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State v. Miller

Court of Criminal Appeals of Tennessee, Nashville

October 13, 2017

STATE OF TENNESSEE
v.
DENNIS MILLER

          Session Date: September 13, 2017

         Appeal from the Criminal Court for White County No. CR6816 David A. Patterson, Judge

         The Defendant, Dennis Gregory Miller, entered a guilty plea to reckless aggravated assault, a Class D felony, with the punishment to be determined by the trial court. The Defendant requested judicial diversion and a sentence to be served on probation. After a hearing, the trial court denied diversion and imposed a two-year sentence, with sixty days to be served incarcerated and the remainder on probation. The Defendant appeals, asserting that the trial court abused its discretion. After a thorough review of the record, we affirm the judgment of the trial court.

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

          Cindy Morgan, Sparta, Tennessee, for the appellant, Dennis Gregory Miller.

          Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant Attorney General; Bryant C. Dunaway, District Attorney General; and Bruce MacLeod, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE

         FACTUAL AND PROCEDURAL HISTORY

         The Defendant was indicted for an assault committed against his cousin, Tim Howard, on June 30, 2014. The plea hearing is not a part of the record, and we summarize the facts we have gleaned from the affidavit of complaint, the presentence report, and the victim impact statement.

          The Defendant and victim had been embroiled in a dispute over some family property when the Defendant went to the property of a mutual relative, [1] where the victim was mowing the lawn. According to the Defendant, the victim refused to discuss the dispute and told him to get off the property.

         The victim and the Defendant agreed that the physical confrontation began when the Defendant approached the victim and hit him in the head.[2] The punch had unforeseen consequences, in that the Defendant dislocated his own shoulder while throwing the punch. The Defendant fell to the ground, and the victim got on the Defendant's back to hold him down. The Defendant stated that the victim was punching him in the back, and the victim acknowledged he may have hit the Defendant. Both parties told law enforcement that the Defendant regularly carried a gun, that the gun was in his pocket, and that the victim told the Defendant "not to go for the gun." The two struggled over the pocket with the gun.

         The Defendant eventually managed to draw the gun, and it discharged, striking the victim in the ankle. The Defendant and victim disagreed about the circumstances of the firing of the shot. The Defendant asserted that they were wrestling over the gun when it went off and that he did not intend to shoot the victim and was not at first aware that the victim was shot. The Defendant asserted that "at one point [the gun] was up around his neck area with both men's hands on it." The victim, on the other hand, stated that he did not have his hands on the gun when it discharged. He asserted that the Defendant had taken a step away and half a turn before he drew the weapon and that the Defendant kept "his left hand on his right wrist" because he was having trouble raising his injured arm to fire. The victim stated that after the shot was fired, he grabbed the Defendant's hands and pushed the gun over the Defendant's head. The victim and Defendant both stated that the Defendant's girlfriend approached after hearing the gunshot and that the Defendant surrendered the weapon to her, at which point both the victim and the Defendant sought medical treatment.

         The victim told police that the Defendant slapped him before leaving, clarifying in his victim impact statement that the Defendant threatened to shoot him if he ever came on the Defendant's property and then "slapped [his] glasses off." The victim initially did not want to pursue charges.

          The Defendant told police that he was "sorry this happened" and that he would "accept responsibility for [his] role in ...


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