# FILED December 16, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE JULY SESSION, 1997
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9608- CR-00313 ) Appellee, ) HAMILTON COUNTY ) V. ) ) HON. ST EPHEN M. BEVIL , JUDG E DAVISOLIVER BROWN, ) ) (VEHICULAR ASSAUL T; Appe llant. ) VEHICULAR HOMICI DE)

FOR THE APPELLANT : FOR THE APPELLEE : ARDENA J. GARTH JOHN KNOX WALKUP Distri ct Public

Defender Attorney General& Reporter DONNA ROBINSON MILLER JANI S L. TURNE R Assistant Public Defender Assistant Attorney General 701 Cherry Street, Suite 300 2nd Floor, Cordel l Hull Bui lding Chattanooga, TN 37402 425 Fifth Avenue North Nashvill e, TN 37243-0943 WILLIA M COX Distri ct Attor ney General JOH N A. BO BO, JR . Assistant Distri ct Attor ney General 600 Market Street , Suite 310 Chattanooga, TN 37402
OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Davi s Oliver Br own, appeals as of

right f rom the sentences impose d by the trialcourt upon hi s pleas of gui lty to vehicular homicide and vehicular

assau lt in the Crim inal Cou rt of Ham ilton Cou nty. Defen dant pled guilty without any agreement between himse lf and the S tate as to the lengt h or manner of service of th e sente nces. T he trial cou rt senten ced De fendan t, as a Ra nge I, Standard Offend er, to t he ma ximum sentence of t welve (12) years for the vehicular

homicide convi ction and t he maximum sentence of four (4) years for the vehicular

as sault conv iction . The court f urther or dered the sente nces to be served conse cutively. In this appeal, Defendant presents two i ssues for revi ew: (1) whether the t rial cour t erred by

impo sin g the maximum sentences in each case and (2) whether

the tri al court er red by orderin g the sen tences to be served conse cutively. W e affirm the judgm ent of the tria l court.

At appro ximate ly 11:18 p.m. on Jul y 13, 1995, t he Defendantwas involv ed in a two-vehi cle wreck on I nterstate 24 within the c ity limits of Chattanooga. The record indi cates that

just prior to the wreck Defendant was travel ing eastbound on Interstate 2 4, and the victims, T imothy C levenge r and his b roth er, Andy Clevenge r, were travel ing in a vehic le westbound on I nterstate 24. The coll ision occurred in the west bound lane. The vehi cle was owned by T imothy Cleve nger, who died as a resu lt of the wreck . Andy Clevenger suffered ex

tensive i njuries as a result of th e colli sion. From thephotographs of the wreck whi ch are in t he record, and from the t raffic acci dent report, i t is indicated that the wreck was a head-on colli sion. Alt hough the traf fic acci dent report

indicates that i t consists of-3-

six (6) pag es, on ly the first page was includ ed in the pre-se ntence repo rt as part of the reco rd on ap peal.
Chattanooga Police Office r Robert Simps on testi fied duri ng the sentenci ng h earing. After t he wreck, he sear ched the Defendant’ s vehicl e pursuant to a search warrant. He found vari ous papers which wer e introducedinto evi dence, includi ng documents showing th at the Defendant had been ordered to attend a DUI school in February of 1995, but that he had failed to attend as re quired. Officer Simps on also te stified that he fo und num ero us beer cans insi de the Defe ndan t’s vehicle. The victims’ father testifi ed at the hearing as to the i mpact of the cri me upon his family and his surv iving son.

At the time o f the sente ncing he aring, De fendan t was 32 -years-old
. He had been self- employed pr i or to the cha rges being pl aced against hi m in the presen t case. H e testified tha t he takes full respon sibility for the ca r wreck.

Defendant admitted duri ng his test imony that he had “been dri nking all day long” and that he “sh ouldn’t have been out there drivi ng.” The pre-sentence report shows an extensive prior record of Defendant. He testif ied, however , that s omeone e lse had used his name in the past and therefore, severalof the offensesin the record had not been comm itted by him. The State of

fered no evidence to contradi ct Defendant’ s asserti ons that cer tain of t he listed offenses had not been committed by him. However, the Defendant di d admit to at least four(4) pr ior ar rests f or vari ous misdemeanor s, wh ich led to three (3) prior convicti ons and o ne disposit ion by div ersion. These prior convi ctions i ncluded one for DU I, one fo r reckle ss d rivi ng and one for publ ic intoxicati on. Further-4-

evidence at the sentencing heari ng revealed that both t he convicti on for DUI and the convic tion for

public i ntoxicat ion had occurred in 1995, and t hat Defendant was convic ted of p ublic int oxicatio n while on probatio n from th e DUI o ffense. In fact, Defendant had been ch arged with publ ic intoxicati on approximatel y one m on th prior to the automobil e wreck which resulted i n the present charges of vehicular

homicide an d vehic ular assaul t. Defendant admitted t hat he was an alcoholic, but that hehad neverreceived t reatment for his alcoholabuse except forAA meetings whil e in jai l for t he present off enses. Defendant

expre ssed his sympathyto the vi ctims’ family and expl ained that he wished he could t rade places with Timothy C leve nger. He stated that he thoug ht the a ccide nt wou ld prevent hi m from ever dri nking alcohol ic beverages ag ain.

When an accused chall enges the lengt h, range, or the manner of service of a sentence, t his court has a duty to

conduct a de novo review of the sentence with a presumption t hat the determinations made by t he trialcou rt are c orrect. T enn. Code Ann. § 40-35-401(d) . This presumpti on is "condi tioned upon t he affirmative showing in t he record that the tri al court considered thesentencing principl es and all relevant facts and circums tances ." State v. Ashby , 823 S.W.2d 166, 169 (T enn. 1991 ).

In conducting a de novo review of a sentence, t his Court must consider the evidence adduced at tr ial and t he sent encin g hearing, t he presentence report, t he principl es of sentencing, the arguments of counsel r elative to se nten cing alternatives, the nature of the offense, and the defendant’s potenti al for rehabili tation. Tenn. Code Ann. § 40-35-2 10; State v. Parker , 932 S.W.2d 945, 955-56 (T enn. Crim. A pp. 1996).-5- If our revi ew reflect

s that thetrialcourt fol lowed the statutory sentencing procedure, imposed a lawfulsentence after having given due considerat ion and properweight to t he factors and principa ls setout under the sentencing l aw, and thatthe trial c ourt's fin dings of fact a re ade quate ly supported by the record, then we may not modify t he sentence even i f we woul d have prefer red a different result. State v. Fletcher , 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991).

I. L ENGTH OF SENTENCE

The Defendant argues t hat the trial court erred by i mposing the maximum sentences of twelve (12) years for the vehicular homicide convi ction and four (4) years for the vehicul ar assault convict ion. The trial co urt fou nd that five (5) enhan ceme nt factors w ere app licable: (A) The D efendant has a pr evious history of

criminal convicti ons or criminal behavio r in additi on to those necessary to establ ish the appropriate ran ge. Tenn . Code An n. § 40-35-11 4(1); (B) As to the vehi cular assaul t con vic tion onl y, the per sonal inj uries infli cted upon th e victim we re particula rly great. Tenn. Code Ann. § 40-35-114 (6); (C) The Defendant has a prev ious history of unwi llingn ess to com ply with the condit ions of a sentence involv ing releas e into the comm unity. Tenn. C ode Ann . § 40-35-114 (8); (D) As to the vehicu la r assault convicti on only, t he Defendant had no hesitati on about committi ng a crime when the r isk to human life was high. Tenn. Code Ann. § 40-35-114(10) ; and (E) The felonie s were committed whi le the Defendant was on a form of relea se status, if such r elease is f rom a prior felony convi ction
. Tenn. C ode Ann . § 40-35-114 (13)(C).

The trial court found that no mit igating factors appl ied.-6- Therefore, t he trialcourt found that thr ee (3) enhancement fa ctors under Tennessee Code Annotated secti on 40-35-114 appli ed to the vehi cular homici de convicti on, and five (5) of t he enhancement factors i n that statute appli ed to the vehicular assau lt conviction.

We find that

the tri al court pr

operly appl ied enhancement factor number (1) in this case. The Defendant has at l east four (4) pri or arrests and three (3)prior convicti ons for offenses invol ving al cohol or drugs. Two of the offenses also involve unlawfu l conduct wh ile op erating a motor vehicle. Even though allof these prior

offenses were misdemeanors, the statute does not require t he prior record to be comprised of felonies. Tenn. Code Ann. § 40-35-114(1). We also find that enhancement factor number (8) was properly applied by

the trial cour t. Defendant was on probati on for a DUI convi ction when he was ar res ted and convicted of public drunkenness only a few weeks before the commission of the offensesunder re view in this ca se. The refore, it i s clear th at De fenda nt is unwilling to comp ly with cond itions involving release in to the com munity.

We find that the t rial court err ed by applyi ng enhancement factor number (6) to the vehi cular assaul t convict ion. In State v. Jones , 883 S.W.2d 597 (Tenn. 1994), our suprem e court held that “pro of of seri ous b odily injury will always constitute proof o f particu larly gre at in jury. ” 883 S.W.2d at 602. In State v. Rhod es , 917 S.W .2d 708 (Tenn . Crim. A pp. 199 5), our co urt held th at in a vehicular

assault case, the enhan cement factor found at Tennessee Code Annotated section 40- 35-114(6) was an el ement of the off ense requiri ng serious bodily injury. 9 17 S.W .2d at 714
.-7- In additio n , we find that the tri al court er roneously appl ied enhancement factor (13)(C). That statute plainly states as foll ows: (13) T he felo ny was com mitted while on any of t he foll owi ng forms of release status if suc h release is from a prior felony convicti on

. . . (C) Probati on

. . . Tenn. C ode Ann . § 40-35-114 (13)(C) (em phasis add ed).
Since Defendant was not on probation f rom a prior felony convi ction at theti me of the commission of the pr esent offenses, this part icular en hancement factor cannot be appli ed.

The Defendant also ar gues that t he trialcourt imprope rly applied enhancement factor ( 10 ) to the v ehicu lar ass ault co nviction . It is true th at this factor is inapplicabl e to a vehicular assault convict ion where th e only risk to human life is the risk to th e victim. See State v. Hicks , 868 S.W.2d 729, 732 (Tenn. Crim. App . 1993). How ever, the facto r may be applied i n circumstances where individu als oth er than the victim are in the areaof the defe ndant’s cr iminal conduct and are subject to injury. State v. Sims , 909 S.W.2d 46, 50 (Tenn . Cr im. App. 19 95). The trial cou rt did no t spec ifically elaborate upon what facts were invol ved in this case whi ch caused the court to beli eve that

factor ( 10) was appli cable. Howeve r, we n ote from this record that the wre ck occu rred on a n interstate highwaywithin t he city l imits of an urban area. The pr oof indi cates a h e ad-on colli sion wherein the Defendant cr ossed from the eastb ound la nes of Inte rstate 24 to the west bound lanes of I nterstate 24. It was undisputed t hat his bl ood alcoho l content fo llowing the wreck w as .281
.-8- As stated above, this case pr oceeded to a sentenci ng hearing fol lowing guilty pleas en te red by the Defendant. Rule11(f) i n the Tennessee Rules of Crimina l Procedure states that “Not withstandi ng the acceptance of a plea o f guilty, the court s hould not enter a judgmentupon such plea without making such inquiry as shall sat isfy i t that t here is a factual basis for the plea.” The transcri pt of the gui lty pl ea hearing was not includ ed in th e reco rd on a ppea l in this case. It is the appe ll ant’s dut y to have prepared an adequate record in order to all ow a meaningf ul review on appea l. Tenn. R . App. P. 2 4(b); State v. R oberts , 755 S.W.2d 833, 836 (Tenn. Cri m. App. 1988); State v. Bunch , 646 S.W.2d 158, 160 (Tenn. 1 983) . It would h ave bee n muc h simp ler and e asier for this Court to review this i ssue if t he entire t raffi c accident r eport had been i ncluded wit hin the pre-sentence r

eport, or if the State had eli cited fu rther proof as to the parti cular circumstancesof the offen se at the s entenc ing hea ring. How ever, w e mus t ass ume that thetrial court did n ot allow a ju dgme nt to be ente red upo n the gu ilty ple a s without f inding a factual basi s for the pl eas. This woul d normally i nclude t he part icular c ircumstances of this of fense. In additio n, we are able to glean from this record , a s stated above, th at the wre ck occu rred on a n interstate highwaywithin th e city l imits of an urban area after the Defendant had left the eastbound lanes and enter ed the westbound portion of the highway. Without the guilty plea hearing being m ade a p art of the tran script, we a re unab le to say that the trial court erred in applying factor (10). We are able to reach thi s conclusion even thoug h from this rec ord it is clear that enhancement factors (6)and (13) (C) are not a pplicable by their very n ature.

The Defendant argues t hat the trial court erre d by failing to find that he was remorseful undermiscellaneous mitigati ng factor (13). Tenn. Code Ann. § 40-35--9-

113(13). At the senten cing heari ng, the Defendant expressed his

sympathyt o the victims ’ family a nd said he would t rade places wi th their son, Timothy, if he could. Although therecord does reflect some expressions of remorse, the t rial court heard the evid ence, saw the Defendant f irsthand, and then rul ed based upon its obser

vation. Wh en a fa ctual iss ue is involved, we must general ly defer to the asse ssme nt of the trial co urt. Even if some evi dence of mitigation did exist, where the mitigati on fact ors are strongly out weighed by the enhancement factors, the maximum sen t ence w ould still be w arranted
. State v. Ruane , 912 S.W.2d 766, 785 (T enn. Crim. A pp. 1995).

We therefore find that there was no err

or in thetrialcourt’s applicat ion of enhancement factors (1) and (8) t o both convictions, and i n additi on the applicat ion of enhancement factor (10) to the vehi cular assault conv iction . Under the circumstances of

this case, great weigh t shou ld be pl aced upon enhancement factors (1) and (8). As stated above, Defendant pled gui lty to DUI in early 1995. W hile on probation for thi s offense , he co mm itted the offens e of pu blic intoxication
. While on probation f or both of t hese alcohol r elated off

enses, one of which also involve d op eration of a motor vehicl e, he committed t he offenses which led to the prese nt conviction s on ap peal. W e also no te the reco rd reflects thatwhen a rrested fo r public intox ication in Ju ne of 19 95, he was passed out inside his vehic le. We hold that the three (3) app licabl e en hancement factors, along with a findi ng of no mitigati ng factors, justi fies thesentences imposed by the trial cou rt. This issu e is withou t merit.

II. CONSECUTIVE S ENTENCING-10- The trialcourt order

ed consecutive sentencing af ter making a findi ng that Defendant is a dangerous of fenderwhose behavior i ndicateslittle or no regard forhuman l ife, and no hesitation about co mm itting a crime in which th e risk to human life is high. Tenn. Code Ann. § 4 0-35-11 5(4). The trial court als o noted on the consecutive sentencing i ssue that Defendant was on probati on at the ti me of the co mm is sion of the offenses of vehicula r homic ide and vehicular a ssault.

Defendant strongly

argues that he i s not a dangerous of fender as defined by the statu te and case l aw, and as such, the trial court’s orde r of consecutive sentencing should be re versed. How ever, there is no dispute t hat Defendant was
o n proba tion at th e time of the c omm ission of the o ffense s. Unlik e th e enhancement factor f ound in Tennessee Code Annotated secti on 40-35- 114(1 3)(C ) in whic h there is a requi rement that t he Defendant be on probat ion from a felony co nvicti on, Ten nes see Code Annotated sect ion 40-35-115( 6)
mere ly requires that to justify co nsecu tive senten cing, t he Def enda nt is sentenced for “an of

fense committed whi le on probation.” We also find fr om the record th at c onsecutive sentencing is necessary to protect the publi c against further criminal conduct by t he D efendant and th at con secu tive sen tencin g is reaso nably related to th e severity of the offens es com mitted. State v. Wilkerson , 905 S.W .2d 933 , 939 (T enn. 19 95).

This issu e is withou t merit.

We affirm the ju dgme nt of the trial co urt.-11- ____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ DAVID H. WELLES , Judge

___________________________________ JOHN K. BYERS, Senior Judge