State of Tennessee v. Ashunti Elmore

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
April 10, 2012 Session

STATE OF TENNESSEE v. ASHUNTI ELMORE

Appeal from the Criminal Court for Shelby County
No. 0904525 W. Mark Ward, Judge

No. W2011-01109-CCA-R3-CD - Filed December 13, 2012

The defendant was convicted of two counts of reckless aggravated assault, Class D felonies,
and sentenced to serve two concurrent three-year terms, split six months in confinement with
the balance to be served on probation. On appeal, she contends that the evidence was
insufficient to support her convictions, that double jeopardy prevented her dual convictions,
and that the trial court erred in denying her judicial diversion. After careful review, we
conclude that sufficient evidence exists to support her convictions, that double jeopardy
requires her two convictions be merged and that the trial court did not abuse his discretion
in denying judicial diversion. The defendant’s convictions and sentence of three years with
six months served in confinement and the balance on probation are affirmed This case is
remanded to the trial court solely for purposes of entering a single corrected judgment.

Tenn. R. App. P. 3 Appeal as of Right; Affirmed and Remanded

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which C AMILLE R.
M CM ULLEN AND JEFFERY S. B IVINS, JJ., joined.

Arthur Horne (at trial) and Joseph A. McClusky (on appeal), Memphis, Tennessee, for the
appellant, Ashunti Elmore.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Robert Ratton, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION
 FACTS AND PROCEDURAL HISTORY

On March 2, 2009, the defendant, Ashunti Elmore, stabbed the victim, her former
partner Nikki Chaffen, with a kitchen knife during a domestic dispute. On July 21, 2009, the
defendant was indicted on two counts of intentional aggravated assault in violation of
Tennessee Code Annotated section 39-13-102. At the defendant’s trial on November 8-10,
2010, the following evidence was presented:

The victim identified the defendant in open court and testified that she had entered
into a relationship with her sometime during 2007. The victim testified that she lived with
the defendant for a period of time in a house on Gaywinds Avenue in East Memphis, but she
moved out of this house sometime after Christmas of 2008 and stayed with her family. The
victim testified that she moved most of her essential items out of the house on Gaywinds
Avenue at that time, but she left behind many incidental items, including several items
belonging to her young son. The victim testified that she retained the key to the house on
Gaywinds Avenue after she moved out and that her name remained on the lease. She
testified that she and the defendant exchanged periodic text messages concerning her plans
to remove the remainder of her items from her old house once her new house was ready. She
testified that her relationship with the defendant was “casual” during this time period.

The victim testified that in the days before the incident she informed the defendant
that she intended to come by the house on Gaywinds Avenue to remove the remainder of her
items on March 2, 2009. The victim testified that on the evening of March 1, 2009, she and
a female friend (who was visiting from California) went to a bar in downtown Memphis.
While they were there, they met up with some other friends, including an individual named
Chad Johnson.

The group had been at the bar for a while when suddenly the defendant¯who had
apparently entered the bar without the victim noticing¯“got in [the victim’s] face and was
threatening and hostile. . . .” The victim testified that the defendant asked her “how dare
[she] bring this person [from California] to Memphis,” told her that she “couldn’t do any
better,” and threatened that “everything that [she] had at the house was going to get burned
up.” The victim testified that this hostile confrontation continued for about five minutes.
She testified that she refused to escalate the situation, and the situation had largely “played
itself out” by the time Chad Johnson came over and stood over her right shoulder. The
victim testified that after the defendant went away she “put it behind me” and ended up
“hav[ing] a really good time” for the rest of the night.

The victim testified that on March 2, 2009, she had been planning on picking up a
U-Haul to retrieve her items from the house on Gaywinds Avenue after she dropped her son

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off at school. She testified that as she drove past the house¯which she testified was on the
way to her son’s school¯she saw “a lot of [her] things hanging out of the dumpster.”
Because she knew that it was trash day, she decided to return straight back to the house to
get them after dropping off her son. At this point, the victim was shown and authenticated
several pictures of the outside of the residence. She identified from the photographs some
of her personal items spilling out of an overflowing trash dumpster by the curb in front of the
residence and some cardboard boxes containing more of her personal items next to it. These
photographs were entered into evidence.

The victim testified that when she returned to the residence, she fished a few things
out of the garbage. After a short time, however, she decided that she “probably would do
better” if she retrieved her son’s items from inside of the house first. The victim testified that
these items included a V-Smile, learning games, school awards, a comforter, and some
pillows.

The victim testified that she unlocked the door to the residence using her key at
around 8:30 a.m. She testified that she initially assumed that no one was awake because she
saw no one in the house. She testified that she had entered the front room of the house where
some of her items should have been located when the defendant “came down the hallway
barreling,” telling her to “get the fuck out” repeatedly. The victim responded that she was
only going to leave after she had retrieved things because the defendant had put so many of
her possessions in the garbage. The defendant continued making statements like “I hate you”
and “I’m going to kill you.”

The victim testified that she had turned her back to the defendant when she suddenly
felt the defendant “swinging” at her. She testified that the defendant “made contact” with
her. When she turned back around, she saw that the defendant had a knife. She grabbed the
defendant by the wrists, pulled her arms over her head, and told her to drop the knife. The
defendant complied, and the victim kicked the knife away before noticing that there was
blood on the wall. Then “something clicked,” and the victim doubled over before stumbling
back toward the window seat located in the kitchen.

From the window seat, the victim began calling for help. The victim testified that she
could not take a full breath by this time and was “freaking out because there was so much
blood coming [out].” The victim testified that the defendant refused to call for aid and told
her “no, you’re fine, you just need me to stop the bleeding.” The victim testified that the
defendant retrieved a towel and pressed it into her chest, but this only served to exacerbate
her pain. The victim testified that she asked the defendant to call 911 nine or ten different
times.

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 Eventually, the defendant did call 911. The victim testified that she heard the
defendant explain to the 911 operator that her “roommate [had] tripped over the dog and cut
herself.” The victim testified that she could not breathe during this time period, and she
apparently lost consciousness. When she opened her eyes again, paramedics were present.
At this point, the victim was shown additional photos of the crime scene depicting the
interior of the house, blood splatter, and some of her personal items. She authenticated these
photographs and they were entered into evidence.

The victim testified that the paramedics cut off her clothes in an attempt to discover
the source of her bleeding, and they found cuts to her right lung and her left thigh. The
paramedics were forced to administer oxygen to her because she was not able to breathe.
The victim testified that while the defendant was leaning over one of the paramedic’s
shoulders, she told them that the defendant had stabbed her. She testified that her memory
concerning what happened afterward was not clear, but she knew that one of the paramedics
called for someone else. The victim testified that she did have a very clear memory of being
taken out of the house, “because it was freezing cold and they had cut [her] clothes off.”

The victim testified that she was taken to a trauma center where she underwent
surgery to repair a laceration to her liver and a collapsed lung. Her thigh was also stapled.
The victim testified that she was given a chest tube, which was in place for about a week, and
forced to undergo breathing treatments. She testified that she was placed on a morphine drip
for her pain and was administered a considerable amount of antibiotics. The victim testified
that at the present time she was still in “constant” pain, for which she was taking pain
medication, and she was still being administered breathing treatments as a result of the
attack. The victim concluded by testifying that she never struck the defendant on March 2,
2009.

On cross-examination, the victim testified that she did not believe that she had called
the defendant following their confrontation on March 1, 2009, to tell her that she was still
coming over to the house on the following day. The victim denied that she drove by the
house on the morning of March 2, 2009, just because she wanted to “do[] a drive-by.” The
victim acknowledged that she did not call or text the defendant or ring the doorbell before
entering the house that morning. The victim was also questioned in detail concerning several
facts to which she had attested in her direct testimony which defense counsel claimed were
not included in her testimony at a preliminary hearing.

The victim acknowledged on the stand that she was a “fighter” who had a short fuse.
The victim did not deny having said previously that she was “crazy” and that she would fight
anybody “at any time for anything.” She also did not deny that she stated “this is how we’re
going to do it” on the morning in question after the defendant told her that her things were

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located in the carport. Defense counsel then repeatedly accused the victim of starting “the
fight,” or of “tussling” with the defendant, on the morning in question. Each time, the victim
denied that any “fighting” had occurred. In response to defense counsel’s accusation that she
had shown up unannounced at the defendant’s house, the victim simply responded that it was
her house. Finally, the victim denied defense counsel’s claim that the defendant had cared
for her until help arrived after 911 was called, stating that the defendant simply “pressed a
towel into a stab wound that she inflicted.”

On re-direct examination, the victim testified that the house where the incident had
occurred was small and had hardwood floors. As a result, if anyone had been fighting in one
of the rooms, the noise would have been audible in the bedrooms, and a “big brawl” would
have woken up the defendant’s new roommate. The victim also testified that she would have
testified at the preliminary hearing concerning the fact that the defendant had told the 911
operator that she (the victim) had cut herself by tripping over a dog if she had been asked that
question at that time.

Mr. Chatayras Chad Johnson, the defendant’s work supervisor, testified that he knew
the victim from working with her at various Macy’s locations. He testified that on the night
of March 1, 2009, he met the victim and an out-of-town female friend at a location called
“Euphoria.” After visiting with the victim briefly, he and the victim’s female friend stepped
away to get drinks, leaving the victim sitting alone at the counter. While they were walking
away, the witness glanced in a mirror and saw someone approach the victim. It appeared that
the two started arguing. The witness testified that he turned around and went back toward
the activity. He identified the defendant in open court as the individual who was arguing
with the victim.

Mr. Johnson testified that the defendant held her face up to the victim’s ear during the
argument. He testified that he went and stood behind the victim because he believed that
there was going to be a confrontation and possibly a fight. He testified that he could not see
the victim’s face during the argument because he was standing behind her.

Mr. Johnson testified that he heard the defendant say something about some clothing,
and then as he moved closer, he heard the defendant say “if I can’t fucking have you, no one
can.” The witness testified that the victim responded by telling the defendant to leave her
alone and saying “don’t start this.” After some additional conversation, which he could not
hear, the victim “threw her arms up and said you know what, if you want to fight me, let’s
do it now.” The witness testified that in response he grabbed the victim’s purse.

Mr. Johnson testified that no fight ever broke out and that after the argument was over
both the defendant and the victim calmed down. He testified that they had a good time for

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the remainder of the evening. He testified that at no point during the evening did the victim
ever throw a punch or adopt an aggressive stance towards the defendant.

On cross-examination, Mr. Johnson acknowledged that he had no knowledge of any
of the events that had occurred the next morning at the house on Gaywinds Avenue. He
denied that the club where they were located the evening before was dark, but he
acknowledged that there was loud music playing. He testified that the victim was “ready to
fight” the defendant that night. He also testified that he was aware of the past relationship
between the victim and the defendant. On redirect examination, Mr. Johnson testified that
he had been forewarned as a store manager that there had been a hostile relationship between
the defendant and the victim and that he had been instructed to call security if the defendant
ever came into the store.

Ms. Carla Albonetti, a paramedic with the Memphis Fire Department, testified that
she responded to an emergency call coded as an accidental cutting¯not a stabbing¯at a
residence on Gaywinds Avenue on March 2, 2009. Ms. Albonetti testified that when she
knocked on the door of the residence, the defendant (whom she identified in open court)
answered the door and told her that the victim “had tripped over a dog and cut her leg.” The
witness testified that there was a “little yappy dog” present at the residence, which she asked
the defendant to put away.

Ms. Albonetti testified that when she went into the kitchen to check on the victim, she
“noticed immediately that there was a steak knife over on the counter by the sink, and there
was blood on the floor and the defendant was wiping the blood up with I think a T-shirt or
something. . . .” She testified that the scene immediately struck her as strange because
“usually if there’s some kind of a fight scene, it’s kind of chaotic, but it was not that at all.”
Ms. Albonetti testified that the defendant initially told her that the victim had cut her leg, so
she cut the victim’s pants off of her leg and discovered a wound there. However, she also
saw a large amount of blood on the victim’s side, and “very quickly assessed her and realized
that something [wa]s just not right, this [wa]s more than a cut on the leg.” The witness
testified that the victim was “way too calm” and had a weak pulse, which she believed could
not have been caused by the cut on her leg.

Ms. Albonetti testified that she pulled up the victim’s shirt and discovered that the
victim had a wound to her chest as well. She immediately recognized that this wound was
a stab wound due to her years of experience treating such injuries. She testified that the knife
appeared to have entered the “lower part of the lung, and the diaphragm area and the liver.”
She removed the victim’s shirt, listened to her chest, and determined that the victim was
having severe difficulty breathing and “was not moving a whole lot of air.”

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 Ms. Albonetti testified that the victim was barely able to talk and communicated
primarily by shaking or nodding her head. When she asked the victim whether she had
simply fallen on a knife, the victim shook her head “no.” When she informed the victim that
she had been stabbed, and asked who had stabbed her, the victim was able to whisper,
“Ashanti.” The witness testified that after hearing this she stood up, turned around, and
asked the defendant, who was still wiping up blood and cleaning things up, “who’s Ashanti?”
The defendant acknowledged that it was her.

Ms. Albonetti testified that after hearing this she walked into the living room and
asked her Lieutenant, Mr. Sankeno Christian, to follow her. She informed him that the
victim had been stabbed, that they were standing in a crime scene, that the victim had
identified the defendant as the individual who had stabbed her, and that they needed to call
the police. She testified that they turned their radios down, went into another area, and called
dispatch.

Afterward, Ms. Albonetti testified that she returned and continued treating the victim.
She testified that the victim had low blood pressure and was in “dire straits at that point.”
She clarified that the victim was in critical condition and would have died absent medical
intervention. She testified that she inserted an IV into the victim and administered oxygen
to her. The victim was transported out of the house by stretcher and rushed to the hospital
by an ambulance with its lights and sirens activated.

Ms. Albonetti was shown several pictures of the victim’s injuries and the crime scene
on the day in question, which she authenticated and which were entered into evidence. She
testified that in her opinion as a paramedic, there was no chance of stanching the internal
blood flow and saving the victim’s life by pressing a dishcloth against the victim’s wound.
Finally, the witness added that during the entire time she was in the residence she did not
notice any cuts or bruises on the defendant and that the defendant did not appear to be hurt
in any way.

On cross-examination, Ms. Albonetti testified that the defendant greeted her at the
door and was generally cooperative on the day in question. She acknowledged that someone
lacking specialized training might believe that they could stop bleeding by applying pressure
to a wound. She testified that she could not speak concerning anything that happened prior
to her arrival at the residence, and she did not know whether or not a fight had occurred.

Mr. Sankeno Christian, a paramedic supervisor, testified that he responded to a call
on March 2, 2009, with Ms. Carla Albonetti. He testified concerning the events that
followed in a manner consistent with the testimony of Ms. Albonetti. He testified that the
defendant did not have any scratches, cuts, bruises, torn clothing or anything else about her

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that indicated that she had been in a fight that day, and he agreed that the defendant told
paramedics that the victim had “fallen on something.” He testified that after Ms. Albonetti
told him that the victim had told her that the defendant had stabbed her, he called for police
assistance. He testified that afterward, he attempted to secure portions of the crime scene.
He also was shown and authenticated several photographs of the inside of the residence, a
bloody towel, and a bloody knife, which were then entered into evidence.

Officer Brian Bermudez of the Memphis Police Department testified that he
responded to a call at a residence on Gaywinds Avenue on March 2, 2009, to discover the
victim being treated by Ms. Albonetti. He testified that he walked up and asked the victim
who did it, and the victim pointed at the defendant. He testified that the defendant was “just
calm as she could be” and “not really saying anything.” He testified that he got a good look
at the defendant that day, and he did not notice any scratches, bruises, or anything else about
her appearance that made him believe that she had been in an altercation.

Officer Bermudez testified that he walked through the house and discovered “a lot of
blood in the kitchen.” He testified that he also discovered a knife and some bloody rags.
It appeared as though someone had been trying to clean up the blood. He testified that while
he was there, an individual came out of the back bedroom. He testified that this individual
appeared to have just woken up because he “was rubbing his eyes” and “had no clue” what
had happened. He testified that he took the defendant into custody and transported her to the
police station.

On cross-examination, Officer Bermudez testified that the defendant was calm and
cooperative when he arrived at the residence. He testified that he did not ask the defendant
to pull up her shirt or pull down her pants so that he could examine her body for scratches
or bruises. Officer Bermudez acknowledged that he had no direct knowledge concerning the
incident that had occurred because he was not present at the time.

Mr. Peatron Cummings, an EMT with the Memphis Fire Department, testified that he
also responded to a call at a residence on Gaywinds Avenue on the date in question. He
testified that police and other paramedics, including Ms. Carla Albonetti, were already
present on the scene. He testified that the victim was already “packaged” and ready for
transport when he arrived. He testified that he carried the victim to his ambulance by
stretcher and transported her to the hospital with his lights and sirens activated. He testified
that the victim was in critical condition at the time and was “bleeding out.”

The State’s final witness, Officer Ricky Davidson of the Memphis Police Department,
testified that he had been employed as a crime scene investigator and had investigated a
crime scene at a house on Gaywinds Avenue on March 2, 2009. He testified that the victim

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had already been transported to the hospital when he arrived at the residence. He testified
that he photographed and sketched the crime scene. He also discovered a bloody towel, a
bloody shirt, and a steak knife covered in an unknown substance, which he collected. He
authenticated these photographs and items, and they were entered into evidence. Officer
Davidson testified that he found no signs of a fight or disturbance at the residence during his
investigation.

Following this testimony, the State rested. The defense presented the testimony of
four witnesses. Mr. Ralph Minors, Jr., who worked with the defendant at the Transportation
Security Administration, testified that he also performed lock-smithing services on the side.
He testified that at 6:00 a.m. on March 2, 2009, his phone received a text message from the
defendant requesting that he rekey the locks of her home. He testified that he was asleep, but
called the defendant after he woke. The defendant answered the phone but was still in bed.
He testified that he told the defendant to call him when she woke up and he would come over
and change the locks.

Mr. Todd Luttrell testified that he knew the defendant from working with her at UPS
eight years earlier. He testified that on March 2, 2009, he was the defendant’s roommate.
He testified that he had moved in approximately two weeks earlier and that no one else lived
in the residence. He testified that before he moved in, he and the defendant moved all of the
victim’s items outside to the carport. He testified that none of the victim’s items were
located in the residence after he moved in. He testified that on the morning of March 2,
2009, he woke up to discover policemen in the house. He testified that he had heard nothing
prior to his being woken by a “lady cop.”

On cross-examination, Mr. Luttrell testified that he had no knowledge of what items
had belonged to the victim other than what he had been told by the defendant. He
acknowledged that the defendant did not have any children, and consequently a child’s car
seat discovered in the residence probably did not belong to her. He testified that he was not
under the influence of drugs or alcohol on the day in question and repeated his claim that he
never heard any sort of fight or altercation that morning before he was physically woken up
by the police.

Mr. Brian Townsel testified that he accompanied the defendant to a club the night
before the incident and that they arrived around midnight. He testified that there was loud
music playing at the club and that while the bar area was illuminated, the club itself was dark.
He testified that he saw the victim that night in the company of another young lady. He
testified that the defendant “drifted off” to have a conversation with her. He testified that he
could not hear this conversation¯even though he was standing only a foot away¯because
the music was too loud. He testified that the defendant was not being aggressive that evening

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and that the defendant was not an aggressive person in general.

Mr. Townsel testified that at some point the conversation escalated, and he saw the
victim throw up her hands and heard her say “let’s fight.” He testified that the victim was
so loud that “people around them turned and looked.” He testified that the defendant walked
away at that point, and there were no further problems during the evening. He testified that
he and the defendant left the club around 2:30 a.m., and he went home and fell asleep.

On cross-examination, Mr. Townsel testified that he had known the defendant for
about six years and that they were “pretty good friends.” He testified that on the night in
question, the victim did not approach the defendant; rather, the defendant approached the
victim. He testified that he knew Mr. Chad Johnson and that he did not recall seeing him in
the club that evening. He agreed that the defendant was “up in” the victim’s face.

The defendant testified that she was an air traffic controller and was employed by the
Transportation Security Administration in March 2009. She testified that she had lived at an
address on Gaywinds Avenue since June or July of 2008. She testified that when she initially
moved into the residence, the victim also moved in with her. She testified that the victim’s
son lived in the residence as well. She testified that she and the victim were dating at this
time and that they dated for approximately a year and a half. The defendant testified that
Gaywinds Avenue is an “offstreet,” and the victim would not have had to drive past the
house every day to take her son school.

The defendant testified that the victim moved out of the residence the first week of
February and took all of her furniture and appliances with her. She testified that the victim
left behind a few boxes of items such as bath rugs and toys. She testified that once she found
a new roommate, she and that roommate moved all of the victim’s boxes outside to the
carport. The defendant testified that the child car seat and boxes located in the house on the
day of the incident did not belong to the victim but rather belonged to either her or her
nephew.

The defendant testified that although they were not dating and had started seeing other
people, the victim still had a key to the house, and her name was still on the lease. The
defendant testified that for the first three weeks after she moved out, the victim was stopping
by the house every morning unannounced. The defendant testified that the last time the
victim had been to the residence was approximately three weeks prior to the incident.

The defendant testified that on March 1, 2009, she met Mr. Brian Townsel and
another friend and they went to a club, arriving shortly after midnight. The defendant
testified that she saw the victim at this club, standing next to another female. She testified

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that she walked over to speak with the victim and inquired as to the other girl’s identity. She
testified that the victim pulled closer to her in response and “was like, you know, what are
you going to do about it,” before saying “let’s fight.” The defendant testified that she “kind
of walked off” and had no further contact with the victim for the remainder of the evening.

The defendant testified that she never said, “if I can’t have you, nobody else can” to
the victim. She testified that it did not bother her that the victim was with another woman.
She also testified that she never saw Mr. Chad Johnson that night and that she had seen him
for the first time during the trial.

The defendant testified that when she returned home from the club, she took some
boxes out of a storage shed and placed them near the dumpster. She testified that some of
these items belonged to the victim but that she did not place them in the garbage because she
was upset. Rather, she “just wanted to be done with the whole situation.” Then she texted
“Ralph” and asked him to call her as soon as possible because she wanted to get the locks
changed.

The defendant testified that she had told the victim prior to March 2, 2009, that her
items were in the storage unit in the carport and were no longer in the house. She testified
that the victim’s house key would also open the storage unit. She testified that she
emphasized to the victim on numerous occasions that she should call before coming over to
retrieve her things.

The defendant testified that around 8:30 a.m. on the day in question she woke up to
discover the victim standing over her bed. The defendant testified that “it scared me into
freaking out because I couldn’t understand why she was in there, you know, and we had just
kind of had those words the night before.” The defendant testified that she “jumped up” out
of bed and politely asked the victim to leave. The defendant testified that the victim replied
“is this how you want it” and “[t]his is how you want to do stuff?” The defendant testified
that she again politely asked the victim to leave, and then attempted to leave her own
bedroom. She testified that the victim kept blocking her from getting out.

The defendant testified that she finally got past the victim into the kitchen and
ultimately reached the door to the garage. She testified that she again informed the victim
that her items were out in the carport before reaching across the victim to open the door. She
testified that the victim pushed her and then “came at me and grabbed my hair.” She testified
that “we were kind of tussling and I was trying to push her back off me to get her hand off
my head.” The defendant testified that she never attacked the victim, never yelled, and never
cussed.

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 The defendant testified that the victim eventually pushed her all the way to the stove
in the kitchen. She testified that the victim pulled out a steak knife from the “dish drainer.”
She testified that she reached for the victim’s arm and hand in an effort to keep the knife as
far away from her as possible. She testified that “all I remember at that point is just tussling
and we ended up in the dining room area and I remember being in that corner, up against that
wall, and I remember hitting the floor.” She testified that she felt afraid of and threatened
by the victim.

The defendant testified that afterward, she jumped back up and realized that there was
blood. She testified that she told the victim that she was bleeding and that the victim asked
her to call 911. The defendant testified that she grabbed her phone and called for help, then
walked the victim to the kitchen bay window, where she tried to staunch the flow of blood
with a towel. The defendant testified that at no point during the struggle did she ever have
“full possession of that knife.”

The defendant testified that she owned a dog which she had to put away once the
paramedics arrived. She testified that she had no memory of telling the paramedics that
someone had tripped over her dog and fallen on a knife, but she acknowledged that she “very
well may have said that” because she was afraid and did not want to be in trouble. The
defendant testified that she was arrested but never gave a statement to police.

On cross-examination, the defendant testified that her struggle with the victim went
on for several minutes. The prosecutor asked the defendant if she remembered the testimony
from the State witnesses concerning the fact that she appeared to be uninjured and her hair
did not appear out of place on the day in question, and the defendant acknowledged that she
did. The defendant admitted that she had never called the police to report that the victim had
been stopping by the house unannounced, nor did she ever ask the victim for her key back
or for the victim’s name to be taken off the lease. The defendant admitted that on the
morning in question she never told 911 that the victim had come in and attacked her. She
also admitted that she never told the police that she had been attacked at any point after she
was arrested.

The defendant testified that she had no way of knowing how serious the victim’s
injuries were after she had been stabbed. The defendant testified that she did not know that
the victim had been cut in the leg, and she denied ever telling first responders that the victim
had been cut in that location. The defendant stressed that she only put some, not all, of the
victim’s belongings into the dumpster on the night before the incident.

Following this testimony, the defense rested, the parties gave closing arguments, and
the trial court instructed the jury. The trial court adjoined for the holiday on November 11,

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2010, and the jury returned to begin deliberations at 9:28 a.m. on November 12, 2010. At
12:55p.m. that same day, the jury returned with a verdict of guilty of the lesser-included
offenses of reckless aggravated assault in violation of Tennessee Code Annotated section 39-
13-102, class D felonies. On January 7, 2011, the trial court sentenced the defendant to two
concurrent three-year sentences, split six months in confinement with the balance to be
served on probation, for a total effective sentence of three years. The trial court denied the
defendant’s application for judicial diversion.

The defendant filed a timely motion for new trial on January 28, 2011, which was
denied by the trial court following a hearing on May 17, 2011. The defendant filed a timely
notice of appeal that same day. Our decision follows.

ANALYSIS

The defendant claims that the evidence is insufficient to support her conviction, that
the trial court abused its discretion by denying her judicial diversion, and that her separate
convictions for reckless aggravated assault violate the Double Jeopardy Clause. For the
reasons that follow, we conclude that the evidence is sufficient to support the defendant’s
convictions and that the trial court did not abuse its discretion by denying the defendant’s
request for judicial diversion. However, we agree that the Constitution requires her separate
convictions to be merged. Consequently, the case is remanded for the limited purpose of
effecting a merger and entering an appropriate judgment.

I.

The defendant claims that the evidence is insufficient to support her convictions for
aggravated assault. The standards governing appellate review of sufficiency of the evidence
claims were recently summarized by our supreme court:

Appellate courts evaluating the sufficiency of the convicting evidence
must determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Because
a guilty verdict removes the presumption of innocence and replaces it with a
presumption of guilt, on appeal a defendant bears the burden of showing why
the evidence is insufficient to support the conviction. State v. Parker, 350
S.W.3d 883, 903 (Tenn. 2011). This Court affords the State the strongest
legitimate view of the evidence presented at trial and the reasonable and
legitimate inferences that may be drawn from the evidence. State v. Bland,

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 958 S.W.2d 651, 659 (Tenn. 1997). “The credibility of the witnesses, the
weight to be given their testimony, and the reconciliation of conflicts in the
proof are matters entrusted to the jury as the trier of fact.” State v. Campbell,
245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292,
295 (Tenn. Crim. App. 1978)). This Court neither re-weighs the evidence nor
substitutes its inferences for those drawn by the jury. Bland, 958 S.W.2d at
659. Circumstantial and direct evidence are reviewed under the same
standard of review. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).
Circumstantial evidence alone is sufficient to support a conviction, and the
circumstantial evidence need not exclude every reasonable hypothesis except
that of guilt. Id. at 381.

State v. Carl J. Wagner, No. M2010-00992-SC-R11-CD, ___ S.W. 3d ___, 2012 Tenn.
LEXIS 746, at **18-19 (Tenn. Oct. 12, 2012).

The defendant was convicted of two counts of reckless aggravated assault. Tennessee
Code Annotated section 39-13-102 provides: “A person commits aggravated assault who .
. . [r]ecklessly commits an assault as defined in § 39-13-101(a)(1)” and either “[c]auses
serious bodily injury to another; or . . . [u]ses or displays a deadly weapon.” T.C.A. §§ 39-
13-102(a)(2) (2009). Section 39-13-101(a)(1) provides that a person commits assault if he
or she “[i]ntentionally, knowingly or recklessly causes bodily injury to another.” T.C.A. §
39-13-101(a)(1). “‘Bodily injury’ includes a cut, abrasion, bruise, burn or disfigurement, and
physical pain or temporary illness or impairment of the function of a bodily member, organ,
or mental faculty.” T.C.A. § 39-11-106(a)(2). “‘Serious bodily injury’ means bodily injury
that involves . . . [p]rotracted unconsciousness . . . [e]xtreme physical pain . . . [or p]rotracted
loss or substantial impairment of a function of a bodily member, organ or mental faculty.”
T.C.A. § 39-11-106(a)(34).

The defendant was convicted of committing reckless aggravated assault both by
causing “serious bodily injury” and by displaying a deadly weapon. There was sufficient
evidence for a reasonable jury to find all of the necessary elements of each offense contained
in the victim’s direct testimony. The victim testified that on the day in question she never
struck the defendant and that no fight ever occurred. She testified that she suddenly saw the
defendant “swinging” at her and felt her make contact. She testified that she saw a knife in
the defendant’s hand and blood on the wall. She testified that she was bleeding and having
difficulty breathing. She testified that she lost consciousness for a period of time, and she
woke up from the cold as she was being loaded into an ambulance. She testified that she was
taken to a hospital where it was determined that she was suffering from a collapsed lung.
She testified that she was intubated and received “breathing treatments.” She testified that
her injury was painful¯she was placed on a morphine drip at the hospital, and she was still

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being given pain medication at the time of her testimony at trial. She testified that medical
staples were used to close up the wounds on her chest and thigh. Viewed in the light most
favorable to the prosecution, and resolving any credibility issues in favor of the State, a
reasonable jury could conclude from this testimony that beyond a reasonable doubt: (1) the
defendant cut the victim, thereby causing “bodily injury”; (2) the defendant acted
“recklessly” in causing this “bodily injury,” as the injury resulted from her act of “swinging”
wildly with a knife; (3) the “bodily injury” caused by the defendant was “serious,” as it
substantially impaired her lung function, led to protracted unconsciousness, and involved
extreme physical pain; and (4) the defendant “used or displayed a deadly weapon” (a knife)
in the course of causing this “bodily injury.” Thus, the victim’s testimony provides sufficient
evidence to support all of the essential elements of both crimes at issue.

The defendant also asserts that the State never produced sufficient evidence to defeat
her claim of self-defense. Section 39-11-601(b)(1) provides that:

[A] person who is not engaged in unlawful activity and is in a place where the
person has a right to be has no duty to retreat before threatening or using force
against another person when and to the degree the person reasonably believes
the force is immediately necessary to protect against the other’s use or
attempted use of unlawful force.

T.C.A. § 39-11-611(b)(1). Such force may even include deadly force if certain conditions
are met, such as “[t]he person has a reasonable belief that there is an imminent danger of
death or serious bodily injury.” T.C.A. § 39-11-611(b)(2)(A). Moreover, Tennessee law
provides a special presumption that this particular condition is satisfied “when [the deadly]
force is used against another person, who unlawfully and forcibly enters or has unlawfully
and forcibly entered the residence, business, dwelling or vehicle, and the person using
defensive force knew or had reason to believe that an unlawful and forcible entry occurred.”
See T.C.A. § 39-11-611(c). After a defendant raises facts sufficient to support a finding of
self-defense, “[t]he [S]tate has the burden of proving beyond a reasonable doubt that the
defendant did not act in self-defense.” State v. Belser, 945 S.W.2d 776, 782 (Tenn. Crim.
App. 1996). Whether a defendant acted in self-defense is a question of fact for the jury.
State v. Clifton, 880 S.W.2d 737, 743 (Tenn. Crim. App. 1994).

However, evidence sufficient to support the jury’s decision to reject the defendant’s
claim of self-defense beyond a reasonable doubt is again contained in the victim’s direct
testimony. The victim testified (and the defendant agreed) that she still had a key to the
residence on the day of the assault, and her name was still on the residence’s lease¯both
with the knowledge and consent of the defendant. Consequently, the victim still had the legal

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right to enter the premises. The victim also testified that she and the defendant had
previously agreed that she would come over to the residence on the day in question to
retrieve some of her belongings, which were still stored at the house. The victim testified
that she peaceably let herself into the house using her key. If credited, these facts amply
suffice to defeat any claim that the victim unlawfully and forcefully entered the residence on
the day in question, thus depriving the defendant of any benefit of the special presumption
afforded by section 611(c) .

Absent the special presumption, the defendant’s use of deadly force would not be
justified unless, inter alia, the defendant had a reasonable belief that there was an “imminent
danger of death or serious bodily injury.” However, the victim testified that she never struck
or fought with the defendant. She testified that the defendant attacked her suddenly and
without warning while her back was turned. The jury was free to credit this testimony and
reject the defendant’s claim of self-defense.

The defendant argues that the jury’s verdict¯finding her not guilty of intentional
aggravated assault, but instead only guilty of the lesser included offense of reckless
aggravated assault¯indicates that the jury “rejected [the victim’s] version of events, and
instead seems to have embraced [the defendant’s] recitation of the facts.” Such a claim, even
if true, is not relevant to the resolution of a sufficiency of the evidence challenge. As
discussed, under the appropriate standard of review, an appellate court must resolve all
conflicts in the evidence¯in this case, the direct conflict between the victim’s testimony and
the defendant’s testimony concerning the victim’s behavior prior to the stabbing¯in favor
of the State. See, e.g., Campbell, 245 S.W.3d at 335. The victim testified that she never
struck the defendant on the day in question and that her back was to the defendant when the
assault occurred. A reasonable jury was free to conclude beyond a reasonable doubt from
this testimony that the necessary elements of self-defense were not satisfied.

The record supports the jury’s conclusion that all of the essential elements of both
types of reckless aggravated assault were satisfied and that the defendant did not act in self-
defense. The defendant’s claim that the evidence is insufficient to support her convictions
is denied.

II.

The defendant also claims that her dual convictions for reckless aggravated
assault violate the federal and state prohibitions against double jeopardy. See U.S. C ONST.
Amend. V (“No person shall . . . be subject for the same offense to be twice put in jeopardy
of life or limb.”); T ENNESSEE C ONST. Art. I, §10 (“[N]o person shall, for the same offence,
be twice put in jeopardy of life or limb.”). We review this type of double jeopardy claim de

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novo. See State v. Thompson, 285 S.W.3d 840, 846 (Tenn. 2009).

In this case, it is evident that both of the defendant’s convictions arise from a single
transaction¯the defendant’s assault on the victim on the morning of March 2, 2009. The
defendant was convicted for this assault twice under the same general provision, section 39-
13-102(a)(1)(B), using two different theories of criminal liability. Convicting an individual
twice under the same statute for the same act so fundamentally violates federal and state
double jeopardy principles that extended analysis of the defendant’s claim is not required.
The State concedes error and acquiesces in remand. The State notes in its brief that it
appears that the trial court intended to merge the convictions but simply failed to reduce them
to a single judgment form. Our review of the record leads us to agree that the defendant’s
convictions were not merged due to a simple oversight. Consequently, we remand the case
to the trial court for purposes of entering a corrected judgment.

III.

Finally, the defendant claims that the trial court abused its discretion by denying her
request for judicial diversion. Judicial diversion is a legislative largess that affords certain
types of convicted defendants the opportunity to avoid having a permanent criminal record
provided certain conditions are met. See T.C.A. § 40-35-313(a). We review a trial court’s
decision to deny judicial diversion under an abuse of discretion standard. State v.
Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998). “[T]his Court will not
interfere with the refusal of the trial court to grant judicial diversion if there is any substantial
evidence to support the refusal contained in the record.” State v. Parker, 932 S.W.2d 945,
958 (Tenn. Crim. App. 1996) (internal quotation omitted). There is no presumption in favor
of judicial diversion under section 40-35-313. See Electroplating, 990 S.W.2d at 228.

“In determining whether to grant judicial diversion, the trial court must consider[:] (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, (f) the deterrence value to the accused as well as others, and (g) whether
judicial diversion will serve the interests of the public as well as the accused.” Id. at 229.
“[T]he record must reflect that the court has weighed all of the factors in reaching its
determination,” and “if the court has based its determination on only some of the factors, it
must explain why these factors outweigh the others.” Id. If a trial court fails in this duty, we
may review the record to determine whether the trial court reached the correct result
notwithstanding its failure to explain its reasoning. See id.

Our review of the record leads us to conclude that the trial court considered all of the
relevant factors. In the defendant’s favor, the trial court found that she had a “lack of

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criminal record, [and a] good employment history. . . .” Nor did the trial court hold the
circumstances of the offense against the defendant, stating that while an “argument could be
made” that the defendant’s offense was “extremely aggravated or exaggerated,” the court was
not going to apply this factor. And while the trial court stated that it was “common sense .
. . that this domestic violence is something that needs to be deterred,” the trial court also
refused to deny the defendant diversion based on deterrence or the need to protect the public,
explaining that it did not feel that the “evidence in the record with regard to the matter” was
sufficient.

However, when the trial court considered the defendant’s amenability to correction
and whether diversion would serve the interests of the accused, the trial court found that
these factors weighed strongly against diversion and that they outweighed all of the other
factors. With respect to whether diversion would serve the interests of the accused, the trial
court agreed with the prosecution that the defendant “hasn’t really accepted responsibility
for what’s going on.” With respect to her amenability to correction, the trial court concluded
that the defendant had demonstrated a severe lack of potential for rehabilitation because she
had shown a remarkable degree of untruthfulness during her testimony at the trial. The trial
court, having witnessed (and specifically referencing) the defendant’s demeanor on the stand,
determined not only that her sworn testimony was not credible, but that she had affirmatively
“committed perjury during the course of the trial.” In this regard, the trial court referenced
several specific instances in which the court found that the defendant had lied under oath,
including her claim that the victim had “stabbed herself in the course of a tussel” and “when
[she] testified that she merely was putting the possessions of the victim on the curb,” yet “we
all saw a picture of them in the garbage can.” The trial court found that the defendant’s “lies
. . . continued throughout the course of the trial.” As the trial court explained, “you can’t
come up here and roll the dice and commit perjury and then come back here and say give me
judicial diversion.” The trial court concluded that the defendant’s extensive
perjury¯combined with her failure to take any meaningful responsibility for her
crime¯fully demonstrated that she was not amenable to correction, that placing her on
diversion was not in her interests, and that these facts were such a “big[] problem” that they
outweighed all other considerations. The trial court’s reasons for reaching this conclusion
are well documented in the record. The law requires no more.

After reviewing the record, we can discern no error in the trial court’s analysis. The
trial court amply explained on the record why diversion was not in the best interests of the
accused and why consideration of this factor¯in addition to the accused’s demonstrable
lack of amenability to correction¯sufficed to outweigh all of the other factors. The
defendant’s claim that the trial court abused its discretion by denying her application for
judicial diversion is denied.

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 CONCLUSION

For the foregoing reasons, the case is remanded to the trial court.

_________________________________
JOHN EVERETT WILLIAMS, JUDGE

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