IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs November 17, 2015

STATE OF TENNESSEE v. KEVIN E. TRENT

Appeal from the Criminal Court for Claiborne County

No. 2014CR1918 John McAfee, Judge by Interchange

No. E2015-00753-CCA-R3-CD – Filed July 21, 2016

_____________________________

The defendant, Kevin E. Trent, appeals the trial court‟s denial of his request for 

alternative sentencing. Pursuant to a plea agreement, the defendant pled guilty to 

vehicular homicide by intoxication, a Class B felony. The agreement specified an eightyear sentence with the manner of service to be determined by the trial court. Following a 

sentencing hearing, the court ordered that the sentence be served in the Tennessee 

Department of Correction. On appeal, the defendant argues that the decision was error 

because the trial court incorrectly concluded that confinement was necessary to avoid 

depreciating the seriousness of the offense. Following review of the record and the

evidence before us, we conclude that the trial court abused its discretion in requiring full 

confinement and reverse the sentence consistent with this opinion. 

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

and Remanded

JOHN EVERETT WILLIAMS, delivered the opinion of the Court, in which ROBERT H.

MONTGOMERY, JR., J., joined. ROGER A. PAGE, J., not participating.

Robert Scott, Assistant District Public Defender, for the Appellant, Kevin E. Trent.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;

Jared Effler, District Attorney General; and Graham Wilson, Assistant District Attorney 

General, for the Appellee, State of Tennessee.
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OPINION

Factual Background and Procedural History

The defendant‟s conviction in this case arose from his involvement in an 

automobile crash that resulted in the death of the forty-year-old victim, a mother of four 

children. Pursuant to our sua sponte order, the record has been supplemented with the 

transcript of the guilty plea hearing and the presentence report. According to the 

presentence report, the defendant was driving under the influence of oxycontin and 

alprazolam on May 3, 2012, and he crossed the center line of the highway, striking the 

car of the victim, Karen Freeman. 

A grand jury indicted the defendant for vehicular homicide by intoxication and 

driving under the influence (“DUI”). Thereafter he pled guilty to the vehicular homicide

charge, and the DUI charge was dismissed. The record indicates that the defendant 

stipulated, despite a lack of memory, that his vehicle collided with the victim‟s and that 

the State had proof that he was intoxicated because the level of oxycodone in his system 

was above therapeutic levels. The defendant also stipulated that his intoxication led to 

the accident and the victim‟s death based upon the proof that the State had. Pursuant to 

an agreement, he received an eight-year sentence as a Range I offender, but the manner 

of service was left to the discretion of the trial court. A sentencing hearing was held, at 

which time the victim‟s mother, the manager of a local convenience store, the 

defendant‟s friend, the defendant‟s father, and the defendant himself testified.

The victim‟s mother testified that her daughter was traveling to school on the 

afternoon of the accident in order to pick up two of her four children. After receiving a 

call from the school that the children had not been picked up, the family learned that the 

victim had been involved in a serious accident. The victim received critical injuries in 

the wreck and was hospitalized for over two months. Afterwards, the victim was 

transferred to a nursing home, where she remained for a year and a half before dying of 

injuries caused by the accident. According to her mother, the victim lost a finger, had 

rods inserted in her legs, lost the use of her hands, had a tracheotomy and a feeding tube, 

suffered from a brain injury, and was unable to speak. The victim had to be bathed and 

turned in her bed, as she was unable to perform these actions on her own. 

The next witness, Ms. Peggy Holt, was the manager of the Springdale Pic N Pay, a 

store that the defendant frequented. She testified that she had seen the defendant drive to 

the store multiple times and that he usually sent someone in for his purchases. On the 

day of the accident, Ms. Holt witnessed the defendant drive away, almost hitting the 

canopy pole in front of the store. 
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Ms. Holt testified that because of the defendant‟s disability, she had approached

the defendant in his truck on prior occasions and noted that he was not attentive and had 

slow, slurred speech. She said that she did not see any sort of handicap accommodations

inside the defendant‟s truck. 

Through the testimony of the three defense witnesses, Rick Leonard, Tim Trent, 

and the defendant, it was established that the defendant had been involved in a prior 

accident in June of 2005. In that accident, the defendant was traveling on a motorcycle 

when an intoxicated driver pulled out in front of him. The defendant and his motorcycle

slammed into the driver‟s side of the car. As a result of the accident, the defendant lost 

his left leg and both arms from the elbow down. He spent multiple months in the hospital 

and a rehabilitation facility. He was prescribed oxycodone and Xanax during this period. 

After the accident and treatment, he continued to take those medications. The motorcycle 

accident was determined to be the fault of both the intoxicated driver and the defendant‟s 

speed. 

Prior to the motorcycle accident, the defendant had graduated from high school 

and was working forty hours per week, in addition to mowing thirty to forty yards. It was 

also established that that defendant had no additional interaction with the law and no 

arrests until his arrest in the instant case. The defendant, his friend, and his father all 

testified that the defendant very rarely drank alcohol, and the defendant testified that he 

tried marijuana only one time and did not care for it. 

After the motorcycle accident and subsequent treatment, the defendant stayed with 

his father because he was unable to take care of his personal needs. He was also unable 

to continue his employment and began receiving Social Security disability benefits. 

However, he was able to continue mowing some lawns on his zero turn mower and to 

drive his vehicle again beginning in December of 2005. According to both the defendant 

and his father, after the motorcycle accident, they contacted the driver‟s license agency 

and were informed that the defendant did not need a restricted license because of the loss 

of his limbs unless special adaptations were required for him to be able to drive his 

vehicle. According to the witnesses, the defendant was able to drive without such 

adaptations. He had a prosthesis but did not utilize it, as it was painful. The defendant‟s 

father testified that he often rode with the defendant and felt comfortable doing so, even 

stating that the defendant was a better driver than he himself. Mr. Leonard had witnessed 

the defendant driving, but he did not ride with him because the defendant‟s impairment 

made him uncomfortable. The defendant had not been involved in any other motor 

vehicle accidents from December 2005 until May of 2012, when the accident that is the 

subject of this case occurred. 
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Both Mr. Leonard and the defendant‟s father testified that the defendant was a 

“normal” person who cared about people and who liked to hunt and fish. His father 

testified that the defendant was a hard worker and tried to take care of himself as much as 

possible, even after the motorcycle accident. He learned to adapt to his limitations and 

was able to feed himself, get in and out of his wheelchair, get his wheelchair in and out of 

the truck by himself, and could still hunt and fish with adaptations made to his gun. Mr. 

Leonard and the defendant‟s father were both aware that the defendant took prescription 

pain medications, but each stated that the defendant‟s speech was not normally slurred. 

His father noted that if the defendant was using smokeless tobacco, he was sometimes 

difficult to understand. The defendant‟s father also stated he had no concerns about the 

defendant‟s abusing his pain medication. Each man also noted that the defendant felt 

great remorse over his involvement in the death of the victim. 

The defendant testified that he had no memory of the accident whatsoever. He 

also could not recall the few weeks prior to or after the accident, stating he woke up in 

the hospital with no idea as to what had happened. 

With regard to his pain medication, the defendant testified that his prescribed 

dosage had increased over the years following the motorcycle accident. He testified that 

he spoke with his doctor about the side effects of the medications, but he could not recall 

the doctor‟s name. He stated that he currently received his medications from a pain 

management clinic. With regard to the usage of his medications, the defendant testified 

that he normally took them as prescribed. However, he acknowledged that, if he were

hurting very badly after a particularly active day, he would take an extra pill. He stated 

that he only took an extra pill when he was at home, not while he was driving. While 

acknowledging that the State had tested his blood after the accident and that the results 

indicated his levels were above therapeutic levels, he had no recollection of how or why 

this occurred. He further testified that, despite his stipulation, he could not actually say 

that the medication he was taking had caused the accident. He stated that he pled guilty 

as such only because the State had a report which stated that his levels were elevated. 

The defendant also testified that he had driven a vehicle three times after the 

wreck that claimed the victim‟s life. He stated that he had driven with the same 

limitations for a number of years, and he actually still believed himself to be a safe driver. 

He acknowledged, however, that if he were given an alternative sentence, he would no 

longer be allowed to drive. 

After the evidence was presented, the State vigorously argued for the application 

of two enhancement factors. The first was prior criminal behavior, which the State 

argued was established by the defendant‟s driving three times after the wreck in this case

while on medications, smoking marijuana one time, reckless driving based upon his 

admission that his speeding was partially to blame for his motorcycle accident, and his 
5

drawing disability and continuing to mow yards. See T.C.A. 40-35-114(1) (2010). The 

second factor which the State asserted applied was number ten, no hesitation about 

committing a crime when the risk to human life was high; this factor was based upon the 

defendant driving while on medications with no accommodations for his disability. See

T.C.A. 40-35-114(10). The trial court found that only factor ten had been established. 

The court also concluded that the sentence should be served in incarceration in order to 

avoid depreciating the seriousness of the offense. The defendant has now timely 

appealed that decision. 

Analysis

On appeal, the defendant contends that the trial court erred in ordering that he 

serve his sentence in confinement, specifically arguing that the court erred in ordering 

confinement based upon the fact that confinement was necessary to avoid depreciating 

the seriousness of the offense. Contrarily, the State argues that the record does support 

the trial court‟s finding. In support of its argument, the State relies upon the fact that: (1) 

the defendant had been in a previous serious accident and personally knew the dangers 

posed by intoxicated drivers; (2) despite his contribution to causing the motorcycle 

accident, the defendant continued to drive under the influence of an intoxicant; and (3) 

the defendant was endangering more than just the victim on the day of the crash. 

According to the State, the trial court was correct in concluding that the circumstances 

surrounding the crash and its aftermath were sufficient to impose confinement. 

Before a trial court imposes a sentence upon a convicted criminal 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 as to 

Tennessee sentencing practices for similar offenses; and (g) any statement the defendant 

wishes to make in the defendant‟s own behalf about sentencing. T.C.A. § 40-35-210(b). 

When an accused challenges the length and manner of service 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). This standard of review also applies to “the questions related to probation 

or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 

2012).

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-
6

10. Moreover, under such circumstances, appellate courts may not disturb the sentence 

even if we had preferred a different result. State v. Carter, 254 S.W.3d 335, 346 (Tenn. 

2008). The burden of showing that a sentence is improper is upon the appealing party. 

T.C.A. § 40-35-401, Sentencing Comm‟n Cmts.; see also State v. Arnett, 49 S.W.3d 250, 

257 (Tenn. 2001).

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. T.C.A. § 40-35-303(a). While 

the trial court is required to automatically consider probation as a sentencing option 

pursuant to Tennessee Code Annotated section 40-35-303(b), no criminal defendant is 

automatically entitled to probation as a matter of law. 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. Carter, 254 S.W.3d at 347 (citing T.C.A. § 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 by 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.

T.C.A. § 40-35-103(1). Tennessee courts have held that if the seriousness of the offense 

forms the basis for the denial of alternative sentencing, “„the circumstances of the offense 

as committed must be especially violent, horrifying, shocking, reprehensible, offensive or 

otherwise of an excessive or exaggerated degree,‟ and the nature of the offense must 

outweigh all factors favoring a sentence other than confinement.” State v. Bottoms, 87 

S.W.3d 95, 103 (Tenn. Crim. App. 2001) (quoting State v. Hartley, 818 S.W.2d 370, 

374–75 (Tenn. Crim. App. 1991)); see also State v. Trotter, 201 S.W.3d 651, 654 (Tenn.

2006). Moreover, a trial court may not consider factors that constitute elements of the 

offense in determining whether the circumstances of an offense satisfy this standard. See
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State v. Housewright, 982 S.W.2d 354, 358 (Tenn. Crim. App. 1997) (citing State v. 

Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), overruled on other grounds by

Hooper, 910 S.W.3d at 10).

A trial court should also consider a defendant‟s potential or lack of potential for 

rehabilitation when determining if an alternative sentence would be appropriate. T.C.A. 

§ 40-35-103(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). 

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.” T.C.A. § 40-35-

103(2), (4).

In ordering that the defendant serve his sentence in the Department of Correction

and denying him any form of alternative sentencing, the trial court made the following 

comments on the record: 

. . . Well, let me just go through and summarize just a little bit.

Of course, [the victim] passed away, and her mother testified here 

today, a very sweet lady, and got a - - got a pretty good picture and image 

of [the victim], and I looked at the picture and the photographs. She‟s a 

very beautiful lady, four children, just appeared to be full of life. 

We do know that at the time of the accident, she was severely 

injured, was at UT approximately six weeks, she was in the nursing home 

for a year and a half thereafter and passed away on October 9, 2013, severe 

brain injuries, she couldn‟t talk, she couldn‟t walk, she couldn‟t feed 

herself, she couldn‟t breathe on her own, obviously very severe injuries and 

- - and undoubtedly suffered at the last part - - last few days of her life - - 

the last few months or weeks.

Peggy Holt testified. She said that she - - and I think that if I 

remember this correctly, six, seven times that she knew of[,] the defendant 

on those occasions, he appeared to have slurred speech because she‟d have 

to go out to the vehicle and to get money because of his handicap. On the 

day of the accident a little - - at lunch or a little after lunch, she said she 

witnessed him there at the gas station and he nearly struck the canopy pole 

that was there. The accident occurred, we know, and it was agreed to when 

I asked the trooper a moment ago about 3:05 that afternoon.

Mr. Leonard testified which is a friend of the defendant here in this 

case. They had been friends almost six or seven years, and - - but the one 

note that I would say, he said he was a really good person, a kind person, 
8

and again, I‟m summarizing and - - but he did say - - and I made a note to 

the fact that he wouldn‟t ride with him because it appeared to be a 

dangerous situation, and he was very candid about his handicap as the 

reason why he didn‟t do that. 

Mr. Trent, the defendant‟s father, testified. Seemed to be a very 

genuine man and should - - should be given credit, he stuck with his son for 

all these years after the motorcycle accident where he lost his limbs, made 

modifications to his [gun] so he could hunt. Apparently, hunting is an 

important part of their life, and made modifications. And I think the 

District Attorney has noted that there were never any modifications made to 

the vehicle as far as his ability to drive, but they appear to be very extensive 

modifications to hunt, even to dove hunt. I understand with other types of 

hunting but with dove hunting, you have to be moving with a shotgun and 

so, they made accommodations. It appeared even from the - - even from 

his dad‟s testimony that his son was a very independent person, he said, and 

continued to mow, not as much, I think, prior - - and after the motorcycle 

accident, and we do know that he was driving and owned a three-quarter 

ton Chevy pickup, four doors. And I was somewhat - - I was somewhat - -

I think he was living back and forth - - the defendant was living back and 

forth – Cocke County and Claiborne County. He was living in Claiborne 

County at some - - at some times, and the accident, of course, occurred 

there in this county.

Defendant testified, says he can‟t remember a whole lot that 

happened after the accident. He did admit that he has taken excessive - -

greater amounts of his medication that‟s above what his prescription is for. 

He seemed - - he can‟t - - he seemed to not be able to remember his 

physician which is a pain clinic which is in Bulls Gap, and he says he 

attends a - - which has nothing to do with this maybe today, but Skyview in 

Knoxville which is another pain clinic. Said he continued to drive three 

times at least after this accident. And I think he made it very clear that - - I 

think even through his testimony, it‟s obvious that he seems to think he‟s a 

very independent person, he didn‟t need accommodations for anything. He 

indicated that he‟s in severe pain and has to take these medications to 

function at times, but he continued to drive.

I believe enhancement factor ten applies in this case based upon the 

two cases that were submitted to the Court. Because of that pain 

medication, because of what he was doing - - and sometimes that can be 

somewhat dangerous, especially with people who have been independent. 

It appears that the defendant worked quite a bit, was a hard worker prior to 
9

his motorcycle accident and wanted to continue to do so. I think his dad 

indicated that. He dad said he wanted to try to live his life. And sometimes 

that‟s a dangerous situation and especially if you‟re taking medications and 

you want to drive and you want to continue to operate a vehicle. I found it 

somewhat disconcert[t]ing that the defendant knew very little about any 

kind of limitations on his medicine. He sort of indicated or testified that - -

that he could operate a vehicle as long as - - I guess as long as he was - -

with taking his medicine as prescribed, but he also told me that he took 

excess amounts of those prescribed medications. He says he remembers the 

label saying it may cause drowsiness.

This obviously is very serious, and I - - and I asked about a 

stipulation of fact a moment ago. Of course, we read in the indictment, and 

I don‟t know how the accident occurred other than the fact of what‟s in the 

indictment and what he agreed to in the stipulation. This is a serious 

situation. The defendant should be commended for not having a prior 

criminal history and dealing with the motorcycle accident. I concur with 

his attorney there, he showed a lot of resilience after the - - after the 

motorcycle accident. But, this situation in and of itself, he should not have 

been operating that vehicle that day. He pled guilty to that. If he had not 

been in that vehicle that day, [the victim] would still be alive. He made a 

decision to take excess amount of his pain killers and operate a vehicle that 

day and killed another human being. He made that decision – an 

unfortunate decision, but he made that decision. That being the case, the 

Court is going to remand the defendant to Tennessee Department of 

Corrections for eight years. 

Although not specifically stated by the trial court as its reasoning, our reading of 

these findings leads us to conclude that the trial court based its decision to impose 

confinement solely upon the need to avoid depreciating the seriousness of the offense. 

Both the State and the defendant agree with that conclusion, and we note at this juncture 

that none of the other possible circumstances upon which to deny alternative sentencing 

are present in this case. With regard to depreciating the seriousness of the offense, we 

must conclude that the record is devoid of any specific findings that the offense “as 

committed” was “especially violent, horrifying, shocking, reprehensible, offensive or 

otherwise of an excessive or exaggerated degree.” Bottoms, 87 S.W.3d at 103 (citations 

omitted). We note that the trial court, despite the relaxed standard of Bise, is still 

required to place on the record its reasons for imposing the specific sentence. See 

Shannon Ann Maness and Darlyn Wayne Maness, No. W2012-02655-CCA-R3-CD, 2014 

WL 350429, at * 16-17 (Tenn. Crim. App. Jan. 23, 2014); see also State v. Robert Joseph 

Hart, No. W2011-02735-CCA-R3-CD, 2013 WL 5422801, *10 (Tenn. Crim. App. Sept. 

27, 2013) (Tipton, P.J., concurring and dissenting) (noting that he did not believe “our
10

supreme court intended in Bise or Caudle to do away, in wholesale fashion, with 

Tennessee jurisprudence developed over the last thirty years upon which the Sentencing 

Act is based and in which the Act‟s previsions are interpreted.”). As such, the trial court 

should have placed findings on the record if it concluded that the offense was “especially 

violent, horrifying, shocking, reprehensible, offensive or otherwise of an excessive or 

exaggerated degree.” Nonetheless, as addressed below, the record fails to establish any 

of those findings.

Turning to our review of this case, we again note that we are aware of the fact that 

trial courts have been given great latitude in sentencing determinations. Indeed, this 

court is constrained to uphold sentencing determinations made by a trial court that are 

“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. Despite that great latitude afforded, we are unable to conclude that the record 

supports that this sentence is in compliance with the purposes of the sentencing act. The 

record is simply devoid of the facts necessary to establish such. For instance, there are no 

facts in the record as to how the wreck itself occurred, i.e., was the defendant speeding, 

was he driving recklessly prior to the accident, did he endanger others, was there another 

contributing factor to the wreck, the setting of the wreck, or the amount of medication 

which the defendant consumed. Contra State v. Micah Alexander Cater, No. E2014-

01322-CCA-R3-CD (Tenn. Crim. App. Sept. 28, 2015) (excessive speed and the amount 

of alcohol were sufficient to establish circumstances of the offense horrifying); State v. 

James R. Bristow, No. M2014-00595-CCA-R3-CD (Tenn. Crim. App. Mar. 17, 2015). 

By simply relying upon the indictment and introducing no proof with regard to 

circumstances of the wreck, the State has shown only that the defendant, while taking

prescribed pain medication, was in an automobile crash, which resulted in the death of 

the victim. The State failed to even introduce the actual level of the defendant‟s 

intoxication. We are left to wonder if the defendant had taken one extra pill or ten. 

The State argues that the defendant had a prior history of criminal behavior. The 

State contends that the defendant drove three times after the wreck, but the State did not 

introduce any evidence that the defendant was impaired while driving or that the driving 

occurred after the defendant pled guilty. The fact that the defendant smoked marijuana 

one time years earlier should not have a substantial impact in the review of this 

sentencing decision. The State‟s argument that the defendant drove recklessly based on 

his speed during the motorcycle wreck was mere conjecture that was not supported by 

evidence. The defendant admitted that his speed was partially to blame for the 

motorcycle accident, but there was no evidence that he drove recklessly. There was also 

no evidence that the defendant was anything other than a productive citizen in spite of his 

limitations in regards to mowing yards while receiving disability checks. The State 
11

presented no evidence that it was illegal for the defendant to receive disability checks and 

mow yards. 

The trial court should not have considered the defendant‟s driving three times 

while taking medication after the wreck without evidence of the effect of the medications. 

While the defendant testified that the label may have indicated that the medication caused 

drowsiness, the State did not introduce this label or put on any other proof illustrating the 

effects of the medication. The trial court also should not have considered the defendant a 

reckless driver based on the motorcycle accident without proof of his speed during the 

wreck. Finally, the trial court should not have considered the defendant‟s receiving 

disability checks while mowing yards without evidence that such behavior was illegal. 

The State raised the issue of the defendant‟s illegal conduct only by innuendo, which is 

an insufficient basis to support a finding by the trial court. 

These omissions in the State‟s proof are made more critical because the trial court 

based its determination only upon the need to avoid depreciating the seriousness of the 

offense. As noted earlier, in order to support that decision, the record must establish that 

the circumstances of the offense “as committed” were “especially violent, horrifying, 

shocking, reprehensible, offensive or otherwise of an excessive or exaggerated degree.” 

Bottoms, 87 S.W.3d at 103 (citations omitted). There is no evidence to establish that 

here. 

The defendant pled guilty to vehicular homicide by intoxication. Two elements of

the offense are the reckless killing of another by operation of a motor vehicle and that the 

killing was the result of the defendant‟s intoxication. T.C.A. § 39-13-213(a)(2) (2014). 

Those elements cannot be the basis for further or stricter punishment. Housewright, 982 

S.W.2d at 358 (citations omitted). As there are no other facts in the record, we are left 

only with the consideration that the defendant chose to drive with his stated disabilities 

while taking his prescribed medications in some quantity above the therapeutic level. 

That decision, while unlawful, certainly does not rise to the level needed to deny 

alternative sentencing solely upon the basis of depreciating the seriousness of the offense. 

If that were true, all defendants would be denied alternative sentencing. Furthermore, the 

defendant had a valid driver‟s license, had driven with the disability for approximately 

seven years with no accidents, and had been taking the same medications for the entire 

period. 

Despite that it was an element of the offense, the trial court clearly gave great 

weight in its determination to the fact that the defendant was taking pain medication and 

driving. That act in and of itself is not illegal or “shocking.” There are warnings on the

bottles that advise “caution” while operating machinery. The defendant had been taking 

the same medications since 2005 and specifically testified that he had discussed side

effects with his physician. We likewise point out that the trial court placed great weight 
12

on the defendant‟s admission that he had taken more than the prescribed dosage of his 

medication. However, what the court does not seem to consider is that the defendant 

specifically testified that he only took “an extra pill” at night and that he never did so 

when he was driving. Moreover, counsel for the defendant indicated that the report 

indicated that the defendant‟s levels were only “slightly” elevated. Again, the State 

failed to introduce proof through its report as to what the levels actually were. The 

defendant, having no recollection of the event, only agreed to plead guilty based upon 

that report. 

Additionally, both the trial court and the State also seem to be seeking to penalize 

the defendant for not making modifications to his vehicle when he did make 

modifications to his shotgun. That fact does not rise to the level necessary for criminal 

conduct when considering that the defendant had a valid driver‟s license to drive on the 

roadways of Tennessee. According to both the defendant and his father, whose testimony 

the trial court appeared to accredit, they inquired with the appropriate department 

following the motorcycle accident and were told no special restrictions would be 

necessary unless modifications were made to the vehicle. Although the court finds fault 

with the fact that no modifications were made, the record does not support that they were 

necessary in the defendant‟s case. What both the court and the State fail to consider is 

the fact that the defendant drove for several years after his motorcycle accident and the 

loss of his limbs with no modifications or accidents. 

Looking to the required findings, which must be made if the denial of alternative 

sentencing is based solely on depreciating the seriousness of the offense, we conclude the 

record does not support the trial court‟s findings. While we in no way mean to minimize 

the tragedy to the victim and her family, there is simply nothing in the record which leads 

to the conclusion that the circumstances or events which lead to this wreck “as 

committed” were “especially violent, horrifying, shocking, reprehensible, offensive or

otherwise of an excessive or exaggerated degree.” Bottoms, 87 S.W.3d at 103 (citations 

omitted).

Again, the events in question here had a devastating impact on the victim and her 

family. By our decision in this case, we in no way mean to imply otherwise. However, 

even given the great latitude to trial courts in sentencing determinations, the record 

simply does not support the trial court‟s conclusion. The proof in the record with regard 

to the circumstances of the offense simply does not rise to the level necessary to support 

the sentencing decision based solely upon the need to avoid depreciating the seriousness 

of the offense. As a result, the record does not support the court‟s findings. We are 

unable to afford the court‟s sentencing determinations a presumption of reasonableness 

and conclude the trial court abused its discretion by denying the defendant‟s request for 

probation. 
13

CONCLUSION

Based upon the foregoing, the judgment of the trial court is reversed, and the case 

is remanded for the defendant to be placed on probation for the remainder of his sentence 

upon conditions to be determined by the trial court. 

_________________________________

JOHN EVERETT WILLIAMS, JUDGE