# FILED
December 12, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE OCTOBER SESSION, 1997
CLAUDE KENT GREGG, ) C.C.A. NO. 03C01-9705- CC-00188 ) Appe llant, ) ) ) HAMBLEN COUNTY VS. ) ) HON. JAMES E. BECKNER STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Vehicular Homicide)
ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF HAMBLEN COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : HEISKELL WINSTEAD JOHN KNOX WALKUP 4325 Highway 66 South, Attorney Generaland Reporter Suite 101 Rogersvill e, TN 37857 PETER M. COUGHLAN Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 C. BERKLEY BELL Distri ct Attor ney General 510 Allis on Street Morristown, TN 37814
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 Tenn. Code A nn. § 39-13-213(a)(2)(1991). 2 The legisl ature has subsequent ly amended the veh icular homicide statu te, providing that a conviction involving intoxicati on constitutes a Class B felony. Tenn. Code Ann. § 39-13-213(b). -2- 

# OPINION

The Defendant, Clau de Kent Greg g, app eals as of rig ht purs uant to Rule 3 o f t he Tenn essee R ules of Appe llate Procedure . He was co nvicted by a Hamblen County jury

of vehicul ar homicide by intoxi cation 1 , a Class C fel ony at the time the offense was committed. 2 He was sentenced as a standard offender to the m inim um of the range of three year

s incarcer

ation to b e served in t he Hamblen County Jail . The Defendantraises two iss ues in this ap peal: (1) That the evidence wasinsuffi cient to support a ver

dict of guilt f

or vehicul ar homicide, and (2) that

the tri al judge abused his dis cretion by denying pro bation. W e affirm the judgm ent of the tria l court.

At approxi mately 2 :40 a.m. , Terry Sexton, an offi cer wit h the Morristown Police Department was at t he intersec tion of Li berty Hil l and E ast Mo rris Boulevard in Morri stown. He observed a blue Chev rolet C ama ro pas s him heading eastbo und at a pproxim ate ly 48 to 50 miles per hour . Offi cer Sexton followed the Camaro, which i ncreased its speed t o appr oximately 61 miles per hour. The officer

stopped the veh icle. The driver of the Camaro was the Defen dant, with whom Offi cerSexton was acquainted. A som ewhat h eavy-se t, blonde woman was seated on the fr ont pas senger side of the vehi cle. The Defendant got out of h is vehicle. Officer Sexton detected no odor ofalcohol and
o bserved t hat the Defe ndan t was s teady on his feet. Ba ckup officer C hris Lawson arrivedin his cruiser and watc hed from insi de the car. The Defenda nt-3-

waved to h im. As Offi cer Lawson was leav ing, he saw a heav y-set bl onde woman, later

identifie d as A man da Fu ell, in the passenger seat of the Camaro. After talking wi th the Defendant for approx imately f ive minute s, Offi cer Sexton warned him about his speed and let the Defendant proceed. The Defendant was driving the C amaro when h e left.

About twenty (20) minutes l ater, PaulCarr and h is ex-w ife were talking in his home when they heard a loud noise . They ran t o the window and saw t hat it was a car accident

and that the ele ctricalwires were down. Paul Carr cal led 911, got his f lashli ght and went outside. He saw th at a car had hit a power pole. He maneu vered his way through the downed power lines and saw a wom an i n the car. She did not appear to be breathing. He heard a noise and saw the Defendant lying on the driveway. The Defendant was breathing, but it sounded choked. The female was lyi ng on he r back across the driver’ s side seat. The passeng er side was cru shed into the m iddle of the car.

Sher iff’s Captain Otto Purkey was the fi rst to ar rive at the scene of t he accidenton Highway 11-E in Whitesburg. He arrived at 3:13 a.m. He observ ed the Defendant lying i n the driveway. He also saw the fem ale pa ssen ger lying in the car, and she appear ed to be dead. She was lying partial ly on her back
across the console. Her feet were under the passenger dashboard. The hatchback and “T- tops” fr om the roof wer

e gone. Captain Purkey noti fied the Tenn essee Highw ay Patro l to investigate the accid ent.
Tracy Seba sti an, a pa rame dic w ith the Mo rristown-H amble n E.M.S ., arrivedon the scene. He examined the Defendant, then examined Ms. Fuel l and-4-

dete rmined that she was dead due to the apparent injuries and the absence o f life signs. He ca lled for a n extrica tion un it beca use it w as ap paren t that it wo uld be nece ssary to remo ve the fe male vi ctim. He called for a n amb ulance to transport the Defend ant to the h ospita l. The D efend ant wa s com bative w hile S ebastian attemp ted to intub ate and immo bilize him. S ebastian noticed th e smel l of alcohol emanati ng from the Defendant’s mouth. The Defendant was bleeding and his b lood also smelled like alcoho l.

Ms. Fuell, t he female vic tim, appeared pulseless and apneic, and her color
was pale, indica ting subs tantial blee ding. There was bleeding f rom the head and arms, as well as mul t iple l acerations over her body. Sebastian al so noted that the car wa s pus hed in on the right sid e. T he victim’s arms and head were hanging out at the edge of the driver’s si de doorand her body was in front of or unde rneath the ste ering w heel.

Rob M cF arl ane was

the p aramed ic i n char ge of the a ccid ent s cene. He arrange d fora Lifestar helico pter to t ransport t he Defendant to Knoxv ille for treatme nt. McFarlane was inf ormed by another par amed ic that M s. Fuell was dead. McFarlane looked i n the car onl y brief ly for some equipment and glanced at the victim . He assumed she was the driver and listed the Defendant as a passengerin the wreck . McFarlane t reated the Defendant. He test ified t hat the Defendant was unconscious, but became combative during the ambulance ride.
Bryan Robinson was

one of t he extr icati on personne l wit h the Morristown Rescue Squa d whic h was called to the scene. The squad was d ispatched at
a pprox imate ly 3:11 a.m. and arrived on the s cene at 3:23 a. m. They used an3 Tenn. Code A nn. § 55-10-401(a)(2). -5-

“omni tool”

to pry t he driver’s side door off. The steering wheel appeared to be on the victim ’s chest. The victi m appeared to be of stocky buil d. Mr. Robins on observed that her torso was lyi ng across the console and the lower par t of her legs were under the pass enger side dashboar d. The team pushed up the dash boar

d toremove t he v ict im.

Dr. John T heodo re Han cock trea te d the Defendant at Morristo wn-Hamblen Hospital before he was tr ansported to Knox vill e. A test r

evealed that

the Defendant had a 0.125% blood alcohol level , over t he legal l imit of 0.10%. 3 The Defendant appeared to have a c losed-head injury. N o pain medicati on was administered . Another blood alcoholtest conducted at a pproxi mate ly 5:2 5 a. m. a t the Un iversity o f Ten ness ee Ho spital in Knox ville sho wed a blo od leve l o f 0.11% alcoh ol. Dr. H anco ck also exam ined th e victim , Ama nda F uell . Sh e appeared to have crepi tus, or air pockets, under

her skin, indicat ive of some t ype of trauma. Her f ront toot h was broken and the ring fing er on her lef t hand was displace d. She a lso had m ultiple lacera tions on th e left thigh an d calf.
TrooperDavid Micha el Bro w n conducted an inv estigati on regarding t he acciden t. He arrived at the scene at app roxim ately 3:46 a.m. Emergency personnel and Ca ptain Purkey were already

at the scene. He determined that it was a one -vehicle acciden t. The blue C amaro w as trave ling east on 11-E towards Bulls Gap. The vehi cle lef t the roadway

and slid 172 feet through a yard until it struck a utility po le broadside at the passenger door . The Defendanthad been ejected. The other occupant, Ms. Fuell, was lying acros s the driver ’s seat, partially on her back. Her head was d own toward s the ro cker p anel o f the driv er’s-6-

door, her hips were lying across the co nsole, and he r feet were in what w as left of the passenger compart ment underthe dashboard. The car was a 1985 blue Cama ro registered to the Defendant. The passenger door was co mpres sed into the dashboard. The glass i n the hatchb ack was g one and th e “T-tops” we re found some distance away. Slide marks wereevident i n the grass t he night of the accident, but were gone the next day after the grass was mowe d. He invent oried the vehicle and fo und photo graphs an d a pool cue . On cro ss examination, Trooper Br own admitted t hat he made no refere nce to the locati on of the victim ’s feet in the repor t he had fi led. No fi ber tests wer e conducted on the car. Trooper Brown denied that anyone pointed out the presence of hai r on the passengerdooror the winds hield. He did not fi nd any jewelr y in the vehicle. No fingerpri nts tests were conducted.

The Defenda nt’s mother, Billie Ree dy, testified on his beha lf. She stated thatshe pointed out

to Trooper Brown t he presen ce of hair o n the passenger door that look

ed like her

son’s. She al so testi fied that she showed him lon g blonde hair by th e drive r’s door. She also drove fro m the inters ection of Hale and East Morris B oulevard , where th e Defe ndant w as initially stopp ed, a nd the locati on of the wreck . She estimated the distance at 7.7 miles and t hat it t ook ten minutes to ge t there when trave ling 40 to 45 m iles per hour.

Trena Jef

fer son, theDef enda nt’ s si ste r, testi fi ed t hat she exa mi ned the vehicle after t he accident. She found part of a cli p-on earri ng on the dri ver’s si de d ashbo ard. She also found bl onde hair on t he driver’s door and t he steering whee l. She stated that Ms. Fuel l did not have pierced ear

s and that t hey worked together as hair sty lists.-7- The Defenda nt t estifi ed at tri al. He stated that he had no memory of the acciden t. He did remem ber t hat he was in t he Army in 1994, and t hat he went to the “Rod Run” in Pi geon Forge, Tenn essee , i n April, 1995. He did not remember the vict im, Amanda Fuell. He recalled that he was in rehabilitation f or his arm. On cross-examination, the Defendant stated that he started to r e gain his memory three days before he was scheduled to be releas ed from the ho spital. He did no t r ecall dri nking before the accident . The State i ntroduced a hospi tal record containi ng statements made by t he Defendant about his li fe: “Satisfactory
sex life, no childr

en, liv e in a ranch-t

ype home, four peopl e live i n the home.” The Defendant did not recall making any statements.

The State offered Trooper Brown in rebut

tal, who agai n denied that anyone showed him hair on the wrecked vehicl e. Lisa Harris also testifi ed that Ms . Fuell had pierced ears because she h ad pierced the vi ctim’ s ears appr oximately two months before the accident. She admitted that som eone could wear another t ype of earring even if one’ s ears were pi erced. Steve Barnard test ified that he left a leather jacket at t he Defen dant ’s ho use i n Janu ary o r February of 19 95. He talked to the Def

endant abou t the j acket af ter t he wr eck and the Defendant remembered thatit was at the house. Mi tsy Crit

tendon testif ied for t he Defendant that she saw Bi llie Reedy show Trooper Brown the hair on the v ehicle.

The jury found the De fendant guilty o f v ehicular homicide whil e intoxi cated, a Class C felony . He was sentenced to t he minimum sentence of three years. The trialcourt deni ed probatio n and o rdered th e Defe ndant to serve his sentence in confi nement. The Defendant appeal s both his conv iction and sentence.-8- I. Suffici ency of the Evidence

As his first

issue, the Defendant argues that t he evidence was insuff icient to support a ver

dict of guilt f

or vehicul ar homicide. When an accused chall enges t he suffic ienc y of the conv ictingevidence, t he standard i s whether, af ter revi ewing the evidence i n the li ght most favor able to th e prosecuti on, any rat ional trier of fact could have found the essenti al elem ents o f the crim e beyo nd a re ason able doubt. Jackson v. Virgin ia , 443 U.S. 307, 319 (1979). Quest ions concerning t he credibility of the wit nesses, the wei ght and value t o be given the evidence, as well
as all factual issues raised by the evidence , are resolved by the tri er offact, not this court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this cour

t reweigh or

reevaluate t he ev idence
. State v. Cabbage , 571 S.W .2d 832 , 835 (T enn. 19 78).

A jury ver

dict approv

ed by the trial j udge accred i ts the State’s witn esses and resolves all conflicts in fa vor of the S tate. State v. Grace , 493 S.W.2d 474, 476 (Te nn. 197 3). On ap peal, the S tate is entitled to the stron gest legitim ate viewof the evide nce an d all inferen ces there from. Cabbage , 571 S.W.2d at 835. Because a verdict

of guil t removes the pr esumption of innocence and replaces it with a pre sumption ofguilt, the accused has t he burden in t his court of illustrati ng why the evidence is insuf ficient to support the verdict returned by the trier of fact. S tate v . Tug gle , 639 S.W .2d 913 , 914 (T enn. 19 82); Grace , 493 S.W.2d at 476.

In the case at bar , the D efendant contends that the evidence was insuffi cientto prove that he w as drivi ng the automobil e when the accident-9-

occurred. The el ements necessary to prove vehi cular homici de by means of intoxi cation are that t here was a “reckl ess kill ing of anot her by the o p eration of
an automobile . . . [a] s the proxi mate cause of the driver’ s intoxi cation as set forth in § 55-10-401.”

Tenn. Code Ann. § 39-13-213 ( a)(2 ). Tennessee Code Annotated section 55-10-401 states:
(a) It is unlawful f

or any person to drive or to be in phys ical con trol o f any automobile or

other motor driven vehicle o n any ofthe publi c roads and highways of the state, or on any stree ts or alleys, o r while on t he premises of

any shopping center, trai ler park or any apartment house comp lex, or any other premises which i s generall y frequented by th e public at large, whi le: (1) Under the inf luen ce of any in toxican t, mariju ana, n arcotic drug, or drug produ cing st imula ting effects on t he central nervous system; or (2) The alcoh ol con centra tion in s uch p erson 's bloo d or bre ath is ten-hundredt hs of one percent (.10%) or more.
T h e Defen dant

note s that th e caseagai nst h im waspure ly c irc umstan tia l. He maintainsthat the hewas convicted based on circumstantial evidence alon e and thatthe State di d not rule ou t the reasonable possibili ty that Ms. Fuell was driving the Ca maro. A crime may be established by circumstant ial evi dence alone. State v. Tharpe , 726 S.W.2d 8 96, 899-900 (Tenn. 1987). However, befor e an accused may be convicted of a cri minal offense based only upon ci rcumstantial evidence, the facts and circu m stance s “mus t be so stro ng and cogen t as to exclude ev e ry other rea sonab le hypoth esis save the guilt of the defend ant.” State v. Craw ford , 225 Tenn. 478, 482, 470 S.W.2d 610, 612 (1971). In other words, a “web of guilt must be woven around t he defendant f rom which he cannot escape and from which facts and circu mstances the jury could draw no ot her-10-

reaso nable inference save the guilt of th e def endan t beyond a reaso nable d oubt.” Id. at 484, 61 3.

The Defendant highl ights th e fact that the victim was trap ped in the car with her chest pressed under t he steeringwheel and that he was found outsi de of the vehicle. He also contendsthat when he was stopped for spe eding appro ximate ly thirty minutes before th e accide nt, he did n ot appe ar intoxicate d. He argues that Ms. Fuell’s positi on in the car , her broken t ooth, her l eft fi nger out of j oint and t he lacerati ons to the l eft si de of her body suggest that

she wa s drivi ng. The Defendant highli ghts the fact that more time passed than t hat nee ded to travel the dista nce be tween where he was stopped and where the acci dent occurred and tha t no alcoh olic bevera ge con tainers w ere foun d in or nea r the wrec k.
Yet, after a careful revi ew o f the evidence considered i n the light most favora ble to the State, we must conclude t hat the evidence was su fficient to convictthe Defendant of vehicul ar homicide. The Defendant focuses o n the way the victim was fo und in the veh icle. He sugg ests th at it indic ates th at she could have been d riving the ve hicle. H owever, nei ther the State nor the Defendant offered evidenc e that, in any way, demonstrated th at the vi ctim was more likely to have been driv ing the vehicle than that sh e was a pa ssenger. T here has been
no explanati on regarding t he source of t he victi m’s injur ies. Nor does t he timing of the accid ent lend its elf to any particul ar hypothesi s regarding who was drivi ng or what occurred in the interim. Furthermore, the exi stence and lo cation of hair and jewelry in the ve hicle w as co nteste d and clearly resolved by the jur y in favor of the State. Indee d, the State pres ented eviden ce that the vehicle invo lved i n the accident was r

egistered t

o the Defend ant and th at he w as drivin g sho rtly-11-

before the accid ent. Although he di d not appear i ntoxicated at the tr affic stop, the Defe ndan t’s blood alcoholwas 0.125 % after t he ac ciden t and a param edic
sme lle d alcohol on hi s breath. Fur thermore, t he witnesses at the scen e described the vict im as draped over the drive r’s side, but

her feet wer

e pinned or located under

the passenger’ s side dashboard.

We recog nize th at in ca ses inv olving c ircum stantia l eviden ce, the State’s proof must e xclude a ll other reas onable hypothe ses. Yet, when consideri ng the evidence presen ted at trial, it is app arent tha t th e jury d id not consi der the Defe ndan t’s the ory

a re ason abl e one . Th e lo cat ion of t he v ict im’ s body in the vehicle, without more , is not probative of any the ory. Again , the State is enti tled to the strongest legiti mate view of t he evidence and all i nferences the refrom

. Cabbage , 571 S.W .2d at 835 . In this light, there was su fficient eviden ce to support the Defendant’ s convict ion. Therefor e, we c onclu de tha t this issu e is without m erit.

II. Deni al of Probat ion

In his second is sue in thi s appeal, t he Defendant arguesthat the t rial judge abused his discre tion in failing to grant probat ion. When an accused chall enges the length, r

ange, or the manner

of service of a senten ce, this cou rt has a du ty to conduct a de novo revi ew o f the sentence with a presumption that the determinati ons mad e by the trial c ourt are correct. Tenn. Code Ann. § 40-35- 401(d). This presumptio n is "condi tioned upon t he aff ir ma tive showi ng in the record that the t rial cour t considered the sentenci ng princip le s and all r elevant facts and circums tances ." State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 199 1).-12- In conducting a de novo review of a sentence, this cour t must consider : (a) the evidence, if any, r eceived at t he trialand the sentenci ng hearing; ( b) the presentence report; (c) the princ iples of senten cing and argum ents as to sentencing alternat ives; (d) the natur e and characteristi cs of the criminal conduct involved; (e) any statutory mitigati ng or enhancement factors; (f) any statement that the de fenda nt ma de on his ow n beh alf; and (g) the p otentia l o r lack o f potentialfor rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, - 103, and -21 0; see State v. S mith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our revi ew reflect

s that thetrialcourt fol lowed the statutory sentencing procedure, imposed a lawful sentence after having given due consider ation and properweight to the facto rs and princ iples set out under the sentencing l aw, and thatthe trial c ourt's finding s of fact are ade quately suppor ted by the r

ecord, then
we may not modify t he s entence e ven if we woul d have prefer red a different result. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
Although probation " must be automatical ly consi de r ed as a sentencing option for eli gible d efend ants, the d efenda nt is not au tomatica lly entitled to probation as a matter of law."Tenn. Code Ann. § 40-35-303 (b) (1990) (Sentencing Commission Com ments ). This Court must begi n its sentencing determinati on by revi ewing the purpos es of sentenci ng set fort h in Tennessee Code Annota ted sectio n 40-35 -102. State v. Davis , 940 S.W.2d 558,559 (Tenn. 1997).

If an accused has been co nv icted of a Class C, D or E fel ony and sentenced as an es pecially m itigated or s tandard off e nder, there is a-13-

presumption, rebuttabl e in nature, that the accused is a fav orable candi date for alternative sentencing unl ess disqualified by some prov ision o f th e Te nnessee Criminal Sentencing Reform Act of1989. Tennessee Code Annotated section 40-35-1 02 provid es in part:
(5) In recogni tion that

state pri son capaciti es and the fundsto buil d and main tain them are limited, convicted felons com mitting the mo st severe of fenses, posse ssing crim inal histories evincing a clear disre gard fo r the laws and morals of society, and evinci ng failu re of past ef forts at rehabili tation shall be given first priority regarding sentencing involving incarcerat ion; and (6) A defendant who does not fall within t he parameters of s ubdivisi on (5) and is an especi ally mit igated or stand ard offend er convic ted of a Class C, D or E felony is presumed to b e a favorabl e candidate for alternative sente ncing option s in the abse nce o f evid ence to the contrary.
The sentencing proce ss m ust ne cess arily commence with a determinat ion of whether the acc used is enti tled to t he benefit of the pres umptio n. Ashby , 823 S.W.2d at 169. As our supreme court sai d in Ashby : "If [the] determina tion is fav orable to the defe ndant, the t rial cour t must presume that

he is subject t o alternativ e senten cing. If the co urt is prese nted with e vidence sufficient to
ove rco me the presumpti on, then i t may sentence t he defendant to confinement accord ing to the statuto ry provision [s]." Id. "Evidence to the contrar y" may be found in applyi ng the consider ations t hat gov er n sentences inv olving confinem ent, which are set forth i n Tennessee Code Annotated secti on 40-35-103 (1):
(A) Conf ine me nt is necessary to protect

society by restra ining a defend ant who has a lon g history of c riminal co nduct;-14- (B) Confinement is necessary to avoid depreci ating the seriousnessof the offens e or co nfinem ent is particu larly suited to provide an effective deterrence to others li kely to co mmit similar offenses; or (C) Measures less restrict ive than conf inement have fr equently or recently b een ap plied uns uccess fully to the de fendan t.
See Davis , 940 S.W .2d at 561 ; Ashby , 823 S.W.2d at 169 . The presu mption
can be succ essfully reb utted by fa cts conta ined in the presen tence re port, evidence presented by t he state, the testi mony of the accused o r a defense witness, or any o ther s ource p rovided it is m ade a p art of the rec ord. State v. Bonestel , 871 S.W .2d 163, 167 (Tenn. Crim . App. 1993 ).
Beyond this, a defendant has the burden of establishing hi s o r he r suitability for total probati on . Te nn. Code Ann. § 40-35- 303(b). To be granted full probatio n, a defen dant m ust demonstrate that probation wi ll "sub serve the ends of justice and th e bes t interes t of both the pu blic and the defend ant." State
v. Boggs , 932 S.W.2d 467, 477 (Tenn . Crim. A pp. 199 6); State v. Bingham , 910 S.W.2d 448, 456 (Tenn. Cri m. App. 1995)(ci ting Hoop er v. State , 201 Tenn. 156, 161, 297 S.W.2d 78, 81 (1956)). The trialcourt must consider a sentence which is the “least severe measure nece ssary to a chieve the purposes for whi ch the sentence is imposed” and “ [t]he potential or lack of potentialfor therehabilitation or treatm ent for the d efenda nt.” Tenn . Code Ann. § 4 0-35-10 3(4), (5).

In the case sub judice , the State p roposed no enhancement fact ors, nor were any mitigat ing factors considered. The tri al judge sentenced the Defendant to the three(3) year mi nimum in the range for a standard offender for a Class C4 In 1995, shor tly after t he offense in q uestion was committed,the legi slature r aised the of

fense of vehicul ar homicide as t he proximate result of int oxicati on from a Class C felony to a Class B felony, with a m inimum senten ce for a R ange I of fender of eight (8) ye ars. See Tenn. Code Ann. § 39-13-213(b);Tenn. Pub. Acts. 1995, ch. 415, § 1. -15- felony. 4 The trial jud ge prop erly cons idered th e Defe ndant a presum ed can didate foralternat ive sentenci ng. The State o f fered no rebut tal evi dence. The Defendant offered wi tnesses who testi fied that he w ould be a suitable candida te forfull probation. The presentence repor t indicates tha t t he Defendant was t went y-five years old at the time of

sentencing. He graduated fr om Cherokee High School in 19 89, served in the A rmy until 1994, an d worked for M inco before and aft er t he acc iden t. H e had no criminal record, but reported a speedi ng ticket in Knoxvil le in 1994.

The trial court considered several factors, but emphasized that deterrence
was an important reason for denying probat ion. The trialjudge st a ted: “Unfortunately, drinkin g and driv ing cas es are now consuming most of the docke ts in the four counti es that I go to, inc luding Hamblen County . I don’ t know why, but alread y this mo nth we’ve tr ied m ore D UI’s than a nything else, a nd tha t’s true in Greene County and Hawki ns County . . . .” The t rial j ud ge also considered t he circumstances of the offense in denying probation. Namely, he mentioned the blood alcohollevel and th at som eone w as killed in th e accide nt. Howeve r, he added that probation would not serve t he ends of justice because of the need for general deterrence.

Probation may be denied based on the circumstances of the offens e, however"as committed, [they]must be 'especial ly vi olent, hor rifyi ng, shocking, repre hens ible , off ensive, or otherwis e of an ex cessive o r exagge rated de gree,'-16-

and the nature of

t he offen se mu st outwe igh all factors favoring p robation ." State v. Trav is , 622S.W.2d 5 29, 5 34 (Te nn. 1 981); State v. Cleaver , 691 S.W.2d 541, 543 (Tenn. 1985) . This pri nciple has been codifi ed in secti on 40-35- 103(1) (B) which cons iders confinement to avoid depreci ating the seriousness of the offense. State v. Hartley , 818 S.W .2d 370, 375 (Tenn. Crim . App. 1991 ); see also State v. Fletcher , 805 S.W .2d 785 , 7 8 7 (Tenn. C rim. App. 199 1). Sentencing decisions sho uld not, howeve r, turn on a ge nerali zat ion of t he c ri me committed, such as the fac t that a de ath occurr ed. State v. Bingham , 910 S.W.2d 448, 456 (Tenn . Crim. A pp. 199 5); but see State v. Ramsey , 903 S.W.2d 709, 714 (T enn. Crim. A pp. 1995).

Probation may also be denied bas ed on whether the s entence wil l deter ot her s. The S entenc ing Act p rovides th at "[p]unish ment s hall be im posed to preventcri me an d promo te r espect for the law by . .. [p] rovidi ng a general deterrent

to those l ikely to violate the criminal laws of t his state." Tenn. Code A nn. § 40-35 -102(3)( A). Also, o ur supre me co urt has re iterated tha t “becaus e there is a deg ree of deter rence uniformly present i n every case, however, t he significanceof this fa ctor ‘var ies wid ely with the cla ss of offen se and the facts of each case’ . . . a ‘fi nding o f deterrenc e cannot be conclu sory only but must be supp orted b y proo f.’ Davis , 940 S.W .2d at 560(citations o mitted).

The trial court

considered the circumst ance s of the of fense to deny probation. He noted the blood alcohol l evel and the f act that s omeone was kill ed
as a result of t he crime. Although the accident was obvi ousl y viole nt and horrif ying, the fact that t he victim died is not a co ntroll ing considerat ion when death is an element of an offen se othe rwise eligib le for alterna tive senten cing.-17-

State v. Bingham , 910 S.W.2d 448, 556 (Tenn. Cri m. App. 1995). However , the State correctly co unters th at t he goal ofspecifi c deterrence of the Defendant shou ld be considered. The Defendant was pulled over by an offi cer because of his speed just minutes before the accident occur red. Clear ly, t he w arning was not e ffective, the State argues, because the speed he was t raveli ng befor e th e a ccide nt was suffi cient to carry t he vehicle 172 feet off the roadway and i nto a utility pole. W e agree that the fac t that the D efenda nt was w arned ju st prior to the accid ent me rits consid eration to d eter him from su ch future condu ct.

The trial cou rt also fo und th e nee d for de terren ce of d runke n driving in Hamblen County. The Defendant argues t hat there wasnot suffi cient proof of the need for deterrence a s required by Ashby . Howeve r, th e trial co urt spe cifically noted thatthe court

docke ts heworked on we re co nsumed by DUI offenses . We conclude that thi s, in conj unction wi th the cir cumstan ces of the offens e, were suffic ientgrounds upon which to deny probation. We conclude that the t rial j udge did not ab use his d iscretion in d enying p robation for the De fendan t.

Accord ingly, we affirm the judgm ent of the tria l court.

____________________________________ DAVID H. WELLES , JUD GE-18-

CONCUR:

___________________________________ GARY R. WADE, JUDGE

___________________________________ JERRY L . SMI TH, J UDGE