State v. Pitts, M2021-01334-CCA-R3-CD

CourtCourt of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
Writing for the CourtTIMOTHY L. EASTER, JUDGE
PartiesSTATE OF TENNESSEE v. LARRY DALE PITTS
Docket NumberM2021-01334-CCA-R3-CD
Decision Date22 November 2022

STATE OF TENNESSEE
v.

LARRY DALE PITTS

No. M2021-01334-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Nashville

November 22, 2022


Session October 12, 2022

Appeal from the Circuit Court for Rutherford County No. 82534 Barry R. Tidwell, Judge

Larry Dale Pitts, Defendant, was convicted of aggravated assault after a jury trial. The trial court denied his request for judicial diversion and sentenced him to split confinement, with one year of incarceration, and the remainder on supervised probation. He now appeals the sentencing determinations of the trial court, arguing that it abused its discretion in denying judicial diversion, denying full probation, and sentencing him to the maximum within-range sentence of six years. After review, we affirm the judgment of the trial court.

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

Heather Parker (on appeal and at trial) and Jake Beggin (at trial), Murfreesboro, Tennessee, for the appellant, Larry Dale Pitts.

Herbert H. Slatery III, Attorney General and Reporter; T. Austin Watkins, Senior Assistant Attorney General; Jennings H. Jones, District Attorney General; and John Zimmermann, Assistant District Attorney General, for the appellee, State of Tennessee.

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT L. HOLLOWAY, JR., and JILL BARTEE AYERS, JJ., joined.

OPINION

TIMOTHY L. EASTER, JUDGE

A Rutherford County grand jury indicted Defendant for attempted first degree murder and employing a handgun during the commission of a dangerous felony after Defendant shot his next-door neighbor in the leg. The matter proceeded to a jury trial. The following facts were established at trial based on video evidence from multiple

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security cameras, the testimonies of police officers, Defendant's neighbors, the victim, the victim's fiancee, Defendant, and Defendant's wife.

The victim, Daniel Dority, his fiancee, Tiffany Blalock, and their three children moved next door to Defendant and Defendant's wife, Marla Pitts, in 2016. The victim and Ms. Blalock were in their early thirties. Defendant and Mrs. Pitts were in their late fifties. Defendant carried a gun on him at all times. Both couples drank heavily and frequently and became friends. In September 2018, the neighbors had a falling out. There was conflicting testimony concerning the altercation that led to the falling out. Regardless, a nine-month feud ensued between the two households.

The neighbors found themselves to be the recipient of the other's torment. Ms. Blalock testified that Defendant called the police on them and made up lies, installed video cameras where her kids played, and made sexual remarks about her 10-year-old daughter. Defendant and Mrs. Pitts testified that the victim repeatedly insulted Defendant and threatened to hurt him.

The feud culminated on July 16, 2019. Around 2:00 p.m., the victim was mowing his lawn. While the victim was mowing, Defendant walked outside and posted a private property sign on his property nearby the victim. The men exchanged words and the conversation spiraled into an argument. Eventually, the victim returned to mowing his grass. Around 5:30 p.m., Defendant and Mrs. Pitts ate dinner and consumed "a few" beers. Defendant and Mrs. Pitts went outside and sat on their porch.

Around 9:00 p.m., while the victim was eating dinner and drinking a six-pack of beer, Ms. Blalock testified that she went outside to put away her children's bicycles. Defendant was on his porch, and Ms. Blalock was in her yard. The two insulted each other. Ms. Blalock went inside and told the victim of the argument. Ms. Blalock and the victim went outside and into the street. They began hollering at Defendant. Defendant shouted back from his porch. Mrs. Pitts yelled for everyone to return to their homes.

The argument escalated. Defendant and the victim, both intoxicated, threatened each other. The victim, standing in the street, goaded Defendant off his porch. Defendant left his porch and walked to the corner of his property near the street. Ms. Blalock went inside to call the police. Mrs. Pitts attempted to restrain Defendant. Defendant pulled out his gun and the victim turned away. Defendant shot the victim once in the leg from behind. After shooting the victim, Defendant went inside his home. Ms. Blalock testified that when she emerged from her house, she saw the victim limping around and bleeding everywhere. Another neighbor, Helen Davidson, helped Ms. Blalock stop the victim's bleeding with towels and used the victim's belt as a tourniquet.

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Rutherford County Sherriff's Office Deputy Denise Smotherman and another deputy arrived and cleared the scene. The officers went to Defendant's house and found him and Mrs. Pitts sitting in the garage on a couch, heavily intoxicated. They found Defendant's gun on the kitchen counter. The officers arrested Defendant. An ambulance arrived shortly thereafter and the victim was transported to Vanderbilt Hospital. He underwent 10 hours of surgery on his leg.

At the conclusion of the trial, the Rutherford County Circuit Court jury convicted Defendant of the lesser-included offense, aggravated assault, and acquitted him of employing a handgun during the commission of a dangerous felony.

At sentencing, the victim testified that he still experienced pain from the gunshot wound. He endured a month-long recovery from surgery and was unable to work for three months. As a plumber, his job required him to "scoot, bend, kneel, and sometimes climb[,]" and he now had "difficulty doing all of this."

Mrs. Pitts testified that she and Defendant had two kids and four grandchildren. She explained that Defendant spent as much time as he could with his grandchildren. Mrs. Pitts said that Defendant was in a motorcycle accident in 2007 and had long-term injuries to his right leg. Defendant also suffered from asthma. Mrs. Pitts testified that Defendant had not drunk alcohol since July 16, 2019. Defendant took biweekly drug and alcohol screens and wore a GPS monitoring bracelet. Isabella Williams testified that she had known Defendant and Mrs. Pitts for 30 years. She described Defendant as "a real nice guy" and stated that he had "always been very friendly and helpful."

The trial court considered the parties' arguments, the evidence, the presentence report, and the purposes and principles of sentencing. The trial court applied two enhancement factors and no mitigating factors. The trial court considered judicial diversion and probation. After making the relevant considerations, the court denied judicial diversion and full probation. The trial court sentenced Defendant to the maximum within-range sentence of six years and ordered a sentence of split confinement, with one year of incarceration and the remaining five years on supervised probation.

Defendant timely appeals.

Analysis

On appeal, Defendant raises three sentencing issues. Specifically, that the trial court abused its discretion in denying judicial diversion, that the trial court abused its discretion in denying full probation, and that the trial court abused its discretion in imposing the maximum within-range sentence of six years. The State responds that the

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trial court properly denied judicial diversion and full probation and properly sentenced Defendant to six years.

Standard of Review

When the record establishes that the trial court imposed a sentence within the appropriate range that reflects a "proper application of the purposes and principles of our Sentencing Act," this Court reviews the trial court's sentencing decision under an abuse of discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The same standard of review applies to a trial court's decision regarding "probation or any other alternative sentence." State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012); see also State v. King, 432 S.W.3d 316, 325 (Tenn. 2014) (applying the same standard to judicial diversion). 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. The party appealing the sentence has the burden of demonstrating its impropriety. T.C.A. § 40-35-401, Sentencing...

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