FILED

December 16, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JULY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9608-CR-00313

)

Appellee, ) HAMILTON COUNTY

)

V. )

) HON. STEPHEN M. BEVIL, JUDGE

DAVIS OLIVER BROWN, )

) (VEHICULAR ASSAULT; 

Appellant. ) VEHICULAR HOMICIDE)

FOR THE APPELLANT: FOR THE APPELLEE:

ARDENA J. GARTH JOHN KNOX WALKUP 

District Public Defender Attorney General & Reporter

DONNA ROBINSON MILLER JANIS L. TURNER 

Assistant Public Defender Assistant Attorney General

701 Cherry Street, Suite 300 2nd Floor, Cordell Hull Building

Chattanooga, TN 37402 425 Fifth Avenue North 

Nashville, TN 37243-0943

WILLIAM COX 

District Attorney General

JOHN A. BOBO, JR. 

Assistant District Attorney General

600 Market Street, Suite 310

Chattanooga, TN 37402 

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, Davis Oliver Brown, appeals as of right from the sentences

imposed by the trial court upon his pleas of guilty to vehicular homicide and

vehicular assault in the Criminal Court of Hamilton County. Defendant pled guilty

without any agreement between himself and the State as to the length or manner

of service of the sentences. The trial court sentenced Defendant, as a Range I,

Standard Offender, to the maximum sentence of twelve (12) years for the

vehicular homicide conviction and the maximum sentence of four (4) years for the

vehicular assault conviction. The court further ordered the sentences to be

served consecutively. In this appeal, Defendant presents two issues for review:

(1) whether the trial court erred by imposing the maximum sentences in each

case and (2) whether the trial court erred by ordering the sentences to be served

consecutively. We affirm the judgment of the trial court. 

At approximately 11:18 p.m. on July 13, 1995, the Defendant was involved

in a two-vehicle wreck on Interstate 24 within the city limits of Chattanooga. The

record indicates that just prior to the wreck Defendant was traveling eastbound

on Interstate 24, and the victims, Timothy Clevenger and his brother, Andy

Clevenger, were traveling in a vehicle westbound on Interstate 24. The collision

occurred in the westbound lane. The vehicle was owned by Timothy Clevenger,

who died as a result of the wreck. Andy Clevenger suffered extensive injuries as

a result of the collision. From the photographs of the wreck which are in the

record, and from the traffic accident report, it is indicated that the wreck was a

head-on collision. Although the traffic accident report indicates that it consists of
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six (6) pages, only the first page was included in the pre-sentence report as part

of the record on appeal. 

Chattanooga Police Officer Robert Simpson testified during the sentencing

hearing. After the wreck, he searched the Defendant’s vehicle pursuant to a

search warrant. He found various papers which were introduced into evidence,

including documents showing that the Defendant had been ordered to attend a

DUI school in February of 1995, but that he had failed to attend as required.

Officer Simpson also testified that he found num erous beer cans inside the

Defendant’s vehicle. The victims’ father testified at the hearing as to the impact

of the crime upon his family and his surviving son.

At the time of the sentencing hearing, Defendant was 32-years-old. He

had been self-employed prior to the charges being placed against him in the

present case. He testified that he takes full responsibility for the car wreck. 

Defendant admitted during his testimony that he had “been drinking all day

long” and that he “shouldn’t have been out there driving.” The pre-sentence

report shows an extensive prior record of Defendant. He testified, however, that

someone else had used his name in the past and therefore, several of the

offenses in the record had not been committed by him. The State offered no

evidence to contradict Defendant’s assertions that certain of the listed offenses

had not been committed by him. However, the Defendant did admit to at least

four (4) prior arrests for various misdemeanors, which led to three (3) prior

convictions and one disposition by diversion. These prior convictions included

one for DUI, one for reckless driving and one for public intoxication. Further
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evidence at the sentencing hearing revealed that both the conviction for DUI and

the conviction for public intoxication had occurred in 1995, and that Defendant

was convicted of public intoxication while on probation from the DUI offense. In

fact, Defendant had been charged with public intoxication approximately one

month prior to the automobile wreck which resulted in the present charges of

vehicular homicide and vehicular assault. Defendant admitted that he was an

alcoholic, but that he had never received treatment for his alcohol abuse except

for AA meetings while in jail for the present offenses. Defendant expressed his

sympathy to the victims’ family and explained that he wished he could trade

places with Timothy Clevenger. He stated that he thought the accident would

prevent him from ever drinking alcoholic beverages again.

When an accused challenges the length, range, or the manner of service

of a sentence, this court has a duty to conduct a de novo review of the sentence

with a presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, this Court must consider the

evidence adduced at trial and the sentencing hearing, the presentence report, the

principles of sentencing, the arguments of counsel relative to sentencing

alternatives, the nature of the offense, and the defendant’s potential for

rehabilitation. Tenn. Code Ann. § 40-35-210; State v. Parker, 932 S.W.2d 945,

955-56 (Tenn. Crim. App. 1996).
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If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991). 

I. LENGTH OF SENTENCE

The Defendant argues that the trial court erred by imposing the maximum

sentences of twelve (12) years for the vehicular homicide conviction and four (4)

years for the vehicular assault conviction. The trial court found that five (5)

enhancement factors were applicable: 

(A) The Defendant has a previous history of criminal convictions or

criminal behavior in addition to those necessary to establish the

appropriate range. Tenn. Code Ann. § 40-35-114(1);

(B) As to the vehicular assault conviction only, the personal injuries

inflicted upon the victim were particularly great. Tenn. Code Ann. §

40-35-114(6);

(C) The Defendant has a previous history of unwillingness to comply

with the conditions of a sentence involving release into the

community. Tenn. Code Ann. § 40-35-114(8);

(D) As to the vehicular assault conviction only, the Defendant had no

hesitation about committing a crime when the risk to human life was

high. Tenn. Code Ann. § 40-35-114(10); and 

(E) The felonies were committed while the Defendant was on a form of

release status, if such release is from a prior felony conviction.

Tenn. Code Ann. § 40-35-114(13)(C).

The trial court found that no mitigating factors applied.
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Therefore, the trial court found that three (3) enhancement factors under

Tennessee Code Annotated section 40-35-114 applied to the vehicular homicide

conviction, and five (5) of the enhancement factors in that statute applied to the

vehicular assault conviction. 

We find that the trial court properly applied enhancement factor number (1)

in this case. The Defendant has at least four (4) prior arrests and three (3) prior

convictions for offenses involving alcohol or drugs. Two of the offenses also

involve unlawful conduct while operating a motor vehicle. Even though all of

these prior offenses were misdemeanors, the statute does not require the 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 court.

Defendant was on probation for a DUI conviction when he was arrested and

convicted of public drunkenness only a few weeks before the commission of the

offenses under review in this case. Therefore, it is clear that Defendant is

unwilling to comply with conditions involving release into the com munity. 

We find that the trial court erred by applying enhancement factor number

(6) to the vehicular assault conviction. In State v. Jones, 883 S.W.2d 597 (Tenn.

1994), our supreme court held that “proof of serious bodily injury will always

constitute proof of particularly great injury.” 883 S.W.2d at 602. In State v.

Rhodes, 917 S.W .2d 708 (Tenn. Crim. App. 1995), our court held that in a

vehicular assault case, the enhancement factor found at Tennessee Code

Annotated section 40-35-114(6) was an element of the offense requiring serious

bodily injury. 917 S.W .2d at 714. 
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In addition, we find that the trial court erroneously applied enhancement

factor (13)(C). That statute plainly states as follows:

(13) The felony was committed while on any of the following forms

of release status if such release is from a prior felony conviction

. . .

(C) Probation

. . .

Tenn. Code Ann. § 40-35-114(13)(C) (emphasis added).

Since Defendant was not on probation from a prior felony conviction at the time

of the commission of the present offenses, this particular enhancement factor

cannot be applied.

The Defendant also argues that the trial court improperly applied

enhancement factor (10) to the vehicular assault conviction. It is true that this

factor is inapplicable to a vehicular assault conviction where the only risk to

human life is the risk to the victim. See State v. Hicks, 868 S.W.2d 729, 732

(Tenn. Crim. App. 1993). However, the factor may be applied in circumstances

where individuals other than the victim are in the area of the defendant’s criminal

conduct and are subject to injury. State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.

App. 1995). 

The trial court did not specifically elaborate upon what facts were involved

in this case which caused the court to believe that factor (10) was applicable.

However, we note from this record that the wreck occurred on an interstate

highway within the city limits of an urban area. The proof indicates a head-on

collision wherein the Defendant crossed from the eastbound lanes of Interstate

24 to the westbound lanes of Interstate 24. It was undisputed that his blood

alcohol content following the wreck was .281. 
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As stated above, this case proceeded to a sentencing hearing following

guilty pleas entered by the Defendant. Rule 11(f) in the Tennessee Rules of

Criminal Procedure states that “Notwithstanding the acceptance of a plea of

guilty, the court should not enter a judgment upon such plea without making such

inquiry as shall satisfy it that there is a factual basis for the plea.” The transcript

of the guilty plea hearing was not included in the record on appeal in this case.

It is the appellant’s duty to have prepared an adequate record in order to allow

a meaningful review on appeal. Tenn. R. App. P. 24(b); State v. Roberts, 755

S.W.2d 833, 836 (Tenn. Crim. App. 1988); State v. Bunch, 646 S.W.2d 158, 160

(Tenn. 1983). It would have been much simpler and easier for this Court to

review this issue if the entire traffic accident report had been included within the

pre-sentence report, or if the State had elicited further proof as to the particular

circumstances of the offense at the sentencing hearing. However, we must

assume that the trial court did not allow a judgment to be entered upon the guilty

pleas without finding a factual basis for the pleas. This would normally include

the particular circumstances of this offense. In addition, we are able to glean

from this record, as stated above, that the wreck occurred on an interstate

highway within the city limits of an urban area after the Defendant had left the

eastbound lanes and entered the westbound portion of the highway. Without the

guilty plea hearing being made a part of the transcript, we are unable to say that

the trial court erred in applying factor (10). We are able to reach this conclusion

even though from this record it is clear that enhancement factors (6) and (13)(C)

are not applicable by their very nature. 

 

The Defendant argues that the trial court erred by failing to find that he was

remorseful under miscellaneous mitigating factor (13). Tenn. Code Ann. § 40-35-
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113(13). At the sentencing hearing, the Defendant expressed his sympathy to

the victims’ family and said he would trade places with their son, Timothy, if he

could. Although the record does reflect some expressions of remorse, the trial

court heard the evidence, saw the Defendant firsthand, and then ruled based

upon its observation. When a factual issue is involved, we must generally defer

to the assessment of the trial court. Even if some evidence of mitigation did exist,

where the mitigation factors are strongly outweighed by the enhancement factors,

the maximum sentence would still be warranted. State v. Ruane, 912 S.W.2d

766, 785 (Tenn. Crim. App. 1995).

We therefore find that there was no error in the trial court’s application of

enhancement factors (1) and (8) to both convictions, and in addition the

application of enhancement factor (10) to the vehicular assault conviction. Under

the circumstances of this case, great weight should be placed upon enhancement

factors (1) and (8). As stated above, Defendant pled guilty to DUI in early 1995.

While on probation for this offense, he committed the offense of public

intoxication. While on probation for both of these alcohol related offenses, one

of which also involved operation of a motor vehicle, he committed the offenses

which led to the present convictions on appeal. We also note the record reflects

that when arrested for public intoxication in June of 1995, he was passed out

inside his vehicle. We hold that the three (3) applicable enhancement factors,

along with a finding of no mitigating factors, justifies the sentences imposed by

the trial court. This issue is without merit.

II. CONSECUTIVE SENTENCING
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The trial court ordered consecutive sentencing after making a finding that

Defendant is a dangerous offender whose behavior indicates little or no regard

for human life, and no hesitation about committing a crime in which the risk to

human life is high. Tenn. Code Ann. § 40-35-115(4). The trial court also noted

on the consecutive sentencing issue that Defendant was on probation at the time

of the commission of the offenses of vehicular homicide and vehicular assault.

Defendant strongly argues that he is not a dangerous offender as defined

by the statute and case law, and as such, the trial court’s order of consecutive

sentencing should be reversed. However, there is no dispute that Defendant was

on probation at the time of the commission of the offenses. Unlike the

enhancement factor found in Tennessee Code Annotated section 40-35-

114(13)(C) in which there is a requirement that the Defendant be on probation

from a felony conviction, Tennessee Code Annotated section 40-35-115(6)

merely requires that to justify consecutive sentencing, the Defendant is

sentenced for “an offense committed while on probation.” We also find from the

record that consecutive sentencing is necessary to protect the public against

further criminal conduct by the Defendant and that consecutive sentencing is

reasonably related to the severity of the offenses committed. State v. Wilkerson,

905 S.W .2d 933, 939 (Tenn. 1995). 

This issue is without merit.

We affirm the judgment of the trial court. 
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____________________________________

THOMAS T. W OODALL, Judge 

CONCUR:

___________________________________

DAVID H. WELLES, Judge

___________________________________

JOHN K. BYERS, Senior Judge