# FILED
February 23, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE OCTOBER 1997 SESSION

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 01-C-01-9609-CC-0 0393 ) ) Lincoln County v. ) ) W. Charle s Lee, Judge ) ) (Vehicular Homicide and ) Aggravated Assault ) TIMOTHY DEAN MARTIN, ) ) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: Andrew J. Dearing, III John Knox Walkup Attorney at Law Attorney General & Repor ter 117 South Main Street 425 Fifth Avenue, North Shelbyville, TN 37160 Nashville, TN 37243 Clinton J. Morgan Counsel for the State 425 Fifth Avenue, North Nashville, TN 37243 W. Mic hael McCo wn District Attorney General 215 East College Street Fayetteville, TN 37334 Weakley E. Barnard Assistant District A

ttorney General Marshall County Cour

thouse, Room 407 Lewisburg, TN 37091

OPINION FILED:_______________________________

___ AFFIRMED Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The appellant, Timothy Dean Mar tin (defendan t ), was convicted of v ehicular homicide, a Class C felony, and aggravated assault, also a Class C felony, by a jury of his pee rs. T he trial court found the defendant w as a standard offender and imposed the following Range I sentences: (a) for vehi cular homicide, a $5,000 fine and confinement for four(4) years and eight (8) monthsin the Department of Correction, and (b) for aggravated assault, a $5,000 fine and confinement for three (3) years and four (4) months i n the Departmentof Correc tion. Th e senten ces are to be served c oncurren tly for an effect ive sentence of confin ement for fo ur (4) years and eight (8) months in the Department of Correction and fines totalin g $10,000. Five issues are presented for review. The defendant co ntends (a) the evidence is insufficient, as a matter of law, to supp ort his convictions; (b) the Stateof Tennessee (state) acted in bad faith thereby denying him a fair trial; (c) the trial court erred in allowing an expert to offer an opinion based upon data gathered by another individual; (d) the trial court e rred by refusing to charge the jury on the failure of one of the victims to wear a seat belt; and (e) the sentences imposed by the t rial court are excessive. After a thorough review

of the record, the briefs submitted by the parties, and the law governi ng the issues presented for r eview, it is the

opinion ofthis court that the judgment of the trial c ourt should be affirmed. On the morning of November 6, 1994, the defendant entertained four f riends at his Flintville resi dence. The five men shot pool anddrank beer.At approxi mately 1:00 p.m. the five men left the defendant’s residence en route to the re sidence of the defendant’s father. They drove south on Bri ghton Road. Tony Rogers rode with the defendant in the defendant’s pickup truck. The remaining three men follow ed the defendant in a maroon pickup truck. Rogers testified “[a]s soon as I shut the door he [the defendant] dropped the clutch and we slid out in the grass and slid sideways in the driveway

and slid out into the grav el road. He never let off, just kept going.” The defendant w as driving at a hig h rate of speed. Rogers became alarmed and askedthe defendantto reduce his speed on more than o ne occasion. Rogers held onto the door. He did not think the maroon pic kup truck co uld3

keep pace with the defendant’s truck because it was trav eling at such a high rate of speed. When t h e defendant reached Halcomb Curve, a short distance f rom the defendant’s residence, the defendant’s pickup truck “slid from [the] right side [of the road] to [the

] left side [of the road].”Rogers looked into the passenger side mirror to determine the loc ation of the maroon truck. When he looked ahead, the defen dant’s truc k collided with an automobile traveling nor th on Brighton Road on By num Curve. Daniel Vaughn and his mother, Glenda Vaughn, were tra v eling northbound on Brighton Road. Dan iel Vaugh n, who was dr ivi ng , had traveled the road on numer ous occasions. When he approached Bynum Curve, Vaughn sl owed the speed of the vehicle to 15 to 20 miles per hour as he entered the curve. He hear d tiressquealingon the other side of the curve. When he looked toward the sound, he saw the defendant’s pickup truck slidin g around the curve. The defendant’s truck was sliding into the northbound lane

. Vaughn pulled the automobile he was driving to the far right side

of the northbound lane in an effort to avoid the defendant’s truck. T he pickup truck struck Vaughn’s automobile on the far right-hand side of the northbound lane. A witness visiting a residence l ocated on Bri ghton Road close to the H alcomband Bynum curves heard the “screeching” of tires . He also heard the rev ving of an engine. He then saw a white p ickup tru ck followe d by a m aroon pickup truck. Both vehicles were travelingat an “excessive” rate of speed. While the witness could not estimate the speed of the trucks, he knew the trucks would “never make the Halcomb curve” at the speed they were traveling. Those attending the inju red at the situs of the collision smel led an odor of an intoxicant

emitting from the defendant’s breath. The defendant stated he drank two beers. A beer can was found in the defendant’s truck, and several opened and unopene d bee r cans were found in a creek approximately forty yards from the situs of the collision. The defendant told the investigating office r: “I looke d down. When I looked up I was on the wrong side of the roa dway. It was my fault.” He also told a Tennessee Highway Patrol officer he had just purchased the beer. A test to determine t he alcohol content of the defendant’s blood revealed an alco hol le vel of .04%. Other tests r evealed a trace of cocaine as wel l as metabolite o f cocain e, the co mpound w hich fo rms wh en cocaine is4

broken down in the body. Als o found was the compound of cocaethyl ene whi ch is a compound created when cocaine and al cohol are present in the body at the same ti m e. The amounts of these compounds were not quantified because of the small amount found

-- less than .1 microgram per milliliter of blood. There was no indication as to how long the cocaine had been in the defendant’s sy stem prior to the accident. Tennessee Highway Patrol Trooper Karen Rus sel l investigated the acc ident. Trooper Russell stated the speed li mit was 55 miles per hour on Brighton Road. It was a clear day and the pavement was dry. The trooper took phot ograph s of the situs of the collision and also took measurements. This i nformation was forwarded to THP Ser geant Harry Smith , an accid ent recon structio nist with th e Departm ent of Sa fety. Sergeant Smith review ed Trooper Russell’s measur ements and the photographs. He visited the scene of the col lision with Trooper R ussell. Sergeant Sm ith testified the physical facts reveal ed the defendant wasacross the center of the r oad prior to

the time he began sliding. In other words, the

defendant was on thewrong side of the road. The impact occurred near the sho ulder of t he road on the northbound side, the di rection the Vaughns were travelin g. Rogers was render

ed unconsciousdue to the collision. He sustained a fractured pelvis, a broken nose, broken teeth, and injuri es to h is chin and arm. He spent s everal days in a hospital. Glenda Vaughn suffered massive head injuri es caused by her head stri king the windshield. She died at the situ s of the c ollision. Daniel Vaug hn sustained two broken jaws as a result of striking the steering wheel. Daniel Vaughn said he wasnot wearing a seat belt. He did not know if his mother was wear ing a seat belt. Dr. Tom Norman, the Lincoln County Medical Examiner, testified alcohol acts as a sedative and diminishes cognitiv e function. Cocaine acts as a stimulant, but it also causes a reduction in cognitive functionin g. Us ing the two substances together would diminish one’s ability to make judgments. The defendant did not testify in suppor t of his defense. However, he presented several witnesses. One wi tne ss test ified the muffler on the defendant’s truck had been modified to make it sound louder and make it “echo.” As a result, the truck sounded as if5

it was traveling faster than it was. This witness, who was ri ding in the maroon truck, said they had to tra ve l fast to catch the defendant’s truck. A ccording to the witness, the defendant was driving fast in the curves. The defendant’s sister-in-law testified Trooper Russell told her both vehicles were ho gging the center lane. The defendant’s w ife testified Trooper Russell t old her: “Like I told Daniel [Vaughn] things are going to be said. There is going to be rumors, but this wa s an accident. Accidents happen.” Another witness testi fied in rebuttal to Rogers’s testimo ny. The witness state d the defend ant’s tires were not spinning when he left his residence. According to this w itness, thedefendant was driving at a safe speed and was driving nor mally. I.

The defendant contends the evidence contained in the record is ins uffi cient, as a matter of law, to support a

finding by a rational t rier of fact that he was gui lty of vehicular homic ide and aggravated assault beyond a reasonable doubt. He argues the record is devoid of evidence he wa s driving reckl essly when the coll ision occurred.

A.

When an accused challenges the sufficiency of the convicting evidence, this court must review the record to determine if the evidence addu ced attrial is sufficient "to support the finding by the trier of fact of guilt beyonda reasonable doubt." Tenn. R. App. P. 13(e). This rule is applicable to findi ngs of guilt based up on direct evidence, circumstanti al evidence, or a comb ination of direct and circums tantial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). In determining the sufficiency of the convicting ev

idence, this court does not reweigh
or reevaluate the evidenc e. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). Nor may this co urt subst itute its inferen ces for th ose drawn bythe trier of fact from circumstanti al evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859, ce rt

. denied , 35 2 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956). To the6

contrary, this court is required to afford the State of Tenne ss ee the s trongest legitimate view of the evidence contained in the r ecord as well as all reasonable and legitimate inferences which may be dr awn from the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Qu estions concerning the credibi lity of the witnesses , the weight and val ue to be given the evidence, as well as all factual issues raised by the e vidence are resolv

ed by the trier of fact, not

this court. Cabbage , 571 S.W.2d at 835. In State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973), our supreme court said: "A g uilty verdict by the jury, approved

by t he trial judg e, accredits the testimony of the witnesses for the State and reso lves all conflicts in favor of the theory of the State." Since a verdict of guilt r emoves the presumption of innocence and replaces it w ith
a presumpt ion of guilt, the accused, as the appellant, has the burden in this cou rt o f illustratingwhy the evidence is insufficient to support the v erdicts returned by the

trier of fact. State v. Tugg le , 639 S.W.2d 913, 914 (Tenn. 1982). This court wi ll not disturb a verdict of guilt due to the sufficiency of the evidenc e unless the facts contained in th e record are insufficient, as a matter of law, for a rational trier of fact to find that the accused is guilty beyond a reasonable doubt. Tuggle , 639 S.W.2d at 914.

B.

Before an accused can beconvicted of vehicular homicide, the state is required to prove beyond a reasonable doubt that:

(a) the accused was operating an automobile, air plane, motorboat, or other motor vehi cle; (b) the accused was ope rating the motor vehicle recklesslyunder circumstances that manifested extreme indifference to the val ue of human life; and (c) a person was

killed asa result of the manner in which the accused operated the motor v ehicle. Tenn. Code Ann. § 39-13-213 (1991). Before an accused can be convicted of aggravated assault as a result of the operation of a motor vehicle, the state is required to prove beyond a reasonabl e doubt: (a) the accused was operating a motor vehicle; (b) the accused ope rated the motor vehicle recklessly7 under circumstances manif esting extreme indifferenc e to the value of human life; and (c) a person sustained serious bodily injury

as a result of the manner in which the accused operated the motor vehicle. Tenn. Code Ann. §§ 39-13-101(a)(1), 39-13-102(a)(2) (Supp .). The evidence contained in the r ecord, and the reasonable inferences w hich may be drawn from the evidence, establishe s the elements of both offenses. The record reflects the defendant had been drinking at h is home wit h friends. He left his home in his truck, spinning his tires in the grass and driving fast. His passenger was so unnerved by the speed he asked the defendant to slow down on more than one occasion. The maroon truck, which was following the defendant, could not keep up with the defendant’s truck. A passenger in the second truck estimated the second truck was travelingabout 45 to 50 miles per hour; a reasonable inference could be dr awn that the defendant was traveling much faster. A man visiting a home on Brighton Road heard a truckspeeding. He was famili ar with the curve.He commented to another person that the truck would “not make the Halcomb curve.” The defendant admitted tothe trooper he was on the wrong

side of the road when the accidentoccurred. The T HP accident reco nstructionist m ade a consisten t finding. Alcohol a nd drugs wer e found in the def endant’ s body. As a result of the collision, Glenda Vaughn was kille d ins tantly. Daniel Vaughn suffered broken jaws. Both victims suffered serious bodily injury. Tenn. Code Ann. § 3 9- 11-106(33). The evidence contained in the record is more than sufficient to support a finding by
a rational trier of

fact that the defendant was guilty of v

ehicular homicide and agg ravated assault beyond a reasonable doubt. Tenn. R . App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

II.

Ori ginally, the defendant was charged with vehicular homici de and vehicular assault , both requiring proof of intoxication. Those charges were dropped by the state at the close8

of the state’s proof. The defendan t contends that the state acted in bad faith by “ambushing” him with expert tes timony regarding th e presence of alcohol and cocaine

in his system and then dropping the charges requiring proof of intoxicants. At the close of the state’s case, the trial court advis ed the state it ha d not proven beyond a reasonable doubt the offenses which were predi cated upon the defendant driving while under the influence. The court stat ed i f the defen dant was convicted of any such count, the court would likely set aside the conviction post-t rial. The s tate dismissed the counts of the indictment predicated upon the defendant driving w hile under theinfluence and proceeded with the counts of the indic tment alleging the defendant committed these offenses as a result of operating hi s motor vehicle reckl essly. Howeve r, the state advised the trial court it desi red to arguethe alcohol and cocaine found in the defendant’s blood
were factors which could be considered in determining whether the defendant was dr iving recklessl y. The defendant contends the trial court should have granted a mistrial w hen the state dismissed the alcohol-based counts of the indictment. He also chall enges the admissibility of evidence of alcohol and cocai ne in his blood to esta blish t he reckless prong of the offenses. He refers to what occur red as an “ambush,”and he states the admission of this evidence wasakin to “explod[ing] an ev erlasting bombshell in the jury’s mind.” He argues this evidence should have been excluded pursuant to R ule 404, Tennessee Rules of Evidence. In State v. Braden , 867 S.W.2d 750 (T enn. Crim. App.), per . app . denied (Tenn. 1993), Braden was charged with vehicula r ho micide and aggravated assault. The trial court granted motions for judgment of acquittal on the alcohol-based counts, but, as here, held there was

sufficient evidence to present the counts based on reckle ssness to the jury. Id . at 757. The co urt further he ld evidence esta blishing Braden had consumed alcohol before and at the time of the colli sion was a dmissible to establish Br aden exhibited manif es t extreme indifference to the v alue of human life in the counts predic ated upon recklessness. Id . The defense moved for a mistrial based upon the prior admission of the evidence. The trial court denied the moti on due to the admissibility of the e vidence on the issue of recklessness. This cour t affirmed the trial court in this regard. In ruling, this court9

said:
The trial court pr operl y denied the appellant’s motion for a mistria l. The appellant’s c onsumption of intoxicating beverages before the collision and the per c entage of alcohol in the appellant’s blood was a factor that the jury could consider in determining whether the appellant was o perating his motor ve hicle “under circumst ances manifesting extreme indifference to the value of human life.” In other words, this evidence was both relevant and probative of this element of the of fenses. Id

. As in Braden , the evidence pertaining to the alcohol and cocaine cont ent in the defendant’s blood shortly after the collision was both relev ant and probative of the element of recklessness. This issue is without merit.

III.

The defendant contends the trial court c ommitted error of prejudicial dimensions by permitting Sergeant Smith to testify as an accident reconstructio nist. During the course of the trial, the defendant failed to challenge Sergeant Smith’s qualifications to tes tify as an expert. He only objected to the admission of Trooper Russ el l’s notes regarding measurements. This memorandum was not admitted into evidence. The defendant did not object to the conclusions reach ed by S ergeant Smith, namely, the defendant’s truck was on the wrong s ide of the road and the impact was on the victims’ side o

f the road. In this court, the defendant argues Sergeant Smith should not have been permitted to offer an opinion based on Trooper Russell’s measurements when Troo per Russell did not interpret her own findings. The qualifications of

an expert wi tness, th e admiss ibility of the witnes s’s testim ony, the relevancy of the witness’s testimony, and the competency of the expert testimony are matters which are addressed to the sound discretion of the tr ial court. State v. Ballard , 855 S.W.2d 557, 562 (Tenn. 1993). An appellate court will not interfere with the exercise of this discretion unless clear abuse appea rs on the face of the record. State v. Brimmer , 876 S.W.2d 75, 79 (Tenn. 1994). In this cas e, the trial court did not abuse its di scretion by10

permitting Sergea nt Smith to testi fy and express his opinions. He possessed the r equisite qualifications, education, tra ining, experience, and knowledge of the facts sur rounding the collision to recons truct what occurred and relat e his opin ions to th e jury. Sergeant

Smith was e nt itled to rely upon the measu rements made by Trooper R ussell on the date of the collision. The defend ant did not present any evid ence t o establish the se meas urements were skewed.Nor did the defendant establish the
measure ments were untrustwo rthy. This issue is without merit.

IV.

The defendant contends thetrial court committed error of prej udicial dimensions by failing to instruct the jury that G lenda Va ughn’s failure to wear a seat belt contributed to her fatal in juries. He argues the re is no sta tutory pro hibition against in structin g the jury a victim con tributed to her own injuries. The defendant states i n his brief, “[i]nfact, certain circumstances

one can establish contributory negligence in civil a ctions for a failure to complywith the state law,not wearing sea t belts.” This court notes the Tennessee SupremeCourt adopted comparative fault sever al years ago. See McIntyre v. Balenti ne , 833 S.W.2d 52 (Ten n. 1992). This issue has been waived . The defendan t has faile d to cite any authority to support his argument o n this issu e. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b); State v. Brothers , 828 S.W.2d 414, 416 (Tenn. Crim. App. 1991), per . app . denied (Tenn. 1992). The reason for this default is obv ious. None of the decisions addr essing the question of applying contributory negligence or comparati ve negligence in a

criminal case support the defendant’s contention. See Fuston v. State , 215 Tenn. 401, 405, 386 S.W.2d 523, 525 (1965); Hurt v. State , 184 Tenn. 608, 613, 201 S.W.2d 988, 990 (1947); Hiller v. State , 164 Tenn. 388, 392, 50 S.W.2d 225, 226-27 (1932); Copeland v. State , 154 Tenn. 7, 10, 285 S.W. 565, 566 (1926); Lauterbach v. State , 132 Tenn. 603, 606, 179 S.W. 130, 131 (1915). In this case, Glenda Vaughn di d not commit any act whi ch caused or contributed to11

the violent collision between her a ut omobile and the defendant’s truck. She was a passenger

in the automobile being dri ven by her son, Daniel Vaughn. Her death was the proximateresult of the defendant operating his truck in a manner which he kn ew, or should have known, created a substantial risk of death or serious bodily injury to another pers

on. This issue is without merit.

V.

The defendant next raises three i ssues concerning the sentences imposed by the trial court. He contends (a) the trial court should have applied certain mitigating factors in determining his sente nces, (b) the sent ences are excessive, and (c) he should ha ve been given an alternativ

e sentence to incarceration.

A.

When an accused challenges the le ngth and manner of service of a sentence, it is the d uty of this cour

t to conduct a de novo review on the recor d with a presumption that "the determinations made by the court from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing in the record that

the trial court consider ed the sentencing principl es and all relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal conclusions reached by the trial court in sentencing the ac cused
or to the determinations made by the trial court which are predicated upon uncontrover ted facts. State v. Smith , 891 S.W.2d 922, 929 (Tenn. Crim. App.), per . app . denied (Tenn. 1994). However, this c

ourt is required to

give great w

eight to the trial cour

t's determination of controverted facts as the t rial court's determination of these facts is predicated upon the witnesses' deme anor and appe arance when test ifying. In conducting a de n ovo review of a sentence, th is court must consider ( a) any evidence received at

the trial and/or sentencing hearing, (b) the presentence report, (c) the principles

of sentencing, (d)the argum ents of c ounsel re lative to sentencing alternatives,12

(e) the nature and characteristics of the offense, (f) any mitigating or enhancing fac tors, (g) any stateme nts made by the accu sed in his own behalf, and (h) the accused's potential or lackof potential for

rehabilitation or treatment . Tenn. Code Ann. §§ 40-35-103 and -210; State v. Scott , 735 S.W.2d 825, 829 (Tenn. Crim. App.), per . app . denied (Tenn. 1987). The party challenging

the sentenc e s imposed by the trial c ourt has the burden of establishingthe sentences are erroneous. Sentencing Commi ssion Comments to Tenn. Code Ann. § 40-35-401; Ashby , 823 S.W.2d at 169. In this case, the defendant has the burden of illustrating the sentences imposed by the trial court are erroneou s.

B.

The trial court found the following enhancement factors for vehi cular homicide: (1) Th e defendant has a previous history o

f crimi na l convictions

or criminal behavior in addition to those necessary to establish the appropriate range; (3) The offense inv

olved more than one vic tim; (7) The offens e involved a vi c tim and was committed to gratify the defendant’s desi re for pleasure or excitement; Tenn. Code Ann. § 40-35-114. As for the charge of aggrav ated assault, the court foun d the above enhancement factors appli ed plus the fo llowing:

(9) t he defendant possessed or employed a fir earm , explosive device or other deadly weapon during the commission of the offense. Tenn. Code Ann. § 40-35-114. The trial court found no mitigating factors. The d efendant had asked the court to find his conduct occurred under such unusual circumstances there was no sustained intent t o violatethe law. The trialcourt said the evidence showed “q uite to the contrary.” “[T]he defendant’s behavior with an automobile over

a span of 13 years [has] resu lted in seven convictions

forspeeding; one for reckless driving; three

other driving rel ated offenses and
one other offense involving an automobile yet not driving related. That is a total conviction of 11.” Addition ally, the court found there had not been sufficient change in the defendant’s1 In an interview pri or to his trial, the defendant t old a presen tence investigating officer that although he was in the center of the road, the Vaughns’s car was also in the center of the road and headed into his lane. He did not testify at the tr ial or at hi s sentencing hea ring. 13 behavior since the collision to consider application o f factor (13), which allows consideration of any other factor supported by the evi dence. The trial court said the defendant’s level of remorse did not demons trate there had been a sufficient change in the defendant. 1.

The defendant first challenges the trial court’s refusal

to apply mitigating

factor (13) in determining his sentence. In refusing to apply this mitigating factor, the c ourt said it had
con sidered the defendant’s wife’s testimony. Sue Martin testified the defendant had a historyof not providing financially for his family. When he did earn money, he failed to pay taxes on what he earned. She told the court unless the situation changed, she coul d not continue in the marri age. Based u pon her testi mo ny and the arguments of defense counsel regarding the defendant’s remorse, 1 the court said he had not seen a “sufficient change in the defendant’s behavior sinc e this accident to justify the court considering 4 0- 35-113(13).” The court’s refusal to apply factor (13) was not error.

2.

The defendant next challenges the trial court’s use of enhancement factor (3). The court’s use of factor

(3) was appropriate.The victims listed in the indictments were Glenda Vaughn (vehicular homicide) and Daniel Vaughn (agg ravated assault). Als o injured in the collision was Tony Rogers, a passenger in the defendant’s truck. His i njuries were not the basis for a criminal action against the defendant. Enhancement based upon his in juries
was proper. State v. Norris , 874 S.W.2d 590, 601 (Tenn. Crim. App.), per . app . denied (Tenn. 1993). The defendant does not challenge any of the other enhancement factors that were14

applied. 3.

The state contends the trial cou rt should have ap pli ed factor (10) regarding the defenda nt’s lack of h esitati on about committing a cr ime whe n the ri sk to hum an life wa s high. Tenn. Code Ann. § 40-35-114(10). The trial court consider ed factor (10) and opined he could not apply bo th factor (10) a nd factor (7) rega rding grati fication. The court reasoned the commission of a crime for excitement and gratific ation would be synony

mous with having no hesi

tation to commit the crime. Factors (7) and (10) have been applied together. See State v. James Lloyd Jul ian , Loudon County No. 03-C-01-9 511-CV-00371, 1997 WL 41 25 39 (Tenn. Crim. App., Knoxville, July 24, 1997); State v. Robert Kevin Moore , Putnam County No. 01-C-01 -9606- CC-00255, 1997 WL 409481 (Tenn. Crim. App., Nashville, July 23, 1997); State v. Richard J. Crossman , Wilson County No. 01-C-01-9311-C R-00394, 1994 WL 548712 (Tenn. Crim

. App., Nas hvi lle, October 6, 1994), per . app . denied (Tenn. January 3, 1995); State v. ThomaShawn Noles and Michael Stanley , Rutherford Cou nty No. 01-C-01-9301-CC00003 an d N o. 01 -C -0 1- 93 01 -C C- 00 00 5, 19 93 WL 483318 (Tenn. Crim. App., Nashville, November 18, 1993), per . app . denied (Tenn. April 14, 1994). This court will now

consider whether appli cation of factor (10) is appropriate. This court has held that factor (10) is inhere nt i n the offense of aggravated assault

. State v. David Cliff , Dyer County No. 02-C-01-9509-CC-0026 2, 1996 WL 551760 (Tenn. Cri m. App., Jackson, September 30, 1996), per . app . denied (Tenn. March 10, 1997). Therefore, application of factor (10) is not appropriate for aggrav ated assault. As for using fac

tor ( 10) to enhance a sentence involving vehicular homicide, this court has held this enhancement factor shou ld not be applied if the risk to lif e only endangered the victim. State v. Norris , 874 S.W.2d 590, 601 (Tenn. Crim.App.), per . app . denied (Tenn. 1993). See State v. Makoka , 885 S.W.2d 366, 373 (Tenn. Crim. App.), per . app . denied (Tenn. 1994). However, when the lives of other people are at risk due to the offense committed by the accused, this factor is applicable. State v. Dockery , 917 S.W.2d 258, 263 (Tenn. Crim. App. 1995) (this factor applied in D UI case due to the fact there w as15

a passenger in the accused's vehicle); Makoka , 885 S.W.2d at 373. More particularly, this enhancementfactor has been applied in veh icular homicide cases whe n the accused places the life of a third party at r isk. State v. Williamson , 919 S.W.2d 69, 83 (Tenn. Crim. App. 1995) (other citizens using the same highw

ay as the accused); State v. Bingham , 910 S.W.2d 448, 453 (Tenn. Crim. App.), per . app . denied (Tenn. 1995) (other citiz ens using the same roadway as the accused); State v. Lambert , 741 S.W.2d 127, 134 (Tenn. Crim. App.), per . app . deni ed (Tenn. 1 987) (other citizens using the same roadway as the accused); State v. Shane Wendall Yankee , Hawkins County No. 03-C-01-950 7-CC-00200, 1996 WL 438792 (Tenn. Crim. App., Knoxville,August 6, 1996), per . app . denied (Tenn. February3, 1997) (passenger in defendant ’s car and other driv

er using the same roadway as the accused). There are two reasons whi ch justify the trial c ourt’s use of factor (10)to enhance the defendant’s sentence. First, the defendant had a passenger in his vehi cle. The life ofthe passenger, Tony Rogers, was at risk due to the manner in which the accused drove his motor vehicle. Second, the

defendant was being pursued by his friends in another pickup truck. That truck, carrying three other men, was also on the roadw ay in close proxi mity to the defendant’s truck and travel ing at a high rate of speed. The lives of those three men were at risk because o f the defendant’s behavior. Thus, for the conviction of vehicular homicide, factors (1), (3), (7), and (10) were appropriate. For the co nviction of aggravated assault, factors (1), (3), (7), and (9) were appropriate. C.

The defendant next contends the court er red in th e weight i t assigned to enhancement factor (1) regardi ng the defendant’s criminal behav ior and criminalrecord. The def endant argues he has no felony r ecord and has only been conv icted o f misdemeanors. The court said it took into account the defendant’s traffic offenses and a reckless driving offense. The court not ed the evidence indicated the defendant wasusing cocaine close to the time of the ac cident. The presentence report indicates that ov er a 10-year

period the defendant had been16

cited for speeding five times, r eckless driving,operating a motorcycl e without a helm et, drivingthe wrong way on a one-way street, failing to have safety eq uipment on a motorcycle, and failing to stop wher e a stop was require

d. Additionally, another charge of reckless driving

was reduced to a charg e of speeding. The defendant adm itted he had u sed ma r ijuana in the past. Accordi ng to the defendant’s presentence report, he admitted to using marijuana on a weekly basis up until the time of the wreck. He also admitted to using cocaine on “rare occasions.” The range for a Class C felony is three (3) to six(6) years. This cour t finds that the sentences imposed are both proper and reasonable based upon the circumstances of the offense and the enhancem ent factors.

D.

The defend ant fina lly conten ds the cou rt erred by f ailing to i mpose an alternat ive sentence. 1.

If an accus

ed is co nvicte

d of a Class C, D, or E felony and is sentenced as either
an especially mitigat

ed offenderor

a standard offender, there is a presumption , rebuttable in nature, that the accused is a favorable cand ida te for alternative sentencing unless disqualified by some provision of the Tennessee CriminalSentencing Reform Act of 1989. Tenn. Code Ann. § 40-35-102(6). The sentencing process must nec essarily commenc

e w ith a determination of whether the accused is entit led to the benefit of the presumption. Ashby , 823 S.W.2d at 169; State v. Bonestel , 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993). As th e supreme court said in Ashby : "If [the] determination is favor able to the defendant, the trial court must presumethat he is subject t o alterna tive sentencing. If the court is presented with evidence sufficientto overcome the presumption, then it may sentence the defendant to c onfinement according to the statutory prov ision[s]." 823 S.W.2d at 169. The presumption can be successfully rebutted by facts contained i n the presentence report, evidence presented by17

the state, the testimony of the accused or a defense witnes s, or any other source provided it is made a part of the record. Bonestel , 871 S.W.2d at 167.

2.

In this case, the appellant was entitled to the presumption that he was a favorable candidate for alternative s entencing. However, as the tr ial court found, the state successfully rebutted the p resumption. The court stressed the defendant’s t raffic offenses involving th e use of a n automobile. So me of these offenses could have led to the maimin g or killing of another person as well. The defendant, the court said, was an “accident waiting to happen. ” The defendant’s history indic ates he did not sup po rt his family properly. The defendant’s wife testified the defendant did not provide adequat e financial support. When he did support his family financ ially, he failed to pay

taxes on the money

he earned. Thus, his obligations to soci ety suffered. The defendant dropped out of high school for no reason. His employment record
was sporadic; he held jobs for only a few months at a time. He admitted to th e regular use of marijuana and more occasional us e of cocaine. The court noted confinement via a concurrent sen tence would adequately protect society as opposed to im posing a consecut ive sentence. Confinement was also necessary to deter the defendant and others from committi ng such offenses. Tenn. Code Ann. § 40- 35-103(1)(B). Confine ment was a lso wa rranted to protect society by restraining the defendant who has a long history of cri minal conduct, Tenn. Code Ann. § 40-35-103(1)(A), and to a void depreciating the seriousness of the offenses, Tenn. Code Ann. § 40-35- 103(1)(B). It further appears the defendant’s pot ential for rehabilitation i s slight, Tenn. Code Ann. § 40-35-103(5). The court noted the defendant had presented no evidence that he had changed his behavior since the accident. The defendant has failed to carry his burden of illustrating the sentences imposed bythe trial court wer

e erroneous. The defendant was not enti tled to an al ternative sentence.18 The issue is without meri t.

______________________ ________________

_ _ JOE B. JONES, PRESID ING JUDGE
CONCUR:

___________________________________ WILLIAM M. BARKER, JUDGE

___________________________________ JOE G. RILEY, JUDGE