil lawsuit against the Defendant seeking $500,000.

On cross-examination, the adult victim was asked,

Q. But you are a convicted felon, are you not?

A. No, I’m not.

Q. You don’t have—

A. I have got a clean record.

Q. I apologize.

A. Thank you.

The adult victim claimed that his medical records would confirm the shooting’s impact

on him, but he had not provided those to the State. However, he clarified that the State

had never requested those. The adult victim’s preliminary hearing testimony was read

into the record and evinced some minor discrepancies, such as when the adult victim told

the minor victim to run home, their distance off the road was thirty feet when the

Defendant sped towards them, and the Defendant fired at him “bam, bam, bam.”

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The minor victim also testified at the Defendant’s trial and relayed a similar

version of the events as her brother. She testified that she “was stressing out” that day, so

she wanted her brother to take her for a walk to calm her down. According to the minor

victim, whenever she and her brother went for a long walk, they “would always go

through” the Aileys’ gate. She also did not see any “no trespassing” sign posted and

believed it was a public road.

After passing through the gate, she and her brother encountered the Aileys’ dogs,

which scared her because they were “really muscular” and barking. The minor victim

said that her family had a Labrador Retriever that had recently passed away and that she

wanted to pet the dogs “to get over her fear of them[.]” She and her brother had gone

“over to the rocks” to try and pet the dogs when Mrs. Ailey came outside. According to

the minor victim, Mrs. Ailey started yelling at them “saying that they had an electric

fence” and that she and her brother needed to leave. Mrs. Ailey was swearing, so they

turned around and started back towards the gate. Her brother said to Mrs. Ailey that “she

didn’t have to be a b---h about it[,]” but that was all he said, according to the minor

victim. She further averred that her brother did not throw anything at Mrs. Ailey that day

and described her brother as “a very nice person.”

The minor victim said that the entire conversation between her brother and Mrs.

Ailey was brief and that Mrs. Ailey was on the phone when they started to leave. The

minor victim maintained that, as they were walking back down the driveway, she started

“freaking out,” believing that Mrs. Ailey was calling the police. The minor victim

explained that she “had anxiety at that point” because she “had a lot happen in [her] life

up to that point[.]” She and her brother went “off the roadway” and sat down because she

was having a panic attack, which, she relayed, was only her second ever attack. A white

truck “flew past,” according to the victim. The minor victim said that, about two minutes

after the truck had passed them, she and her brother got up and proceeded to start walking

back home. The minor victim testified that, while she and her brother were subsequently

speaking with their mother by telephone, their mother “was talking about how the white

truck sped down the road and backed up in [their] driveway and stuff[,]” so the minor

victim “didn’t know what to think at that point.”

When they reached their aunt and uncle’s field, she and her brother decided to cut

through the field to get to their house. The minor victim described that, at that point, the

Defendant “sped up and he stopped his truck right in front of [them.]” She maintained

that the Defendant “jump[ed] out” of the truck with a gun and pointed it at their heads;

that the Defendant “start[ed] saying that he [was] going to kill [them] and he started

cussing [her brother.]” She expressed that “[d]irt was splattered all over [them]” from the

shots that the Defendant fired and that the Defendant “said I’m going to kill you about

four times.” According to the minor victim, “by the third shot,” her brother said, “I have

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a little girl here and [the Defendant was] like I don’t give a damn.” She then reluctantly

ran home in accordance with her brother’s instruction. She believed “that was the last

time [she] was going to see [her] brother alive.”

The minor victim testified that her brother’s hands were empty during the

altercation and that her brother “was not angry at all[,]” but instead “was in pure shock.”

She said that the Defendant appeared “[a]ngry” and “fuming” and that he was not acting

like “a normal person would[.]” The minor victim averred that she “thought [she] was

about to die.” When asked how she had been affected by this incident, the minor victim

responded,

I’m twelve years old, I’m on antidepressants, I have to take a twenty

milligram of an antidepressant a day and if I don’t, I start having panic

attacks. Anytime I hear a loud noise, I lose it, I completely lose control, I

fall down crying. Like one time I was at a bible school and all of a sudden

a loud pow happened, I couldn’t stand up, I couldn’t do anything. I have

panic attacks like not monthly now or weekly.

She further relayed that she still lived on Boatmans Ridge Road and that, “every time

[she went] to school or c[a]me home from school,” she “still ha[d] to see the spot.”

The victims’ mother (“Donna”)1 testified that they were grilling hamburgers on

the evening of August 21, 2014, and that the burgers were almost ready, so she called her

son to see how far he and his sister were from home. When Donna spoke with her son,

she could hear the minor victim “crying in the background.” Donna asked what was

wrong, and her son told her that they were “hiding in the woods.” Donna replied,

“Whatever is going on, . . . get home.” Shortly thereafter, Donna, who was out on the

deck, saw “a white truck go out [Buggy R]oad really fast.” A few minutes later, Donna

saw “the white truck c[o]me flying down [their] driveway almost to the house,” and then,

it “backed up real fast in reverse” and headed “out [of] the driveway.” Donna watched as

the truck stopped at another neighbor’s house. According to Donna, that neighbor, Joe

Whiteside, was working on his lawn mower. Donna estimated that the Defendant only

stopped at Mr. Whiteside’s for “three to five seconds.”

Donna stated that, when she spotted her children “up on the road,” she saw the

white truck, almost simultaneously, speed up “really fast” in their direction. Knowing

that “something [was] not right,” Donna got the attention of her husband and they “took

off running.” As they were “over halfway up the hill,” the Defendant stopped his truck

near the children, “jumped out” with “something shiny” in his hand, and ran “around the

1

It is the policy of this court to protect the identity of minor victims. In furtherance of that policy, we

will use the first names of the minor victim’s family members. We intend no disrespect in doing so.

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back of [the truck] yelling ‘I’m going to kill you.’” Donna said that she heard the

Defendant say this three times.

Donna testified that she started to wave her arms, jump up and down, and

repeatedly scream at the Defendant, “[P]lease don’t kill my kids.” According to Donna,

her daughter and son “were standing side by side” when she “started hearing the gunshots

going off.” Donna described that she heard one gunshot and then another and that, after

those shots, she heard her son urging his sister to run home and not “to look back.”

Donna stated that her daughter “turned around . . . and was crying and screaming” as she

came running down the hill. Donna said that her daughter ran past her into the house and

that her daughter appeared to be “totally in shock[.]” When Donna followed her daughter

inside, she watched her daughter run in circles before shouting out, “I know he’s killed

him, . . . he has shot my brother, he has killed my brother, he’s dead, I know he’s dead.”

When Donna tried to go after her daughter who had run out the front door, Donna “just

fell down in the floor” crying because she believed her son was dead.

According to Donna, the Defendant never went back to the truck after exiting it;

her son did not have anything in his hands during the incident; and her son did not

“approach [the Defendant] in an aggressive way[.]” Donna also saw her son’s bag “on

the ground” a short distance away from where her son was standing, but she said that her

son never attempted to go back towards the bag.

The victims’ father (“Tom”) also testified, relaying a similar version of the events

as his wife. Tom said the he was on the deck cooking when his wife came and told him

that their children were hiding in the bushes and that the Defendant “was chasing them in

his truck.” Just then, Tom saw the Defendant “coming down” their “gravel right-of-way

road almost to [their] house.” Tom began “throwing [his] hands up” in the air and

walking towards the road to speak with the Defendant. According to Tom, the Defendant

turned his truck around and “burned out.”

Tom went into the field and saw his children “at the top of the road” and hollered

at them that they needed to “hurry up” and “get down” to the house because “something

[was] wrong with” the Defendant. Donna moved in behind Tom at that time. Tom saw

the Defendant stop at Mr. Whiteside’s house before the Defendant “floor[ed] it” towards

the children. According to Tom, the Defendant jumped out of his truck with a gun in his

hand and screamed, “I’m going to kill you[.]” Tom described that the Defendant pointed

the gun at the victims who were side by side and shot “one time, two time[s], three

time[s], repeatedly hollering I’m going to kill you”; that his son told the minor victim to

run; that the Defendant shot again and “dirt flew on her and everything”; and that the

minor victim ran down the hill “just hysterical.” Tom also heard his son “holler[] out

can’t you see there’s a kid here[,]” and the Defendant reply, “I don’t give a damn.” The

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Defendant then got in his truck and left the scene. Tom did not initially know if his son

had been hit by a bullet. When the altercation was over, Tom called 911.

Tom explained that his son “had some kind of little kiddy backpack” in his

possession during the encounter, which his son dropped on the ground when the

Defendant “flew to come down there[.]” Tom claimed that his son never went back to

the backpack. According to Tom, his son was just standing there and never approached

the Defendant aggressively, but the Defendant “was totally out of control and angry[.]”

Tom thought that “[his] kids were gone.” When asked if the minor victim was “having

issues” from these events, Tom responded,

Sh[e] has big issues. She can’t play on her swing set, she has had trouble

sleeping at night. The Aileys [have gone] home before, she has run, fell

down on the back deck thinking they were going to come down the

driveway. I have to drive her fifty-five miles on the other side of Knoxville

for therapy, she is on medication. She is in real bad shape and she has

anxiety.

On cross-examination, Tom was asked about his 911 call. Tom said he informed

the operator that the Defendant “ha[d] just shot at [his] kids” and that they “need[ed] to

get out [t]here or something like that.” Tom was asked if he recalled telling the 911

operator that the gunshots “might [have] been fireworks[,]” and Tom replied in the

negative. Questioning about the 911 call continued:

Q. So if the jury were to hear a 911 call with you on it in your voice saying

you don’t know what happened, there may be fireworks somebody being

fired [sic], that you are not sure what is going on and you didn’t see where

[the Defendant] went, that would be a lie, wouldn’t it? Or you would be

lying now. One of them has to be a lie, correct?

A. Repeat your question.

Q. If the jury heard a 911 call—what did you tell the 911 operator?

A. To the best of my memory, [the Defendant] just shot at my kids, . . . you

all need to get out here.

Q. Are you aware of anybody telling them—do you remember anybody

telling them that it might have been fireworks?

A. Not to my knowledge.

....

Q. Would it be accurate on your first impression talking to law enforcement

saying I don’t know what happened, I wasn’t around, when you talked to

them?

A. I don’t know what happened, I wasn’t around?

Q. Yes.

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A. No, I didn’t say that.

Q. That wouldn’t [be] true?

A. Not unless they were talking about when they were out on his right-of-

way road.

Q. No, in talking about the shots being fired and why and what happened

when they were fired. You don’t recall saying I don’t know what

happened, I wasn’t around?

A. No, I don’t.

On redirect examination, Tom clarified that he was “not the caller on 911 from 1736

Boatmans Ridge who talked about firecrackers[,]” noting that was not his address.

The sound of gunshots drew the attention of Timmy and Misty Loven, who lived

nearby. Mrs. Loven testified that, on the day in question, she was sitting in her living

room watching television while her husband and stepson were working “out back” on a

car. Mrs. Loven went “to see what they were doing” and saw “a white truck the next

driveway up pull in but it backed out[.]” She described that it “went up the hill because

it’s like a private drive, and then that truck went down that private driveway and it made

an immediate right going out toward, back out toward . . . [the] road like going out.”

Mrs. Loven went back inside. “[A] few minutes later,” Mrs. Loven looked outside and

observed that same white truck at the victims’ home, and she maintained that it was “just

sit[ting] there” before backing up “like normal.”

A few more minutes passed before Mrs. Loven heard a gunshot and then another,

which she believed were “awful close” to her home. Mrs. Loven looked out her window

and saw the white truck and the victims “in the field” nearby. The next thing she

observed was the minor victim running towards her parents, and Mrs. Loven began

“getting really concerned.” She then heard a third shot and went outside. According to

Mrs. Loven, the Defendant and the adult victim were arguing, but she could not really

hear what they were saying. The Defendant then fired a fourth shot towards the adult

victim, who Mrs. Loven noticed was not wearing a shirt and was “patting” his skin as if

he believed he had been shot. Mrs. Loven then watched the Defendant get back in his

truck and “spin[] off.” Mrs. Loven never saw the adult victim with anything in his hands,

and it was only after the altercation was over that she saw the backpack lying on the

ground beside a tree.

Mrs. Loven testified that she ran to the adult victim, who was on the phone with

911. While the adult victim was on the phone, he asked her if she would “be a witness,”

and she agreed.

Mr. Loven also testified at trial. Mr. Loven conveyed that he was working on his

daughter’s car “in the driveway behind [his] house” when he observed a white truck pull

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up the “driveway right behind [his.]” He heard someone in the truck say, “[O]h, hell

that’s not them,” before the truck backed out of the driveway and proceeded to leave.

Mr. Loven continued working on his daughter’s car and later heard a gunshot. When he

heard a second shot that “seemed closer[,]” he looked up and walked forward “out of

curiosity.” He saw the same white truck that he had seen earlier “s[i]tting in the road and

there [were] two men arguing.” Mr. Loven described his vantage point as “diagonal

towards where [the] truck was s[i]tting and where they were” arguing. He affirmed that

he had “a clear visual.”

Mr. Loven said that he heard a scream and saw the minor victim “running down

the hill” saying “he’s going to kill my brother, he’s going to kill my brother.” According

to Mr. Loven, the men “continued to argue,” and the Defendant shot again. The

Defendant “act[ed] like he [was] going to get in this truck,” but “he [went] back” and

shot a fourth time. When the Defendant was leaving, Mr. Loven heard the adult victim

ask “who are you anyway,” to which the Defendant responded with his name and said

“you know who I am.”

According to Mr. Loven, the adult victim did not have anything in his hands

during the altercation; the adult victim never approached the Defendant aggressively; and

the adult victim seemed “scared.” Mr. Loven testified that he did not hear the shots as

going “bam, bam, bam.”

Detective Statler Collins with the Hamblen County Sheriff’s Department

responded to the 911 calls. After speaking with both victims, Detective Collins and two

patrol officers drove to the Defendant’s house where they were met by the Defendant and

his wife in the driveway. The Defendant asked, “Can I give my side of the story?” After

being Mirandized, the Defendant gave the following statement:

[The Defendant] stated that the victims . . . came on his property and got

into a verbal altercation with Mrs. Ailey. [The Defendant] stated that [the

adult victim] called his wife a b---h and they did leave the property. He

said that he did get into his truck and go after them. He did drive up and

down the road a couple times looking for them. He did see them and he

stated that the boy put down a backpack and told the girl to go home. He

then stated that he pulled up next to him and got out with his gun to his

side. They got into a verbal argument and [the Defendant] said that the boy

had his hand in the backpack and that is when he fired a round beside of

him. He said that the boy continued to walk toward him and fired three

more rounds in the ground beside him.

Detective Collins returned to the victims’ house and asked the adult victim about

the backpack. According to Detective Collins, the adult victim indicated that he put the

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backpack down and that nothing was in his hands when the Defendant fired at him.

Detective Collins then returned to the Defendant’s house and arrested him.

Both the Defendant and his wife, a Morristown school teacher of twenty-two

years, testified at trial. Mrs. Ailey stated that, on August 21, 2014, she spotted a stranger

“crouched down in [her] yard” with a little girl at his side. Her dogs “were going nuts,”

barking and jumping, because “someone strange was in her yard.” Mrs. Ailey stated that

the stranger was trying to “bait” the dogs by “making gestures to them” and calling them

saying that he had “something” for them. Mrs. Ailey told the stranger that the dogs could

not reach him because of an electric fence that limited how far they could roam. She also

“asked him what he was doing on [her] property, did he not see the no trespassing signs.”

According to Mrs. Ailey, the stranger did not say much in response to her but kept calling

her dogs. She testified that she asked the man to leave, but he did not go immediately.

When she asked the stranger again to leave, he stood up and “took about six steps” to

proceed back towards the gate, but he stopped. Mrs. Ailey requested that he leave once

more, to which the stranger replied, “You f--king b---h,” and gave “[her] the finger.”

Mrs. Ailey said that the little girl started “screaming and crying at him.” The stranger

and the girl then “meandered down the road,” eventually disappearing off of her property.

According to Mrs. Ailey, it took about eight to ten minutes for them to leave.

Mrs. Ailey asserted that the stranger had a “long bag on his shoulder” and that he

kept his hand in it throughout the time he was in her yard. According to Mrs. Ailey, the

bag was not a backpack, and it “looked like a long weapon’s bag.” She maintained that

she felt “very threatened” for her safety and her dogs because she believed that the

stranger had a weapon in his bag and because she lived in a remote area with posted no

trespassing signs. Mrs. Ailey described the man as “very, very scary,” “very off

balance,” and “very erratic.” When asked to identify how the man’s appearance was

scary, Mrs. Ailey described him as “very sloppy[,]” but she clarified that it was “the way

he was acting” that “really was the scary part.” Mrs. Ailey also asserted that the man’s

speech was “mumbled” and incoherent, possibly evidencing “a drug problem or

something.”

After the stranger left, Mrs. Ailey went inside and relayed the events to her

husband. According to Mrs. Ailey, the Defendant could see that she “was terrified” by

the recent incident. Mrs. Ailey confirmed that the Defendant then got in his truck and left

their house. When asked if her husband was angry when he left, Mrs. Ailey, replied,

“Well, he wanted to see who was in our yard, yes . . . .” Mrs. Ailey did not immediately

call 911.

Mrs. Ailey confirmed that she phoned 911 when her husband returned home

following the confrontation, and she knew that “warning shots” had been fired at that

time. She explained that she did not call 911 right after the Defendant’s return but

-12-

“waited for a few minutes” because she “was so distraught and so upset” that she

“wanted to calm down a little bit” before placing the call.

Mrs. Ailey testified that she had lived at her home for twenty-four years.

According to Mrs. Ailey, they had been leaving the gate to their property open for

approximately one year prior to this incident at the request of their next-door neighbors.

She asserted that she had never seen this man walking down her driveway before and, in

fact, had “never seen a stranger in [her] yard” period. When asked whether she was

familiar with the victims or their parents, Mrs. Ailey replied, “No, I had never heard of

those people or seen any of those people.” She further maintained that the adult victim

had never requested permission to be on her property.

The sixty-year-old Defendant testified that he worked at Burke-Ailey Construction

and that he had lived at his current residence for twenty-four years. He maintained that a

no trespassing sign was posted at his gate on August 21, 2014. The Defendant averred

that, although the gate was open that day, it “was normally closed at that time.”

According to the Defendant, it was not common for people to walk down his driveway

and that, in his twenty-four years of living on the property, he had never seen the adult

victim doing so.

The Defendant stated that, after his wife came inside and told him about the

encounter, he left in his truck to find the person who his wife claimed had threatened her

and their dogs. The Defendant indicated that he believed the man was possibly armed

because the man was not scared of calling their two large dogs. Also, the Defendant’s

wife instructed the Defendant to “be careful” as he was leaving because the man could be

armed. The Defendant asserted that he was a “card carrying permit” holder and that he

kept a .380 in his truck’s door. According to the Defendant, his intentions in leaving

were to “go try to find out who had come on [his] property and threatened [his] wife and

[his] dogs, try to talk to them.” He claimed he “wasn’t looking for a confrontation” that

he “just wanted to find out who it was and ask them not to come back.”

The Defendant said that he left his house and drove past his gate onto Boatmans

Ridge Road, driving until he reached Buggy Road, where he “back[ed] down and turned

around.” While proceeding back towards his home, the Defendant pulled into the

driveway behind the Lovens’ home, but he left when he did not see anyone there. When

he pulled out of that driveway, rather than continue home, the Defendant again drove

towards Buggy Road and “back down it again.” Once back on Boatmans Ridge Road

driving in the direction of his home, the Defendant saw that Joe Whiteside’s mower “had

stopped and it was on a slope, pretty steep bank.” The Defendant asked Mr. Whiteside if

he “need[ed] some help moving [his] lawn mower” because it was getting dark, but Mr.

Whiteside said no that he would wait until the next day to move it. When Mr. Whiteside

inquired what the Defendant was doing, the Defendant “explained to him that [he] was

-13-

looking for someone that had threatened [his wife] and the dogs.” The Defendant

indicated that, at no time, was he driving erratically, making loud noises with his vehicle,

or “spin[ning]” his tires. The Defendant also averred that he did not “go down to” the

victims’ home and that he did not “go all the way up” the driveway behind the Lovens’

house.

According to the Defendant, while he “was sitting there talking to” Mr. Whiteside,

he saw the victims crossing the road ahead and said “that may be them” and that he was

“going to go talk to them.” The Defendant claimed that he “eased off the hill and drove

down and stopped[,]” never speeding or spinning his tires as he approached the victims.

The Defendant maintained that the adult victim “laid his shoulder bag down on the

ground” and walked “the little girl down to the corner of the [Coxes’] house out of the

way.” The Defendant claimed that, after he stopped his truck, the adult victim started

walking back towards him and “pick[ed] the bag up, not all the way off the ground but

just reach[ed] down in the bag and then la[id] it back down.” The Defendant claimed that

he did not initially have his gun when he got out of his truck but retrieved it when the

adult victim reached into the bag, believing that the adult victim may have gotten a

weapon out of the bag. The Defendant alleged that he “chamber[ed] a round” but held

the gun at his side as he walked around his truck to address the adult victim. The

Defendant “asked him who are you, what’s your name, why did you . . . come on my

property and threaten my family.” When the adult victim refused to answer the

Defendant’s questions or show his hands, the Defendant fired two, successive warning

shots “in the dirt” towards a nearby field. The Defendant explained,

So I fired two warning shots way to the left because . . . I didn’t want a

ricochet. Where we were standing was elevated, had this slope and it was,

you know, a perfect ricochet situation. So I didn’t want to fire at anybody

or hit a building or whatever so I fired into the field and the wood line, I

fired two shots.

The Defendant testified that, despite the warning shots, the adult victim did not

“bat an eye” and continued approaching him. The Defendant requested that the adult

victim stop, but when he did not comply and still would not show his hands, the

Defendant fired two more shots. The Defendant said that he had one more round in the

chamber, which he did not want to fire because he needed it to protect himself.

According to the Defendant, after he fired the last two warning shots, the adult victim

pulled out a phone, held it up, grinned, and said, “I’ve got you now.” The Defendant

warned the adult victim not to return to his property and left.

The Defendant averred that the adult victim was about eight yards away when the

Defendant fired the first two warning shots; that the adult victim was “getting pretty

close” when the Defendant fired the second two shots; that he never told the adult victim

-14-

that he was going to kill him; that, if he intended on shooting the adult victim, he would

not have “missed four shots”; and that he never pointed the gun at the adult victim’s face.

The Defendant asserted that, while he “was upset that someone came in and threatened

[his] family,” he was not “in a rage” as they claimed. The Defendant speculated, “[Y]ou

know, if I was in a rage, why would I stop and ask somebody if they needed help with

their lawn mower. . . . I was just trying to find out who he was and what he was doing

there.” According to the Defendant, he had no “other option at that point” but to shoot,

and he was only trying to protect himself.

On cross-examination, the Defendant explained that he did not see the minor

victim again after the adult victim “walked her down to the corner of the house[.]” The

following dialogue then took place:

Q. So the people that say they saw her running are not telling the truth?

A. They are lying.

Q. And [the minor victim] is lying?

A. Yes, ma’am.

The Defendant confirmed that, although the adult victim would not show him his right

hand, he never saw the adult victim in possession of a weapon that evening. The

Defendant averred that he did “have a right” to ask the adult victim to show him his

hands due to the adult victim’s actions that evening. Also, when confronted with the

statement he gave to Detective Collins, the Defendant said that Detective Collins must

not have understood him because he did not get out of his truck with his gun in hand.

When asked why he did not call 911 before he went looking for the victims, the

Defendant explained that it would have taken “a while for them to get up there” and that

he “tr[ied] to protect his family.”

2. Sentencing Hearing. The Defendant submitted an application for judicial

diversion. Attached to his application were multiple support letters written on his behalf,

which included letters from the Defendant’s neighbors Eddie Cox and Donna Coffman,

letters from community and family members, a letter from the Defendant’s business

partner, and a letter from the Defendant’s pastor. It was expressed in several of the letters

that the Defendant had indicated his remorse.

The application also contained affidavits from several neighbors, Joe Whiteside

and Sandra and Eddie Cox. In the affidavit, Mr. Whiteside stated that the Defendant “did

not drive at a high rate of speed down the road” and that he did not hear anything like the

Defendant’s slamming on his brakes when the Defendant stopped his truck. Mr.

Whiteside also relayed that he saw the adult victim walking towards the Defendant and

heard someone say something to the effect of, “Who are you calling a boy.” Mr.

Whiteside stated that he never saw the minor victim while the Defendant was shooting,

-15-

that he did not hear the Defendant threaten to kill anyone, and that he did not see the

Defendant point the gun at the adult victim. Mrs. Cox, who lived very close to where the

incident occurred, stated in her affidavit that she did not hear any vehicle making loud

noises in the neighborhood prior to her hearing the gunshots. She also averred that she

did not hear anyone yelling or screaming or threatening to kill anyone. Mr. Cox stated in

his affidavit that he returned home after the shooting but before law enforcement arrived.

According to Mr. Cox, he found “two places in the field close together where the ground

was disturbed and that appeared to be where bullets might have hit,” and ultimately, he

and the officers “dug up two bullets.”

In addition, attached by the Defendant to his application for diversion was a

deposition given by the Defendant in the civil proceeding. In the deposition, the

Defendant denied responsibility for firing a weapon at the victims and insisted that both

victims, their parents, and Mr. and Mrs. Loven had lied about the offenses.

The presentence report, included in the technical record on appeal, was apparently

submitted to the trial court before the sentencing hearing. It indicated that the Defendant

had no prior criminal history, that the Defendant was a college graduate, that the

Defendant owned Burke-Ailey construction with a business partner since 1986, that the

Defendant’s yearly income was approximately $65,000, that he had been married for

thirty-four years, and that he had two sons. According to the Defendant, he coached his

sons’ ball teams when they were teenagers, and he had funded their college educations.

He also relayed that he served on the Board for the Morristown Chamber of Commerce

and the Knoxville Association of Building Contractors. The Defendant reported his

mental health as “excellent.” The Defendant denied using illegal drugs or abusing

alcohol but conceded that he smoked marijuana in college. He said that he attended

church regularly. The Defendant reported that he took prescribed medication for his

allergy, cholesterol, and acid-reflux problems, as well as an anti-inflammatory drug.

Several victim impact statements were contained in the presentence report. The

adult victim said that he and his family had “faced physical, mental, and financial

hardships.” The adult victim reported “[e]ndless hospital and doctor visits for [his]

hypertension, therapy visits, and adjusting medications” due to these events, which had

resulted in unpaid medical bills. He further relayed that he lost “a great job of three years

due to absences for medical, therapy, depositions and court.” The adult victim

maintained that the Defendant “should do jail time just like anyone else.”

The minor victim noted that she was ten years old at the time of this encounter and

averred that, prior to these events, she “had no fear in [her] life.” She stated that now she

was afraid every time she saw the Defendant or his wife “drive in front of [her] house”

because she was “terrified [they were] coming to kill [her] and [her] brother.”

-16-

The victims’ parents also provided victim impact statements. They described the

minor victim’s behavior when she saw the Defendant’s truck pass by their house. They

said that the minor victim suffered from nightmares and from “uncontrollable anxiety”

that required medication. According to the victims’ parents, their daughter was now

scared by loud noises and had to be taken to therapy in Knoxville every three weeks,

which was a financial hardship because it was fifty-five miles one way. They averred

that their daughter’s “personality ha[d] changed a lot.” The victims’ parents relayed that

the family could no longer take walks around the neighborhood and that they locked their

doors after this incident. As for their son, the adult victim, they maintained that he had

been “suffering from a lot of the same symptoms” as the minor victim experienced. The

victims’ mother indicated that, due to this incident, she took “medication for anxiety

[and] nerves, stress.” The victims’ father stated that he carried a gun at all times at

present because things were “very stressful now on the mountain.” The victims’ parents

prayed, “[N]o he should not be released on parole supervision, he has showed no remorse

for the crime he did. He lied about everything and called us liars.”

Both victims gave brief victim impact testimony at the April 28, 2017 sentencing

hearing. They described the depression and anxiety they dealt with in the aftermath of

this encounter. The Defendant sought to question the victims, but the trial court did not

allow it. The Defendant’s attorney asked to submit the questions he would have asked

the victims had he been allowed to question them, and the court agreed. As pertaining to

the issue of the victims’ mental health, defense counsel wanted to ask the victims to

describe their medical treatment and explore whether the Defendant’s “conduct was the

proximate cause of the need for treatment.” The Defendant’s lawyer also wanted to

inquire “about the status of the civil claims,” “confirm that there [had] been no

confrontations with [the Defendant] in the [two and one-half] years since the incident,”

ask the adult victim about his working relationship with the Defendant’s next-door

neighbors the Coffmans, about the veracity of several of the individuals who provided

support letters and affidavits for the Defendant, and whether there was a familial

relationship between the victims and any law enforcement officer that was involved in

the investigation.

At the conclusion of the hearing, the trial court evaluated the evidence presented

by the parties. The trial court found the civil deposition particularly important, reading a

large portion of it into the record. Initially, the trial court denied the Defendant’s request

for judicial diversion. Thereafter, the trial court set the length of the Defendant’s

sentences at four and one-half years, found that consecutive sentencing was not

appropriate, and declined to grant full probation and instead ordered that the Defendant

serve six months’ confinement.

-17-

3. Motion for New Trial Hearing. The Defendant filed a timely motion for new

trial. In the motion, the Defendant averred that “false statements” had been made “by

prosecution witnesses.” Specifically, he argued that the adult victim had “falsely testified

[at trial] that he had a clean record[,]” noting that the adult victim had misdemeanor

convictions in 2000 in North Carolina for possession of marijuana and drug paraphernalia

and in 2002 in Tennessee for reckless driving. The Defendant submitted that, “[a]lthough

[the adult victim’s] convictions might not have been admissible for impeachment under

Rule 609 of the Tennessee Rules of Evidence, the witness had no right to testify falsely

regarding his record.” Next, the Defendant contended that the victims’ father testified

falsely “under oath that he had witnessed [the Defendant] commit the acts in question,”

citing to the statements the victims’ father made in the 911 call and the time that the call

was placed.

The Defendant then raised the issue of ineffective assistance of counsel.2 The

Defendant alleged that trial counsel rendered ineffective assistance in the following ways:

(1) Trial counsel did not adequately advise the Defendant of the State’s plea offer of full

probation or of the consequences of not accepting it; (2) Trial counsel failed to conduct

an adequate, thorough pretrial investigation into the facts and circumstances of the case;

(3) Trial counsel failed to interview Mr. Whiteside who would have supported the

Defendant’s version of events; (4) Trial counsel failed to subpoena Sandra Cox to testify

at trial who would have contradicted the statements made by the State’s witnesses about

the Defendant’s behavior; (5) Trial counsel failed to interview Eddie Cox who helped the

officers locate two bullet casings; (6) Trial counsel failed to request an instruction on the

lesser-included offense of reckless aggravated assault—“an offense that would have fit

the allegations more closely, even if self-defense were rejected”; (7) Trial counsel failed

to impeach the victims’ father with “his prior [911] statement that undermined his trial

testimony,” but rather, “trial counsel mistakenly attempted to impeach the witness with

911 statements that were made by someone else and this cross-examination in effect

supported the State’s case”; (8) Trial counsel failed to research the criminal history of the

adult victim and “was therefore unable to effectively cross-examine him after the

witness’s false statement regarding his record”; (9) Trial counsel failed to object to the

State’s improper cross-examination of the Defendant “in which the prosecutor asked [the

Defendant] to comment on the veracity of other witnesses”; and (10) Trial counsel failed

to prepare the Defendant to testify, including failing to inform him that it was “always

harmful to claim another witness is ‘lying’ when in fact that calls for speculation.”

The Defendant raised several additional issues as well. The Defendant submitted

that “[i]t was plain error for the prosecution to ask [the Defendant] to speculate as to the

veracity of other witnesses, including a child witness”; that it was error for the trial court

2

The Defendant had retained new counsel by the time of the sentencing hearing and the motion for new

trial hearing.

-18-

to fail to include a lesser-included offense instruction of reckless aggravated assault; that

the evidence was insufficient; and that cumulative error denied him a fair trial.

At the February 23, 2017 motion for new trial hearing, the Defendant testified that,

soon after he was charged with aggravated assault, he hired trial counsel and that he

provided trial counsel with “the full version of the events” and with the names of

potential witnesses. The Defendant named Mr. Whiteside as a potential witness because

the Defendant had interacted with Mr. Whiteside just minutes before confronting the

adult victim. The Defendant insisted that he told trial counsel that Mr. Whiteside would

be able to testify about the Defendant’s demeanor at the time. The Defendant alleged that

he “continuously” asked trial counsel to interview Mr. Whiteside during the two years

preceding the trial because the Defendant “felt like [Mr. Whiteside] saw it all take place.”

The Defendant noted that trial counsel was also his attorney in the civil matter concerning

this incident and that the victims’ lawyer inquired during a January 2016 deposition if

anyone from the defense team had interviewed Mr. Whiteside. The Defendant also

produced text messages in which he asked counsel to meet with Mr. Whiteside and in

which trial counsel indicated that this interview was imminent. According to the

Defendant, he had only learned shortly before trial that trial counsel had not spoken with

Mr. Whiteside.

The Defendant also claimed that he asked trial counsel to speak with Sandra and

Eddie Cox, who he thought were at home when the altercation occurred. According to

the Defendant, the Coxes’ home was the closest to the scene. The Defendant stated that

trial counsel told him that he planned to speak with the couple without the Defendant’s

being present to encourage them to speak “more freely.” The Defendant averred that he

had expected Mr. or Mrs. Cox to testify but learned from Mr. Cox at trial that trial

counsel had never spoken with them.

The Defendant testified that trial counsel provided him with a copy of discovery,

including a disc containing 911 recordings that the Defendant reviewed “multiple times.”

The Defendant stated that the call from the victims’ father was “substantial[ly]

differen[t]” in “tone and tenor” from the call placed by the neighbor Rainbow Drinnon

that lived at 1736 Boatmans Ridge Road. Because the Defendant believed that the

victims’ father’s testimony was substantially different from his 911 call, he asked trial

counsel to play the 911 recording of his call after the victims’ father testified. The

Defendant further alleged that he tried to correct trial counsel when trial counsel asked

the victims’ father if he had thought he heard fireworks because it was Mr. Drinnon, not

the victims’ father, who mentioned fireworks in his 911 call. According to the

Defendant, trial counsel ignored his requests in this matter. In addition, the Defendant

maintained that he did not see the victims’ father at the scene and that he informed trial

counsel of this detail.

-19-

The Defendant averred that he wanted to resolve the case through a plea

agreement that included diversion. The Defendant insisted that he told trial counsel

repeatedly that he did not want to go to trial. The Defendant said that he wanted to avoid

a trial for two reasons. He described his primary motivation for avoiding a trial as

follows: “I fired the shots, and you know, I did it for what I thought I needed to protect

myself. But I didn’t fire at anyone, but I fired the shots. So . . . if I’m guilty of that and

that’s assault, then I’m guilty.” The Defendant stated that his secondary reason was his

desire to protect his family and his business from “the court of public opinion.”

However, the Defendant acknowledged that trial counsel explained that the prosecutor

would not offer him diversion because the victims opposed any such plea agreement.

The Defendant claimed that, absent a plea agreement, he had planned to plead

guilty and apply for judicial diversion and appeal if it was denied. According to the

Defendant, however, trial counsel discouraged him from entering an open plea. The

Defendant acknowledged that he had “heard it’s hard to get diversion” but claimed that

trial counsel described him as a “perfect candidate.”

The Defendant indicated that he met with trial counsel a few weeks before trial

and that trial counsel said that the prosecutor wanted to make an offer but that the victims

would not agree to one. The Defendant asserted that trial counsel never relayed any offer

to him. The Defendant alleged that trial counsel described the case as “a slam-dunk,”

bragged that the prosecutor had “never beat” him in the courtroom, and insisted that,

despite her lack of success against trial counsel, the prosecutor would not prepare for the

trial. The Defendant relayed that trial counsel advised him that he could still seek

diversion if convicted by a jury and did not tell him that there would “be a worse

sentence by not pleading guilty.” According to the Defendant, if the prosecutor had

offered him a plea agreement that did not include diversion, he would have accepted it

“because [he] was guilty of firing the shots, and [he] never denied . . . firing the shots.”

The Defendant alleged that trial counsel never discussed the difficulties of a trial

involving a young victim and never advised him that most people convicted of

aggravated assault with a firearm go to prison. The Defendant insisted that trial counsel

did not discuss the potential for a sentence of split confinement or the possibility of a

conviction for a lesser-included offense. While trial counsel did explain the ramifications

of a criminal conviction, he only did so after recommending going to trial. Furthermore,

the Defendant maintained that trial counsel did not advise him of his right to remain

silent in the civil case and did not warn him to refrain from answering questions during

his deposition that accused other witnesses of lying. According to the Defendant, the day

before his trial, trial counsel reviewed the recording of the Defendant’s deposition with

him, said “that[ was] as good as [trial counsel had] seen [it] done,” and encouraged the

Defendant “to do the same thing” at trial. The Defendant noted that trial counsel did not

-20-

depose the victims or their parents prior to the Defendant’s criminal trial. The Defendant

was asked to describe any “additional preparation” he did in preparation to testify at trial,

and he indicated that he prepared on his own by reviewing “all the information [he] had,”

such as the police reports and listening to the 911 tapes.

The Defendant then challenged the trial court’s conclusion at sentencing that he

was “not remorseful.” He claimed that he hated that “this incident ever happened” and

regretted that he left his property that evening. He denied that he intended to hurt anyone

and insisted that he had “fired warning shots away from these individuals.” The

Defendant averred that he was sorry “if [he had] caused any emotional stress” before

asserting, “but . . . my wife and I were also victims here, too[.]” He concluded, “I always

said that I was guilty, I fired the shots, and I’ll plead guilty. And I’ve never denied that.”

On cross-examination, the Defendant conceded that, during his civil deposition, he

denied his guilt and would not “admit that he did anything wrong[.]” He also stated

multiple times in the deposition that he wanted to go to trial and did not intend on

pleading guilty. However, the Defendant maintained that he said these things on the

advice of trial counsel to provide “leverage to work out any kind of offer.” The

Defendant testified that trial counsel informed him prior to trial that the case hinged on

his credibility versus the victims’ credibility.

When asked whether he had spoken to Mr. Whiteside “about what he saw” on the

day of the offense, the Defendant indicated that Mr. Whiteside “corroborated” his

version, describing “[p]retty much the same events that took place that [the Defendant

had] explained.” When asked how Mr. Whiteside’s version corroborated his, the

Defendant explained,

[M]y attitude, I guess, how I was that day. I was claimed to have been

screaming, and I was not. I was very calm. He could testify that he never

saw me point a gun at anyone and that [the minor victim] was not with [the

adult victim] when he was walking towards me. She was nowhere near

him.

The Defendant affirmed his belief that Mr. Whiteside “saw what actually took place” and

that he believed Mr. Whiteside was willing to testify at trial. On redirect, the Defendant

claimed that trial counsel “wouldn’t talk with Mr. Whiteside” originally because he said

they did not “want a third story.”

The parties then agreed to allow testimony from the prosecutor about her role

during plea negotiations with the Defendant and to stipulate to its accuracy. The

prosecutor informed that she spoke to trial counsel “numerous times about a potential

working-out of this case.” The prosecutor indicated that the district attorney’s office

-21-

policy required “a written recommendation from the victim” in support of any plea

agreement to a reduced charge or sentence. She stated that, on one occasion, she talked

with the victims’ father about probation and that he was “okay with probation.” She then

contacted trial counsel and asked if the Defendant would be willing to accept probation.

The prosecutor explained, “I still had one victim, [the adult victim], out there that I had

not talked to. But I did not want to fire him up and get him all bent out of shape if [the

Defendant] was not willing to take probation.” Trial counsel spoke with the Defendant

and told the prosecutor, “We’ll just go to trial. He does not want to take that.” The

prosecutor indicated that “was the last negotiation that [they] had.”

Trial counsel testified that he began practicing law in 1999 and represented the

Defendant through general sessions court and up until the sentencing hearing. Trial

counsel relayed that, when he was first retained, he spoke with the Defendant about the

facts of the case. According to trial counsel, the Defendant was upset that the police had

not interviewed him, and the Defendant mentioned that they also did not interview Mr.

Whiteside.

Trial counsel said that he received discovery after the indictment was issued and

that the 911 recordings were included therein. Trial counsel provided the Defendant with

a copy of all the discovery materials. Trial counsel testified that he listened to the 911

calls but did not have a transcript of the calls prepared. He agreed that the trial testimony

of the victims’ father “var[ied] quite a bit from what he said on the 911 call[]” and that he

intended to impeach the victims’ father with those discrepancies. Trial counsel

acknowledged that, when cross-examining the victims’ father about the matter, trial

counsel asked the victims’ father whether he had initially told the 911 operator that he

thought it might have been fireworks. According to trial counsel, the Defendant passed

him a note at trial reminding him that it was another caller, not the victims’ father, who

had mentioned fireworks in his call to 911. Trial counsel opined that it was “a terrible

mistake” to accuse the victims’ father of lying about a statement he never made. Trial

counsel maintained that he was “discombobulated” when he learned of his error. Trial

counsel agreed that, if he had a transcript of the call available, he likely could have cross-

examined the witness more effectively. Trial counsel testified that the Defendant never

asked him to play the 911 recording of the call at trial.

Trial counsel said that he conducted background checks on all potential witnesses

before trial utilizing a service provided by Westlaw. According to trial counsel, this

service indicated that the adult victim had several criminal convictions, including a

felony DUI. Trial counsel confirmed that he had not seen the certified copies of the

Defendant’s two misdemeanor convictions for reckless driving and possession of

marijuana and drug paraphernalia. Trial counsel acknowledged that, if he had these

documents at trial, he could have challenged the adult victim’s claim that he had “a clean

-22-

record.” Trial counsel recognized that he apologized to the adult victim on cross-

examination for suggesting he had prior convictions.

Trial counsel affirmed that he had spoken “quite a bit” with the Defendant about

Mr. Whiteside and that the Defendant had informed him of the details Mr. Whiteside had

provided him. Trial counsel acknowledged that he told the Defendant he would interview

Mr. Whiteside but did not. Trial counsel relayed that he did, however, go to Mr.

Whiteside’s house and take photographs.

Trial counsel averred that he had initially hoped to negotiate a plea agreement in

general sessions court that would allow the Defendant to plead to a misdemeanor and

obtain diversion. However, he was unable to arrange a plea agreement, so they went

forward with the preliminary hearing. Trial counsel relayed that the Defendant was

adamant that he did not want a felony conviction, to serve time in confinement, or to be

the subject of media attention. According to trial counsel, he spoke with the prosecutor

who asked him if the Defendant would be willing to plead guilty as charged in return for

a sentence of probation. Trial counsel said that he discussed this potential agreement

with the Defendant on multiple occasions. In these discussions, the Defendant asked if

diversion was still a possibility, and there was “a lot of . . . confusion [that] took place.”

Trial counsel tried to explain to the Defendant, the Defendant wife’s, and the Defendant’s

son that the Defendant could not accept this deal of probation and still apply for

diversion. Trial counsel confirmed that he did not recommend to the Defendant that he

enter an open plea because “[h]e would have no guarantee of not having jail time[.]”

When asked if he told the Defendant that “he was likely to get diversion,” trial counsel

said, “I told him I thought he was one of the best candidates I had ever seen for a

diversion and I could not imagine a reason the [c]ourt would not grant him a diversion.”

While trial counsel discussed the dangers of going to trial with the Defendant, trial

counsel opined that, in hindsight, he should have focused more on the potential effect a

ten-year-old victim would have on a jury. However, trial counsel found the Defendant’s

version of events quite credible and hoped that a jury would find the same.

Trial counsel agreed that he did not request an instruction on reckless aggravated

assault. Trial counsel indicated that he did not do so because it was not recognized as

lesser-included offense under these circumstances.

On cross-examination, trial counsel stated that he visited the scene three times.

The Defendant had informed trial counsel of the location where Mr. Whiteside’s lawn

mower had stalled and where the Defendant stopped and asked Mr. Whiteside if he

needed help. Trial counsel photographed Mr. Whiteside’s viewpoint, which was, in trial

counsel’s opinion, approximately 200 yards away from where the incident occurred.

According to trial counsel, the Defendant told him many times that Mr. Whiteside said

-23-

“that he could not see the little girl, and he heard the shots and did not know what was

going on.” Trial counsel opined that, based upon his investigation, he did not believe Mr.

Whiteside could have witnessed the incident from where he was standing.

Trial counsel maintained that, when discussing any potential plea agreement, trial

counsel left the ultimate decision to the Defendant. According to trial counsel, while the

case was pending, the Defendant consistently asserted that he was not guilty. Although

the Defendant did express a desire to avoid trial, he was also insistent that he would not

accept a felony on his record and did not want to go to jail.

Trial counsel said that he reviewed the Defendant’s civil deposition with him and

critiqued his performance in preparation for trial. Trial counsel maintained that the

Defendant “appeared to be very agitated, very angry, very confrontational” in his

deposition and that he “[e]xplained to [the Defendant] it was a train wreck if . . . he

testified the same way in the jury trial that he would definitely be convicted.” Trial

counsel further testified that he also reviewed potential questions with the Defendant. He

confirmed that they never specifically discussed “the lying question, is somebody

lying[.]”

Trial counsel said that he went to the Coxes’ residence and was accompanied by

the Defendant. They spoke with Mrs. Cox on this occasion. Trial counsel determined

that neither of them witnessed the incident. Trial counsel acknowledged that “a spent

round” was “dug up,” but he did not recall who was involved with that discovery. Trial

counsel averred that he was never contacted by Mr. Whiteside or the Coxes. On redirect,

trial counsel said that Mrs. Cox told him that she could not remember who else was

present and that she “did not see anyone” when she went outside after hearing the

gunshots.

Mr. Whiteside testified that, on the date in question, he saw the victims out for a

walk and that he briefly spoke to them. Mr. Whiteside testified that it was “getting fairly

close to dark” about thirty minutes later when his mower broke down. Mr. Whiteside

relayed that he saw the Defendant drive past his house headed towards “town” and that,

about “two or three minutes later,” the Defendant “was coming back” and stopped to

speak with him. Mr. Whiteside indicated that the Defendant told him that “somebody

had said something to his wife or threatened his wife” and that he informed the

Defendant that he had seen the victims walking earlier. Mr. Whiteside then declined the

Defendant’s offer of assistance with his mower. Mr. Whiteside estimated that this

conversation lasted three to five minutes, and he described the Defendant’s demeanor as

“probably agitated” and “upset.”

Mr. Whiteside reported that, while he was talking with the Defendant, the victims

appeared on the roadside near the Coxes’ home, and “[t]hey were cutting down the hill

-24-

toward their house.” Mr. Whiteside said that the Defendant “took off” and “just drove

down there.” Mr. Whiteside testified that the Defendant did not “peel out” and that there

was nothing “shocking” about his driving. Mr. Whiteside resumed working on his

mower after the Defendant left. When Mr. Whiteside heard gunshots, he “looked down

the road” but initially found his view partially blocked by a neighbor’s house. According

to Mr. Whiteside, he could see the Defendant standing with a gun in his hand when the

adult victim emerged from behind a house walking towards the Defendant. Mr.

Whiteside said that the Defendant was not pointing his gun at anyone but had it “pointed

down.” While Mr. Whiteside heard someone say “something to the effect of, ‘Who are

you calling a boy[,]’” he did not hear the Defendant’s ever threatening to kill the adult

victim. Mr. Whiteside suggested that he never saw the minor victim again after she went

behind the house. After the initial gunshots, Mr. Whiteside walked towards the

Defendant and the adult victim to get a better view, but he “really didn’t see a whole lot

after that.” Mr. Whiteside confirmed that he would have been willing to testify at the

Defendant’s trial.

Gregory Isaacs, an attorney from Knoxville, set forth his legal credentials, stated

that he had reviewed the Defendant’s case, and offered his opinions on trial counsel’s

performance. Ultimately, Mr. Isaacs concluded that the Defendant “did not receive

effective assistance of counsel.”

Mr. Isaacs testified that he did not see “investigative memorandum or notes” in

trial counsel’s file which struck him as “odd.” He also noted as “unusual” the absence of

a trial outline, including potential questioning of venire members and witnesses or a draft

of opening and closing statements. Mr. Isaacs said that “there was nothing in [trial

counsel’s] file that looked like there was any objective preparation for trial that was in

writing.”

Mr. Isaacs opined that “what Mr. Whiteside saw was totally different” from the

other State’s witnesses and that a reasonable defense attorney would have interviewed

Mr. Whiteside as there appeared to be no tactical reason not to do so. Based upon Mr.

Whiteside’s testimony at the motion for new trial hearing, Mr. Isaacs stated that he

should have been called as a witness at the Defendant’s trial.

Mr. Isaacs agreed that the Defendant’s state of mind was “a significant issue in the

case.” Mr. Isaacs indicated that interviewing neighbors, such as the Coxes, was

important to locate contradictory testimony that the Defendant was driving at a high rate

of speed and was using profanity.

He also opined that there was no strategic reason for trial counsel’s failure to

request a lesser-included instruction on reckless aggravated assault under the facts of this

case. Mr. Isaacs claimed that he would have requested an instruction on reckless

-25-

aggravated assault regardless of whether it had previously been delineated as a lesser-

included offense in the caselaw.

Mr. Isaacs discussed a lawyer’s duty during the plea negotiation process, stating

that counsel has “a duty to explore a resolution, . . . a duty to keep [the] client completely

informed, and . . . a duty to promptly investigate.” Mr. Isaacs opined that trial counsel

had an “obligation to follow up” in a case such as this when “shots were fired” and there

was “an opportunity to enter into a plea that resulted in probation” in order “to see if it

c[ould] be made into a firm offer[.]”

Mr. Isaacs indicated that trial counsel should have requested a stay in the civil

case, thereby prohibiting the Defendant from being deposed. Mr. Isaacs noted that the

Defendant did not have to “incriminate himself or talk about the facts.” Because the civil

case proceeded, trial counsel should have likewise deposed the victims, in Mr. Isaacs’s

opinion. Mr. Isaacs did not believe that the Defendant should have answered questions

under oath in the civil case about witnesses lying or whether the Defendant would accept

a plea. Mr. Isaacs said that a reasonable attorney had “a duty to object if someone trie[d]

to get [a] client to say someone else is lying[.]” Moreover, trial counsel should have

advised the Defendant “not to be goaded into” answering questions like those again at

trial, especially when dealing with a minor victim.

Mr. Isaacs indicated that proper trial preparation would have included preparing a

transcript of the 911 calls. Mr. Isaacs maintained that “the importance of that 911 call

was you could have had extraordinarily significant impeachment information with [the

victims’ father] because he dramatically changed his testimony.” According to Mr.

Isaacs, when trial counsel got “rattled,” he should have asked for a recess rather than

allowing the witness “to go unscathed.” Mr. Isaacs also thought trial counsel should have

sought to have the recording of the victims’ father’s 911 call redacted.

Sandra Cox testified that, in August of 2014, she was living with her parents on

Boatmans Ridge Road to care for them. She recalled that, while watching television, she

heard what “sounded like backfiring[.]” When Mrs. Cox looked outside, she saw a white

truck driving away and the adult victim standing near “a pine tree.” She did not see the

minor victim or the victims’ father at that time, but she did observe Mrs. Loven “coming

out” of her home. Mrs. Cox clarified that she “just stayed right there kind of on the

carport[.]” Mrs. Cox could not recall hearing any raised voices or “squealing tires or

anything like that[.]” Mrs. Cox relayed that trial counsel did come to her house and

interview her.

On cross-examination, Mrs. Cox noted that the living room where they were

watching television that day was “back away from the road[.]” Mrs. Cox indicated that

-26-

her mother was hard of hearing, so sometimes the television was loud. Mrs. Cox testified

that it would not “be unusual” for her to fail to hear those sounds.

Eddie Cox also testified at the hearing and reported that he was not present at the

time of the incident. Upon learning from Mrs. Cox that gunshots had been fired, Mr. Cox

returned to the home, arriving before law enforcement. Mr. Cox described that, when he

arrived, he saw the minor victim crying and saw the victims’ father coming up the hill

from their house. Mr. Cox relayed that he grabbed a flashlight and assisted the officers in

locating two of the “slugs” in the dirt. According to Mr. Cox, the slugs were found “far

apart” in the field. When Mr. Cox was asked if “[t]he holes in the ground . . . were . . .

closer to the house or . . . were way out in the field somewhere,” he replied that they were

in “the field.”

The Defendant’s thirty-one-year-old adult son, Matthew Ailey (“Matthew”),3

testified. Matthew, who lived in New York, stated that he spoke with trial counsel on the

phone twice on the same day about plea negotiations. Matthew believed “for over two

years” that trial counsel was going to negotiate a plea agreement. Matthew said that he

was surprised to learn that a trial was imminent and called trial counsel seeking an

explanation, so he could help his parents understand “what had changed.” Matthew

inquired with trial counsel if there was “an opportunity to enter a plea agreement with the

district attorney’s office.” According to Matthew, trial counsel told him that “the district

attorney called him every day, begging him to settle” because “she did not have a very

good case” but that she could not offer anything below a Class D felony because the

victims would not consent to it.

Matthew also asked trial counsel about “the various outcomes.” Trial counsel

advised that “the only plea agreement that [the Defendant] could enter into would be a . .

. full guilty plea to what was being . . . charged which was basically the same outcome as

losing in the trial.” He claimed that trial counsel assured him that they had “a very good

case” and that he was “going to win the trial.” Trial counsel also relayed to Matthew that

the prosecutor had never before beaten trial counsel. According to Matthew, trial counsel

told him that there was “not an outcome where [his] father [would go] to jail.” Matthew

stated that trial counsel informed him that the “[w]orst . . . possible outcome” if the

Defendant was convicted at trial was a grant of diversion. According to Matthew, trial

counsel maintained that the Defendant was the “perfect” candidate for diversion.

The trial court denied the Defendant’s motion for new trial by written order filed

on November 28, 2017. The case is now before us for our review.

3

Because Matthew shares a surname with the Defendant, we will refer to him by his first name. Again,

we do so for clarity and intend no disrespect.

-27-

ANALYSIS

I. Sentencing

The Defendant contends that the court erred in denying him judicial diversion or

total probation and by applying certain enhancement factors. Before a trial court imposes

a sentence upon a defendant, it must consider: (a) the evidence adduced 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) evidence and information offered by the parties on the

enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-

35-113 and 40-35-114; (f) any statistical information provided by the Administrative

Office of the Courts (“AOC”) as to Tennessee sentencing practices for similar offenses;

(g) any statement the defendant wishes to make in the defendant's own behalf about

sentencing; and (h) the result of the validated risk and needs assessment conducted by the

department and contained in the presentence report. Tenn. Code Ann. § 40-35-210(b).

When an accused challenges the length of a sentence, this court reviews the trial court’s

sentencing determination under an abuse of discretion standard accompanied by a

presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The

Bise standard of review applies to “appellate review for a trial court’s sentencing decision

to either grant or deny judicial diversion,” State v. King, 432 S.W.3d 316, 325 (Tenn.

2014), and to “questions related to probation or any other alternative sentence,” State v.

Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). The burden of showing that a sentence is

improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401, Sentencing

Comm’n Cmts.; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).

This court will uphold the trial court’s sentencing decision “so long as it is within

the appropriate range and the record demonstrates that the sentence is otherwise in

compliance with the purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-

10. Moreover, under such circumstances, appellate courts may not disturb the sentence

even if we had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346

(Tenn. 2008). Those purposes and principles include “the imposition of a sentence justly

deserved in relation to the seriousness of the offense,” Tennessee Code Annotated section

40-35-102(1), a punishment sufficient “to prevent crime and promote respect for the

law,” Tennessee Code Annotated section 40-35-102(3), and consideration of a

defendant’s “potential or lack of potential for . . . rehabilitation,” Tennessee Code

Annotated section 40-35-103(5). See Carter, 254 S.W.3d at 344. Ultimately, in

sentencing a defendant, a trial court should impose a sentence that is “no greater than that

deserved for the offense committed” and is “the least severe measure necessary to

achieve the purposes for which the sentence is imposed.” Tenn. Code Ann. § 40-35-

103(2) & (4).

-28-

A. Judicial Diversion

There is no dispute that the Defendant was eligible for judicial diversion. See

Tenn. Code Ann. § 40-35-313(a)(1)(B). However, simply because a defendant meets the

eligibility requirements does not automatically entitle him or her to judicial diversion.

State v. Bonestal, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993). “Traditionally, the

grant or denial of judicial diversion has been left to the sound discretion of the trial

court.” King, 432 S.W.3d at 323. When deciding whether judicial diversion is

appropriate, a sentencing court must consider seven common-law factors in making its

determination. Those factors are:

(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, and (f) the deterrence value to

the accused as well as to others. 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.

State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998) (citing State

v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996)); see also King, 432 S.W.3d at

326 (reaffirming that the Electroplating requirements “are essential considerations for

judicial diversion”). The trial court must weigh the factors against each other and explain

its ruling on the record. King, 432 S.W.3d at 326 (citing Electroplating, 990 S.W.2d at

229). If the trial court adhered to these requirements, “the determination should be given

a presumption of reasonableness on appeal and reviewed for an abuse of discretion.” Id.

at 319. This court will “not revisit the issue if the record contain[ed] any substantial

evidence supporting the trial court’s decision.” Electroplating, 990 S.W.2d at 229; see

also Parker, 932 S.W.2d at 958.

A 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.” King, 432 S.W.3d at 327. However, “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.” Id. If 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 . . . is not

appropriate.” Id. “In those instances, the appellate courts may either conduct a de novo

review or . . . remand the issue for reconsideration.” Id. at 328.

Here, the trial court first addressed the Defendant’s request for judicial diversion.

In denying the Defendant’s request, the trial court recited and analyzed the applicable

judicial diversion factors in making its determination.

-29-

The trial court initially concluded that, despite the Defendant’s lack of a criminal

record and his involvement in the community, he was not amenable to correction based

on his “utter lack of ability to accept responsibility for his actions.” The trial court

specifically stated,

I don’t think he’s a bad fellow at all. . . . But when somebody comes

in and doesn’t accept responsibility at the trial or in their deposition at no

point in time. I’ve got several letters in here from folks, good folks that

some of them I know talking about how remorseful he is and how sorry he

is and all of that. I read every one of these letters, but it doesn’t square with

the facts. . . .

He might be telling them that, but that’s not what he’s telling the

[c]ourt and that’s not what he told the [c]ourt when he testified and that’s

not what he’s told the [c]ourt in his deposition, and I hadn’t heard anything

about it here today.

....

I don’t think he has—I don’t think he would steal anything. I don’t

think he would do anything like that, but when it comes to this type action,

he has refused to accept responsibility for it.

Next, the trial court found that the circumstances of the offense did not weigh in

favor of judicial diversion because the Defendant’s actions of tracking the victims and

firing four warning shots were grossly disproportionate to the perceived “disrespect” to

the Defendant’s wife and property. The trial court did not find the Defendant credible

when he said that he was calm as he drove around looking for the victims, and the trial

court did not find relevant whether the Defendant “gun[ned] it and floor[ed] it up there or

whether he just roll[ed] up there nice and smooth” when he saw the victim’s coming

down the road. The trial court continued:

But anyway, so he gets his gun out so he perceives there’s an

alleged threat. That’s what he wants me to believe, and then he gets out—

and wanted the jury to believe—and so he gets back out—he gets his gun

out and he comes around and then—we don’t know exactly what the

timeline is—but ends up firing two warning shots. Then in his own

testimony there was no altercation. [The victim] just wouldn’t speak to

him and he wouldn’t show him his hands.

I cannot understand why you would shoot at that point because—so

you think the person is on drugs. You think a person’s deranged. You

-30-

think the person’s whatever, get back in the truck. Don’t fire some warning

shots. I . . . cannot understand that.

And then the gentleman doesn’t—keeps coming towards you. You

don’t see a weapon. You never saw a weapon and you fire two more shots.

And this is [the Defendant’s] version of events. I’m just analyzing it from

his version of events. There’s something about that . . . just does not

compute to this court.

So at that point in time as I recall from the trial I believe he said he

had one round left and so—then he gets in his vehicle and he goes home.

And there’s a sequence of events of people calling 911, et cetera, like that.

Having a . . . ten-year-old little girl, small girl, who in trial, today,

and at all times here out throughout the process that I’ve had any

involvement seems very traumatized by the event, and seems very—I mean

there’s no way you could perceive her as a threat. [The Defendant] doesn’t

attempt to say that he did. I’m not trying to mischaracterize his

representation. But to have gunfire with a small girl there when you

could’ve just got back in your truck and went home and called the police,

you know at this point they’re still in the area, it’s . . . just baffling to me.

. . . . How do you have four warning shots? I don’t get that. Four

warning shots. Doesn’t make sense to me. So then what you have is you

have [the Defendant’s] leaving.

The trial court then determined that the Defendant’s “excellent” social history did

weigh in favor diversion, noting that the Defendant, a successful businessman, was well-

respected and “very active in the community.” The trial court also found that the

Defendant’s physical and mental health weighed in favor of diversion.

Thereafter, the trial court addressed the deterrence value to the Defendant as well

as others. Regarding general deterrence to others from this type of conduct, the trial

court remarked, “Obviously, the State has an interest in deterring people from engaging

in this type of crime and particularly a situation such as this where you have gunfire

going on in what’s essentially a subdivision.” The trial court noted that even the

Defendant “was concerned about ricochets” and that “[u]sing a weapon in this way [was]

extremely dangerous.” The trial court surmised that others needed to be deterred “from

engaging in this type of conduct where anything could happen. People could’ve been

killed. We could’ve had bullets landing in houses, no telling where.” As for specific

deterrence value to the Defendant, the trial court thought the Defendant “need[ed] to be

-31-

deterred from this kind of conduct” because the Defendant in his deposition stated that

“he did nothing wrong.”

Finally, the trial court considered whether a grant of judicial diversion would serve

the interest of the public, as well as the Defendant. The trial court noted that “certainly

[the Defendant] would be benefited if he was granted a judicial diversion.” However, the

trial court concluded that, although diversion would benefit the Defendant’s employees

and those impacted by the Defendant’s community involvement, the interest of the public

in general would not be served by granting diversion because the Defendant “sho[t] off

four rounds in an area with bullets ricocheting.”

The trial court then concluded, “So when I weigh all of the factors and consider

them, I do not believe [the Defendant] is a candidate—a proper candidate for judicial

diversion. For those reasons I’m denying his request for judicial diversion.”

The Defendant submits that he was amenable to correction because he

acknowledged wrongdoing and that the trial court erred by requiring him “to admit to

legal guilt” in order to be granted diversion. The Defendant notes that the trial court

relied heavily on his deposition testimony in the civil matter to determine the Defendant’s

amenability to correction, reading a large portion of that testimony into the record at the

sentencing hearing. He also maintains that the trial court failed to consider his allocution

letter in determining his amenability to correction.

Indeed, the Defendant was not legally required to admit his guilt for the

aggravated assault charges in order to receive diversion. However, “there is a critical

distinction between confessing guilt to a crime and accepting responsibility for wrongful

conduct.” Stanton v. State, 395 S.W.3d 676, 688 (Tenn. 2013). “Admitting that one’s

conduct complies with the elements of a criminal offense and accepting responsibility for

wrongful conduct are not necessarily synonymous. . . . A defendant may admit and

assume responsibility for wrongdoing without admitting that he or she has committed a

crime.” Id. This court has determined that a defendant’s lack of remorse or refusal to

accept responsibility for his or her actions relates to the amenability to correction and is

an appropriate factor to consider in deciding whether to grant or deny judicial diversion.

See State v. Joseph W. Denton, No. M2009-02546-CCA-R3-CD, 2010 WL 4069264, at

*5 (Tenn. Crim. App. Oct. 19, 2010).

The trial court determined that the Defendant was not amenable to correction

because he refused to accept responsibility for his actions and not because, as the

Defendant contends, he failed to admit legal guilt. The Defendant consistently focused

on the victims’ actions rather than his own despite evidence that he got in his truck and

tracked the victims, that he fired warning shots near a ten-year-old girl, and that he never

saw the adult victim with a weapon. The Defendant offered no explanation for his

-32-

decision to shoot his weapon rather than merely get back inside his truck. The

Defendant’s failure to admit any wrongdoing or to accept any responsibility for his

actions was a relevant consideration for the trial court in determining the Defendant’s

qualification for diversion.

The Defendant contends that the trial court did not consider his allocution letter in

rendering its decision. However, the trial court indicated generally throughout its ruling

that it reviewed the letters offered by the Defendant. The allocution letter was entered as

a separate exhibit to the sentencing hearing. Defense counsel stated that, due to the

pending civil matter, he had asked the Defendant “to do his allocution in writing to

submit to the [c]ourt.” Defense counsel opined that “the overwhelming point” conveyed

in the letter” was as follows: “that this is a person who takes this very seriously and for

whom this process is very important and that–the possibility of continuing to live his life

in an exemplary fashion is extremely important.” The trial court acknowledged receipt of

the letter. Before rendering its sentencing determination, the trial court stated, “All right.

I’m going to take a few moments[] recess to review your response to the enhancement

factors that the State has filed and consider some of the other documents that have been

presented and then I’ll be back to rule in a little while.” A trial court is not explicitly

required to list and discuss each piece of evidence submitted. The record reflects that the

trial court considered the allocution letter.

In the letter, the Defendant expressed regret that he “put” himself, his family, and

his friends “in a situation like this” and averred that his family and employees suffered

due to his actions. He did not acknowledge that his actions endangered the victims or

emotionally and psychologically harmed them in any way. The allocution letter does not

support the Defendant’s assertion that he is amenable to correction but, instead, supports

the trial court’s conclusion that the Defendant failed to take responsibility for his actions.

Next, the Defendant argues that “[t]he trial court’s conclusion that the

circumstances of the offense justified a denial of diversion and imposition of a sentence

of incarceration wholly departed from the purposes and principles of the Sentencing Act”

because “first-time offenders whose criminal offense was impulsive and out of character

are ideal candidates for diversion[.]” (Emphasis removed). The Defendant notes that

“the trial court found that the circumstances of [the] offense didn’t make sense and were

out of character” but, nonetheless, weighed this factor against the Defendant’s receiving

judicial diversion. According to the Defendant his “actions lacked planning, were of

limited duration[,] and represent[ed] a marked deviation from an otherwise law-abiding

life.”

However, the aberrant nature of the Defendant’s conduct does not require a grant

of judicial diversion but is merely a factor that can be considered in the trial court’s

diversion determination. The fact that the Defendant’s actions may have been impulsive

-33-

and atypical does not negate all other facts and circumstances surrounding the offense.

Moreover, the trial court did consider the Defendant’s “otherwise law-abiding life” in its

judicial diversion decision, although not specifically in its discussion of the

circumstances of the offense. In concluding that the facts and circumstances of the

offense did not weigh in favor of judicial diversion, the trial court fully explained its

findings, and those findings are supported by the record. We cannot say that the trial

court abused its discretion in determining that the circumstances of the offense weighed

against a grant of judicial diversion.

The Defendant further submits that “[t]he trial court denied diversion . . . without

placing specific findings on the record regarding the need for [general] deterrence other

than the deterrent value inherent in all criminal convictions.” The Defendant remarks

that the trial court failed to mention in weighing the deterrence factor the considerations

outlined in State v. Hooper, 29 S.W.3d 1, 10-12 (Tenn. 2000), and that “its generalized

statements about the need to deter others from committing aggravated assault also

conflicts with the analysis required by Hooper.” Furthermore, the Defendant contends

that “the trial court’s conclusion that [the Defendant], specifically, ‘needs to be deterred

from this type of conduct’ conflicts with the court’s own findings that [the Defendant’s]

behavior was an anomaly, that he wasn’t a ‘candidate to commit other offenses,’ and that

he has an excellent social history and lack of criminal history.” The Defendant notes that

the trial court’s determination regarding specific deterrence continued to “highlight[] the

court’s repeated undue, improper reliance on [the Defendant’s] deposition testimony.”

However, Hooper did not involve the denial of diversion. See State v. Hamilton,

498 S.W.3d 7, 19 n.7 (Tenn. 2016) (our supreme court declining to state specifically

whether Hooper applied to the pretrial diversion statute); see also State v. Dylan Ward

Hutchins, No. E2016-00187-CCA-R3-CD, 2016 WL 7378803, at *6 (Tenn. Crim. App.

Dec. 20, 2016). Regardless, in Hooper, our supreme court stated that a trial court that

relies exclusively upon the need for deterrence to deny probation must show “a need to

deter similar crimes . . . in the particular community, jurisdiction, or in the state as a

whole, and . . . incarceration of the defendant may rationally serve as a deterrent to others

similarly situated and likely to commit similar crimes.” 29 S.W.3d at 10. As the trial

court here relied upon factors other than the need for deterrence when denying diversion,

the trial court did not err by failing to enumerate the Hooper factors, even assuming that

Hooper applied.

The trial court first examined the general deterrent effect to others from this type

of conduct, focusing on the dangers of the Defendant’s firing his weapon in what was

“essentially a subdivision” and the possibility of “ricochets.” The trial court concluded

that “[u]sing a weapon in this way [was] extremely dangerous.” The trial court also

determined that diversion was not a suitable deterrent for the Defendant because he

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persisted in justifying his actions and failed to acknowledge any wrongdoing. We cannot

conclude that the trial court abused its discretion in weighing the need for deterrence to

the Defendant and others against a grant of diversion.

In addition, the Defendant asserts that “[t]he trial court concluded the best interests

of the public weighed against granting [the Defendant] judicial diversion . . . in

contradiction of the rehabilitative purpose of the Sentencing Act and the court’s findings

that [the Defendant] was a productive member of society whose criminal conduct was

aberrant.” Stated another way, the Defendant maintains that “[t]he trial court did not

consider that the fundamental purpose of the alternative sentences is rehabilitation and

that it is in the best interests of society that an isolated, one-time offender be given a path

to be restored fully to productive citizenship.” (Internal quotations marks omitted).

The trial court considered whether a grant of judicial diversion would serve the

interest of the public, as well as the Defendant. The trial court noted that “certainly [the

Defendant] would be benefited if he was granted a judicial diversion.” However, the trial

court concluded that, although diversion would benefit the Defendant’s employees and

those impacted by the Defendant’s community involvement, the interest of the public in

general would not be served by granting diversion because the Defendant “sho[t] off four

rounds in an area with bullets ricocheting.” The trial court acted within its discretionary

authority in weighing this factor.

The record reflects 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. See King, 432 S.W.3d at 327. The Defendant has failed to overcome the

presumption of reasonableness afforded to the trial court’s decision denying him judicial

diversion.

B. Length of Terms and Probation

After denying the Defendant’s judicial diversion request, the trial court jointly

addressed alternative sentencing, the length of the sentencing terms, and consecutive

sentencing. The trial court initially outlined the various purposes and principles of the

Sentencing Act and listed the considerations for alternative sentencing. Next, the trial

court analyzed the enhancement and mitigating factors found in Tennessee Code

Annotated sections 40-35-113 and -114.

In reviewing the applicable enhancement factors, the trial court found that three

applied to the Defendant: (4) that the minor victim was particularly vulnerable because of

age or physical or mental disability; (6) that the personal injuries inflicted upon the minor

victim were particularly great; and (10) that the Defendant had no hesitation about

committing a crime when the risk to human life was high. See Tenn. Code Ann. § 40-3-

-35-

113(4), (6), (10). In mitigation, the trial court found applicable that the Defendant,

although guilty of the crime, committed the offense under such unusual circumstances

that it was unlikely a sustained intent to violate the law motivated the criminal conduct.

See Tenn. Code Ann. § 40-35-113(11). The trial court, in applying this mitigating factor,

determined, “I think he got upset when his wife was insulted and his property was

violated and he went to confront the individual about it, and it just didn’t go down the

way that he expected it to.” The trial court also addressed the so called “catch-all”

mitigating factor. See Tenn. Code Ann. § 40-35-113 (13) (“Any other factor consistent

with the purposes of this chapter.”). The trial court stated, “I can’t find any other factors

[in addition to mitigating factor 11]. But I don’t know of any other factors to consider.”

The trial court then proceeded to address several considerations listed by the

Defendant under mitigating factor (13). The trial court agreed that the Defendant had no

prior criminal convictions, that he “was raised in a good and stable family,” and that he

had a substantial support system. The trial court also cited the Defendant’s employment

record, strong work ethic, regular church attendance, and community outreach.

Furthermore, the trial court remarked that the Defendant had no known attitude or

behavior issues aside from this incident, that the Defendant did not abuse drugs or

alcohol, that the Defendant had numerous family responsibilities, and that others

depended on the Defendant for their employment. In addition, the trial court stated that it

had read the many letters submitted on behalf of the Defendant describing his “good

reputation” in the community and that “the content of the letters [was] strongly

favorable” to him.

After discussing the enhancing and mitigating factors, the trial court commented,

“Now it comes time to impose a just and right sentence and keep in consideration the

sentencing factors that I’m supposed to consider.” The trial court indicated that

sentencing the Defendant presented “a Catch-22” because the Defendant had “led from

all indication an exemplary life,” but the court was “very concern[ed]” that the Defendant

still did not “think he did anything wrong.” The trial court observed that the Defendant’s

inability to appreciate the wrongfulness of his conduct was “really . . . where the rubber

me[t] the road in this case.” The trial court remarked that the victims’ parents had to

watch from a distance as the Defendant fired the shots and wonder if the Defendant

would have different “feelings” about the appropriate punishment if “the shoe was on the

other foot.”

In rendering its decision, the trial court initially noted that this was “the most

difficult decision” it had “ever had to make.” The trial court first determined that

consecutive sentencing was not appropriate. The trial court then set the length of the

Defendant’s sentences at four and one-half years.4 Finally, the trial court denied full

4

The Defendant was convicted of two Class C felonies as a Range I, standard offender. Thus, the

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probation and ordered the Defendant to serve six months’ confinement before being

released on supervised probation.

1. Enhancement Factors. The Defendant contends that the trial court erred in its

application of all three enhancement factors. The weight to be afforded an enhancement

or mitigating factor is left to the trial court’s discretion so long as its use complies with

the purposes and principles of the 1989 Sentencing Act and the court’s findings are

adequately supported by the record. Tenn. Code Ann. § 40-35-210(d)-(f); Carter, 254

S.W.3d at 342-43. The trial court is “to be guided by—but not bound by—any applicable

enhancement or mitigating factors when adjusting the length of a sentence.” Bise, 380

S.W.3d at 706. Further, “a trial court’s misapplication of an enhancement or mitigating

factor does not invalidate the sentence imposed unless the trial court wholly departed

from the 1989 Act, as amended in 2005.” Id. Even if the trial court “recognizes and

enunciates several applicable mitigating factors, it does not abuse its discretion if it does

not reduce the sentence from the maximum on the basis of those factors.” Carter, 254

S.W.3d at 345. A sentence imposed by the trial court that is within the appropriate range

should be upheld “[s]o long as there are other reasons consistent with the purposes and

principles of sentencing, as provided by statute.” Bise, 380 S.W.3d at 706.

We will focus our examination on the trial court’s application of enhancement

factor (10)—the Defendant had no hesitation about committing a crime when the risk to

human life was high—because this was the only factor found to be applicable to both of

the Defendant’s aggravated assault convictions. The Defendant complains that the State

failed to present any proof establishing that there was a high risk to human life to anyone

other than the two, named aggravated assault victims. According to the Defendant, the

trial court erred by applying “factor based on the possibility that the bullets [he] fired into

the ground could have ricocheted” when the State failed to establish that specific

individuals were endangered by the Defendant’s actions.

Where, as here, a high risk to human life is inherent in the underlying conviction,

enhancement factor (10) only applies if a defendant’s actions posed a high risk to the life

of a person other than the named victim. See State v. Imfeld, 70 S.W.3d 698, 707 (Tenn.

2002); State v. Zonge, 973 S.W.2d 250, 259 (Tenn. Crim. App. 1997). The Defendant

cites to State v. Hill, 885 S.W.2d 357, 363 (Tenn. Crim. App. 1994); State v. Grady Lee

Flippo, No. M2006-01182-CCA-R3-CD, 2007 WL 1628868, *10-11 (Tenn. Crim. App.

June 6, 2007); and State v. Antray Terrill Morrow, No. W2002-02065-CCA-R3-CD,

2003 WL 22848974, at *4 (Tenn. Crim. App. Nov. 25, 2003), in support of his allegation

of trial court error. In Hill, the defendant was convicted of aggravated assault for cutting

his victim during a street fight. 885 S.W.2d at 359. This court concluded that the trial

court erred by applying enhancement factor (10) to the defendant’s conviction because

Defendant faced a sentencing range of three to six years. See Tenn. Code Ann. § 40-35-112 (a)(3).

-37-

“the record [was] devoid of any evidence that individuals in close proximity [to the fight]

were in danger of being injured.” 885 S.W.2d at 363. In Flippo, the trial court applied

factor (10) to the defendant’s two convictions for attempted aggravated assault where the

defendant brandished a gun at two people stopped on the side of a highway. 2007 WL

1628868, at *11. This court held that the trial court’s application of factor (10) was in

error because, although the record showed that other drivers were on the road the day of

the offense, it failed to show that “the actions of the defendant actually created a risk to

the life of any other specific person.” Id. Finally, in Morrow, the defendant fired shots at

a house where four named victims were standing on the porch and a fifth named victim

was inside the house. 2003 WL 22848974, at *4. The jury convicted the defendant of

four counts of aggravated assault and one count of felony reckless endangerment. Id. at

*1. At sentencing, an investigator testified that the shooting occurred in “[a] heavily

populated residential area” and that there was a daycare center located nearby. Id. at *3.

However, no reports were received of gunshots striking nearby homes, and no evidence

was presented as to whether the daycare center or any of the nearby residences were

occupied at the time of the shooting. Id. There, the State conceded error in the

application of factor (10), and this court determined that proof failed to show that “the

shots actually created a risk to the life of any other specific person.” Id. at *4 (citation

omitted).

Here, the trial court acknowledged that enhancement factor (10) was normally

inherent in the offense of aggravated assault but determined that the factor “clearly

applie[d]” based upon the facts of this case. The trial court, in applying this factor,

referred to the fact that the Defendant fired four warning shots in a residential

neighborhood and that there were “two individuals out there” when the Defendant

discharged his weapon. The trial court also noted the Defendant’s testimony that he

knew “bullets [were] going to be ricocheting” and the Defendant’s claim that “he pulled

off to the left because he didn’t want to shoot down in the direction” of inhabited places,

instead firing towards the woods. The trial court concluded that the risk to human life in

“the surrounding area” was high.

The Defendant testified at trial that he aimed to the left and “fired into the field

and the wood line” because he “didn’t want a ricochet.” He said that he fired without

taking direct aim at the victims because they were standing in an area that presented “the

perfect ricochet situation.” The adult victim, however, claimed that the Defendant

initially fired towards he and his sister, “blowing dirt all over” them. The minor victim

asserted that the Defendant pointed the weapon at their heads and that “[d]irt splattered

all over [them]” from the first shots that the Defendant fired. The victims’ father testified

that “dirt flew” on the minor during the episode. There was also testimony that the

Defendant was angry and that he frequently threatened to kill the victims during the

encounter.

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Moreover, the cases cited by the Defendant—Hill, Flippo, and Morrow—are

factually distinguishable. Here, the Defendant did not wield a knife but fired a gun four

times in a residential neighborhood. He did more than merely display his weapon to the

victims as others passed by. Additionally, the State did not simply assert that the

Defendant fired shots in a residential area but instead presented evidence that specific

bystanders were in close proximity and in danger of being injured. There were multiple

reports from neighbors that they heard gunshots, including the victims’ parents, the

Lovens, and Mr. Drinnon on the 911 call. Both the victims’ parents and Mr. and Mrs.

Loven testified that they were outside and witnessed the Defendant fire his weapon. The

victims’ parents both stated that they were standing in front of their home, which was

down the hill from where the events occurred, when the Defendant shot at their children.

The victims’ mother testified that she started to wave her arms, jump up and down, and

repeatedly scream at the Defendant, pleading with him not to kill her children. Mrs.

Loven testified that she saw the Defendant’s truck and the victims “in the field” nearby

when she looked out her window. According to Mrs. Loven, the initial shots sounded

“awful close” to her home, and when she went outside, she saw the Defendant fire a

fourth shot towards the adult victim. Mr. Loven stated that he was “in the driveway

behind [his] house” working on his daughter’s car when he heard a gunshot. Mr. Loven

asserted that the second shot “seemed closer.” When Mr. Loven went to see what was

happening, he saw the Defendant shoot again. The adult victim explained at trial that the

Loven’s home was “right across from where [the Defendant] was parked.” An aerial

photograph of the neighborhood showing the location of the various homes, as well as

witnesses marking their respective positions thereon, was admitted into evidence.

The photograph supports the trial court’s conclusion that this factor applied. We

conclude that the trial court acted within its discretion in considering this factor because

the Defendant’s actions created the risk of a stray bullet striking one of the people

standing nearby watching the incident unfold. See, e.g., State v. Randy Cotham, No.

01C01-9509-CC-00287, 1996 WL 695168, at *4 (Tenn. Crim. App. Dec. 5, 1996)

(concluding that the record supported the application of factor (10) because “the proof

established that, at the time of the shooting, there were several other people sitting in the

parking lot of the Stetson Boot Company or ‘milling around’” and that the shooting, in

fact, “occurred during the course of a change in shifts at the company”); State v. John L.

Smith, No. 01C01-9309-CR-00308, 1994 WL 585403, at *6 (Tenn. Crim. App. Oct. 20,

1994) (finding use of factor (10) appropriate when the defendant fired a gun into a

restaurant where a patron was seated at the bar and a bus boy was cleaning tables and

where another waiter was accompanying the victim when that victim was shot outside as

the Defendant was leaving).

The trial court sentenced the Defendant within the appropriate statutory range for

each conviction and articulated in the record its reasons for imposing the sentences. Even

-39-

if the trial court misapplied the other two challenged enhancement factors to the

aggravated assault conviction regarding the minor victim, the presence of enhancement

factor (10) for both convictions supported the trial court’s decision to enhance the

Defendant’s sentences. We repeat that a trial court’s erroneous consideration of some

enhancement or mitigating factors, which are merely advisory, does not give this court

grounds for reversal when the trial court otherwise conforms with the mandates of the

Sentencing Act. See Bise, 380 S.W.3d at 709-10; Carter, 254 S.W.3d at 346. The record

demonstrates that the trial court otherwise sentenced the Defendant in accordance with

our Sentencing Act. Accordingly, we cannot say that the Defendant has established that

the trial court abused its discretion in setting the length of his sentences at four-and-one-

half years. See, e.g., State v. Andrew Young Kim, No. W2017-00186-CCA-R3-CD,

2018 WL 1679346, at *11 (Tenn. Crim. App. Apr.6, 2018); State v. Joshua Iceman, No.

M2016-00975-CCA-R3-CD, 2017 WL 4805118, at *32 (Tenn. Crim. App. Oct. 24,

2017), perm. app. denied (Tenn. Feb. 14, 2018); State v. Richard Dickerson, No. W2012-

02283-CCA-R3-CD, 2014 WL 1102003, at *12 (Tenn. Crim. App. Mar. 19, 2014) (all

three cases concluding that the trial court improperly considered two of three

enhancement factors it applied but, nonetheless, otherwise conformed with the mandates

of the Sentencing Act, so the defendant was not entitled to relief).

2. Especially Mitigated Offender. Finally, the Defendant asserts that, “[b]ecause

no enhancement factors applied to [him], and the trial court applied at least one

[mitigating] factor, the court erred by failing to sentence [him] as an especially mitigated

offender.” The Defendant remarks that the trial court found that factor (11) applied in

mitigation because it was unlikely that a sustained intent to violate the law motivated the

Defendant’s conduct. The Defendant also states that he presented nine allegations under

the “catch-all” provision, mitigating factor (13), “many of which the trial court found to

be factually accurate, but the trial court did not state whether it applied any of them to

[the Defendant’s] sentence, or whether it gave them any weight.” The Defendant

concludes, “As such, his [R]ange I minimum sentence should have been reduced by 10%

and/or his release eligibility should have been reduced to 20% of the sentence.”

A trial court “may find the defendant is an especially mitigated offender” if he has

no prior felony convictions and the court finds mitigating factors but no enhancement

factors. Tenn. Code Aim. § 40-35-109(a). We have concluded that the trial court

properly considered enhancement factor (10), and the Defendant was thus not statutorily

eligible for sentencing as an especially mitigated offender. Moreover, sentencing a

defendant as an especially mitigated offender is discretionary with the trial court, not

mandatory. State v. Stephen Anthony Scott, No. M2012-01416-CCA-R3-CO, 2013 WL

5675472, at *4 (Tenn. Crim. App. Oct. 17, 2013). “[E]specially mitigated status is

reserved for ‘instances where the trial judge may desire to depart from even the minimum

sentence for a Range I offender and impose lesser penalties.’” Id. (quoting Tenn. Code

-40-

Ann. § 40-35-109, Sentencing Comm’n Cmts). Accordingly, the Defendant is not

entitled to relief on this issue.

3. Full Probation. A defendant who is an especially mitigated or standard offender

convicted of a Class C, D, or E felony should be considered a favorable candidate for

alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-

102(6)(A). However, no longer is any defendant entitled to a presumption that he or she

is a favorable candidate for alternative sentencing. Carter, 254 S.W.3d at 347.

Tennessee Code Annotated section 40-35-102(6) is now only advisory. See Tenn. Code

Ann. § 40-35-102(6)(D).

Regardless, an offender is eligible for probation if he or she is sentenced to ten

years or less and has not been convicted of certain specified offenses. See Tenn. Code

Ann. § 40-35-303(a). While the trial court was required to automatically consider

probation as a sentencing option, see Tennessee Code Annotated section 40-35-303(b),

no criminal defendant is automatically entitled to probation as a matter of law, see State

v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). It is the defendant’s burden to establish his

or her suitability for full probation. See Carter, 254 S.W.3d at 347 (citing Tenn. Code

Ann. § 40-35-303(b)). The defendant must demonstrate that probation will “subserve the

ends of justice and the best interests of both the public and the defendant.” Hooper v.

State, 297 S.W.2d 78, 81 (Tenn. 1956), overruled on other grounds, State v. Hooper, 29

S.W.3d 1, 9-10 (Tenn. 2000). Among the factors applicable to probation consideration

are the circumstances of the offense; the defendant’s criminal record, social history, and

present condition; the deterrent effect upon the defendant; and the best interests of the

defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).

A trial court should consider the following when determining any defendant’s

suitability for alternative sentencing:

(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).

-41-

On appeal, the Defendant raises his arguments with the trial court’s denial of

judicial diversion and full probation jointly. However, the issues of diversion and

probation, although similar, involve separate and distinct analyses, and as outlined above,

the trial court addressed the two individually. After denying the Defendant’s request for

judicial diversion, it jointly considered the issues of alternative sentencing, the length of

the sentencing terms, and consecutive sentencing. Furthermore, we reiterate that we have

found the Defendant’s arguments regarding the denial of judicial diversion do not entitle

him to relief.

The trial court set forth all of the relevant sentencing purposes and principles at the

outset of its ruling. The trial court then considered the applicable enhancing and

mitigating factors. Ultimately, the trial court denied full probation and ordered the

Defendant to serve six months’ confinement, opining that a split confinement sentence

balanced the needs of the Defendant’s business with the facts and circumstances of the

case. Specifically, the trial court reasoned as follows:

The next question becomes how does [the Defendant] serve that 4.5

years? Does he serve that on incarceration, does he serve some form of

split confinement, or does he serve state—on state probation?

And I don’t believe that 4.5 years of incarceration is the appropriate

sentence for [the Defendant]. I don’t . . . believe that. His business would

no doubt suffer. That won’t take away from the incident that happened.

What’s done is done. So I don’t think 4.5 years of incarceration is justified

under these . . . circumstances.

The next question becomes on the opposite side of that, do I believe

probation, straight probation is the appropriate sentence under this case?

And there’s some considerations that would suggest it is, but when I

analyzed all of the facts and circumstances of the case and I just—

everything I previously talked about and the record as a whole, I cannot

conclude that straight probation is the appropriate sentence . . . .

And that’s a difficult statement for me to make because . . . people

like [the Defendant] [are] who we all should aspire to be as far as his social

conduct and things of that nature, and I’m not trying to get myself in

trouble here by saying too many complimentary things about the

[D]efendant, it’s just the facts that he has led a very good life.

But, it comes a time when we’re responsible for our actions and we

have to pay for the actions we take. Whatever those are. So . . . having

said [that] I don’t think 4.5 years of incarceration is appropriate and I don’t

-42-

feel state probation is appropriate, the sentence that I feel is appropriate

under this case is a split confinement sentence of six months. . . .

. . . I don’t think [the Defendant] is a bad person. I really do not, but

I have to do what I think is appropriate.

And the question that I leave with is if the shoe was on the other foot

what would be appropriate and in my opinion six months split confinement

is the appropriate sentence on this case. And ordinarily I would not do that.

Ordinarily I would just sentence the person to incarceration and that would

be it. That’s what I would ordinarily do.

But, [the Defendant] has such a good social history and many people

depending on him and his business that I don’t think the interest of justice

would be served by incarcerating him any further.

The record reflects that the trial court, in denying the Defendant full probation,

took into account the relevant considerations by examining the circumstances of the

offense; the defendant’s criminal record, social history, and present condition; the

deterrent effect upon the defendant; and the best interests of the defendant and the public.

See Grear, 568 S.W.2d 285, 286 (Tenn. 1978). The trial court also stated that it was

relying on “everything [it had] previously talked about,” which included discussing the

Defendant’s potential for rehabilitation and his amenability to correction. It further stated

its desire to “impose a just and right sentence” in relation to the seriousness of the

offense. Upon review, we conclude that the trial court did not abuse its discretion by

denying the Defendant’s request for full probation and by ordering that he serve six

months in confinement.

4. Procedural Issues. The Defendant raises several procedural issues in addition to

the one dealt with above regarding the trial court’s consideration of his allocution letter.

We have already determined that issue to be without merit.

The Defendant contends that the trial court erred when it concluded that, because

the victims were cross-examined during trial, it would not permit questioning following

their victim impact testimony at the sentencing hearing. The Defendant, citing Tennessee

Code Annotated section 40-35-209(b), maintains that the trial court’s ruling denied him

“a fair opportunity to rebut” the victim impact testimony. In addition, the Defendant

remarks that “[t]he trial court did not question [the minor victim] about her counseling or

medication, and in further contravention of the Sentencing Act, did not allow counsel to

ask specific questions of [the minor victim] following her testimony at the sentencing

hearing because she ‘was cross-examined during trial.’”

-43-

Tennessee Code Annotated section 40-35-209(b) provides, in its entirety, as

follows:

At the sentencing hearing, the court shall afford the parties the

opportunity to be heard and present evidence relevant to the sentencing of

the defendant and may afford the victim of the offense or the family of the

victim the opportunity to testify relevant to the sentencing of the defendant.

The court may allow the parties to subpoena witnesses and call or cross-

examine witnesses, including, but not limited to, the person who prepared

the presentence report and any person whose information contained in the

presentence report is relevant to the sentencing decision. At the sentencing

hearing, the district attorney general shall be the first party to present

evidence and then the defendant shall have an opportunity to present

evidence. Both parties may be allowed to call witnesses in rebuttal. The

rules of evidence shall apply, except that reliable hearsay, including, but not

limited to, certified copies of convictions or documents, may be admitted if

the opposing party is accorded a fair opportunity to rebut any hearsay

evidence so admitted; provided, that this subsection (b) shall not be

construed to authorize the introduction of any evidence secured in violation

of the United States or Tennessee constitutions.

The specific provision of this section cited by the Defendant, providing an opposing party

“a fair opportunity to rebut” certain evidence, deals with the admission of hearsay and not

live testimony by a victim. It does not entitle the Defendant to the relief he seeks.

Moreover, the Defendant has not provided us with any authority, and we know of none,

that requires the trial court to question the victims at a sentencing hearing.

Even if the trial court erred in prohibiting cross-examination of the victims, such

error was harmless because it did not affect the outcome of the case. See State v. Whited,

506 S.W.3d 416, 449 (Tenn. 2016). Much of the information provided by the minor

victim regarding her mental health was similar to testimony given at trial and in the

written victim impact statements contained in the presentence report. Importantly, as

discussed above, enhancement factor (10) was properly applied to both of the

Defendant’s convictions, and the trial court did not abuse its discretion in imposing

within-range sentences for the Defendant.

Next, the Defendant argues that the trial court, in issuing its sentencing decision,

failed to consider the presentence report and the statistical information provided by the

AOC as to Tennessee sentencing practices for similar offenses. Moreover, he notes that

there was no validated risk and needs assessment prepared or included in the presentence

report.

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First, we will address the absence of a validated risk and needs assessment from

the presentence report. As part of the Public Safety Act of 2016, section 40-35-207 was

amended to require the results of a “validated risk and needs assessment” be included in

the presentence report. See Tenn. Code Ann. § 40-35-207(a)(10). A “validated risk and

needs assessment” is “a determination of a person’s risk to reoffend and the needs that,

when addressed, reduce the risk to reoffend through the use of an actuarial assessment

tool designed by the department that assesses the dynamic and static factors that drive

criminal behavior.” Tenn. Code Ann. § 40-35-207(d). Section 40-35-210(b) lists the risk

and needs assessment as one of the sources that a trial court must consider in determining

a defendant’s sentence. “However, the statute does not mandate that any particular

weight be given to the risk and needs assessment, and . . . the weight to be assigned to the

assessment falls within the trial court’s broad discretionary authority in the imposition of

sentences.” State v. Christopher C. Solomon, No. M2018-00456-CCA-R3-CD, 2018 WL

5279369, at *7 (Tenn. Crim. App. Oct. 23, 2018) (citing Bise, 380 S.W.3d at 708).

The Defendant never objected at the sentencing hearing to the lack of a validated

risk and needs assessment in the presentence report. “The failure to make a

contemporaneous objection constitute[s] waiver of the issue on appeal.” State v. Gilley,

297 S.W.3d 739, 762 (Tenn. Crim. App. 2008). Therefore, the issue is waived. See

Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be

granted to a party . . . who failed to take whatever action was reasonably available to

prevent or nullify the harmful effect of an error”); see also State v. Flynn, 675 S.W.2d

494, 498 (Tenn. Crim. App. 1984) (holding that the defendant’s failure to object at the

sentencing hearing to a statement in his presentence report precluded consideration of the

issue on appeal); State v. Joshua Lishun Brewer, No. E2015-02178-CCA-R3-CD, 2016

WL 6087677 at *5 (Tenn. Crim. App. Oct. 18, 2016) (concluding that the defendant

waived an argument by failing to “object at the sentencing hearing to the admission of the

presentence report as an exhibit or to any of the report’s contents”); State v. Roger M.

DeMass, No. M2000-0344-CCA-R3-CD, 2000 WL 1277359, at *5 (Tenn. Crim. App.

Aug. 31, 2000) (determining that the issue was waived on appeal because the defendant

failed to object to the lack of technical compliance with Tennessee Code Annotated § 40-

35-304(b) requiring the presentence service officer to include in the presentence report

documentation regarding the nature and amount of the victim’s pecuniary loss).

Moreover, despite the absence of this assessment, the record reflects that the trial court

extensively considered the Defendant’s potential for rehabilitation and his amenability to

correction in its sentencing determination.

The Defendant also argues that the trial court generally failed to consider the

presentence report, as well as the statistical information provided by the AOC as to

Tennessee sentencing practices for similar offenses. According to the Defendant, “[t]he

trial court was required to consider the presentence report, but made only one reference to

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the contents of the report, noting [the minor victim’s] victim impact statement indicated

she was ‘greatly affected’ by what happened.” In addition to this one reference, the trial

court indicated at the outset of the sentencing hearing that it had read “all” of the

information submitted prior to the hearing, which included the presentence report. The

information in the presentence report was mentioned by the trial court throughout its

ruling, despite the fact that it did not specifically refer to the report as it source.

Also, similar to the allocution letter, the statistical information provided by the

AOC was entered as a separate exhibit to the sentencing hearing. Defense counsel

remarked that, based upon his review of the report, “it [was] not unusual at all for a

person to be placed on probation for a Class C felony.” As relayed above, the trial court,

before rendering its sentencing determination, stated that it would take a recess to review

the Defendant’s “response to the enhancement factors that the State ha[d] filed and

consider some of the other documents that ha[d] been presented[.]” The record reflects

that the trial court considered the presentence report and the statistical information from

the AOC. We reiterate that a trial court is not explicitly required to list and discuss each

piece of evidence submitted. These procedural issues do not entitle the Defendant to any

relief.

II. Ineffective Assistance of Counsel

Although a defendant may raise an ineffective assistance of counsel claim in his

motion for new trial, this court has repeatedly noted that “the practice . . . is fraught with

peril since it is [typically] impossible to demonstrate prejudice as required” at that stage

of the proceedings. State v. Blackmon, 78 S.W.3d 322, 328 (Tenn. Crim. App. 2001)

(internal quotation marks omitted). Nevertheless, there is no prohibition against litigation

of ineffective assistance of counsel claims as part of the motion for new trial, as opposed

to collateral proceedings. See State v. Burns, 6 S.W.3d 453, 461-63 (Tenn. 1999); State

v. James Paris Johnson, No. E2008-02555-CCA-R3-CD, 2010 WL 3565761, at *17

(Tenn. Crim. App. Sept. 15, 2010). In the present case, the Defendant raised the issue,

through newly appointed counsel, in his motion for a new trial, and the matter was fully

litigated.

The same standard applies to claims of ineffective assistance of counsel raised in a

motion for new trial and in a petition for post-conviction relief. See Burns, 6 S.W.3d at

461 n.5 (emphasis added) (citing State v. Anderson, 835 S.W.2d 600 (Tenn. Crim. App.

1992)).5 Accordingly, the following post-conviction relief tenets apply. The burden in a

post-conviction proceeding is on the petitioner to prove his allegations of fact supporting

5

The Defendant disagrees that the same standard of review applies to ineffective assistance of counsel

claims raised on appeal from the denial of a motion for new trial. However, our supreme court has

expressly stated to the contrary.

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his grounds for relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-

110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). On appeal, we are

bound by the lower court’s findings of fact unless we conclude that the evidence in the

record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn.

2001). Additionally, “questions concerning the credibility of witnesses, the weight and

value to be given their testimony, and the factual issues raised by the evidence are to be

resolved” by the post-conviction court. Id. Because they relate to mixed questions of

law and fact, we review the lower court’s conclusions as to whether counsel’s

performance was deficient and whether that deficiency was prejudicial under a de novo

standard with no presumption of correctness. Id. at 457.

Criminal defendants are constitutionally guaranteed the right to effective

assistance of counsel. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009) (citing U.S.

Const. amend. VI; Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). When a claim of

ineffective assistance of counsel is made under the Sixth Amendment to the United States

Constitution, the burden is on the petitioner to show (1) that counsel’s performance was

deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S.

668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). “Because a

petitioner must establish both prongs of the test, a failure to prove either deficiency or

prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.”

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). The Strickland standard has been

applied to the right to counsel under article I, section 9 of the Tennessee Constitution.

State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

Deficient performance requires a showing that “counsel’s representation fell

below an objective standard of reasonableness,” despite the fact that reviewing courts

“must indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Strickland, 466 U.S. at 688-89. When a court

reviews a lawyer’s performance, it “must make every effort to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to

evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185

S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689). Additionally, a

reviewing court “must be highly deferential and ‘must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.’”

State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466 U.S. at

689). We will not deem counsel to have been ineffective merely because a different

strategy or procedure might have produced a more favorable result. Rhoden v. State, 816

S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference to

tactical choices only applies if the choices are informed ones based upon adequate

preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)).

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As to the prejudice prong, the petitioner must establish “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006) (citing Strickland, 466

U.S. at 694). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. “That is, the petitioner must

establish that his counsel’s deficient performance was of such a degree that it deprived

him of a fair trial and called into question the reliability of the outcome.” Pylant v. State,

263 S.W.3d 854, 869 (Tenn. 2008) (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn.

1999)). “A reasonable probability of being found guilty of a lesser charge . . . satisfies

the second prong of Strickland.” Id.

A. Failure to Interview and Present Witnesses

Although trial counsel does not have an absolute duty to investigate particular

facts or a certain line of defense, counsel does have a duty to make a reasonable

investigation or to make a reasonable decision that makes a particular investigation

unnecessary. Strickland, 466 U.S. at 691. Counsel is not required to interview every

conceivable witness. See Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995).

Furthermore,

no particular set of detailed rules for counsel’s conduct can satisfactorily

take account of the variety of circumstances faced by defense counsel.

Rather, courts must judge the reasonableness of counsel’s challenged

conduct on the facts of the particular case, viewed as of the time of

counsel’s conduct, and judicial scrutiny of counsel’s performance must be

highly deferential.

Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (internal citations and quotations

omitted).

A reasonable investigation does not require counsel to “leave no stone unturned.”

Perry Anthony Cribbs v. State, No. W2006-01381-CCA-R3-PD, 2009 WL 1905454, at

*49 (Tenn. Crim. App. July 1, 2009). Rather,”[r]easonableness should be guided by the

circumstances of the case, including information provided by the defendant,

conversations with the defendant, and consideration of readily available resources.” Id.

The United States Supreme Court has said, “[I]nquiry into counsel’s conversations with

the defendant may be critical to a proper assessment of counsel’s investigation decisions,

just as it may be critical to a proper assessment of counsel’s other litigation decisions.”

Strickland, 466 U.S. at 691.

Once a petitioner presents a witness at the evidentiary hearing who he claims

should have been called at trial, the court must determine whether the testimony would

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have been (1) admissible at trial and (2) material to the defense. Pylant v. State, 263

S.W.3d 854, 869 (Tenn. 2008). The court is justified in finding that counsel was not

deficient by failing to call a witness if it determines that the witness’s testimony would

have been inadmissible at trial or that, even if admissible, would not have materially

aided in the petitioner’s defense at trial. Id. If the proffered testimony is both admissible

and material, the court must assess the credibility of the witness. Id. at 869-70.

The Defendant argues that trial “counsel failed to investigate and interview

witnesses who possessed critical evidence, who could have been found by a reasonable

investigation, and who would have testified favorably in support of his defense.” First,

the Defendant alleges that trial counsel should have interviewed Joe Whiteside.

According to the Defendant, Mr. Whiteside’s testimony would have supported his

defense and undermined the State’s case against him. The Defendant contends that “it

would have been extremely significant” corroboration of his version of events—that the

Defendant, whom the victims “claimed was enraged,” stopped to talk with Mr. Whiteside

and offered to help him with his lawn mower; that Mr. Whiteside “did not notice

anything erratic about the Defendant’s driving in contrast to the tire squealing claims”;

that the Defendant told Mr. Whiteside that someone had threatened the Defendant’s wife;

that Mr. Whiteside saw, from his front yard, the victims “cutting down the hill toward

their house”; and that “[i]t is inconceivable” that Mr. Whiteside would resume working

on his mower if the Defendant “had torn off down to confront” the victims. The

Defendant further notes that, when Mr. Whiteside heard gunshots, he moved closer to get

a better view down the road, and at that time, Mr. Whiteside did not see the minor victim

in the foray. However, Mr. Whiteside did see the adult victim walking towards the

Defendant and heard someone say something to the effect of, “Who are you calling a

boy.” In addition, Mr. Whiteside testified that the Defendant “was not pointing the pistol

at anyone and had the pistol down to his side.” The Defendant surmises that trial

counsel’s decision not to interview Mr. Whiteside based upon trial counsel’s belief that

Mr. Whiteside’s “vantage point was not good enough” to see the altercation amounted to

ineffective assistance of counsel.

In issuing its ruling, the trial court noted that it was “concerned about [trial

counsel’s] failure to interview Joe Whiteside after repeated request[s]” by the Defendant

to do so. Ultimately, the trial court concluded that trial counsel’s failure to interview

“Mr. Whiteside, while concerning, d[id] not constitute ineffective assistance of counsel

given the information provided to him by [the Defendant] and the State prior to the trial.”

The trial court cited trial counsel’s testimony that the Defendant “had informed him of

what Mr. Whiteside would testify about and [that trial counsel] did not believe it would

help their case.” The trial court stated that it had heard Mr. Whiteside’s testimony at the

motion for new trial hearing and was “convinced that [Mr. Whiteside’s] testimony would

not have impacted [the Defendant’s] case.” The trial court reasoned as follows:

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Mr. Whiteside did not describe [the Defendant] as being completely calm

and instead said that [the Defendant] appeared agitated; furthermore, Mr.

Whiteside testified that when he first looked up after the shots that he could

not see [either victim] and after a short time saw the [adult victim] walk up

from behind a house, which would not have placed [the adult victim] in a

position to be a threat to [the Defendant]. Moreover and perhaps most

importantly, [the Defendant] told [trial counsel] in their first meeting what

happened during the altercation, gave a deposition about what happened,

and testified about what happened during the underlying jury trial, and

based on [the Defendant’s] testimony, it is hard to imagine that any witness

would have been able to make a difference in the case because [the

Defendant] acknowledges that [neither victim] ever charged him,

threatened him, or attempted to do anything to him. [The Defendant]

further testified that he fired the shots after ordering [the adult victim] to

“show me your hands” and that [the adult victim] did not comply. [The

Defendant] testified that he felt like he had the authority to make such a

demand of [the adult victim] even though this incident occurred some

distance removed from the [Defendant’s] property on land owned by

relatives of the [victims] and a public roadway.

The trial court, in addressing the prejudice prong of Strickland, determined that

Mr. Whiteside’s

testimony certainly did little to nothing to change or discredit the State’s

proof . . . . The minor discrepancies that [Mr. Whiteside’s testimony]

would have created in the trial d[id] not in any way take away from the core

facts that the jury heard. [The Defendant] testified that there were no

threats made to him by [the adult victim] prior to him firing the pistol in his

direction.

The record supports the trial court’s findings. Trial counsel testified that he had

spoken “quite a bit” with the Defendant about Mr. Whiteside prior to trial and that the

Defendant had told him many times that Mr. Whiteside said “that he could not see the

little girl, and he heard the shots and did not know what was going on.” Trial counsel

maintained that he knew “exactly what Mr. Whiteside had seen and what his testimony

would be” at trial. Trial counsel stated that he visited the scene three times and that he

went to Mr. Whiteside’s property and took photographs of Mr. Whiteside’s vantage point

of the foray. Trial counsel opined that Mr. Whiteside’s viewpoint was approximately 200

yards away from where the encounter took place. The “reasonableness” of trial counsel’s

investigation includes information provided by the Defendant. See Cribbs, 2009 WL

1905454, at *49.

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Nonetheless, we do agree that trial counsel’s text message to the Defendant that he

would still interview Mr. Whiteside is somewhat “concerning.” However, even if trial

counsel was deficient, the Defendant has failed to demonstrate that he was prejudiced by

this failure. We cannot conclude that Mr. Whiteside’s testimony would have materially

aided the defense by providing “extremely significant” corroboration of the Defendant’s

version of events. Although Mr. Whiteside maintained that he did not see anything

“shocking” about the Defendant’s driving that day, Mr. Whiteside’s testimony that the

Defendant drove past his house before returning “two or three minutes later” would have

confirmed the other witnesses’ testimony that the Defendant was out looking for the

victims. The victims’ mother’s testimony at trial corroborated the Defendant’s version in

that she testified that the Defendant stopped at Mr. Whiteside’s house and that Mr.

Whiteside was working on his mower, although she testified that the stop was much

quicker than Mr. Whiteside. Mr. Whiteside also testified that the Defendant appeared

agitated and upset that someone had threatened the Defendant’s wife, which was contrary

to the Defendant’s claim at the motion for new trial hearing that he “was very calm” that

day.

In addition, Mr. Whiteside did not see “it all take place” as the Defendant

contended. He was approximately 200 yards away from the foray. Mr. Whiteside

testified that, when he looked up after the first shots that he could not see either victim,

which would not have placed the adult victim in a position to be a threat to the

Defendant. Mr. Whiteside’s testimony suggested that the minor victim was still behind

the house, which would have positioned her close to the altercation. Finally, Mr.

Whiteside stated that, after the initial gunshots, he walked towards the Defendant and the

adult victim to see better, but he “really didn’t see a whole lot after that.” Any indication

that the Defendant called the adult victim a “boy,” and that the adult victim replied by

saying “[w]ho are you calling a boy,” confirmed that the altercation was unfriendly.

Accordingly, we agree that Mr. Whiteside did not provide testimony that would have

helped the Defendant establish that his actions were justified.

Moreover, while the Defendant claimed that he was only trying to protect himself,

he fired four warning shots. The Defendant admitted that he never saw the adult victim

with a weapon, but he claimed that he did “have a right” to see the adult victim’s hand

based upon the adult victim’s actions that evening. The adult victim was no longer on the

Defendant’s property when this incident took place. The Defendant’s wife testified that

the Defendant was upset when he left the house. The Defendant said during his 911 call

that he “just didn’t like someone walking on [his] private property.” The Defendant

stated to Detective Collins that he got “into his truck and [went] after [the victims]” and

admitted that he drove “up and down the road a couple of times looking for them.” The

Defendant also told Detective Collins that he exited his truck “with his gun to his side”

rather than claiming that he returned to his truck to retrieve his weapon. Furthermore, the

-51-

Defendant expressed to Detective Collins that he fired the rounds “in the ground beside

[the adult victim].” The Lovens also witnessed the Defendant’s actions, confirming

much of the victims’ version. We agree with the trial court that the Defendant has failed

to demonstrate that he was prejudiced by trial counsel’s failure to interview Mr.

Whiteside or call him as a witness.

Next, the Defendant notes that the events occurred in the Coxes’ front yard.

Although trial counsel testified that he did interview Mrs. Cox, he did not call her as a

witness at trial. The Defendant asserts that Mrs. Cox, who was home when the

altercation occurred, “had favorable testimony for the defense” because she would have

testified that she did not see the minor victim or the victims’ father “when she looked

outside just after the shots” were fired. Moreover, the Defendant maintains that Mrs.

Cox’s testimony “also would have impeached Misty Loven[’s testimony] because [Mrs.]

Cox did not come out until the shooting was over and saw Loven also coming out at that

time.”

Mr. Cox was not interviewed. According to the Defendant, Mr. Cox “could have

provided exculpatory evidence in a very simple way” by testifying that he did not arrive

until after the incident was over and that he saw the victims’ father “coming up through

the yard” upon his arrival. In the Defendant’s opinion, this testimony would “have

further impeached the story told by [the victims’ father] as an eyewitness.” In addition,

the Defendant notes that Mr. Cox helped “find the slugs,” which he located “way out in

the field, not close to the house where the altercation occurred.” The Defendant submits

that this amounted to “exculpatory testimony on the key issue of whether [the Defendant]

fired warning shots[] off to the side as he stated or if there was dirt flying at the [victims]

as they claimed.”

In regards to testimony from the Coxes, the trial court similarly determined that

the Defendant was not prejudiced because their testimony

did little to nothing to change or discredit the State’s proof . . . . The minor

discrepancies that these . . . witnesses would have created in the trial do not

in any way take away from the core facts that the jury heard. [The

Defendant] testified that there were no threats made to him by [the adult

victim] prior to him firing the pistol in his direction.

The Defendant has failed to establish that he received ineffective assistance in this

regard. Trial counsel did interview Mrs. Cox and determined that neither of the Coxes

witnessed the incident. When Mrs. Cox looked outside after hearing what “sounded like

backfiring,” she saw the adult victim standing near “a pine tree” and the Defendant’s

white truck being driven away. Her testimony indicated that she did not see anything

until the altercation was over. In addition, Mrs. Cox’s testimony that she did not see the

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minor victim at that time only corroborated the State’s version that the minor victim went

running home after the initial shots were fired. No one asserted that the victims’ father

was extremely close to the altercation, and Mrs. Cox clarified that she “just stayed right

there kind of on the carport[.]” While Mrs. Cox could not recall hearing any raised

voices or “squealing tires or anything like that,” she acknowledged that the living room

where she was watching television with her mother was “back away from the road[.]”

She further indicated that the volume on the television was likely loud because her

mother was hard of hearing and that it, therefore, would not “be unusual” for her to fail to

hear those sounds.

Whereas, Mrs. Loven testified at trial that, after hea

This text is long and has been trimmed here. Open the source document for the complete record.