# FILED

March 15, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1999 SESSION

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9804-C R-00164 ) Appellee ) SULLIVAN CO UNTY ) v. ) HON. R. JERRY BECK , JUDGE ) JOHN PERRY ROBERTS, ) (Sentencing) ) Defendant/Appellant )

FOR THE APPELLANT : FOR THE APPELLEE : Terry L. Jordan John Knox Walkup Assistant Public Defender Attorney General & Repor ter 2nd Judicial District Office of the Public Defender Ellen H. Pollack P.O. Box 839 Assistant Attorney Gener al Blountville, TN 37617 Criminal Justice Div ision 425 Fifth Avenue North Nashville, TN 37243

OPINION FILED

AFFIRMED JOHN K. BYERS SENIOR JUDGE-2- O P I N I O N The defendant entered nolo contendere pleas in ca se numbe r S39,08 2 to two counts of reckless endangerment , for which he was sent enced to serve two one year sentences to be serv ed concurrently. The defendant al so entered nolo contendere pleas to three counts of reckl ess endangerment, for which he was sentenced to serve one ye ar each to be served concur rently but consecutiv

e to the sentences in case number S39,082. He also entered a nolo contendere plea to reckless aggravated assault, for which he was sentenced to serve three years. This
sentence was to run concur rent to the other sentences and c onsecutive to the sentences in case number S39,082 for an aggregate sente nce of four years. The tria l judge de nied the defend ant’s app lication for prob ation or a lternati ve sentencing. We affirm the judgment of the trial court. The evidence presented by th e State by way of sti pulation and testimony shows as follows:

On June 5, 1996, Angela McHan and Sharon W arren . . . were in Ms. McHan’s vehicle w

hich was sparked in Aut umn Chase Apartments in Sulliv an County. Ms. McHan [

who was a friend of defendant’s es tranged wife], was backing the vehicle ou t of the parking space when the Defendant, John Roberts, pulled up behind them. Mr. Roberts attempted to keep them from leaving, but Ms. M cHan managed to get her car out and around the Defendant. She drove out of the apartment complex and Mr. Roberts follow ed them. They headed down We st Stone Drive in Sullivan County, and then Ms. McHan made a u -turn and hea ded east. Mr . Roberts tu rned at the s ame location and cont inued fo llowing the m. Wh ile traveli ng on W est Ston e Drive to an area east of 181, Mr. Rober ts went to the left side of the v ehicle. He cut in front or cut into Ms. M cHan’s lane, she had to slam on her brakes to keep Mr. Roberts from hitting her vehicle. She slowed down to put di stance between them. Mr. R oberts pulled into the far right of the road and began driving v ery slow. As M s. McHan caught up with him, she w ent to the left lane to speed up and pass ed him. Mr. Roberts then sped up and caught up with her. He pulled along side Ms. McHan’s vehicle and o nce again swerved back into Ms. McHan’s lane causing her to have to s lam on the brakes again to kee p from being hit.-3- On July 28, 1996, the Defendant and Linda Robe rts, the defendant’s estranged wife, and Jonathan R oberts, the couple’s son, Jod y Day and Loretta Dotson, were at a cemetery. They had met for decoration day. At some point, the defendant pushed his wife, grabbed th eir son, and put him in his c ar. The defendant got into the car wi th his two and a half year old son and started to take off. The defendant, at some time before this, had kidnapped the couple’s son. Mrs. Linda Roberts req uested the defendant to stop and got onto t he hood of the car. At this point, M r. Roberts started dri ving around the graveyard wi

th her on the hood of the car. Ms. Jody Day and Loretta Dotson got into another vehicl e and came up behind the Defendant. The Defendant stopped the car momentarily and requested that Linda Roberts get off the car and she r esponded that she would not g et off the car without her child. At

this point, Ms. Jody Day, the driver of the other car, and Loretta Dotson pulled in front o f his car and attempted to block i t. The Defendant made contact with their car and they were i n danger of going over a steep embankment. After that, the Defendant got his ca r around their car and w ent out on the interstate. Mrs. R

oberts was on the hood of the car which reached speeds of eight, ninety, and a hundred miles an hour. The son di d not have a seat belt on during this time. Shortly after they left the cemetery, Linda Roberts was able to pull herself inside the car w ith the help of the Defendant. And the res t of the chase took place with her inside the car. The trial court acknowl edged that the defendant had a somewhat d ifferent version of the facts. The defendant did not testify in the plea entry hearing or in the sentencing hearing. H is view of the facts w as submitted in the statement gi ven by him to a police officer in a pre- sentence report which s tated: The appellant acknowledged he drove his vehicle from the cemetery with his son in it because he saw a gun in the vehicle of Mrs. Roberts’ relatives. When he drove away Mrs. Roberts jumped on the hood of his vehicle and Mrs. Rober ts’ relatives in th e other vehicle rammed his vehicle as he went around them. At that ti me, one of the relatives had the g un and threatened to shoot the appellant. So, the appellant proceeded onto the highway with

the other vehicle behind w ith gun shots being fired from the vehicle. The appellant g rabbed Mrs. Robert from the hood of the vehicle and pulled her inside, and then, di d the speeding pursuit beg in. At the alternative sentenc ing/probation hearing, Mrs. Roberts testified she heard a noise while s he was on the hood of the appellant’ s vehicle, and she had testified at the preliminary hearing in this matter that she hea rd something go bang, bang a nd understood why the appel lant did not stop because he was af raid he would be sh ot. Again at the p reliminary hearin g, Mrs. Roberts stated she u nderstood her relatives were shooting at the appellant and that someone was s hooting as the appellant left the graveyard. In another statement at the preliminary hearing, Mrs. Roberts said she heard something go bang, bang.-4- The defendant and his wife divorc ed sometime after this occurrenc e. In reachi ng a conclu sion of wh ether to grant prob ation or a lternati ve sentencing, the trial court reviewed the defendant’s past history. The history included a misdemeanor theft conviction in Florida and ma ny traffic convictions in the Kingsport area, mostly speeding offenses. In addition, the defendant was convicted of “telephone harass ment” and sentenced to serve 11 months and 29 days, for which it appe

ars he was placed on proba tion. Also, the defendant was convicted of criminal tr

espass and was giv

en a 30 day suspended sentence. In reaching the judgment, t he trial judge consider ed favorable factors for the defendant, which in truth are few. He also considered unfavorable factors and concluded that the nature of this off ense, which placed the life of his wife and child in obvious peril, w

as so enormous that probation or alternative sentencing was not justified. We find the record supports this finding and s hows the trial judg e did not abuse his discretion. The j udgment of the trial court is affirmed. It appearing that the defendant is indigent, costs of the appeal are taxed to the Stat e.

John K. Byers, Sen ior Judge CONCUR:

James Curwood W itt, Jr., Judge

Norma McGee Ogle, Judge