### FILED August 9, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JUNE SESSION, 1999

STATE OF TENN ESSEE, ) ) No. 03C01-9812-CC-00422 Appellee ) ) JEFFERSON COUNTY vs. ) ) Hon. Ben W. Hooper, II, Judge RICHARD A. GREEN, ) ) (Vehicular Homicide) Appellant )

For the Appellant : For the Appellee : Lu Ann Ballew Paul G. Summers Asst. Public Defender Attorney General and Repor ter P. O. Box 416 Dandridge, TN 37725 Marvin S. Blair, Jr. Assistant Attorney Gener al Criminal Justice Div

ision Edward C. Miller 425 Fifth Avenue North Public Defender 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493

Alfred C. Sch mutzer, Jr. District Attorney General James L. Gass Asst. District Attor

ney General Sevier County Courthouse Sevierville, TN 37862

OPINION FILED: AFFIRMED

David G. Hay

es Judge2 OPINION

The appellant, Richard A. Gree n, was convicted by a jury of vehicular homicide by intoxication, a class B felony. Fo llowing a sentencing hearing, the Jefferson County Criminal C ourt imposed a ten year sente nce of confinement. The appellant appeals both the judgment of conviction and resulti ng sentence entered by the trial court. In doing so, he challenges: I. The admission into evidenc e of the results of blood alcohol tes ts performed by both the Tennessee Bureau o f Investigation and Jefferson Memorial Hospital; II. The expert testimony of Dr. John Zirkle reg arding the combined effects of alcohol and drugs on an indi vidual’s ability

to operate a motor vehicle; III. The testim ony relating to the presence of al coholic beverage containers found in the appellant’ s vehicle; IV. The imposition of a ten year sentence as being excess ive; and V. The trial court’s deni al of a suspended sentence.

After review of the recor d and the applicable law, we find no error of law requiring rever

sal of the judgment or modification of the sentence. The judgment of the trial court is affirmed.

Background

The proof introduced at trial, tak en in the light most favor able to the State, reveals the following . On June 26, 1997, Richard Sey mour picked up his wife, Margaret, from her place of employment at approximately 4:00 p.m . The couple drove to Wendy’s in Jefferson City where they ate dinner.They then completed some groc ery shopp ing at the nearby W al-Mart. T he coupl e then be gan their drive home on Highway 25/70. Upon approaching Kerr’s Market, they noticed a vehicle coming towards them on the wrong side of the road. M argaret Seymour exc laimed,3

“he’s going to hit us .” Richard Seymour s topped their Pontiac sedan in ti me to watch the approaching red Volvo “travel all the way across to the edge of the road.” Richard Seymour thought that “[the appellant] was going into the cow pasture.” However, the red Vol

vo veered back acros

s to his side of the road. Mr. Seymour “took his foot off the brak e and started h is vehicle toward a big st rip out on the ed ge of his side of the road.” The Volvo again veered back across the road. Mr. Seymour stopped again. The Vol vo “went back acros

s” and collided with the passenger side of the Seymour s’ vehicle.

At approximately 6:30 p.m., members of the Ten nessee Highway Patrol were dispatched to the scene of the cri me. Troopers Bud Potts and Lloy d Smith discovered two v

ehicles at the scene, a cream color Pontiac sedan and a 1978 r ed Volvo. Trooper Smith approac hed the driver of the red Vol vo, later identified as the appellant. Smith observed that the appellant “appea red to be very intoxicated. He was using a lot of profanit y and not cooperating w ith the ambulance personnel at al l. I attempted to question him . . . and he more or less. . . told me to go to he ll.” Trooper Smith added that the appellant “had a very strong odor of alcohol.” Upon searching the appellant’s vehicle, Trooper Smith di scovered two empty beer bottles, “one of them had a little cup holder thing on it they put them in to kee p them cool.” A more thorough search w as completed after the vehicle was towed from the scene. Trooper Smith later found “a total of twelve bottles, part of them empty and part of them full” and a “pack of rolli ng papers # 1.5.”

The appellant, Richard Seymour, and Margaret Seymour were transported by ambulance to Jefferson Memorial Hos pital. Margaret Sey mour, the forty-five y

ear old passe nger of th e Pontia c, was dead on arrival a t the hos pital. Ef forts to revive her were futile.4 Later on that evening, Troope r David Brown q uestioned the appellant at the Jefferson Memorial Hospital. Trooper Brown testified tha t the appellant “was very argumentative, very

combative. You could tel l by the odor that he had been drinking.” “His speech was slurred, [he was] talking fast, [and he was] using very racy language.” The appellant told Trooper Brow n: . . .I just came back down the road and that God damned yello w station wagon was over on the other side of the r oad, man. I said, “God damn, they’re going to hit me head on.” And I cut ov er, man, to try to miss them, man, and they freaked out and cut back over anyway and it caught them in the side,man, and the next thing I kn owed [sic] I was f- - - ing flipping. During this interview, the appellant admitted that he had consumed app roximately three beers prior to the c ollision. At some point dur ing the appellant’s stay at the hospital, officers discover ed what was later det

ermined to be 4.4 grams of marij uana concealed in the appellant’s pants.

A blood sample was taken from the appellant at 8:12 p.m. This sample w as subsequently sent to the Tennes see Bureau of Investigation where a blood alcohol analysis on the sample w as conducted. The results of this test revealed that, at the time the sample was draw n, the appellant had a blood alcohol content of .13 mg/decaliter. The analys is by the TBI also rev ealed the presence of Valium in the appellant’s system.

Hospital personnel subsequently drew another sample of the appellan t’s blood at 8:20 p.m. for diagnostic and treatmen t purposes. The tests on this sample revealed a blood alcohol c ontent of .152 mg/decaliter. A ur ine test completed by the hospital additionally tested positive for benzo diazeprine (Valium) and for canabonoid, which is a metabo lite of marijuana. At trial , Dr. John Zirkle, a ph ysician at Jefferson Memorial Hospital , was called as an ex pert to testify as to the combi ned effects that alcohol and drugs w ould have upon an indivi dual’s ability to oper ate a motor vehicle. Dr. Zirkle did not treat the appel lant at the hospital. He tes tified that a blood alcohol level of .152 is well above the s tandard considered to be intox icated.5

At this level, Dr. Zirkle opined that the appellant’s “judgment and coordination would be impaired severely .”

Trooper Roger Christi an, an accident reconstructi onist, provided additiona l testimony. Based upon the positions of the two vehicles after impa ct and certain marks, including tir

e marks, vehicle marks and gouges on the road surface,Trooper Christian determined that: [T]he Volvo was heading . . . in the direction of Knox ville, while the Pontiac wa

s heading ba

ck to Newp

ort/Dandri dge. The Volv o, some 263 feet prior to striking the Pontiac, has traveled off onto the shoulder of the road.

. . . It would have been on the s houlder of the road that the Pontiac was traveling. In other

words, the Volvo had crossed over - - c rossed the Pontiac’s lane of travel, and had traveled off onto the shoulder approximately 263 feet before r eaching the Pontiac, and it t raveled down the shoulder of the roadway. In other words, it was completely on the ot her side o f the high way.

. . . . . .[T]he Volvo had come down on the wrong side, on the shoulder, was aggressiv

ely trying to r

eturn back into the road, and had struck the Pontiac on the Pontiac’s passe nger side.

. . . [In the present case, the left front b rake did not have an impact on the accident. Indeed, [w]hen he app lied his brakes he should h ave went over in the right hand

side instead of going to th e left.

The appellant’s acquaintance, L arry Stinnett, related

the appellant’s activi

ties prior to the collision . Stinnett testified that, at so metime after 4:00 p.m., he and the appellant traveled to Andy ’s Market where they

shot a game of pool and each drank two beers. They then dro ve to Newman Hollow

Road where they met thr ee unidentified men and smoked one m arijuana cigarette. They went back to Andy’s Market, the appellant “did donuts” in the parking lot, and then he drove to Green Hill Road. The appellant dropped Stinnett off at his sister’s house near Kerr’s Market on Highway 25/70. S

tinnett testified that he saw the appellant with Vali um tablets and that he saw the appellant drink a total of three beers.6 The appellant testified that he had obtai ned the 1978 Volvo two day s prior to the offense. At that time, he learned that the front left brake had been disconnect ed and the brake line plugge d. He had attempted to have this condition corrected on the day of the off ense; ho wever, Bill B anks, the mechani c he visite d, did no t have the proper parts. The appellant admitted that he had drank three beer s prior to the collision. He denied tak ing Valium prior to the collision although he di d admit that he had “eaten ten Valium, two day s before.”

Based on this evidence, the j ury found the appellant guil ty of vehicular homicide.

I. Admissibility of Blood A lcohol Tests

The appellant first complains that the admission into evidence of the results of the blood alcohol tests completed by the Tennessee Bureau of Invest igation and Jefferson Memorial Hospital w as error. He contends that , because both blood samples were drawn ne arly two hours after the collision, the results of the blood tests “are not relevant

to the issue of whether or not he was ‘drivi ng under the influence.’”

Relevant evidence is

any evidence “havi ng any tendency to make the existence of any fact that is of consequence to the dete rmination of the action more probable or less probable than it would be without the evidence.” See Tenn. R. Evid. 401. In the present case, the appellant was ch arged with vehicular homicide as the proximate result o f the driver’s intox

ication. See Tenn. Code Ann. § 39-13- 213(a)(2) (1997). Thus, ev idence relating to the appel lant’s level of intox ication at the time of the offense is relevant i n establishing an element of the offense. Indeed, the appellant’s intoxic

ation was the only di sputed issue at trial.7 Blood tests are routinely used to determine whether a person was intoxic ated at a certain time. See N EIL P. C OHEN , T ENNESSEE L AW OF E VIDENCE § 401.25 (1995). Such tests are admissible provided that the sample was taken by a properly trained person and went thr ough a proper chain of custody between the time the blood was drawn and the time it was analyz ed. See generally Tenn. Code Ann. §§ 55-10-401 to -412 (1997); N EIL P. C OHEN , T ENNESSEE L AW OF E VIDENCE § 401.25. See also State v. Ben Jordan , No. 01C01-9311-CC-00419 ( Tenn. Crim. App. at Nashville, Jun. 13, 1995) , perm. to appeal denied , concurring in results only , (Tenn. Feb. 5, 1996). There is no dis pute that the procedural prere quisites to admitting the laboratory test results were satisfied in the instant case.

Again, the collision r

esulting in the death of Margaret Seymour occurred at approximately 6:30 p.m. The b lood sample drawn by the State was taken at 8:12 p.m. while the sample drawn by the hospital was taken at 8:20 p.m. No expert testimony was presente d at trial to establish w

hat the test results woul d have been at the time of the collision by means of extrapolation. As recognized by this court in State v. McKinney , “it would be vi rtually impossible for a sample of blood to be drawn until some time after the accident occurs.” See State v. McKinney , 605 S.W.2d 842, 846 (Tenn. Crim. App. 1980). Accordi ngly, the jury c an infer intoxication at the time of the offense f rom the results of a test of a blood sample taken later. See State v. Joe Larry F uqua , No. 01C01-9312-CC-00431 ( Tenn. Crim. App. at Nashvil le, Aug. 25, 1994), perm. to appeal denied , (Tenn. Nov. 7, 1994). Where there exists other evidence f rom which to infer the driver’s intoxication, there is

no need for expert witnes ses to extrapolate the test results to the time of the driving. Id. In the present case, several law enforcement officers testifi ed regard ing the ap pellant ’s demea nor at the time of t he offe nse, spe cificall y, observing the appellant’s belligerent behavior, excessive cursing, slurred speech and odor of alcohol. Additionall y, Larry Stinnett t

estified that the appellant drank three beers and smoked part of a mari juana cigarette prior to the collision.8

Accordingly, we reject the appellant’s contention that a blood alcohol level of .13 is so close to the statutory presumption of .10 that expert t estimony is requir

ed to establish the appellant’s bl ood alcohol at the time of the coll ision. We conclude that the results of the blood alcohol tests were relevant to the appellant’s state of intoxication. The interv al between the time of the offense and the ti mes at which the blood samples were draw n are pertinent to the wei ght of the evidence, not to it s admissibility. See State v. Ben Jordan , No. 01C01-931 1-CC-00419 (citin g State v. Ford , 721 S.W.2d 828, 830 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1986); McKinney , 605 S.W.2d at 846 (parenthetical omitted)). This issue is without merit.

II. Testimony of Dr. Zirkle

In a related issue, the appell ant contends that the trial cou rt erred by permitting Dr. John Zi rkle to testify regar ding the combined effects drugs an d alcohol would have on a person’ s ability to operate a mot or vehicle. Specifical ly, the appellant bases his argument on the grounds that Dr. Zirkle did not treat the appellant after the accident, nor did Dr. Zirkle obt ain appe llant’s d rug and uri ne sampl es, nor di d he anal yze appellant’s samples for their alcohol and drug content. In sho rt, Dr. Zirkle had no personal know ledge of appellant’s statements for treatment, observations by hospital personnel, nor of the l ab tests contained within the hospital records.
Accordingly, the appellant argues that Dr. Zirkle’s testimony violates his constitutional right of c

onfrontation.

Before calling Dr. John Zirkle to testify, the St ate offered into evidence, pursuant to Tenn. Code Ann. § 68-11-4 01 et seq. (1996) (Hospital Recor ds as Evidence), the medical records of the appellant, Margaret Seymour, and Richard Seymour maintained by Jefferson Memorial Hospital relative to each pat ient's9

respective treatment follow ing the June 26th offense. The trial court admitted the records after determining that the State had complied with the requirements of Tenn. Code Ann. § 68-11-401 et seq. These statutes permit hearsay evidence, deny a party the rig ht to cross-examine or otherwise refute the contents of the medical record, and allow opinion evidence of experts without showing their qualification to testify as an expert. See Sanders v. Nationwi de Ins. Co. , No. 02S01-9409-CV-00067 (Tenn. at Jack son, Jan. 22, 1996). The princi pal purpose of Tenn. Code Ann. § 68-11-401 et seq. is to provide a procedure for a hospital, where it has no interest in the c ase, to respond to a subpoena duces t ecum for hospital records by filing c

opies of the records authenticated by affidavit instead of by sending a witness to the hearing with the or iginals. The copy of the r ecord shall be admissible in evidence to the same extent as though the original thereof were offered and the custodian had been present and testified to the matters stated i n the affidavit. Tenn. Code Ann. § 68-11-406(a). T he statutory requirements were satisfied; thus, procedurall y, the records wer

e admissible into evidenc e. Nonetheless, although authenti cation may, by statute, be satisfied by an affidavit by the custodian, the medical rec ords are still subject

to constitutional challeng e. See State v. Woody Hutchinson , C.C.A. No. 887 (Tenn. Cri m. App. at Knoxville, J ul. 19, 1990).

In the instant case, the appella nt, relying upon State v. Henderson , 554 S.W.2d 117, 120 (Tenn. 1977), contends that, by not hav ing the person(s) w

ho conducted the examination and w ho completed the laboratory t ests available to testify, the introduction of these medical records into evidence violated his constitutional right t

o confrontation. In Henderson , our supreme court held that outof-court statements must meet certai n criteria in order to satisfy the Confrontation Clause of both the Sixth Amendment of the United States Constitution and Article I, Section 9 of the Tennessee Constituti on. See State v. Armes , 607 S.W.2d 234, 236 (Tenn. 1980); Henderson , 554 S.W.2d 117 (Te nn. 1977). Specifically, the court10

recognized that val id claims of an unconstitutional abridgement of the right to confront witnesses aris e when: (1) the hearsay evi dence is crucial to prov ing the State’s case, i.e. , the evidence is offered to prove an essential element of the crime or it connects the defendant directly to the commission of the crime; (2) there is no proof that the w itness is unavailable, i.e. , the State must make a good faith effort to secure the prese nce of the person whose statement is to be offered against the defendant; and (3) the hearsay evi dence is lacking its own indicia of reliabil ity.

Henderson , 554 S.W.2d at 120. See also Armes , 607 S.W.2d at 237; State v. Oody , 823 S.W.2d 554 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1991); State v. Carpenter , 773 S.W.2d 1 (Tenn. Crim. App. 1989); State v. Arnold , 719 S.W.2d 543 (Tenn. Crim. App. 1986). Cf. Stewart v. Cow an , 528 F.2d 79 (6th Cir. 1976).

Notwithstanding the c

onstraints imposed by the Henderson tripartite test, our supreme court has also recog nized that “firmly r ooted exceptions to the hears ay rule do not violate the Confrontation Clause.” See State v. Causby , 706 S.W.2d 628, 631 (Tenn. 1986); see also State v. Darrell R.Kennedy , No. 02C01-9708-CR00318 (Tenn. Crim. App. at Jacks on, Feb. 17, 1999), perm. to appeal denied , (Tenn. Jul. 19, 1999); State v. Harvey Phillips Hester , No. 03C01-9704-CR-00144 (Tenn. Crim. Ap p. at Knoxville, Jun e 4, 1998) (citing State v. Alley , No. 02C01-9405- CC-00100 (Tenn. Crim. App., at Jackson, June 18, 1997), perm. to appeal denied , (Tenn. Mar. 2, 1998); State v. Lillard , No. 01C01-9602-CC-00051 ( Tenn. Crim. App. at Nashville, Feb. 12, 1997)). The rationale for this principle is based upon the premise that some forms of admissible hearsay rest upon such sol id foundations that admission of virtuall y any evidence w

ithin them comports with the right of confrontation. See Ohio v. Roberts , 448 U.S. 56, 66, 100 S.Ct. 2537, 2539 (1980); Causby , 706 S.W.2d at 631 (Tennessee Supreme Court holds that former testimony hearsay exception is

such firmly established rule and so inherently r eliable that any1 In Causby , 706 S.W.2d at 631, t he Tennessee Supreme Court held t hat the t hird prong of the Henderson-Armes requirem ent for co mplying w ith the con frontation c lause, i.e. , that the evidence not be crucialor devastat ing, i s not requi red in th e case of wellestabli shed hearsay excep tion such as form er testim ony. Id. at 631, not e 1 (citi ng Mancusi v. Stubbs , 408 U.S. 204, 92 S.Ct. 2308 ( 1972) and Ohio v. R oberts , 448 U.S. at 56, 100 S.Ct. at 2531). 11 such evidence necessarily comports with the right of confrontation.). 1 Indeed, statements admitted under a firmly rooted hearsay exception are so inh erently trustworthy that adv

ersarial testing w

ould add little to their r

eliability. See State v. Darrell R. Kennedy , No. 02C01-9708-CR-00318.

Business records are admis sible as an exception to the rule against the introduction of hearsay ev idence. See Tenn. R. Evid. 803(6). The courts of this state, our sister states, and many federal courts have held that the “bu siness records” exception to the rule against hearsay is firmly established. State v. Darrell R. Kennedy , No. 02C01-9708-CR-00318 at n.8; State v. Harvey Phillip Hester , No. 03C01-9704-CR-00144. See, e.g. , United States v. Ismoila , 100 F.3d 380, 392 (5th Cir. 1996), cert. denied , -- U.S. --, 117 S.Ct . 1712 (1997); Minner v. Kerby , 30 F.3d 1311 (9t h Cir. 199 4)(introd uction of chemist’ s notes th rough sup ervisor no t violative of Confrontation Clause); United States v. Norton , 867 F.2d 1354, 1363 (11th Cir. 1989); United States v. Baker , 855 F.2d 1353,1360 (8th Cir. 1988)(business records exception, is firmly

rooted hearsay excepti on to prevent violati on of Confrontation Clause); Reardon v. Manson , 806 F.2d 39 (2d Cir. 1986) , cert. denied , 481 U.S. 1020, 107 S.Ct. 1903 (1987)(chemi st report introduced throug h testimony of supervisor properly

admitted sufficient indicia of rel iability); People v. Vega , 639 N.Y.S.2d 511, 513-514 (A.D.3 Dept. 1996) (introducti on of technician’s notes under business records exception rendered technician’s testimony unnecessary where supervisor actually

analyzed the samples); State v. Fontenette , No. 59014 (Ohio App. Sept. 19, 1991) (testimony by laboratory supervisor regarding DNA profile properly admitted under bus iness records excepti on did not violate Confrontati on Clause).12 A business record may be i ntroduced by the custodian of thos e records or any other qualified w

itness. See State v. Baker , 842 S.W.2d 261, 264 (Tenn.Crim.App.1992). The custodian of the record to be introduced must be able to testify as to the identit y of the record, the mode of preparation, and whether the record was made in the r egular course of business at or near the time of the recorded event. Id . In the present case, the State failed to call the records custodian to testify as to the authenticity of the recor ds; rather, the State reli ed on an affidavit completed by the cus todian. See Tenn. Code Ann. § 68-11-406(a).

During the course of the tr ial, defense counsel stated: I will not object, bas

ed on that affidavit, to the authentic ity of the records, but as far as these r ecords being entered as ex hibits without hospital personnel such as a nurse who saw my c lient, or the person who drew the blood, of the lab technician -- you know, I’ve got to object to that b ecause b ased on t hose grou nds it woul d be hear say. We are unable to discern from this objection w hether the appellant intended to concede or challenge the Stat e’s authentication of the medical r ecords. Notwithstanding, w

e conclude that an affidavit of the rec ords custodian, rather than his or her personal appearan ce in court, is insufficient authentication for purposes of satisfying the reliab le hearsay exception to the Henderson requirements. See Douglas M. Varner v. Ho n. W. L. Brown , No. 03A01-9405-CV-00171 (Tenn. App. at Knoxville, Nov . 30, 1994).

Thus, we return to the tri partite test announced in Henderson . In this regard, we find the evidence not v iolative of the appellant’s right to confrontation. F irst, the evidence challenged is merely cumulative to evidence introduced by other witnesses of the State. Again, numerous officers testified as to the appellant’s physical condition at the time of the colli sion. Additionally, the tests performed by the Tennessee Bureau of Investigati on confirmed that the appellant had a bl ood alcohol content of .13, tested positive for Valium, and that the substance found on the appellant’s person was marijuana. Next, the United States Supreme Court has he ld2 Altho ugh we ha ve de term ined t hat th e m edic al rep orts a re co nstitu tiona lly adm issib le under an excepti on to the hear say rul e, Rule 703 does not prevent an exper

t from relying upon inadmissibl e hearsay i n formulati ng an opini on, if the type of hearsay i s one that woul d be reason ably relied upo n by expe rts in that situa tion. See N EIL P. C OHEN ET AL ., T ENNESSEE L AW OF E VIDENCE § 703.4. 13 that a demonstration of availabi lity (part 2 of the Henderson test) is no t always required. Ohio v. Roberts , 448 U.S. at 65, n. 7, 100 S.Ct. at 2538 n. 7; Sherman v. Scott , 62 F.3d 136, 140 (5th Cir. 1995). Indeed, in White v. Illinois , 502 U.S. 346, 354, 112 S.Ct. 736, 741 (1992), the Court held that Ohio v. Roberts stands for the proposition that unavailability analysis is a necessary part o

f the Confrontation Clause in quiry onlywhen the challenged out- of-court statements were made i n the course of a prior judicial proceeding. According ly, we need not address the availability re

quirement. And, finally, because the records are reg ularly maintained reports of the hospital with respect to its care and treatment of p atients and because they were not prepared for the purpose of this litigation, the records evidence their own indicia of reliabil ity. Accordingly, the evidence of the medical r ecords do not violate the appellant’s confrontation rights and w ere properly admitted.

We additionally find that introduction of Dr. Zirkle’s testimony was proper. During pre-trial motions, the State asserted that D r. Zirkle would t estify as to the effect the combination of alcoh ol, Valium, and marijuana would have on a person’s ability to drive a motor vehicle. Tenn. R. Evid. 702 provides: If scientific, technical, or other specialized knowledge will substantially assist the trier of fact to understand the evidence or to dete rmine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training , or education may testify in the form of an opinion or otherwise. Rule 703, Tenn. R. Evid., contemplates three possible sources f rom which an expert may base his/her opinion: (1) information actually perceived by the ex

pert; (2) information made known to the expert by others; and (3) informat ion reasonably relied upon by experts

in the particular field. 2 See Tenn. R. Evid. 703; see also N EIL P. C OHEN , ET
. AL ., T ENNESSEE L AW OF E VIDENCE §§ 703.2, 703.3, 703.4 (3d ed. 1995). Clearly, Dr. Zirkle, even thoug h he was not the appellant’s attending14

physician, was abl e to formulate an opinion as to the appel lant’s level of impairment based on the medical records prepared contempo raneously to the appellant’s treatment at Jefferson Memorial Hos pital. Again, the recor ds were prepared in or der to aid the treating phys ician in his treatment and di agnosis of the appellant; erg o, the records are presumed rel iable and trustworthy . Moreover, since th e doctor was available for cross-ex

amination by the defense and he w as thoroughly questi oned, the appellant’s right to confrontation was not infring ed. This issue is without merit.

III. Evidence of A

lcoholic Beverage C

ontainers

The appellant next argues that evidence of alcoholic beverage containers found wit hin his veh icle was un reliable as well as irr elevant a nd shoul d not have been admitted into evidence. Specifically, he contends th at the evidence was unreliable in that the tow-in report completed at the accident site indicate d that only one emp ty beer bot tle was fo und. At tr ial, Troo per Smith testifie d that he found t wo empty beer bottles in the front seat of the car and twelv e other beer bottles, both empty and full, in the back seat and trunk of the vehicle. Tr ooper Smith explained that the items on the tow-in report are not required by the Highway Patrol and are discretonary on the part of the attending officer. Moreover, at the tim e the tow-in report was completed, Trooper Smith had not searched the back s eat or the trunk of the car because of the vehicl e’s position at the crime s cene. The appellant contends that this discrepanc y in addition to the State’ s failure to show that the appellant had

consumed alc

ohol from any

of these speci

fic container

s at any ti me prior to the offense was more pr ejudicial than probativ

e and should have been excluded.

Initially, we note

that the State maintains that, beca use defense counsel failed to make a contemporaneous objecti on to the testimony at trial , the issue has15

been waived. We cannot agree. The appell ant objected to the admission of the beer bottles in a pretrial motion to suppress. The issue i s properly preserv ed for appeal.

Again, evidence is deemed relevant if it has any tendency to make the existence of any fact that is of consequence to the dete rmination of the action more probable or less probable than it would be without the evidence. Tenn. R. Ev id. 401. Even though relevant, evidence may be excluded if its “probative value is substantially outwei ghed by the danger of unfair pr ejudice. . . .” Tenn. R. Ev id. 403.

The issue befor

e the jury was the appe llant’s st ate of impairm ent at the tim e of the collision which w as dependant upon the quantity o f alcohol consumed. The presence of the beer bottles w hich were accessibl e to the appellant, i.e. , those in the front seat, was relevant in establishing an inference of the ap pellant’s consumption of alcohol at the time of the c ollision. Howev

er, we conclude that evidence and te stimony relating to the presence of the twelve alcoholic beverage containers not readily

accessible to him, i.e. , those found in the back seat and tr unk compartment of the vehicle, cannot be used to create an inference of consu mption at or near the time of the offense, and are, thus, more prejudicial than pr obative. Notwithstanding the court’s error in admitting this evidence, any such error is harmless, especially in consideration of the appellant ’s admission that he had consumed alcohol prior to the offense and the other overwhelmi ng proof relative to his intoxication pres

ented at trial. SeeTenn. R. Crim. P. 52(a).

IV. Sentencing

In his fi nal iss ue, the a ppellant chall enges t he tria l court’s impos ition of a sentence of ten years in the Department of Correction. Without any specific error16

being assigned, the appellant, in a generalized statement, contend s that he is entitled to an eight year sentence, and, after credit for ti me served, the remainder of his sentence should be suspended, or, in the alternative, he sho uld be granted work release. In support of this ar gument, he asserts that he is employable as a roofer and that he is responsible for the support of his two chil dren.

When the length, range, or manner of serv ice of sentence is challenge d on appeal, this court conducts a de novo review conditioned

upon the presumption that the determination made by the tr ial court is correct . Tenn. Code Ann. § 40-35- 401(d)(1997). This presumpti on only applies, howev er, if the record demonstrates that the trial court proper ly considered relev

ant sentencing principl es. State v. Ashby , 823 S.W.2d 166, 16 9 (Tenn. 1991). In the case before us, the trial court considered relevant sentencing principles; thus, the presumption app lies. Moreover, this court may only modify sentence if the sentence is excessive or the manner of service is inappropr

iate. State v. Russell , 773 S.W.2d 913, 915 (Tenn. 1989). On appeal, the appellant bears the bur den of showing that the sentenc e imposed was improper. Sentencing Commission Comments, Ten n. Code Ann. § 40-35-401(d).

The proof at the sentencing hearing revealed that the twenty-eight year old appellant is the non-custodia l father of two minor childr en. The appellant refused to acknowledge that the col lision was the resul t of his intoxication. H e admits to smoking a “half nickel” of marijuana and drinking a tw elve pack of beer a day. The appellant’s work status with his most recent employer was not verified. Moreover, his previous employer

indicated that “the [appellant ] had worked very

little for him. He stated that [the appellant] may work for a few hours and then he would not see him again for six months.” Additionally, the appellant has a criminal history consisting of at least tw enty-two separate v

iolations of the law incl uding, among others: two felony conv ictions for theft, three convi ctions for driving u nder the influenc e, two c onvict ions for

reckle ss driv ing, tw o convi ctions for possession o f a3 The appellant does not chall enge the tri al court’ s refusal t o apply any

mitigati ng factors. 17 controlled substance, tw o convictions for driv

ing on a suspended license, four convictions involving public intoxication, three convictions for reckless endangerment, and one conviction for assault. The record al so indicates that the appellant had previously had a suspended sentence revoked and tha t, while in jail on the present charges, the ap pellant was arrested for simple possession of marijuana and drug paraphernal ia while incarcera ted in a penal facility.

In determining the appropri ate sentence for the appellant’s c onviction of vehicular homicide, the trial court applied one enhanc ement factor, i.e. , that the appellant has a history of criminal behavior, but concluded that no m itigating factors were applicable. 3 See Tenn. Code Ann. § 40-35-114(1) (1997). The app ellant’s only challenge to the l ength of the sentence imposed by the trial court is that he should have received a sentence of eight years r ather than a ten year sentence

.

When there are enhan cement factors and no mitigating factors, the trial court may set the sentence above th e minimum within the applic able sentencing range, but still within the

range. Tenn Code Ann. § 40-35-2 10(d)(1997). The appellant w as convicted as a range I offender of a class B felony. Thus, the se ntence range for the appellant’s convicti on is eight to twelv e years. See Tenn. Code Ann. § 40-35- 112(a)(2) (1997). The cour t imposed a sentence of ten years.We find the length of this sentence justified and cl early not excessiv e under the guidelines of the 1989 Sentencing Act.

Additionally, the tri al court denied any form of alter native sentence including probation. As the court impos ed a sentence of ten years, w hich we have found to be justified, the appellant is not eligible for a sentence i nvolving probatio n. Tenn. Code Ann. § 40-35-303(a) (1997) . Moreover, we c onclude that a sentence of confinement is necessary to protect society by restraining a defendant who has a18

long history of crimi nal conduct and because measures l ess restrictive th an confinement have frequently or recently been applied unsu ccessfully to the appellant. See Tenn. Code Ann. §40-35-103(1)(A), -103(1)(C) (1997). This contention is without mer it.

VI. Conclusion

After a review of the rec ord, we find no error r

equiring revers

al. The judgments of conviction and s entences entered by the tri al court are affirmed.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

(See separate concurring opinion) JOHN H. PEAY, Judge

_______________________________________ JOHN EVERETT W ILLIAMS, Judge