Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs November 18, 2014
Appeal from the Criminal Court for Knox County No. 89776 Bob R. McGee, Judge
Stephen Ross Johnson, Knoxville, Tennessee, for the appellant, Justin William Voto.
Herbert H. Slatery, III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Randall Nichols, District Attorney General; and Philip H. Morton, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the Court, in which John Everett Williams and Timothy L. Easter, JJ., joined.
ROBERT W. WEDEMEYER, JUDGE
I. Background and Facts
On August 8, 2008, pursuant to a plea agreement, the Defendant agreed to plead guilty to kidnapping, a Class C felony, outside the range, as a Range II offender with the trial court to determine his sentence. The State agreed "not to oppose probation and judicial diversion if [the Defendant] complete[d] [a] course of treatment recommended [by a mental health facility]." On November 6, 2008, the trial court granted the Defendant's request for judicial diversion and placed him on judicial diversion for a period of ten years.
On January 8, 2013, the Defendant's supervising officer filed an affidavit alleging that the Defendant had violated condition (14) of his judicial diversion by incurring criminal charges for assault, public intoxication, and aggravated assault. On March 1, 2013, the Defendant admitted to a violation of the terms of his judicial diversion and requested that the trial court "reinstate" his judicial diversion; the Defendant waived his right to a hearing on the matter. The trial court subsequently scheduled a sentencing hearing, which was held on April 12, 2013.
At the hearing, the following evidence was presented: Megan Glenn testified that she had dated the Defendant "a couple of years back" for about a year or a year and a half. She stated that, during the time she was dating the Defendant, he told her he was "on probation" for "cutting somebody's lips off and slitting somebody's eyelids, " but Ms. Glenn did not know if that had actually occurred. Ms. Glenn stated that, during the time they dated, the Defendant exhibited "violent behavior" when they were "playing." She recalled that he choked her, and she told him to stop when it was not "funny anymore, " and she "blacked out." Ms. Glenn said she was crying when she asked the Defendant why he did not stop choking her when she could not breathe.
Ms. Glenn recalled that the Defendant would say things that "threw [her] off" such as talking about hurting his mother "in a moment of anger[.]" Ms. Glenn also stated that the Defendant threatened her family, and threatened the family of a woman named "Dana." Ms. Glenn explained that the Defendant was charged with assault on Dana Shell and her father, and the Defendant subsequently told Ms. Glenn that he would "blow up their house" and made other "crazy off-the-wall statements, " which she did not perceive to be jokes.
Ms. Glenn stated that she was present when the assaults on Ms. Shell and her father occurred, which lead to the Defendant's judicial diversion revocation. Ms. Glenn stated that she, the Defendant, and Ms. Shell were driving in Ms. Glenn's car, with the Defendant in the passenger seat and Ms. Shell in the backseat. Ms. Glenn stated that the Defendant and Ms. Shell got into an argument in the car, and he turned around and "choked [Ms. Shell] in the back of [Ms. Glenn's] car[, ]" "cutting off her airway." Ms. Glenn stated that she pulled her car over to the side of the road, opened the back door, and pulled Ms. Shell out of the car. She told Ms. Shell to run home because they were relatively close to Ms. Shell's house. Ms. Glenn testified that Ms. Shell's father approached the car, and the Defendant got out of the car and pushed him down to the ground. Ms. Glenn stated that the Defendant had been drinking vodka that night, but she did not know if he was intoxicated.
On cross-examination, Ms. Glenn agreed that she had been drinking the night of the assault on Ms. Shell and her father, as had Ms. Shell. She agreed that she saw Ms. Shell's father was "com[ing] toward" the Defendant and then saw the Defendant push him to the ground. Ms. Glenn stated that she was aware that the Defendant was on Adderall medication for Attention Deficit Disorder.
Dana Shell testified that she was a friend of Ms. Glenn's. She testified that on the night of November 18, 2011, she and Ms. Glenn picked up the Defendant. He sat in the front passenger seat, and Ms. Shell sat in the backseat. Ms. Shell recalled that she and the Defendant started arguing, and "it just kept escalating." The Defendant "snapped" and started yelling at Ms. Shell, asking her if she wanted him to hit her. Ms. Shell recalled "that's when he turned around and held me up against the back seat and was choking me and - the point where I couldn't breathe, I couldn't scream for help or get [Ms. Glenn] to help me . . ., and finally [Ms. Glenn] realized what was happening and she opened the back of the car and had to pull me out." ...