# FILED
October 19, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE AUGUST 1998 SESSIO N

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9710-CR-00470 Appellee, ) ) MACON COUNTY VS. ) ) HON. J. O. BOND, TROY L. NOLES, ) JUDGE ) Appellee. ) (Sentencing)

FOR THE APPE LLANT: FOR THE APPELLEE:
B. F. “JACK” LOWERY JOHN KNOX WALKUP Public Square, Lo wery Bldg. Attorney General & Repor ter Lebanon, TN 37087 KAREN M. YACU ZZO Asst. Attorney General 425 Fifth Ave., North 2nd Floor, Corde ll Hull Bldg. Nashville, TN 37243-0493 TOM P. THOMPSON District Attorney General JOHN WOOTTEN Asst. District Attor

ney General 203 Greentop St., P.O. Box 178 Hartsville, TN 37074-

0178

OPINION FILED:

AFFIRMED JOHN H. PEAY, Judge1 At tri al, an exper t accident

reconstruct ionist

estimated the defendant to be travel ing at about ninety -three mil es per hour befor e applyi ng the brakes and endi ng up in the o pposite l ane of traff ic.

2 

### O P I N I O N

The defendant, Troy Noles, was convicted by a Macon County jury of fi ve counts of assault, one count of po s session of drug paraphernali a, and possession of alcohol while under the age of twenty-one. The tria l court senten ced him to five
cons ecutive sentences of eleven months twenty-nine days as a Range I offender fo r assaults, eleven monthstwenty-nine days for possession of drug parapher nalia, and five days for possession of alcohol. The tr ial court orderedthe sentencesfor possession of drug paraphernalia and alcohol to be served concurrently with thesentences for assault.

In this appeal as ofright, the defendant argues that the sentence imposed is excessive and that the trial court erre d when it im posed co nsecutive sentences. After
a review of the record

and applicable law, w

e find no error

and affirm the judgment of the court bel ow.

The defendant’s convictions stemmed from an automobile crash in Maco n County. On the evening of November 25, 1995, the defendant was driv ing south on Carthage Road with two passenge rs after purchasing tw o six packs of beer. As the defendant drove around a curve in the road, he lost control of the car and skidded across the double yellow line into the lane of oncoming traffic. 1 The def endan t’s car then collided head on with an onc oming jeep.

As a result of the collision, the driv er of the jeep and its passenger s suffered
severe injuries. The driver of the jeep, Wanda West , was force d to have part of each leg amputated. Mrs. West also suffered head and face i njuries, a punctured bladder and3

broken wrists. Mrs. West’s daughter, who was a passeng er in the jeep at the time ofthe accident, was thrown from the jeep and, as a result, broke her nos e and ankle and had to undergo facial surgery. Another of the passengers, Ang ie Watkins, broke her jaw, dislocated her hip and will su ff er from arthritis for the res t of her life as a result of the accident. A third passeng er, Scott Jenkins, was unconscious for three

weeks after the accidentand suffered from a concussion. The final pas senger in the car, Barry Matthews, broke his jaw in several places and had to have his eye socket rebuilt with wire mesh.

As his first is sue, the defendant argues that the sentence imp osed is
exce ssive because the trial court er roneously applied enhancement fact ors whe n determining his sentence. When a defendantcomplains of his or her sentenc e, we must
con duct a de no vo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of showing that the sentence is improper

is upon the appealing party. T.C.A. § 40-35-401(d) Sentencing C ommission Comments. This presumpt ion, however, “is conditioned upon the affirmative showing in the record that the trial co urt considered the sentencing principles and all rel evantfacts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (T enn. 1991).

A portion of

the Sentencing Reform Act of 1989, codified at T.C.A. § 40-35- 210, established a number o f specific procedures to be followed in sentencing. This section manda tes the court’s co nsideration of the following:

(1) The evidence, if any, received at the trial and the sentencing hearing; (2) [t]he presentence report; (3) [t]he principle s of sentencin g and arguments a s to sentencing alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5)

[e]vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-4 113 and 40-35-114; and (6) [a]ny statement the defendant wishes to make in his own be half about se ntencing. T.C.A. § 40-35-210.

Although this section also prov ides thatin the case of a felon the minimum sentence within the range is the presu mptive sentence, the misdemeanant is not ent itled to the presu m ption of a minimum sentence. State v. Creasy , 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). However, in determining the percentage of the sentence to be served in actual confinement , the court must consider enhancement and mitigating factors as well as the purposes and principles of

the Criminal Sentencing Reform Act of 1989, and the court should not impose s uch percentages arbitrar ily. T.C.A. § 40-35- 302(d).

The Act further provides that “[w]henever

the court imposes a sentence, it shall place on the record either orally or i n writing, wha t enhan cement or mitigating factors it found, if any, as well as findings of fact as requir ed by § 40-35-209.” T.C.A. § 40-35-2 10(f) (emphasis added). Because ofthe importance of enhancing and miti gating factors under the sentencing gui delines, even the absence of these factors must be recorded if none are found. T.C.A. § 40-35 -210 commen t. These findings by the tr ial judge must be recorded in order to allow an adequate review on appeal.

At the sentencing hearing the trial court set out the applicable enhancement factors as follows:

Your prior history

of criminal conduct. You w ere involved in an offense that involved more than one victim. There was [sic] four other victims that y

ou were charged in eac h case, one victim had a charge against you,five all together. So that would apply as an enhancement. Personal injurie s inflicted, assault is nor mally not even serious bodily

injury, it’s jus

t bodily injury, but here you’ve inflicted serious bodily

injury, no question about it.2 Altho ugh one c oun t of re ckle ss d riving was a juve nile co nvictio n, ou r Sup rem e Co urt ha s held that a defend ant’s “j uvenile record is a suf ficient basis for sent

ence enhancement under T.C.A. § 4 0-35- 114(1).” State v. Adams , 864 S.W .2d 31, 34 (Tenn . 1993). 5 The Cour t believes that the automob ile was a de adly weapon . . . . And you were trusted, had a public trust. When you get a driver’s license in your hands the State of Tennessee says we trust you with the public,the lives of the public on the road. And you abused that public trust by doing that and driving

the vehicle intentionally like you drove it that night. And you did it on the road y ou say you weren’t even familiar with. Such high speeds and under those circumstances you should have - - the potential for bodily injury was ve ry great to any one on that road.

In light of the fo rego ing rema rks, it is apparent the tr ial court applied the followin g enhancement factors from T.C.A. § 40-35-1 14: that the defendant has a previoushistory of

criminal convicti ons or criminal behavior in addition to those necessary to establish the appropriate range (1); the offense involved more than one victim (3); the personal injuries inflicted u pon the victims were particularly gr

eat (6); the defendant employed a deadly weapon during the commission of the offense (9); t he def endant abused a position of public trust (15); and the crime was committed under circumstances under which the potential for bodi ly injury to a v ictim was great ( 16). The defendant now argues that the trial court erred by applying any of these factors.

As to factor one, the presentence repor t showed that the defendant has been convicted of speed ing, two counts of reckless driving and public drunkenness. 2 As this is a history of crimi nal behavior and convi ctions, we can find no e rror in the trial court’s application of this factor.

The defendant next argues that the t rial court erred in appl ying factor three, that the offense involvedmore than one victim. The trial court applied thi s factor based
on the fact that there were sev eral victims in the j eep the defendant’s car hit. The State3 This factor can not be appli ed for enhancement purposes wher e the defendant

has been separa tely convicted of the offe nses c omm itted agains t each victim

. See State v. Williamson , 919 S.W .2d 69, 82 (Tenn. Crim . App. 1995).

4 The record indi cates that the passengers i n the defendant ’s car al so suffered fr om injuries attribut able t o the wr eck.
5 The trialcourt just ified its appl icati on of thi s factor on t he reasoning t hat the defen dant’s car was a deadly weapo n. 6 concedes that this was an improper basi s up on which to apply this factor. 3 However, there is another basis u pon which to apply thi s factor in the defendant’s case. The defendant was only indicted for the inj uries inflicted on the people i n the jeep. He was not indicted for the injuries inflicted on the passeng ers of his own car. 4 As the passengers of the defen dant’s vehi cle were also vi ctims in this accident and the defendant was not convicted of the offenses committed ag ainst them, it was proper for the trial court to apply this enhancement factor.

The defendant also challenges the appl ication of factor six, t hat the personal injuries inflicted upon the victims wer

e particularly gr

eat. The defendant argues that this factor is an essential el ement o f the charged offense of vehicular as sault and therefore cannot be used to enhance his sentence. However, this Court has held that a factor cannot be used to enhance a sentence if it is an essential element of the offe nse forwhich a convicti on is obtained, not the offense for which a defendant is indicted. See Sills v. State , 884 S.W.2d 139,145 (Tenn. Crim. App. 1994). The defen dant was convic ted of assault, which only requires “bodily

injury” of another. T.C. A. § 39- 13 - 101(a)(1). Since “particularly great” injuries ar

e not an essential element of assault, i t was proper for the trial

court to use this factor as a basis for enhancement.

The defendant also contends that it was improper for the tria l court to consider factor nine, that the defendant possessed or employed a deadly weap on during the commission of the offense. 5 The defendant’s argument is that this facto r is a n7

essential e lement of vehicular assault with which he w as charged. Howev

er, as the defendant was convicted of assaul t which does not requi re use of a deadly weapon, application of this factor was proper.

The defendant next argues that the t rial court’s application of factor fifteen, abuse of a position of public trust, w as also improper. The trial judge applied this factor based on the reasoning that a driver’s license is a form of public trust which was abused when the defendant did not d ri ve re sp on si bl y. We find that it was error for the trial court to consider factor fifteen, as a dri ver’s license is not a form of public trust.

The last enhancement

factor applied by the

trial court was factor

sixteen, that the crime was committed under circumstances under whi ch the potential for bodily injuryto a victim was gr eat. Although the defendant’s appell ate brief does not address this factor specifically, the brief does contend th at no e nhancement factors exist. This Court has previously held that this factor is applicable where there are people other than the victim in the area and subject to inj ury. State v. Si ms , 909 S.W.2d 46, 50 ( Te nn . Crim. App. 1995). In t he defendant’s case there were t wo passengers in his

car that
were in the area and subject to injury; therefore, this factor was pr operly appliedby the trial court.

The defendant next contends that the tri al court erred in failing to apply any mitigating factors. The defendant argues that his youth sho uld have been considered by the trial court. See T.C.A. § 40-35-113. This Cour t has held that In determining whether the sentence should have been mit igated because the defen dant lacked subs tantial judgment because of his youth, ‘courts shou ld consider the concept of yo uth in context, i.e., the defendant’s age, education, ma turity, experience, mental capacity or development,and any other pertinent ci rcumstance tending to demonstrate the defendan t’s ability or inability to apprec-8 iate the nature of his conduct.’ State v. Carter , 908 S.W .2d 410, 413 (T enn. Crim. App. 1995) (citing State v. Ada ms , 864 S.W.2d 31, 34 (Tenn. 1993)). At the ti me of the wreck, the defendant was nineteen years old. He is also a high sch ool graduate who, as the defendant himself points out, has worked full time si nce he graduate d from high school. The defendant has also had previousexperiences with the criminal justice sy stem with regard to his driv ing. In light of the fore going, we th ink the tr ial court did not er r in refus ing to app ly y outh as a mitigating factor.

The defendant further contends that the trial court shoul d have considered his remorse as a mitigating factor. There is no requirement that a judge must consider
remorse as a mitigating factor. In addition, at trial the de fendant never admitted fault but claimed the jeep was in his l ane of traffic. Under these circumstances, we believe it w as proper for the trial court to refuse to consider remorse as a mitigating fact or.

The defendant also contends that his cooper at ion w ith his insurance company

in its payment of the victims’ medical bills sh ould be considered a mitigating factor. As this payment was the responsibility of the insurance company, w e find no error in the trial court’s failure to consider this as a mitigating factor.

Finally, the defendant contends that the trial court shoul d have considered his gainful employment sinc e high school graduatio n as a mitigating factor. This Court has previously held th at the fact that a defendant has a stable employ ment history does not entitle him or her to a red uc tion in his or her sentence. State v. Keel , 882 S.W.2d 410 , 423 (Ten n. Crim. App. 1994). As suc h, the trial court did not err by refusing to consider the defendant’s work history as a mitigating factor.6 The defendant al so contends that he is eli gible f

or a community correct ions sentence r ather than incarce ration. We disagree. As the defendant was convicted f

or a viol ent crime against a person and there was no showi ng of special needs, he is no

t eli gible f

or a community correct ions sentence. 9 In l ight of the foregoing appli cable enhancement factors, we find that the trial court did not err in sent encing the defendant

to the maximum sentence in the range. 6

As his final issue, the defendant argues that the trial court erred when it ordered him to serve his sentences consecutivel y and failed to place upon the record specific findings of fact as required by the Criminal Sentencing Re form Act. Although
no specific finding was made, it app ears th at the trial court based its decision on the determin ati on that the defendant is a dangerous offender. As the trial court did n ot specifically make this finding, revi ew of this issue is without a presumptio n of correctness.

It is clear, after a review of the reco rd, that th e defendant is a dangerous offenderwhose behavior indi cates little or no reg ard f o r human life, and no hesitation about committing a crime in which the risk to human life was high. See T.C.A. § 40-35- 115(b)(4). The fact that the defendant was driv ing down an unfamiliar cur vy road at speeds of ninety-three miles per hour clearly indic

ates that he had little regard for anyone else driving on that same r oad. The defendant’s speed created a high risk that he would
cause a serious, if not deadly, accident. See State v. Wilkerson , 905 S.W.2d 933, 937 (Tenn. 1995). All these fa ctors lead us to conclude that the defendant i s a dangerous offender.

Since the defendant meets the statutory criter ia setout at T.C.A. § 40-35- 115, he may be sentenced to consecuti ve senten ces as long as the terms of the sentence “reasonably relate to the severity of the offenses commit ted and are necessary in order to protect the public fro m further serious criminal conduct by the defendant.”1 0

Wilkerson , 905 S.W.2d at 938. In light of the defendant’s history of criminal convictions forsimilar offenses and the disastrous eff ects of this offense, it is clear tha t such a sentence i s necessary to protect the public from further criminal behavior by

the defen dant and that

the sent

ences im posed reasonably rela te to the severi ty of th e offenses.
Thus, for the foregoing reasons, we affirm the judgment of the co urt below.

______ ________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ THOMAS T. W OODALL, Judge

______________________________ L. TERRY LAFFERT Y, Special Judge