# FILED

March 22, 2000

Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1998 SESSION

STATE OF TENNESSEE, * C.C.A. NO. 03C01-9704-CR -00144 APPELLEE, * HAMILTON CO UNTY VS. * Hon. Stephen M. Bevil, Judge HARVEY PHILLIP HESTER, * (Second Degree Murder--Two Counts; Attempted Second Degree Murder) APPELLANT. *

For Appellant : For Appellee : Leonard M. Caputo Paul G. Summers 312 Vine Street Attorney General and Repor ter Chattanooga, TN 37403 (on appeal and at trial) Michael J. Fahey II Assistant Attorney Gener al Leroy Phillips, Jr. 425 Fifth Avenue, North 312 Vine Street Second Floor, Cordell H ull Building Chattanooga, TN 37403 Nashville, TN 37243-0488 (at trial) Bates Bryan Assistant District Attorney General 600 Market Street Courts Building Chattanooga, TN 37402

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE2 OPINION The defendant, Harvey Phill ip Hester, was conv icted of two counts of second degree murder and one count of attempted second degree murder. The trial court imposed twenty-

five-year terms for each murder conviction and a tw elve-year term for the attempted second degree murder conviction. Beca use the three sentences are to be served consecutively, the effecti ve sentence is sixt

y-two years.
In the appeal of right to this court, the defendant challenged the sufficiency of the evidence, al leged prosecutorial mis conduct, questioned the admission of certain evidenc e, alleged error by

the failure to charge less er included offenses, and challenged the propriety of the sentences. On June 4, 1998, this court filed an opinion, conclud ing that the trial cour t had committed error by fail ing to instruct the jury on the lesser offense of vehicular homi cide. In consequence, the two second degree murder convictions were

reversed and new tr

ials ordered. The conviction for attempted second degree murder was affirmed. State v. Harvey Phillip Hester , No. 03C01-9704-CR-00144 ( Tenn. Crim. App., at Knoxv ille, Jun. 4, 1998).
On August 5, 1998, the state appl ied for permission to appeal. O n February 7, 2000, our supr eme court remanded the case for recons ideration in light of its opinion in State v. Dominy , 6 S.W.3d 472 (Tenn. 1999), which was r eleased over a year after the entr y of our original opin ion. Because Dominy involved the issue of lesser included offenses onl y, the remand does not affect the attempted second degree murder conv iction in this case and does not alter the analyses i n our original opinion as to other issues. So as to av oid confusion, sections I, III,IV, and V from our original opini on will be restated i n their entirety. Onl y Section II, that portion dealing with the issue of lesser include d offenses, has been changed.3 On August 8, 1994, Richard Serna (Richard), his da ughter, Angela, and his brother, Paul Serna ( Paul), drove to the "blue ho le" on Suck Creek Road at Signal Mountain to sw

im. Upon their arriv

al, the defendant was in the park ing lot. Richard Serna briefly engaged in friendly con versation with the defendant after which the Sernas wal ked to the swimming area.Sometime later, the defendant approached them and asked if they had seen his wallet. The defendant s earched unsuccessfully for his w allet and then left. Angela described this exchange as "pleasant."

About five minutes later, the d efendant returned and again inqui red about his wallet. He po inted out that the Sernas wer e the only others in the ar ea and explained that his w allet contained around $2,200. The defendant left but soon returned and insisted his w allet had to "be here somewher e." When he mentioned that he had a gun in his car, the Sernas were surprised. Paul placed a knife in his pocket but made no threats to the defendant.

After the defendant left, the Sernas gather ed their belongings and returned to their car. When they reach ed the parking lot, the defendant as ked permission to search. While the Sernas al lowed a search, the defendant did not find his wallet. The Sernas then drove away. After driving on a shor t distance, the Sernas noted the defendant was follow ing them. He rammed the back of thei r car several times and, at one poi nt, the Sernas' car "fishtail ed" around a bigger truck.

At trial, Angela testified that the defendant struck their v ehicle in the rear "over and over a

gain ... continuously the whole way dow n the mountain." She estimated that their vehic le was struck more than twenty times. As the ir car passed by the Suck Creek Boat R amp, Angela yelled out the w indow asking for someone to4 call the police.

She recalled that at the bottom of the mount ain, Suck Creek Road terminates at its intersec tion with Signal M ountain Boulevard, a four-lane road. She remembered that the defendant rammed their c ar into the four-lane road. At another intersection, only a short distance away , Richard and Paul Serna sto pped their vehicle and confronted the defendant. Paul drew his k nife from his pocket but held it to his side. Ang ela testified that an argument ens ued about the wallet but that her next memory w as waking up in the hos pital. Initially un able to recognize her mother, Angela Serna had suffered a br oken pelvic bone and a broken leg. All of her facial bones were brok en. She required bone gr aft surgery on her nose.
James Pilkington, who observed the confrontation at th e intersection of Mountain Creek Road and Sig nal Mountain Boulevard, t estified that the Sernas appeared to be frightened. When Pilkington s topped at a nearby Conoco to ca ll the police, he noticed the Sernas' vehicle drive by

and thought the altercation mi ght have ended. When he drove around a curve , however, he saw that the Sernas had been involved in a wreck.

Mark Payne, who als

o saw the confrontation betw een the Sernas and the defendant at the intersection of Sig nal Mountain Boulevard and Mountain Creek Road, testified that either Ri chard or Paul was standi ng on the side of the road wi th a terrified look on his face. H e saw that individual run and then observed the dr iver of the Serna vehicle stop to al low him to enter. The defendant's vehicle "shot right through the light and sta rted chasing [the Sernas'] Nissan." Payne descr ibed the defendant as "chasing [the victims] down." Michael Eugene Hood, who also witnessed the confrontation at the intersection, corrob orated Payne's versi on of the5 events.
James DeSha, who was tr aveling on Signal M ountain Boulevard on the day of the wreck, tes tified that he saw a white Cutlass ram a red Nis san Pulsar on two occasions. He al so saw the Cutlass mov e to the outside lane to the ri ght side of the Nissan and "turned in on him," ramming into the back bu mper of the Nissan, spinning it sideways. He recalled that the Sernas' Nissan slid sideways, became airborne, flew acros s a red Thunderbird, and onto the hood of a green Dodge. DeSha claimed that the defendant, who was driv ing the Cutlass, gr

inned as he drove away at a hi gh rate of speed. DeSha was able to get the license pl ate number of the Cutlass.

Officer Charles Russell of the Chattanooga Police Department investigated the acci dent. He found three cars wi th "a considerable amount of damage." The victims' car contained several beer cans. At approximately 1:00 A.M. the day after the wreck, he located the Cutlass driven by the defendant. Th e license tags had been removed. While there were no den ts to the front of the defendan t's car, the front right fender di d have a presence of red paint, the color of the Serna vehicle. The defendant, who had suffere d a black eye, voluntarily turned himself in to police.
Dr. Charles Harlan pe rformed an autopsy on Paul Serna. Death resulted from a ring fractur e of C-1 and C-2 cervic al vertebrae, whic

h is the area where the skull fits on t o the vertebral column. H is blood alcohol content w as .03 percent, which indicat

ed he had consumed less than two units of alcohol.

Richard Serna, who had a blood alcohol content of .032 percent , was6 a quadriplegic due to the brain injuries suffered in the accident. He died on January 20, 1995, several months after th e car wreck. Accor ding to Dr. Frank Ki ng, the Hamilton County Medical Examiner, the cause of death w as "acute bronchial pneumonia due to chronic medical de bilitation due to head injur y."
Attorney Joe McBrien, who represented the defendant in a civil case, appeared as a defense witness. He testified that the defendant had recei ved a settlement award of $3518.75 six days before this incident.He recalled that the defendant received cash in that amount.

John Hackney, who li

ved at the foot of Suck Creek Mou ntain, was traveling to his r

esidence on the day of the wr eck, when he passed a car and then saw a billfold "blow up in the air." He stopped hi s vehicle and found the billfold and large denominations of cash ly ing on the ground. He tes tified that he picked everything up and l eft. The identification in the bill fold was that of the defendant. Hackney admitted that he kept the money. He burned the w allet. He conceded that he had bragged to his co-workers about finding the cash, which is how the defense attorneys eventually located him. He acknowledged that he never notified the police about finding the wallet.

Terry Thurman, who testified through an interpreter,recalled that she saw the defendant and the victims in a confrontation at an inter section on Signal Mountain Boulevard. She obs erved one of the Serna men holding a knife up in the air.

David Blackburn testi fied that he was with the defendant at the time of the wreck. An individual named John and a girl whose name he could not recall7 were also present. Bl ackburn recalled that the defendant had a large amount of money in his possession befor e they went to the sw

imming hole. Blackburn tes tified that he s eparate d from th e defen dant and then saw hi m in the p arking lot . His eye was swelling shut and his nose or mouth was "busted." The defendant claimed that the people pulling away in another car had just ro bbed him.

Blackburn testified that the defendant fol lowed the Sernas down the mountain and bumped their car several times. W hen they reached Signal Mountain Boulevard, the defendant and John got out of their vehicle. H e saw one of the Sernas approach wavin g a knife; when the Sernas r eturned to their vehicl e, the defendant continued to follow them. Bl ackburn testified that he suggested that the defendant continue to follow so they could eventually call the police. Blackburn claimed that the driver of the Nissan kept swerv ing in and out in an attempt to k eep the defendant from driving alongside. He testified that after the accident, the defendant drove him to his car.Blackburn was charged with "accessory after the fact" but the charges were dismissed. He acknowl edged prior convicti ons for theft, robbery, and drug-related offenses.

I

The defendant first argues the evi dence is insufficient to support the verdict. He argues

the proof would at most establi sh vehicular homicide or vehicular assault.
On appeal, the state is entitl ed to the strongest legi timate view of the trial testimony and all

reasonable inferences whi ch might be drawn therefro m. State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978). The credibility of the witnesses, the weight to be giv

en their testimony, and the r econciliation of conflicts i n the proof8 are matters entrusted to the j ury as trier of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). The r elevant question is w

hether, after reviewi ng the evidence in the ligh t most fa vorable to the state , any ratio nal trier o f fact c ould have found the essential elements of the cri me beyond a reasonable doubt. State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e)

.

Second degree murder is defined a s a "knowing kill ing of another." Tenn. Code Ann. § 39-13-210(a)(1) . Our code defines "knowing " conduct as follows: "Knowing" refers to a pers on who acts knowing ly with respect to the conduct or to c ircumstances surrounding the conduct when the person i s aware of the nature of the conduct or that the circumstances exist. A perso n acts knowingly with respect to the result of the person's conduct when the person is aware that the conduct is reasonably certain to c ause the result. Tenn. Code Ann. § 39-11-302(b).

A person engages in cr iminal attempt when he acts w ith the degree of culpability otherw

ise required and "[a]cts with intent to complete a c ourse of action or cause a result that w ould constitute the offense, under the ci rcumstances surrounding the conduct as the person believes them to be, and th e conduct constitutes a substantial s tep toward the commission of the offense." Tenn. Code Ann. § 39-12-101(a)(3).

In our view, there i s sufficient evidence to suppor t both of the second degree murder convicti ons as well as the attempted second degree murder conviction. Angela Se rna testified the defendant rammed their vehicle more than twenty times. At one poi nt, the defendant rammed the Serna vehic le, causing it to fishtail around an on-coming truck. DeSha testified that the defendant forced the9 Serna vehicle to slide

into the path of a Thunderbird, thereby causing the injuries to its occupants. There was evidence that the defendant then fled the s cene traveling at a high rate of speed. Obv iously, the jury accredited the testimony of the state witnesses.
Second degree murder does not r equire an intentional ki lling. All that is required is that the defendant "is aware that the cond uct is reasonably cer tain to cause the result." Tenn. Code Ann. § 39-11-302(b). Here, th e defendant was able to appreciate the dangers caused by his conduct. Even though the Sernas' vehicle had almost collided with a truck just before the fatal wreck, the defendant continued to ram the victims' v

ehicle from the rear and the sid e.

II Next, the defendant argues that the trial court erred b

y failing to instruct on a lesser inc

luded offense, vehicular homicid e. Tenn. Code Ann. § 39-13- 213. The defendant argues that the tri al judge had a duty under Tenn.Code Ann. § 40-18-110(a) to include in the instructions to the ju ry all lesser inc luded offenses.
First degree murder, second degree murder, voluntary manslaughter, reckless homicide, and cr iminally neglig ent homicide were all c harged to the jury. When the defe ndant requested an instruction on vehicular homicide, the trial court ruled as follows:

[A]lthough I think the facts in this case could possibly support a charge to the jury on vehicular homicide, there is nothing, no languag e in the indictment which charges the offense of vehicular homicide, and it is a separate offense. This court is not going to charge vehicular homicide.
The state argues that any er ror by refusing to char

ge vehicular1 The indictments charge d as follows: That Harvey Phi

llip Hester ali

as Harvey Cl

evenger he

retofor e on August

8, 1994, in the County aforesaid, did unlawfully, intentionally, deliberately and with pre meditat ion kil l Paul Edwar

d Serna, i

n violat ion of Tennes see Code Annotated 39-13-2 02, against the peace an d dignity of the S tate. That Harvey Phi

llip Hester ali

as Harvey Cl

evenger he

retofor e on August

8, 1994, in the County aforesaid, did unlawfully, intentionally, deliberately and with premedita

tion infl ict mortal i

njuries on Richa

rd Anthony Serna whi

ch resulted in the d eath of Rich ard Antho ny Serna on January 20 , 1995, in violation of Tennessee Code Annotated 39-13-202, against the peace and dignity of

the State. 10 homicide qualified as harmles s error.
There is a statutory duty on the part of trial courts to charge not only the offense listed in the indictment, 1 but also all lesser in cluded offenses. Tenn. Code Ann. § 40-18-110. It has tr aditionally been held that the failure to charge a lesser included offense denies a defe ndant his constitutional right to a trial by jury if there are any facts "suscepti ble of inferring guilt on any lesser included offense or offenses." State v. Wright , 618 S.W.2d 310, 315 (Tenn. Crim. App. 1981); see also McGowan v. State , 17 Tenn. 184 (1836). If, howev er, the record is devoi d of evidence to support an inference of guilt as to the lesser off ense, the trial court is not required to instruc

t the jury on the lesser

offense. State v. Vann , 976 S.W.2d 93 (Tenn. 1998); State v. Stephenson , 878 S.W.2d 530 (Tenn. 1994). In State v. Bolden , our supreme court acknowledged that a "purpose of the stat ute is to protect the right to trial by

jury by instruc

ting the jury on the el ements of all offenses embraced by the indictment [and to] facilitate . . . the ove rall truth-seeking function of the process." 979 S.W.2d 587, 593 (Tenn. 1998).

In Beck v. Al abama , 447 U.S. 625 (1980), the

United Stat

es Supreme Court commented upon the basis of the du ty to charge lesser included offenses:

At common law, the jury was permitted to find the defendant guilty of any lesser offense necessarily included in the offense charged. This rule originally2 See State v. Staggs , 554 S.W.2d 620 (Tenn. 1977) (a part of t he constit utionalright t o trial by jury is to have every issue mad e by the evide nce de termin ed by the jur y under a c orrect an d com plete charge of the law); Strader v. State , 362 S.W.2d 224 (Tenn. 1962). Recent cases stati ng the rul e that failur e to charge a l esser offense i s a constit utionaldeprivat ion rel y on State v. Wright , 618 S.W.2d 310 (T enn. Cr im. Ap p. 1981) (Joe D . Dunca n, Judg e), and inc lude the fo llowing: State v. Belser , 945 S.W .2d 776 ( Tenn . Crim. A pp. 1996 ); State v. Howard , 926 S.W .2d 579 (Tenn. Crim . App. 1996); State v. Sum me rall , 926 S.W .2d 272 ( Tenn . Crim. A pp. 1995 ); State v. Ruane , 912 S.W.2d 766 (Tenn . Crim. A pp. 1995 ); State v. Lew is , 919 S.W .2d 62 (T enn. Cr im. Ap p. 1995) ; State v. Boyce , 920 S.W .2d 224 ( Tenn . Crim. A pp. 1995 ); State v. King , 905 S.W .2d 207 ( Tenn . Crim. A pp. 1995 ); State v. McKnight , 900 S.W .2d 36 (T enn. Cr im. Ap p. 1994) ; State v. Vance , 888 S.W .2d 7 76 (T enn . Crim

. App. 19 94); State v. Banes , 874 S.W .2d 73 (T enn. Cr im. Ap p. 1993) ; State v. Richard Darrel l Mill er and Johnny Wayne Garner , C.C.A. N o. 01C0 1-9703 -CC-0 0087 (T enn. Cr im. Ap p., at Nas hville, Sept. 11, 1998 ); State v. George Rose , C.C.A. No. 02C01-9710-CR-00405 (Tenn. Cri m. App., at Jackson, July 2, 1998 ); State v. Bec ky Da vis , C.C.A. No. 03C01-9701-CR-00027 (Tenn. Cri m. App., at Knoxv ille, May 1, 199 8); State v. Willie D. Graham , C.C .A. N o. 03 C01 -970 7-C C-0 031 4 (T enn . Crim

. App., at K noxville, Ma y 7, 1998); State v. Warren Tyrone Fowler , C.C.A. No. 03C01-9709-CC-00391 (Tenn . Crim. A pp., at Kno xville, Apr. 29 , 1998); State v. Harvey D'Hati Moore , C.C.A. No. 03C01- 9704-C R-001 31 (Te nn. Crim . App., at Kn oxville, Mar . 18, 1998 ); State v . Daniel Joe Brown , C.C.A. No. 02C 01-961 1-CC -00385 (Tenn . Crim. A pp., at Jac kson , Dec. 3, 1 997); State v. Michael Tyron e Gordon , C.C.A. N o. 01C0 1-9605 -CR-0 0213 (T enn. Cr im. Ap p., at Nas hville, Sept. 18 , 1997); State v. George Br

ooks , C.C.A. N o. 02C0 1-9602 -CR-0 0050 (T enn. Cr im. Ap p., at Jack son, M ay 15, 199 7); State v. Janice Hansbrough-Eason , C.C.A. No. 02C01-9504-CR-00098 (Tenn. Cri m. App., at Jack son, De c. 19, 199 6); State v. Hollis Ray Williams , C.C.A. No. 03C01-9406-CR-00209 (Tenn. Crim . App., at Kn oxville, July 23, 1 996); State v. R andall Sc ott , C.C.A. No. 01C01-9307-CR-00240 (Tenn . Crim. A pp., at Na shville, Jan. 5 , 1996); State v. Deborah Gladish , C.C .A. No. 02 C01-94 04-CC00070 (Tenn . Crim. A pp., at Jac kson , Nov. 21 , 1995); State v. Eric J. Fa ir , C.C.A. No. 02C01-9403- CR-00055 (T enn. Crim. App., at Jacks on, Nov. 15, 1995).
11 developed as an aid to the prosecution in cases in which the proof faile

d to establi sh some element of the crime charged. But it has long been recognized that it can also be beneficial to the defendant be cause it affords the jury a less drastic alternati

ve than the choice between conviction of the offense charged and acquittal. [P]roviding the jur

y with the "third option" of convicting on a lesser included offense ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard. Id. at 633-34. In State v. Williams , 977 S.W.2d 101 (Tenn. 1998), a majority of our supreme court indicated that th ere was merely a st atutory right, rath er than a constitutional right, to a charge on lesser included offenses. 2 In State v. Langford , 994 S.W.2d 126 (Tenn. 1999), our supreme court agai n touched on the subject, holding that "a trial cour t must instruct the jury

on all lesser included o ffenses if the evidence introduced at tr ial is legally sufficient to support a convic tion for the lesser offense." Id. at 128.

Recently, in State v. Burns , 6 S.W.3d 453 (Tenn. 1999), our s upreme12 court revised the standar ds for the determination of lesser included offenses. Our high court confirmed that in a companion case, State v. Dominy , 6 S.W.3d 472 (Tenn. 1999), it had overru led portions of the holding i n State v. Trusty , 919 S.W.2d 305 (Tenn. 1996), in which the court had established a dis tinction between lesser grades or classes of offenses and l esser included offenses. In Burns , the court adopted a modified version of the model penal code in order to determi ne what constitutes a lesser included offense:

An offense

is a les ser included offe nse if: (a) all of its statutory el ements are included withi n the statutory elements of the offense cha rged; or (b) it fails to meet the definition in part (a) only in the respect that it contains a s tatutory element or elements esta blishing (1) a different mental state indicating a lesser kind of culpability; and/or (2) a less serious harm or risk of harm to the same person, property or public interest; or (c) it cons ists of (1) facilitation of the offense charged or of an offense that otherwise meets the definition of lesser-incl uded offense in part (a) or (b); or (2) an attempt to commit the offe nse charged or an offense that otherwise meets the definition of lesser included offense in part (a) or (b); or (3) solicitation to commit the offense charged or an offense that otherwisemeets the definition of lesserincluded offense in part (a) or (b). Burns , 6 S.W.3d at 466-67.

There is a two-step process in determining whether the evidence justifies a jury inst ruction on a lesser incl uded offense:13 First, the trial cour

t must determine whether any evidence exists that reasonable minds could accept as to the lesser included offense. In making this determination, the trial cour t must view the evidence liberally in the li ght most favorable to the ex istence of the lesser-included offense without making any judgments on the credibility of such evidence . Second, the trial court must determine if the evidence, viewed in this light, is legally sufficient

to support a conviction for the lesserincluded offense. Id. at 469.

In Dominy , our supreme court set asid e a conviction of spousal r ape on the basis that it was not a lesser included offense of agg ravated rape. By utilizing the Burns test, the court concluded that a marriage between the defendant and the victim was an e ssential element to spousal r ape, but not an element of aggravated rape. Thus, section (a) of the Burns test did not apply. Moreover, section (b) of the Burns test did not apply because the marriage element did not relate to "a different mental state" of the defendant or "a less serious harm or risk of harm" to the victim. Fin ally, because section ( c) dealt only with facilitation, attempt, and solicitation offenses, spousal rape obviously did not fit within any of the classifications.

In this case, the defendant was indicted for first degree mur der. Under our statutory scheme, the t erm "criminal homicide" means "th e unlawful killing o f another person which may be first degree murder, second degree murder, voluntary manslaughter, criminall y negligent homicid e, or vehicular homici de." Tenn. Code Ann. § 39-13-201. First deg ree murder is defined as follow s: (a) (1) a premeditated and intentional ki lling of

another; (2) a killing of another committe d in the perpetration of or attempt to perpetrate any first degree murder, arson, rape, robbery, bur glary, theft,14 kidnapping, aggravated child abuse or aircraft piracy; or (3) a killing of another committe d as the result of the u nlawful throwing, placing or dischargin g of a destructive device or bomb. (b) No culpable mental state is required for a conviction under subdiv ision (a) (2) or (

a) (3) except the intent to commit the enumerated offenses or acts in such subdiv isions.
By comparison, the statute prohibiting vehicular homicide provides, in pertinent part, as follows:

(a) Vehicular homicide is the r eckless killing of another by the operation of an automobi le, airplane, motorboat or other mot or vehicle: (1) As the proximate result of conduct creating a substantial r isk of death or serious bodily injury to a person; or (2) As the proximate result of the driver's intoxication as set forth in § 55-10-401. For the purposes of this section, "intoxic

ation" includes alcohol intoxication as

defined by § 55-10-408, drug intox ication, or both. Tenn. Code Ann. § 39-13-213. Vehicul ar homicide, of course, requ ires the "operation of an automobile, airplane,motorboat, or other motor v ehicle. . . ." That element is not necessary for the conviction of either fir st degree murder or second degree murder. In Dominy , our supreme court placed emphas is upon the defendant's constitutional rig ht to be given notice of the o ffense or offenses charged. 6 S.W.3d at 476; see also State v. Hill , 954 S.W.2d 725, 727 (Tenn. 1997). It observed that Tenn. C ode Ann. § 40-13-202 required indictments to "state the facts constituting the offense in ordinary and concise l anguage . . . in such a manner as to enable a person of common under standing to know w

hat is intended, and with that degree of cer tainty which will enable the court, on conv iction, to15 pronounce the proper judgment . . . ." Dominy , 6 S.W.3d at 476, n.6; see also Tenn. R. Crim. P. 31(c) ("The defendant may be f ound guilty of an offense necessarily included in the offense charged or of an attempt to c ommit either the offense charged or an offense necessaril y included therein if the at tempt is an offense."). Our supreme court cited with approval Howard v. State , 578 S.W.2d 83, 85 (Tenn. 1979), and its holding that "an off ense is necessarily included in another if the elements of the greater offense, as tho se elements are set forth in the indictment, include, but not ar e not congruent with, al l the elements of the lesser." Dominy , 6 S.W.3d at 476. In other words, the offense is lesser included if "all its elements are contained within the elements of the offense charged in the indictment." Id.

Because vehicular homici de contains a statutory el ement not contained in first degree mur der, that is, "the operation of an automobile, airplane, motorboat or other motor vehi cle," vehicular homici de is not a lesser includ ed offense. That additional element has nothing to do, of course, with the ment al state of the defendant or the harm or risks to the victim. An indictme nt charging first degree murder would not be sufficient to support a convi ction of vehicular homici de. Thus, the trial court here w as not in error by r

efusing to charge to the jur y the offense of vehicular homicide. The tes t established in Burns and utilized in Dominy requires a different result than the test adopted in State v. Trusty , 919 S.W.2d 305 (1996). Because Trusty has been overruled, there was no entitlement to a jury instruction on vehicul ar homicide.

III

Tennessee courts have long recognized the business records exception. Bolden v. State , 203 S.W. 755 (Tenn. 1918). In Bolden , our supreme16 court explained the rationale for the "business records" exception: " They are receivable as orig inal evidence, because they import trustworthines

s, in that a motive to make the entries fals ely is excluded." I n Lillard , this court ruled the "business records excep tion as set forth in T.R.E. 803( 6) is a firmly rooted ex

ception to the hearsay rule." Sl ip op. at 5.

Had a proper foundation been laid, the results could have been admissible as business rec ords without viol ating the defendant's right of confrontation. As long as the records are "properly admitted," there is no vio lation. Norton , 867 F.2d at 1363.

The failure on the part of the state to es tablish a proper foundation for the evidence would not r equire reversal. There was substantial ev idence of the defendant's guilt. The blood alco hol content of the victims w as not a significant point. There was no indication that that contributed to the car wreck. The error, in our view, qualified as harmless.

V

As his final issue, the defendant compl ains that twenty-fiv e (25) year sentences, the maximum possibl e, for each second degree murder,and the sentence of twelve years, the maximum, for the attempted seco nd degree murder, were excessiv

e. He also complains that the trial court erred by ordering all three sentences to be served cons ecutively.
When a challenge is made to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a "de nov o review ... with a presumption that the determinations mad e by the court from which the appeal is17 taken are correct." Tenn. Code Ann. § 40-35-401(d). The Sentenci ng Commission Comments provide that the burd en is on the defendant to show the i mpropriety of the sentence.

Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and -210.
At the time of this offense, the presumptiv e sentence was the minimum in the range if there w ere no enhancement and mitigating factors. Tenn. Code Ann. § 40-35-210 (amended in 1995 chan ging the presumptive sentence for a Class A felony to the midpoi nt in the range). Should the trial court find mitigating and enhancement factors, it must star t at the minimum sentence in the ran ge and enhance the sentence based upon any ap plicable enhancement factors, then reduce the sentence based upon any appropriate mitigating

factors. Tenn. Code Ann. § 40-35-210(e). The weight given to each factor is within the trial court's discretion provided th at the record supports its findings and it complies w ith the Sentencing Act. See State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The trial court, however, shoul d make specific findings on the r ecord which indicate i

ts application of the sentencing pr inciples. Tenn. Code Ann. §§ 40- 35-209 and -210.
At the sentencing hearing, Michael Scott Serna, the brother of Richard and Paul Serna, testified that any thing less than the "maxi mum sentence ran18 consecutive would be l ess than justice." He rec alled that Richard wei ghed about one-hundred seventy pounds prior to the wreck an d had dropped to eighty or ninety pounds as a result. He described his brother's pain as excruciating. He had to file bankruptcy because the medical bills amounted to "hundreds of thousands of dollars." He also asked the court to consider that Angela Serna would never be able to have children because of her injuries.
The pres entence report es tablishe d that th e defen dant, age twentyfour at the time of sentencing, compl eted eighth grade and acq uired his G.E.D. A laborer, he has three children, ages four, three, and one. His prior criminal history included several thefts, simple assault, reckless driving, and failure to appear. He was on probation for theft at the time of the se offenses.

The trial court found the following enhancement factors applicabl e to each offense: (1) 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). (2) The personal injuries inflicted upon the victim were great. Tenn. Code Ann. § 40-35-114(6). (3) The defendant possessed or employed a dea dly weapon during the commiss ion of the offense. Tenn. Code Ann. § 40-35-119(9). (4) The defen dant had no he sitation abou t committing a crime when the risk t

o human life was high. Tenn. C ode Ann. § 40-35-114(10). (5) The felony was committ ed while the defendant was on a form of release from a prior conv iction. Tenn. Code Ann. § 40-35-114(13).
The defendant argues enhancement factor (10) , no hesitation about19 committing a crime when the risk to human life was high, is an essential el ement of the offenses. The trial judge commente d that he was applying this factor because the defendant endangered the lives of persons other than the vic tims. For that reason, we agree that th is factor is applicable.

The Tennessee Criminal Sentencing Reform Act of 1989 provides that an enhancement factor may be applied i f it is not an "essential element" of the offense. Tenn. Code Ann. § 40-35-114. The test for determining if an enhancement factor is an essential element o f an offense is whether the same proof neces sary to establish the enhancement factor w ould also establish an element of the offense. See State v. Jones , 883 S.W.2d 597, 60 1 (Tenn. 1994).

In State v. Bingham , 910 S.W.2d 448 (Te nn. 1995), our supreme court ruled that factor (10) may be used "where the defendant creates a high risk to the life of a person other than the vi ctim." In Bingham , our supreme court upheld use o f the factor in a vehicular homicide case, where the t rial court found the defendant had driven recklessly on a busy four-lane road. Because the defendant's con duct created a substantial risk of death to other drivers, the factor was appropriate ly applied.
In this case, the proof established that when the victims' vehicle wrecked, two other vehicles were involved and those drivers were placed directly in danger. Prior to the wreck, the defendant caused the victims' vehicle to "fishtail" around an oncoming truck. C learly, others besides the victims were in danger due to the defendant's driving.This factor was appropri ately applied.

The defendant also argues that enhancement fact or (6), the personal20 injuries suffered by the v ictim, is inapplicable because it is an essential element of the offenses charged. Because this facto r was an essential element of the crime, it should not have been applied to the murder convictions. State v. Lambert , 741 S.W.2d 127, 134 (Tenn. Crim. App. 1987). It wa s, however, appropri ately applied to the attempted second degree murder conviction. State v. Nix , 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995). "Particularly great i njuries are not essential to the commission of this offense, but prove greater culpability." Id.

The defendant also contends that the trial court erred by refusing to apply the mitigating

factor that "[s]ubstantial gr ounds exist tending to ex cuse or justify the defendant’s crimi nal conduct, though failing to establish a defense." Tenn. Code Ann. § 40-35-113(3). At the sentencing hearing, the trial court made no findings on any mitigating circumstances. In our view, this mitigating factor is entitled to little or no weight. Even if the Sernas assaulted the defenda nt and stole his wallet, that would not excuse the defendant's extended criminal conduct in chasing the victims for several miles and repe atedly ramming their v

ehicle.
Even if some evidence of mitigation did exist, enhancement f actors present so strongly outweigh the mitigati ng factors that the maximum sent ence on each offense would have been w arranted.
We now turn to the appropriateness of consecuti ve sentencing. Prior to the enactment of the Criminal Sente ncing Reform Act of 1989, the limited classifications for the imposi tion of consecutive sentences were set out in Gray v. State , 538 S.W.2d 391, 393 (Tenn. 1976). In that case our s upreme court ruled that aggravating ci rcumstances must be present before pl acement in any one of the classifications. Later, i n State v. Taylor , 739 S.W.2d 227 (Te nn. 1987), the court3 The first f our crit eria are f

ound in Gray . A fif

th category

in Gray , based on a speci fic number of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion

. See Tenn. Code Ann. § 40-35-1 15, Sentenci ng Comm ission Comments. 21 established an additional category for those defend ants convicted of two or more statutory offenses involving sexual abuse of minors. There were, however, additional words of caution : "[C]onsecutive sentences should not routinely be imposed . . . and . . . the agg regate maximum of consecutiv e terms must be reasonably related to the severity of the offenses inv olved." Taylor , 739 S.W.2d at 230. The Sentencing Commission C omments adopted the cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence, the codification of the holdings in Gray

and Taylor ; consecutive sentences may be imposed in the discretion of the trial cour t only upon a determination th at one or more of the following criteria 3 exist:

(1) The defendant is a professional criminal who has knowingly dev

oted himself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose r ecord of criminal activity

is extensive; (3) The defendant is a dangerous mental ly abnormal person so declared by a c ompetent psychiatrist w ho concludes as a result of an inv estigation prior to sentencing that the defendant's cr iminal conduct has been characterized by a pattern of repetitive or compulsive behavior w ith heedless indifference to consequences; (4) The defendant is a dangerous off ender whose behavior indicates little or no regard for human l ife, and no hesitation about committing a crime in which the risk to human life is high; (5) The defendant is convicted of two (2) or more statutory offenses involv ing sexual abuse of a minor with consideration of the aggrav ating circumstances ari sing from the relationship between the defend ant and victim or victims, the time sp

an of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, p hysical and mental damage to the victim or victims;22 (6) The defendant is sentenced for an of fense committed while on probatio n; (7) The defendant is sentenced for cr iminal contempt. Tenn. Code Ann. § 40-35-115(b).

In Gray , our supreme court ruled tha t before consecutive sentenci ng could be imposed upon the dangerous offender, as now defined by subsec tion (b)(4) in the statute, oth er conditions must be present:(a) that the crimes inv olved aggravating ci rcumstances; (b) that consec utive sentences are a neces sary means to protect the public from the defendant; and (c) that the term reasonabl y relates to the severity of the offenses.

In State v. Wilkerson , 905 S.W .2d 933, 938 (T enn. 1995), ou r high court reaffirmed those principl es, holding that consecuti ve sentences cannot be required of the dangerous offender "unl ess the terms reasonably relate[] to the severity of the offenses committed and are nece ssary in order to protect the public (society) from further cr iminal acts by those per sons who resort to ag gravated criminal conduct." The Wilkerson decision, which modified somewhat the strict factual guidelines for consecutive sentencing adopted i n State v. Woods , 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human process that neither can nor should be reduced to a set of fixe d and mechanical rules." Wilkerson , 905 S.W.2d at 938. The record must show that the sentencing principles and all rel evant facts and circumstances were considered before the presumption of correctness appli es.

The trial court found consecutive sentences were appropriate beca use the defendant was a dangerous offender. We agree. A reasonable inference from the proof is that the defendant purp osefully followed the victims and rammed their23 vehicle repeatedly, fully aware that the cond uct endangered not only the victims but the occupants of the other vehicles on the road. Moreove r, the defendant's prior criminal record indic

ates an escalating pattern of criminal behavior. The defendant was on probation at the time he committed the present offenses. See Tenn. Code Ann. § 40-35-115(b)(6). C onsecutive sentences are necessary to protect soc iety from further misdeeds by the defendant.

The judgment is affirmed.

________________________________ Gary R. Wade, Presiding Judge CONCUR:

_____________________________ William M. Barker, Specia l Judge

_____________________________ James Curwood Witt, Jr., Judge