# FILED
October 13, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE FEBRUARY

1998 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 01C01-9610-CC- 0 044 8 ) vs. ) Warren County ) GEORGE BLAKE KELLY, ) Hon. Charles Haston, Judge ) Appellant. ) (Second D egree Murder, V ehicular ) Assault, Reckless Driving, D UI - 3d, ) Driving on Rev

oked License)
FOR THE APPE LLANT: FOR THE APPELLEE: DAVID L. RA

YBIN (on appeal) JOHN KNOX WALKUP Attorney at Law Attorney General & Repor ter 2210 SunTrust Center 424 Church St. KAREN YACUZZO Nashville, TN 37219 Asst. Attorney General 425 Fifth Ave. North BERNARD K. SMITH (at trial) 2d Floor, Cordell Hull Bldg. Attorney at Law Nashville, TN 37243-0493 P.O. Box 490 McMinnville, TN 37 110 WILLIAM M. LOCKE District Attorney General JOHN MELTON (at trial) Attorney at Law LARRY ROS S P.O. Box 446 ROBERT W. BOYD, JR. Woodbury, TN 37190-0160 Asst. Distric t Attorneys Gen era l Professional Building McMinnville, TN 37 110

OPINION FILED:

__________________ AFFIRMED IN PART, REVERSED IN PA RT, MODIFIED IN PART CURWOOD WITT, JUDGE2 OPINION The defendant , George Blake Kelly, appeals from his convictions of second-degreemu rder , vehicular assault, reckless driving , third-offense driving under the influence, and driving on a revoked license. Following a trial by jury, Kelly
was found guilty

of second-deg ree mu rder, vehicular homicide by intoxication, vehicular homicide by reckle ssness, vehicular assault by intoxication, reckless drivingand third- offense DUI. He pleaded guilty to driving on a revoked license before the issue was submitted t o the jury. The court i mpose d judgments of conviction for second-degree murder, v ehicular assault, reckl ess driving, thirdoffense DUI and driving on a revoked license. Kelly is presently servi ng a sentence of 30 years, 11 months and 29 days, which consists of the max imum sentences for each of his offenses stacked consecutively to each other. In this direct appeal, he raises ten issues for our c onsideration: 1. Whet her

the evidence on his second- degree murder convictio n sufficiently supports that he "knowingly" kil led Ginny Prince. 2. Whether the Criminal Code proscr ibes death caused by drunk driving as second-degree murder. 3. Whether the trial court erroneous ly instructedth e jury on the definition of "knowingly " as to the second-degree murder charge. 4. Whether the tr ial court erroneously instructed the jury on the definition of "intention ally " as to the seconddegree murder charge. 5. Whether the trial court depriv ed him of due process of law and the righ t to a jury trial by instructing the jury it could convict him of both second -degree murder and vehicular homicide as to the same v ictim. 6. Whether the DUI conviction mer ged with the

vehicular a ssaul t by intoxication and v ehicular homicide by intoxication convictions, double jeo p ard y principles thereby preventing his conviction of DUI. 7. Whether the reckless driving conviction merged w

ith the vehicular assault by intoxic

ation, vehicular homicide by reckless driving, and vehi cular homicide by intoxication convicti on s, double jeopardy princi ples thereby preventing his con viction of reckle ss driving.3 8. Whether the court in sentencing the defendant relied on i mpro per enhancement factors and failed to consi der appropriate mitigating factors. 9. Whether the court properly i mpo sed consecut ive sentences. 10. Whether the total sentence i m posed is grossly excessive and resulted from improper consi derations of parole, the adequacy of punishment for v ehicular homicide, and emotional factors. Having reviewed the recor d and briefs and heard the oral arg uments of the parties,
we reverse the convic

tion of second-degree murder and impose a convictionof the lesser grade offense ofvehicular homicide by intoxication, reverse the convic tions of driving under the

influence and reckless driving and dismiss those charges, and affirm all other convictions. We modify defendant’s effective sentences to te n years and six months. Because our reversal of the second-degree murder conviction is based upon insufficiency of evidence, resulting

in a dismissal of the second-degree murder charge, i ssues 2-5 as listed abov e are pre-empted, rendered moot, and need not be resolved.

This case arises from a tragi c car wreck inv olving the defendant and the occupants of

another vehicle, Ginny Prince and David Bryan Mi ller. Miss Prince , an eighteen-y ear-ol d high school senior, w as killed in the wr

eck. Mr. Miller, a twenty -year-o ld real estate salesman, received very serious and permanent injuries. Miss Prince and Mr. Miller were returning to McM innville from a date in Murfreesboro when their vehicle was struck head-on in t heir lane of traffic by the defendant's vehicle.

For some time prior to

April 7, 1995, George Blake Kelly and his wife at the time, Lisa Kelly, were experiencing marital difficu lties. According to Lisa Kelly, she and the defendant had been sepa rated three times. However, on April 7, 1995, they were liv

ing together in Ready

ville, Tennessee, in order to give the4

relationship one last chance. That morning , Lisa Kelly left home to go to a tanning bed. She returned and found the defendant and their infant child g one. Th e defendant left Mrs. Kelly a note informing her that he had gone t o see his attor ney. This made Mrs. Kelly mad, and s he departe d for Dunlap, Tennessee. Mrs. Kelly met with a rel ative and s ome friends and went to a tavern in Whitwell, Tennessee, where she drank

and socialized. Around 1:30 a.m., Mrs. Kelly de parted Dunlap to return home. On her way home, Mrs. Kelly was inv olved in a

single-car accident

. The law enforcement officer who responded to he r wreck informed her of a wreck in which the defendant had been inv olved.

Mrs. Kelly testified that the defendant told her hehad five or sixbeers
on April 7, 1995. He came upon a vehicle that was traveling ver

y slowly. When he began passing the vehicle,it sped up. He could not get back on the right side of the road and avoid the wreck.

Anita Morton, a resident of Dunlap, testified the defendant stopped by her house about7:00 p.m. on April 7. He had a beer bottle with hi m. He stayed at Ms. Morton's residence for about 45 minutes. The defendant and Ms. Morton had
a tearful discussion of their r espective relationshi p problems. They also discussed Mrs. Kelly's alleged i nfidelity. The defendant appeared to be mor e distraught

than drunk to Ms. Morton. She denied hav ing previously characterizedthe defendant as "drunk" or "pretty drunk." Shor tly after the defendant w ent ou tside to leave, he returned to Ms. Morton's d oor and asked for some paper

towels to

clean up some beer he had spilled in his v

ehicle. Ms. Morton

saw thedefendant with only one beer durin g his v isit. She also testified s he had known Mrs. Kelly for a long time and would not believe Mrs . Kelly's swo rn testim ony.

Sue Lewis, another Dunlap r esident, testified she was an employee5

of Steve's Place, a

tavern. O n April 7, the defendant cam e to this establishment at ab out 4:00 or 4:30 p.m. The defendant had a can of Mil ler Lite beer in hi s hand

. He asked to see Steve Robertson. Mr.Robertson and the defendant went out side, and Ms. Lewis did not hear what was said. The defendant returned to Steve's Place around 6:30 or 7:00 that evening . He had a cup of beer in his hand. Ms. Lewis observed that the defendant was agitated.The defendant said that Mr. Robertson had lied to him and began askin g Ms. Lewis q uestions in a loud tone of voi ce. Apparen tly, the defendant believed Mr. Robertson was having a romantic relationship with Lisa Kelly.The defendant requested "beer to go" but Ms. Lewis refused to serve him. She told hi m that he had had one too man y. Wh en Mr. Robertson arrived, he and the defendant w ent ou t side. Ms. Lewis tes tified the defendant left S

teve's Pla

ce around 7:00 p.m.

Steven Robertson testified he runs St eve's Place. On April 7, the defendant came to this establishment about 4:00 p.m. looking for his wife. Mr. Robertson and the defendantwentoutside to talk, and the defendant wanted Mr. Robertson to "testify or somethin g" in the defendant's divorce proceedings. Mr. Robertson told the defendant he had seen Lisa Kellythe previous week at Ruby's, another tavern. Mrs. Kell

y had been with Bob Green. Althoug h the defendant had
a beer with him, M r. Robe rtson did not think he was under the influence. Mr. Robertson did not serve Mr. Kelly anything to drink.

Mr. Robertson further testified that he saw the defendant a secon d time at Steve' s Pla ce that evening. When Mr. Robertson came in the back door around 7:00 p.m., Ms . Lewis to ld him th at the defendant had returned and was asking questions and accusing Mr. Robertson of having lied to him. Both Ms. Lewis and the defendant were upset. The defen dant had a cup in his hand and had been drinking. Mr. Rober

tson did not sell him any beer.1 During her testimo ny, Lisa Ke lly denied taking thi s money. 6 Mr. Robertson also testified that Lisa Kelly had ta ke n a jacket containing $1,800 from Steve's Place. 1

David Bryan Miller, one of the two victims, tes

tified that he and Ginny Prince, the other v

ictim, had been dating fo r two years an d were plan ning to ma rry. Theyhad been to O'Charley's to celebrate his having closed a sale on a house and to the Outlets LimitedMall in Murfreesboro. They left the mall about 8:30 and were headed toward Miss Princ e's home in McMinnvil le. Theywere in Miss Prince's car, and Mr. Miller wa

s driving. They w

ere traveling 50 to 55

miles per hour about 9:15 to 9:25 p.m, when suddenly the defendant's vehi cle appeared in their lane of traffic and hit their vehicle head-on. The colli s ion occurred at a curve in the road. Mr. Miller testified he coul d do nothing to avoid it.

Mr. Miller testified he susta ined torn ligaments and tendons in his ankle, a broken bone beneath his knee, three fractured ribs, a dislocated hip which required surgery, heavy facial lacerations requ iring 1,100 stitches, and a torn reti na. He had fourteen staples in his head and per manent vision loss in hi s right eye. He was hospitalized for a week and confined to bed for another eight to nine weeks.

Bobby Joe Perry testified he w as traveling

west on the road where the collisi on occurred . He was on his w ay home from choir practice.He was going about 50 miles p er hour wit h no one ahead of him in his lane of traffic. The defendant's vehicle came up behind him and got so close that he could not see its headlightsbehind his tailgate. The defendant's vehicle pulled out to pass about 125 t o 150 yards before a curve . The road was marked with double yellow lines ; h owever, there was a break in the lines for an intersection at the poin t where th e7

defendant started to pass Mr. Perr y. The defendant's vehicle pa s s ed him and
s tarted back toward the rig ht lane but the driver's side wheels never cros sed th e yellow line. The headlights of the victims' vehic

le had appeared as the defendant started passing Mr. Perry. As the defendant's a nd v ictims' headlights met on the curve, the defendantveered to the left into the path of the vi ctims' car. At the point the vehicles collided, the defendant's vehicle was four to four

and one half car leng ths in front of Mr. Perry. The w itness testified he had a clear view and never
saw any brake lights on the defendant's v ehicle. After the wreck, Mr. Perry went to checkon the occupants of both vehicles. W hen he stuck h is he ad in the defendant's vehicle, he smelled alcohol. He also observed two empty bee r cans in the road. The defendant's vehicle was full of clothing and o ther personal items.

Christie Lynn Myers, a

licensed practical nur

se, was traveling

on the road where the wreck

occurred. She stopped to assist the injured. She observ ed that Miss Prince was dead and Mr. Miller w as in pain. The defendant was slumped
over his steering wheel and smelle d of alco hol. The defendant was breathing on her, and the smell

was comi ng from him ra ther than his vehicle. She observed a fewBudweiser cans insi de and outside the defendant's vehic le. One can was

in the defendant's lap, one was on the floor, another was in the seat, and a couple were outside.

NicholasJos eph Abraham, an emergency medical technician, responded to the scene.The defendant w as unrespons ive at firs

t, but he beca me responsiv e onc e Mr. Abraham opened up his air way. The defendant wanted to know where his wife was and had no idea he had been involvedin an accident. He became combative and screamed for Mrs. Kelly. He would not, however, respond to the emergency personnel's questions. Mr. Kel ly suffered a head injury, and his actions were similar to other individuals who have sustained head injuries. Mr.8

Abraham drew a blood sample for blood alcohol testing at the request of a state trooper on the scene. Mr. Abraham did not notice a s mell of a lcohol on Mr. Kelly, although he did not th ink he woul d have smelled a lcohol be cause of the auto motive fluids that had been spilled from the wreck.

Trooper Jimmy Jones arriv

ed after the defendanthad been extricated from his vehicle, but

he noticed the smell of alcohol ar ound the defendant's vehicle. He saw a Budweiser c

an in the v e hicle, two in the ditc h, and two lying i n the road
near the double yellow lin e. One of the cans in the road may have been full until it
was run over by a n ambula nce. The trooper we nt to the am bulance where the defendant was being

treated and s melled alcoh ol on him. During his t estimon y, a videotape of the wreck scene recorded from the trooper's pat rol car was played for the jury, and the witness narrated its contents. His narration included the existence of a double yellow "no pas sing" line on the roadw ay which had a

short 20' to 25' break at an intersection w ith another street.

Robert Searcy, an on-duty fireman and off-duty officer of the Warren County Sheriff's Dep ar tment, responded to the scene. He observed Mr. Miller in "extreme pain." He assisted Mr. Kelly's breathing with a bag mask device. Mr. Kelly had a head injury and was going into shock. H e noticed a strong odor of alc ohol9

coming f rom Mr. Ke lly.

Trooper Michael Jones was the first trooper on the sc ene at a bout 9:55 p.m. He had to physicall y restrain the

defendant so Mr. Abraham could render medical assistance. The defendant was "s creaming for Lisa" and "thrashi ng around." He did not smell any al cohol on the defendant, but the trooper thought his
sense of smell was

adversely affected by hi s smoking habit. Billy George gave him the defendant's wallet, and he took a driver's license from it. He ran a check of the license and discovered it had been re voked. The witness conceded that the defendant's behavior was similar to that of other individuals with head injuries and in shock, although it w

as more pronounced than in any other case the witness had
ever seen. The trooper

admitted he was not an emergency medical technician, but he had be en a medi cal speci alist in th e Army.

LieutenantRandy Hoover, an accident reconstructionist wit h the Tennessee Highway Patrol , investigated the wreck. In his opinion, the defendant's vehicle, a Jimmy, w

as going fas

ter than the v

ictims ' Probe . The vehicles collide d in head-on fashion withabout 50 percent overlap i n the eastbound lane. The Probe
was knocked backwards in a counterclockwise d irection, and the Jimmy continued forward in a clockw

ise direction. The Jimmy was partially on top of the Probe just afterimpact and may

have been airborne for a very short time be

fore turning onto and sliding on its side. One of the two vehicles w as "cutting its wheels," but Lt. Hoover could not opine w hich one.
Raymond Siler, Jr., a

crimelab supervisor w

ith the Tennessee Bureau of Investigation, tested the defendant's blood samp le for alcohol content. The blood alcohol content result w as 0.28 percent.10 The parties stipulatedthat if called to testify, Dr. David N. Jones would say that Ginny Prince suffered multiple trauma injuries in the wreck that proximately resulted in her death.

Venita Spearman, a secretary at M cMinnville Garag e and Wrecker Service, testified that

her emplo ye r towed the defendant's vehi cle and kept it in a secure, fenced back lot . The de fendant told Ms. Spearman that he drank approximately a six-pack of beer on an empty stomach on the day

of the wreck. He said all he remembered was two h eadlights coming tow ard him, and he admitted he
was at fault for drinking and driving. He told Ms. Spearman he was not driv in g around looking for a car to hi t, and he wished he could sa y something to "the family."
Billy

Cook, the director of the Drug and Violent Crime Task Force, met with the defendant in a chapel at the War ren County Sheriff's office. Mr. Cook advised the defendant of his rights. Thereafter, the defendant pro ceeded to tell Mr. Cook that he should not have "let my drinking get hold of me." The defendant was upset because his wife had been "runni ng around on him," and he had been look ing forher on th e evening of the wreck. Mr. Coo k recalled the defendant sayi ng he dra nksix to e ight beers and had not eaten all day. He had passed a veh icle and thought it sped up. He w as beside the vehicle, and before he knew it he was in a curve. He felt the driver of the vehicle he was att empting to pass was as muc h at fault as he was.

Followingthe conclusion of the state's proof, the defendant changed his plea f or the cha rge of dri ving on a revo ked licen se from n ot guilty to guilty.

The defense presented no evidence.2 According to the transcr ipt, the trial court impos ed a minimum fine of $1,100 and revoked the defendant's dr iver's license for te n years for the thirdoffense DUI conviction. The judg ment form reflects a fine of only $1,000. In light of our dismissal of the DUI conv iction on double jeopardy grounds, it is moot whether the $1,000 or $1,100 fine i s correct. 11 The jury found thedefendant guilty of second-deg ree murder of Ginny Prince, vehicular

homicide of Gi nny Prince by intoxication, v

ehicular ho mi cide of Ginny Prince by recklessness, vehicular assault of David M iller by intoxi cation, reckless driving and third- offense DUI. The cou rt ente red convictions of seconddegree murder, vehicular ass ault, reckless driving , third-offense DUI and driv ing on a revoked license.

Followinga sentencing h earing, the trial cour t imposed maximum sentences of 25 years for second-degr ee murder, four years for v ehicular assault, six months for reckless driving, eleven months and 29 days for third-offense DUI, 2 and six months for drivi ng on a revoked license. T he court further found
consecu tive sentencing was appropriateand impo sed each convictio n consecu tive to each other, for an effective sentence of 30 years, eleven months and 29 days.

I The first issu e we must consider is whether the evidence i s sufficient to sustain thedefendant's conviction of second-degree murder. When an accused challengesthe sufficiency of the evidence , an appellate court’s standar d of review is whether, after c onsidering t he eviden ce in the light most favor able to the prosecution, any

rational trier of fact could have found the essentialelements of the crimebeyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan , 698 S.W.2d 63, 67 (T enn. 1985); Tenn. R. App. P. 13(e) . This r

ule appl ies to fi ndings

of g uilt based upon direct ev idence, circumstantial evidence, or a combination of direct and circum stantial evidence.3 In its brief, the state arg ued that a basis for an intentional , and hence a

knowing, killing

exists in that the defendant w as attempting suicide and intentionally caused the c ollision. Howev

er, during oral arg ument, the state abando ned this t heory. 12 State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In determin ing the su fficie ncy of t he evidence, this court s hould not reweigh or reevaluate the evi denc e. State v . Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Questions concerning the credibi lity of the witnesses, the weight and value of the evidence , as well a s all factual issues rais ed by the evidence are resolved by the trier of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this c ourt substitute its inferenc es for those drawn by the trier of fact from the evidence. Liakas v. State , 199 Tenn. 298 , 305, 28 6 S.W.2d 856, 859 (1956); Farmer v. State , 574 S.W.2d 49, 51 (Tenn . Crim. App. 1978). On the contrary, this cour

t must afford the State of Tennessee the strong est legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be draw n from the evidence. Cabbage , 571 S.W.2d at 835.

The relev

ant defi nition of seco nd-degree murder is the "k nowing killing of another." Tenn. Code Ann. § 39-13-210(a)(1) (1991) . The defendant claims the evidence is insufficient to support the c onclusion he knowingly ki lled Ginny Prince. He argues that murder is a crime de fined b y its results; therefore, the state must prove that he knew a killin g would result from his conduct. On the

other hand, the state argues that the proof shows that the killing was knowing, 3 and further, that the relevant inquiry

is not solely into defendant's mental state with respect to result of the his actions but alternatively into his mental s tate with respect to his conduct. Thus, the state argues, if he knowingly or intentional ly drank and drove, he is guilty of second-degree murder for the r esult of the unlawful drinki ng and driving.13 We find insufficient evidence of a knowing killi ng to s ustain the defendant's conviction of second-degree murde r.

Under our Criminal Code, murder is an offense defined by the result, not by the offender’s conduct or by the circumstances surroun ding the conduct. See, e.g. , State v. Freeman , 943 S.W.2d 25, 29 (Tenn. Crim. App. 1996), perm. app. deni e d (Tenn. 1 997). “ A person

acts kn owing ly with respect to a r esult of a person’s conduct when the person is aware that

the conduct is reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-302(b) (1997). T hus, to establish second-degreemurder, the state must prove that the

defendant was “aware that the conduct is reasonably c ertain” to cause death.

In a case of this type, the offending activity may arguably occur at a given point in a sequence of events or along a continuum of time. A rev iewing court must determine during which event or at what point in time the crit ical “conduct” occurred. The stat e would ha ve us choose an event or time very early in the sequence -- that is, when the i ntoxicated defendant b egan to drive his vehicle in violation of the DUI laws. Certainly , under the pre-1989 Code, this theory would support a findi ng of implied malice which w as the underpinning for a long line of Tennessee cases wh ich, befor e 1989, approved second-degr ee murder convictions in vehicular

-homi cide situations. See, e.g. , State v. Durham , 614 S.W.2d 815 (Tenn. Crim. App. 1981). Malice was im plied fr om the de fendan t’s decisi on to drive
a motor vehicle whil e intoxicated. U nder the p re-1989 law, the facts of this case would have demonstrated actions which are malum in se and which evince “ willful recklessness,” State v. Johnson , 541 S.W.2d 417 (Tenn. 1976), and, as such, they would have supported a finding of implied malice which, in turn, would h ave authorized a convic tion for second-degree murder. However, the 1989 C riminal Code removed malice as an element of murder, relegated the old implied-ma lice14

formula to crimes proscribing killings resulti ng from reckless conduct, see Tenn. Code Ann. § 39-13-210(a)(1) ( 1991), and inserted the mens rea of a knowing killin g as an element of second-degree murder. Moreover, as we have said, it is not conduct, but a result, that is pro scri bed by the current second- degree murder statute. Therefore, for purposes of second-degree murder, w e must reject the argumentthat the critical time for judging the defendant’s acti ons is when he climbed behind the wheel of his vehicle.

A lternativ ely, the state suggests that the critical time for judg ing the defendant’s conduct is the po int in time after he passed the Per ry vehicle wh en, instead of returning to

his lane of travel, he v eered left, further into the path of the vic tims’ car . Mr. Perry is the only witness to this movement of the defendant’s vehicle, and we have examined carefully his testimony. We do not f ind that this testimony

provides meaningful evidence of the defendant’s knowledge, awareness or intent at that point in time. The perceived veering of the defendant's truck could have been an evasive maneuv er, an d moreover, in light of the defendant's blood alcohol content of .28 percent, his full c onsciousness at the criti cal time is arguably in doubt. We believ e that the critical conduct for which the defendant must be judged occurred prior to the instant just before the col lision.

The critical conduct occurred when the intoxicated defendant

passed another vehicle on a curve in a no-passing zone and his presence in the opposing15

lane oftraffic became irreversi ble. As such, the record i s devoid of any proof of the defendant’s knowledge that death w as reasonably certain t o result b efore th e events were irretrievably se t into motion by this conduct. The defendant’s outrageously reckles s conduct is analogous to a person firing a pistol from inside
a win dow less building out throug h the open doorway. The pers on cannot see whether someone may

be walking outside al ong the front of the building, about to pass the doorway, and he know s of no one present

out side. The “conduct” is commenced by the firing of the w eapon and must be judged at that time because the conduct is then irrev ersible. Under our Cr

iminal Code, such conduct is, as is the conduct in the present case, reckless. This reckless conduct, however egregious, is distinguishable froma hypothesis where the person is firing the pistol throug h the doorway when he is aware that a moving line of people is filing in close order past the open door. In that hypothesis , death is reasonably cer tain to result from the conduct, even before the bullet is fired, such th at a death resulting from the shot is, at least, knowing. As seen in this analogy, the facts in the prese nt ca se do not support a finding

of aknowing killing

which is necessary

to a conviction of seconddegree murder.

The case at bar presents an egregious picture of an individual wh o drove while intox

icated and after his drive r's license had been rev oked. He drove with his vehicle full of personal belongings, which may have impaired his ability to
see out of the right side of the v ehicle. He attempt e d to pass a vehicle in a nopassing zone. Tragically , the d e fendant's blatant, unjustifiable di sregard for the rules of the road and the safety of others r esulted in thedeath of a young woman and the permanent bodily injur y of a you ng man. Nonetheless, the facts w hen viewed in the light most favorable to the state do not support a conc lusion beyond a reasonable doubt that he was aware that his actions were reasonably certain to
cause the victim's death. See Tenn. Code Ann. § 39-11-302(b) ( 1997). On the16

other hand, however, the defendant’s conduct w as clearly reckles s, and, as he concedes, he is guilty

of the crime of vehicular homic ide.

Thi s court is mindful that the offenses in the present case were committed during a time period i n which the legislature’s grading of vehicularhomicide-type

offenses wasviewed by many as inadequate. Prior to the enactment of the 1989 Criminal Code, as w e have observed, murder was predicatedupon the ele ment of malice, and second-degree mur der could be established by proof of implied malice. S ee State v. Moss , 727 S.W.2d 229 (Tenn. 1986); State v. Johnson , 541 S.W.2d 417 (Ten n. 1 976); Griffin v. State , 578 S.W.2d 654 (Tenn. Cri m. App. 1978). On the other hand, the off enses in the present ca se wer e committed b efore the legislature upgr aded the penalty for vehicul ar homicide committed by DUI. At the time of the defendant’s crime, vehicular homicide was a Cla ss C felony. See Tenn. Code Ann. § 39-13-213(b) (1991) (amended 1995). Vehicular

homicide by intoxication has si nc e been el evated to a Class B f elony. See Tenn. Code Ann. § 39-13-213(b) (1997). M oreover, the legisl ature has created the Class A felony of aggr avated vehicular homicide. The “aggravation” o f vehicular homicide results ei th er from the defendant’s previous c onviction of enumerated drivingand/or alcohol-related offenses or a combination of a .20% or greater blood alcohol content and conviction of at least one enumerated driving or alcohol-related offense. See Tenn. Code Ann. § 39-13-218 (1997).Thus, the defendant’s crime, if committed today under the same circumstances a nd by the same individual, would be subject to prosecution as aggravated vehic

ular homicide, which i s in the
same sentencing class as sec ond-degree murder. Compare Tenn. Code Ann. § 39- 13-218(d) (1997) (aggravat ed vehi cular ho micide is Class A felony) with § 39-13- 210(b) (1997) (second-deg ree murder is Class A felon y).

As senseless as the defendant's cr imes are, we are constr ained to17

follow the dictatesof and observe the limitation s imposed by the legislature. Giv

en the legislature’s substitution of a “knowi ng” killing in pl ace of malice as thebasis for second-degree murder, and our finding that the facts in the present case, even in the light most favorable to the state, do not support a knowing killing , we are bound to reverse the second-degree murder co nvicti on, even though such a rev ersal relegatesthis offense to a gradationof vehicular homicide which the leg islature has recentlydecided was inadequatel y sanctioned at the time the de fendant committed the crime.

In accord with the relev ant law , we mod ify

the defendant’s conviction for second-degree murder to a conviction of vehicula r homicide by intoxi cation.

II Next, we turn to the defendant's claims that double jeopardy principles prevent his conviction of DUI and rec kless driving because these crimes should have been merged with certai n of his oth er convictio ns. In response, the state concedes the impropriety of these dual convictions. Applying the princi ples of State
v. Denton , 938 S.W.2d 373 (Tenn. 1996), we reach the same con clu sion and therefore must reverse and dismiss the DUI and reckless driving convictions.

The state and federal constitut ions protect against multipl e convictions
or punishments for

a single offense. U.S. Const.amend. V; Tenn. Const. art. 1, § 10. In order for offenses to support multiple convictions, th ey must be "wholly
s eparate an d distinct." See, e.g. , State v. Goins , 705 S.W.2d 648, 650 (Tenn. 1986) (citations omitted ). In State v. Denton , our supreme court recog nized that "[t]he key issue in multipl e punishment cases is legi slative intent." Denton , 938 S.W.2d at 379 (citations omitted). In other words, the cour t must determine whether the legislature intended that each violation resulting from a single act be a separate4 The defendant was convicted both of vehicular homicide by intoxication and vehicular homicide by recklessness. He can r eceive only one conv

iction for this crime. We believe Denton clearly prohibits a conviction for both DU I and vehicular homicide by intoxica tion in th e case at b ar. Altern atively, ha d we 18 offense. Presumptively, "the legislature does not ordinarily intend to punish the same offense under two different statutes." Denton , 938 S.W.2d at 379.

The Denton court employed a four-part balancing inquiry in determining whether multiple conv ict ions offend double jeopardy. Denton , 938 S.W.2d at 379-81. Fir st, th e court must determine, in acc ord with Blockbur ger v. United States , 284 U.S. 299, 52 S. Ct. 180 (1932), whether each offense requires proof of an element that the other does not. Denton , 938 S.W.2d at 379. Second, the court must look

to the specific evidence offered i n the case at bar to determine whether the different evidence was u sed to prove each offense. Denton , 938 S.W.2d at 380 (relying

on Duchac v. State , 505 S.W.2d 237 (Tenn. 1973)). Third, the court must consider w heth er there were multiple victims or multiple episodes. Denton , 938 S.W.2d at 381. Fourth, thecou rt must examine the purposes of the respecti ve statutes prohibiting the defendant's conduct and determine whether the statutes serve different purposes. Denton , 938 S.W.2d at 381. None ofthese four inqu iriesis determinative; rath er, the court must conduct a bal ancing test of eac h factor in relation to each other

. Denton , 938 S.W.2d at 381.

In the case at bar, we hav e conducted the Denton inquiry, first, w ith respect to the cri me of DUI , as compared with vehi cular assault and vehicular homicide. We conclude tha t double jeopardy will not permit the DUI conviction to stand. Accord State v. Rhodes , 917 S.W.2d 708 (Tenn. Crim. App. 1995) (double jeopardy prevents convicti ons for bot h vehicu lar assault by intoxication and DUI), perm. app. denied (Tenn. 1996). Co mparis on reveals that the cri mes fail the Blockburger

separate elements test. 4 The evid ence essential to the vehi cularpermitted the defendant's vehicul ar homicide by reckles sness conviction to stand, the DUI convicti on would nevertheless violate double jeopardy principles in light of the vehicul ar assault by intox ication conviction.
5 Although there is evidence the defendant drove while under the influe nce prior to encountering the victims, this court

has said that DUI is a "c ontinuing offense." See State v. Rhodes , 917 S.W.2d 708, 71 3 (Tenn. Crim. App. 1995); State v. Adkins , 619 S.W .2d 147, 148-49 (T enn. Crim . App. 19 81). Acco rdingly, in the usual circumstance, a continuing episode of drunken driving will support only one DUI convic

tion.
6 Tenn. Code Ann. § 39-13-213 (1991) ( amended 1995); § 39-13-106 (1997). 19 homicide by intoxication con viction is inclusive o f the evid ence nec essary to p rove DUI. 5 Likewise , the evidence essential to the vehicular assault conviction is inclusive of the evidence necessary to prove DUI. While it is true there are multiple victims in this case, proof of a victim is not necessary for a conviction of DUI. The
r elevant inquiry in the cas

e at bar is whether ther e were multiple episod es, an d there were not. The defendant was involved in only one collisi on. F inally, the purposes of the three statutes are simil ar. The vehi cul ar assault and vehicular homicide statutes have the obvious goal of proscribing

bodily injury to

a victim and punishing those who commit such an act, 6 and the similar aim of the DUI statute is to "remove from the highway s, prosecute and p unish t hose who engage in the dangerousmenace of driving under the influence ." State v. Turner , 913 S.W.2d 158, 160 (Tenn. 1995); see also State v. Lawrence , 849 S.W.2d 761, 765-66 (Tenn. 1993).
Second, we have conducted a Denton inquiry with respect to the defendant's reckless driving conviction, as compared with his v ehicular assault and vehicular homicide convicti o ns. We conclude that doub le jeopardy bars his conviction of reckless driving. The reckless driving convi ction fails the Blockburger separate elements test with respe ct to b oth vehicular assault and vehicular7 Both vehicular homicide b y recklessness and v

ehicular homicide by intoxication requir

e reckless operation of a motor vehicle.

20 homicide. 7 In the case at bar, the evi dence us ed t o prove the defendant's commission of the offense of reckless driving was part of the evidence also used to convict th e d efendant of vehicular assault and v ehicular homicide. The state p roved one episode of reckless driv ing in this case, and that episode i s th e foundation for all th ree convic tions und er scrutin y. See State v. Gilboy , 857 S.W.2d 884, 887 (Tenn. Crim. App. 1993) ("[A]n act of driving which disregards the safety of s everal distinct persons or properties still constitutes one offense of reckless drivingunder the statute."). But cf

. State v. Adkins , 619 S.W.2d 147, 149 (Tenn. Crim. App. 1981) (reckless dr iving is not a conti nuing offense). Finally, we see a common purpose in thereckless driving , vehicular assault and vehicular homicide statutes. All thr ee proscribe and punish reckless d riving.

Thus, as argued by the defendant and c onceded by

the state, double jeopardy principle s mandat e that we reverse and dismiss the convictions of DUI and reckless driving.

III

Finally, we address the defendant's s entencing issues. The def endant complains of improper

co nsideration of enhancement and mitig ating factors, the weight afforded those fac tors, the imposition of consecutive sentences, and the total length of the effective sentence. Indetermining whether the trial court has properly sentenced an individual, this cour t engages in a de novo review of the record with
a presumption that the trial court's determinations were correct. Tenn. Code Ann. § 40-35-401(d) (1997 ). This pres umption is "condi tioned u pon the a ffirma tive showing in the record that the trial court considered the sentenci ng principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn.8 The trial judge expres sed his dissatisfaction w ith the legal authority applicable to the defendant, includi ng his dissatisfaction w ith the sentencing structure and the applicability of parole provisions. The judge did say, however, that he could not consider thes e things in making his

sentencing determination. Notwithstanding, he w

ent on to characterize the defendant as being like the inventor of V-1 and V-2 rockets, who indirectly caused the deaths of thousands during World War II. Having carefully r eviewed the entire tr

anscript of the sentencing hearing, we view the character and duration of the trial judge's comments as a departure from the rele vant considerations of the Sent encing Reform Act of 1989. 21 1991). In conducting our de novo review,we mu st conside r the evidence at sentencing, the presentence report, the se ntencing pr incip les, the arguments of counsel, the statements of the defendant, the natur e and characteristics of the offense, any mitigating and enh ancement factors, and the defendant’s amenabil ity to rehabilitation. Tenn. Code Ann.§§ 40-35-210(b), 40-35-103( 5) (1997); Ashby , 823 S.W.2d at 168. On appeal, the appellant has the burden of showingthat the
se ntence imposed is improper. Tenn. Code Ann. § 40-35-401(d), Senten cin g Comm'n Comments (1997); Ashby , 823 S.W.2d at 169.

In the case at

bar, the record reflects th at the trial court announced its contemplation of the statutory conside rations. Unfortunately, howev er, the trial court made comments on the record which indicate extraneous facto rs were considered in determiningthe appropriate sentence. 8 Accordingly, w e conduct a de
novo review without

the presumption of correctness.We will consider, first, th e length of the def endant' s individual sentences,and second, the propriety of consecutive sen tencing.

Addition ally, in the interest of judicial economy, w

e have determined the appropriate sen tence f or the defendant's modified conviction of vehicular homicide. See State v. Angela Manning , No. 03C01-9501-CR-00012, slip op. at27 (Tenn. Cr im. App., Knoxville, Feb. 27, 1998) (remand for sentencing on modif ie d conviction unnecessary if record i s sufficient for appellate court to i mpose a n22

appropriate sentence).

A

The defendant reaches th e sentencing determination w ith three convictions

-- vehicular homici de of Ginny Prince, vehicular assault of David Miller, and d riving on a

revoked license. We consider first the enha ncement factors applicable to these convi ctions.

The defendant conce de s he has a previous hist ory of criminal convictions

and criminal behavior. See Tenn. Code Ann. § 40-35-114(1) (1997). This factor is en titled to great weight given the defendant's history of recent DUI convictions

and other evidence of drinki ng and driving pre sented at the sentencing hearing.

We believe factor (6) applies. Tenn. Code Ann. § 40-35-114(6) (1997) (personal injuries or

property damage caused w as particularly gr

eat). However, to the extent that the trial co urt applied this factor in the vehicular assault case based
on the injuries to Mr. Miller, it err ed. This facto r is not applicable to the vehicular assault convictions because serious bodily injury is an element of that offense. See e.g. , State v. Williamson , 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995). For like reasons, the factor is not applicable t o the vehicular

homicide based upon the fatal injuriessuffered by Ms. Prince. On the other

hand, Ms. Prince and her mother, the beneficial and legal owners of the Pr obe, respectively, suf fer ed property dam age in the amount of $6,000, the total value of the v ehicle. In this limited sense, factor (6) applies to all offenses. See State v. Da nny Lee Ross, Jr. , No. 01C01-94-PB00365, slip op. at 6-7 (Tenn. Crim. App., Nashv ille, Nov. 21, 1995) (

finding that individuals who suffered property damag e i n a mu ltiple-car wreck were “victims” allowing appli cation of enhancement factor (3) to defendant’ s vehicular homicide9 The defendant was on probation (from a 1 995 Sequatchie County DUI

conviction) at the time he committed the present offenses. How ever, that circumstance in and of itself is not a basis for applying factor (8). See State v. Hayes , 899 S.W.2d 175, 186 (Tenn. Crim. App. 1995) (“c ommission of the offense for which a defendant is being sentenced should not make factor (8) applicable”). We find that the defendant’s 1983 Dav idson County offenses of malicious mischief and marijuana possession committed whi le on a 1983 pre-trial diversion from Rutherford C ounty invokes the use of factor (8), but it is entitl ed to little weight based on remoteness in time. Of equal or greater significance are the defendant’s various inci dents of driving on a rev oked license earlier i n the day on April 7, 1995, pri or to the trip which r esulted in the fatal collisi on now before us. These earlier driv ing offenses were committed w hile the defendant was on probation. See State v. Randal A. Thies , No. 02C01-9708-CC-00299, slip op. at 8 (Tenn. Crim. App., Jackson, Apr. 24, 1998). 23 convictions

involving other

victims of

same wreck), perm . app . denied (Tenn. 1996) (concurring result

s only).

The defendant concedeshe has a previous unwillingness to comply with the cond itions

of asentence involving release into the community. See Tenn. Code Ann. § 40-35-114(8) (1997) . This factor is entitled to some weight. 9

The defendant also concedes he hadno hesitation about committing his crimes when the risk to human life was high. See T en n. Code Ann. § 40-35- 11 4(10) (1997). This factor applies to all cases, we believe, based upon the ris k posed to Mr. Perry, w

hom the defendant recklessly pas sed in a no-passing z

one.

The state invites us

to enhance the defendant's senten ce based upon24

the potential for

bodily injury to

Mr. Perry. See Tenn. Code Ann. § 40-35-114(16) (1997). This factor is inapplicabl e to the c rime of vehicular homicide base d upon this court's holding in State v. Bingham , 910 S.W.2d 448 (Te nn. Crim. App. 1995). Likewise, we decl ine to ap ply this fact or to the vehicular ass ault conviction. See State v. Williamson , 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995). As to the driv ing
on a revoked license c on viction, the record clearly establishes no t only that the defendant drove while his driver's license was revoked, but als

o that he did it in a way which presented great potential for bodily inj ury toMr. Perry. Accord State v. Randal A. Thies , No. 02C01-9708-CC-00299, sli p op. at11-12 (Tenn. Crim. App., Jackson, Apr. 24, 1998). Factor (16) applies to the driving on a revoked license conviction.

Tur ning to the issue of mitigating fact ors, the defense offers the defendant's lack of a felony record, hi s remorse, his continuous employment for 20 years in a position of great trus t, and his sole support o f his mino r child. For the reasons that follow, we decline to apply any of these factors.

We are not compelled to mitigat e the defendant's senten ce based upon his lack

of previous felony conv ictions. See Tenn. Code Ann. § 40-35-113(13) (1997). Although we have co ndoned the lack of a prior criminal record as a mitigatingfactor in appropriate cir cumstances, see, e.g. , State v. Hicks , 868 S.W.2d 729, 731 n.5 (Tenn. Crim. App. 1993), this is not suc h a c ase. Mr. Kelly not only has a prior criminal record, it is significant. We find no measure of mitigation in the fact that his prior record cons is ts only of misdemeanor convictions, particularly where he has previously run afoul of the law for d rinkin g and driv ing, the sa me conduct which brought about the senseless felonies of which he now s tands convicted.10 The defendant worked as a railroad locomotive engineer.
11 As noted in section I above, the potential punishment f or the defendant's crime, if committed today, w ould be much greater than that authorized by the

25 We are equally unpersuaded that t he def endant s hould rec eive mitigation based upon his alleged remorse for his crimes. See Tenn. Code Ann. § 40-35-113(13) (1997). The defendant did not testify at trial or the sentencin g hearing, but there was evidenc e that he had expressed remors e to medical providers. However, there was also evidence that the defendant yel led "I'm sorr y" at the victim's mother in an angry tone of voice in the courthouse hall. Onbalance,
we find that the evidence does not e stablish that the defendant was genuinely remorsef ul for his crimes. T he mitiga ting fact or does no t apply.

Finally, we find no measure of mitigati on in the defendant's stable employment

historyin a position of great trust 10 and his support of his minor child. Tenn. Code Ann. § 40-35-113(13) (1997). "Every ci tizen in this state is

expected to have astable work history i f the economy permits the citi zen to work, the citizen is not disabled, or the c itizen is not independentl y wealthy." State v. Keel , 882 S.W.2d 410, 423 (Tenn. Cri m. App. 1994). Absent any proof that the defendant performed his job well , we hav e no basis for concluding that he fulfilled his obligation of "great trust." Moreover, we find no proof that the defend ant does, in fact, support his children. The presentence report reflects that he has a fifteen yearold-son. Additionally, Lisa Kellytestified at trial that she and the defendant hav e a two-year-old child. While the defendant reported a child s upport obligation of $340 per month to the presentence officer, there was no proof that he complied with this obligation.

For

th e felony conviction of v ehicular homicide by i ntoxication, the defendant, a Range I of fender , faced t hree to si x years for t his Class C felony. 11legislature in Apri l 1995. 26

Tenn. Code Ann. § 39-13-213 (1997); § 40-35-112 (1997). Considering the wei ght afforded the enhancementfactors and the lack of mitigating factors, Mr. Kelly justly deserves a maximum sentence of six years.

The felony convictionof vehicular assault is a Class D felony for which the defendant faced a sentence of two to four y ears. Tenn. Code An n. § 39-13
- 106(b) (1997); § 40-35-112 (1997). Again consider ing the weight

appropriate for the enhancement factors and the lack of mitigati ng factors, a maximum sentence fit s the crime.

The misd em eanor driving on a r evoked license convi ction carried a sentence of up to six months, with a minimum of two days confinement. See Tenn. Code Ann. § 55-50-504(a)(1) (Supp 1997); § 40-35-111 (1997). Again, th is
sen tence des erves substantial enhancement , and we find the fact that prior offenses were committed behind the wheel of a motor vehicle particular

ly relevant to this crime. A

maximum sentence of six months,with maximum release el igibility of 75 percent, is warranted

.

B

The final conside r ation is wh ether th e defen dant sho uld recei ve consecu tive sentences for his crimes. In general, consecutiv e sentencing may be imposed in the discretionof the trial court upon a determination that one or more of the following criter

ia exist: (1) The defendant is a professional criminal who has knowingly devoted himself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose record of criminal activity is extensive;27 (3) The defendant is a dangerous mental ly abnormal person so declared by a competent psychiatr ist who conclud es as a result of an investigation pri or to sentencing that t h e de f endant's criminal c onduct h as been c haracte rized by a pattern of repetitive or compulsive behavior with heedless indifference to consequences; (4) The defendant is a dan gero us offender whose behavior indicateslittle or no regard for human life, and no hesita tio n about committing a crime in w hich the risk to human l ife is high; (5) The defendant is convic ted o f two (2) or more statutory offenses involving sex

ual abuse of a minor

with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victi ms, the time span of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of

the residual, physical

and mental damage to the victim or victims; (6) The defendant is sentenced for an offense committed while on probation; or (7) The defendant is sentenced for criminal contempt. Tenn. Code Ann. § 40-35-115(b) (1997). In State v. Wilkerson , 905 S.W.2d 933, 937-38 (Tenn. 1 995), th e suprem e court im posed two additional requirements for
consecu tive sentencing -- the cour t must f ind consecutive sentences are reasonably related to the severity of the offenses committed and are necessary to protect the public from further criminal conduct. At this time, it is unsettled whether Wilkerson ap plies to all seven of th e statutory catego ries for consecu tive sentencing or onl y the "dangerous offender" category. See State v. David Keith Lane , No. 03C01- 9607-CC-00259, slip op. at 11 (Tenn. C rim. App., Knoxville, Ju ne 18, 1997), perm. app. granted (Tenn. 1998).

This defendant's conduct fits hand-in- glove withthe statutory criteria of "behavior indicat[ing] little or no regard for human life, and no hesitation about committing a crime in which the r isk to human life is high." Tenn. Code Ann. § 40- 35-115(b)(4) (1997). Mr. Kelly has a history of driving under the influence. He was
on probation for this very crime when he chose, once a gain, to disregard the

law by28

operat ing a motor vehicle whil e his blood alcohol concentr ation was well ov

er the legal limit and without

a valid driver's license. This time, his callous indifference for the well-being of others and the bounds of the law had tragi c results. Accord State
v. Penelope R. Karnes , No. 01C01-9606-CR-00249, slip op. at 8-9 (Tenn. Cr im. App., Nashville, May

21, 1997 ) (two previous DUI conv ictions and a previous driving
on revoked license conviction); State v. Anthony Raymond Bell , No. 03C01-9503- CR-00070, slip op. at 7-8 (Tenn. Cr im. App., Knoxville, M ar. 11, 1996) (second DUI offense committed while on pro batio n from earlier DUI conv iction), perm. app. denied (Tenn. 1996); Wilkerson , 905 S.W.2d 933 (DUI offens e only two months after previous DUI offense).

The defendant is also eligible for consecutiv e sentencing based onhis probationary status at the time he committed thes e crimes. Tenn. Code Ann. § 40- 35-115( b)(6) ( 1997). H e conced es as much in his brief.

Moreover, with respect to the Wilkerson factors, the defendant easily clears this fina l hurdle f or consec utive sentencing. The aggregate sentence of ten years and six months which will result fromimposition of consecutive s entencing on each countreasonably relates to the severity of the offense, is necessary to protect the public from further criminal activity by the defendant, and is consistent wi th the principles

of the Sentenc ing Act. Wilkerson , 905 S.W.2d 933. A more lengthy sentence is appropriate for this defendant who has repeated the same unlawful conduct on multiple occasions and w ho took the life o f a yo ung woman and seriouslyinj u red another individual o n his most recent repetitio n. We find strong indicationsin the record that th e defendant has a problem with alcohol, and his behavior indicates he is unwil ling or unable to control his drinking, or at least to control his conduct when he is dr ink i ng. The public needs to be prot ected from fur thercrim inal activity that may result from the defendant's abuse of alco hol.29

Accord Anthony Raymond Bell , slip op. at 8. His status as a repeat o ff ender is illustrat ive of the fact that lesser terms of punis hment have not served to curtail his conduct. Consecut ive sentencing is consist ent with theprinciples of the Sentencing Act. The defendant has been given the benefit of less lengthy and less restricti ve termsof punishment in the past, yet he ha s failed to l ive within the bounds of the law. See Tenn. Code Ann. § 40-35-103(5) ( 1997) (" The potential or lack of potential for rehabilitation or tre atment of defendant should b e consid ered in determining the sentence alternative or length of a term to be impo sed.").

In summary, we modify the de fendant's conv ictio n related to the ho micide of Ginny Pr

ince from sec

ond-degree

murder to v

ehicular ho mi cide b y intoxication. We reverse and di sm is s t he DU I a nd re ck le ss

dr ivin g c on vi ct io ns . We affirm the defendant's vehicular assault and driving

on revoked license convictions. We modify th e defen dant's e ffecti ve sentence to ten years and six months, based upon a six-year sentence for vehicular homicide, a four year sentence for vehicular assault, and six m onths fordriving on a rev oked license, each to be serv ed
consecu tively.

_______________________________ CURWOOD WITT, JUDGE CONCUR:

_____________________________ GARY R. WADE, JUDGE

_____________________________ WILLIAM M. BARKER, JUDGE30