### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs O ct obe r 26, 200 5

STA TE OF TEN NES SEE v. TY LERSTOU T SM ITH

Direc t Appeal from the Cr im inal Cou rt for P utnam C ounty

No. 03-0356 Lillie Ann S ells, Jud ge

No. M2004- 03048-CCA -R3-C D - F iled Fe bruary 16, 2006

Following a jury

trial, Def

endant, T y l er S t o u t Smit h, was c onvicted of ve hicular homicide by

rec klessness. Def

endant wa s order ed to pay a fine of ten thou s an d ($10,000) dollar s and wa s sentenc ed to four ( 4) y ear s in the Depa rtment of Corre ction. On appeal, Defenda nt arg ues that (1) the e vid e nc e pr e se nte d w a s in su ff ic ie nt to e sta

bli sh the e le me nt of

re c kle ssn e ss b e y on d a

re a so na ble do ub t; ( 2) De fe nd a nt' s d ue pr oc e ss rig hts we re vio late d wh en th e tr ia l c ou rt didno t a llo w h im t o prese n t e v id e n c e th a t th e v ic ti m w a s in f lu e n c e d b y a n in to xic a n t w h ic h may h a v e in f lu e n c e d her ability to avoid the collision; and (3) the trial court improperly incre ased the Def

endant' s sentence from thre e y ear s to four y ear s. We affirm the judg ment of the trial c ourt.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

T H O M A S T. W O O D A LL , J ., delivere d the opinion of the court, in which J A M ES C UR WO OD W I TT , J R

. and R OB E R T W. W EDEMEYER , J J ., joined.

Edwin G. Sadler, attorney for a ppellant, Ty ler Stout Sm ith.

Paul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Da vidE. Coe ne n, As sis ta nt A tto rn e y Ge ne ra l; Wil liam Edward G i b s o n , District Attorney Gene ral; and D avid A. Patterson, Assistant District Attorney Gene ral, for

the appe llee, the State of Tenne ssee.

OP IN ION

On No ve mbe r 2 5, 20 02 , at app ro xima te ly 7:0 0 a .m. , L ori T a y lor , a Jac ks on Cou nty re sid e nt, was taking her c hildren t o d ay car e and c ommuting to work in Putnam Countyvia Hig hway 290, commonly

known as Ga inesboro Gr ade Roa d. Ms. Tay lor was tra veling on Hig hway 56 when she initially saw De fenda nt sitt ing at a stop sign on F ly nn' s Creek Road. A s she moved into the turn lane
t o t u rn l ef t ea s t b o u n d o n t o Ga i n es b o ro Gr ad e R o ad
, M s

. T ay l o r i m m ed i at el y n o t i ce d De fe n d an t 's truck be hind her SUV. S he st ated that “[Defe ndant] came upon me r eally fast and I thought he was g oin g to r a m me .” Ms. Tay lor sa id that af

te r this fi rs t e nc ou nte r, sh e “ kin d o f w a tc he d [D e fe nd a nt' s]

rea ction and what he was doing from that point on.”-2-

Def endant turne d left onto Gaine sboro Gra de Road behind Ms. T ay lor. She turned to look at Def endant a nd saw that whe n he turne d left, he c ontinued left and swe rved into t he we stbound la ne

. Th e re wa s no on c omi ng tr a ff ic pr e se nt a t the tim e

. De fe nd a nt the n dr ov e his truc k ba c k in to the lane behind Ms. T ay lor, and the two car s proce eded e astbound on Gaine sboro Gra de. Ms. Tay lor eventua lly

encounte red a nother truc k trave ling e astbound at a muc h slower r ate of speed w hich forc ed both she a nd Def

endant to slow their own car s. Def endant attempted to pass both Ms. Taylor and the t ru ck
, b u t o n coming traff ic prohibited him from passing . She could not reme mber if the attempt occur

red in a n are a that permitted passing, but she r eca lled that she moved her SUV into the

emer g ency

lane be cause she thoug ht Defe ndant was g oing to c ollide with the oncoming tr aff ic.

When they

rea ched the intersec tion of CountyFa rm Road, which r

uns north and south from Gainesbor o Gra de Road, De fenda nt moved into the emer g ency lane to the right of Ms. Tay lor and proce eded thr oug h the intersec tion in thi s manner. She w as then prompted to spe ed up whe n she noticed that the front end of Def endant' s truck was even with he r car at the point where her two- y ear old daug hter wa s riding in the ba ckseat. As they continued ea st, D ef

en d an t aga in moved into the westbound lane and tried to pass Ms. Tay lor despite the roa d having a double y ellow line prohibiting passing . Ms. Tay lor m ad e t h e decision that she wa s g oing to c all 9-1-1 be cause she fe lt that De fe nd a nt w a s “ no t g oin g to m ake it” on c e the y e nte re d into fo ur la ne s of t ra ff ic . Sh e us e d h e r c e ll phone to dial 9-1-1 w hile continuing to obse rve D efe ndant in her r earvi ew mirror . Ms. Tay lor

rec alled that as she dialed 9-1- 1, she saw a red c ar a nd then a white car in the westbound lane , and then Def endant c rossed ove r the double line ag ain into the oncoming traff ic. When his truck cr ossed int o th e we stb ou ndla ne , D e fe nd a nt c oll ide d w ith a re d Saturn c on ve rt ibl e , kill ing the drive r, Ta mmy D. Goodwin.

Jenn if e r S a lin g e , a n e mpl oy e e of the Te nn e sse e Te c h U niv e rs ity Pol ic e De pa

rt me nt, a lso
t es t i fi ed as t o h ero b s er v at i o n s o n t h e d ayo f t h e ac ci d en t

. W h en t h e a cc i d en to cc u rr ed
, M s

. S al i n ge
wa s d ri vin g imm e dia

te ly be hin d D e fe nd a nt o n h e r w a y to t ake he r c hil dr e n to sc ho ol andhe rs e lf to work. She stated that she was c oncerned with Def endant’ s drivi n g that morning beca use she ha d witnessed De fenda nt try ing to pa ss Ms. Tay lor both in the emer g ency lane a nd the westbound lane of tr a ff ic in a re a s w he re the re we re do ub le y e llo w lin e s. De fe nd a nt’ s e rr a tic drivi ng pr omp te d M s. Salinge to slow the speed of her ow n car

in order to r emain a sa fe distanc e fr om his truck.

Ms. Salinge c lear ly

saw th e wr ec k occur . Approxim ately fifty to one hundre d y ards f

rom wh e re Ga ine sv ill e Gr a de Roa d be c ome s a fo ur -l a ne hig hw a y , s he sa w D e fe nd a nt c ro ss o ve r d ou ble y ellow lines into oncoming tra ffic and collide with the victim’s car

. Ms. Salinge stated that whe n Def endant’ s truck collided with that of the victim’s, ove r half of his truc k was in the oncoming lane of traf fic. She e x plained that the driver’ s side of Def endant’ s truck was completely in the westbound lane a nd hit the oncoming c ar, driving up a nd over t h e top of the vic tim’s car, a nd flipping Def endant’ s truck. Ms. Salinge swerve d to avoid the wre ck, then pa rked he r ca

r and used her

work radio to ca ll in the accide nt to the Cookeville Pol ice De partment.

Pa m Ho lt te sti fi e d th a t sh e wa s d ri vin g in the we stb ou ndla ne imm e diate ly be hin d th e vic tim when the two c ars c ollided. Ba sed upon her own s p ee d
, M s

. Ho l t did not believe the victim was-3-

speeding . She testified that she f o l l o we d t h e victim ’s ca

r into a cur ve in the roa d and then sa w Def endant’ s truck move into the westbound lane of traff ic. Def endant’ s truck drove over the top of the victim’s c ar, the truck went airborne
, and the victim’s c ar spun out of control coming to rest at a stop sign. Ms. Holt swerve d and avoided being hit by either c ar. When Ms. Holt stopped her car , she ca lled 9-1-1, but the dispatc her inf o rmed he r that they

had alr eady

been c ontacted a

bout the

wre ck.

Sgt. Mike L ee, w ith the Cooke v ille Police D epartment Traf fic Enf orce ment Section, testified that he investig ated the acc ident involving Def endant and the victim on November 25, 2002. Upon his arriva l, Sgt. L ee took photog raphs of the sce ne an d o b s erve d the condition of the victim and Def endant. He said that there was no indication f ro m t h e s cene that the victim’s vehicle ha d any faul t in the inc ide nt. On c ro ss- e xami natio n, he state d th a t in his op ini on , D e fe nd a nt’ s v e hic le

crosse d over into the victim’s lane of traf fic, hitting the victim’s car and killing he r.

Tr oo pe r D a vidRoa

rk wi th the Te nn e sse e Hi g hw a y Pa tr ol Cri tic a l I nc ide nt R e sp on se Te a m, testified as a n expert witness in acc ident rec onstruction. Ba sed on measure ments, photogr aphs, and dia g rams c on str

uc te d o f the a c c ide nt s ite , T ro op e r R oa rk te sti fi e d th a t th e a c c ide nt w a s a n o pp os ite direc tion collision, meaning less that fifty perc ent fronta l impact on both car s. He e x plained that the

e vi d e n c e f

r o m t h e s c e n e i n d i c a t e d D e f e n d a n t ’ s tru c k c r o s s e d o v e r i n t o t h e v i c t i m ’ s l a n e of tr a ff ic prior to colliding w ith the victim’s car. Tr ooper Roark stated that, in his opini on, the victim was not at fault in any

way

.
Offic er Randy

Br own, an of

fice r with the Cookeville Police Depa r tm e n t Tr a f

f ic E n f orce ment Section, testified that he wa s the primary officer as s i gn ed to collec t evidence and investig ate the

scene of the a ccide nt on November 25, 2002. He arrived at the sc ene at 9:01 a.m.. He explained that

seven- thirty

in the morning is the busiest tim e of day for the a re a wh er e t he ac cident occ urre d beca use it is during the morning school hours whe n people are taking their childre n to school and commuting to w ork. Offic er Br own verifie d that the acc ident occur red in an ar ea w ith double y ellow lines. At the scene , Offic er B rown identified D efe ndant as the driver of the truck, but the victim had been removed prior to his arrival. He took stateme nts from Def endant a nd the other w itnesses. The statements taken f

rom Ms. Tay lor, Ms. Saling e, and Ms. H olt we re consistent with their testimony

a t tria l. D e fe nd a nt d id n ot he sit a te to c oo pe rate wi th O ff ic e r B ro wn on a ny

ma tte r. De fe nd a nt t old Of fi c e r B rown th at he c ou ld n ot r e me mbe r w hat ha d h app e ne d. He sa id that he wa s c omi ng int o town on Gainesbor o Gra de Road a nd he looked down to c hang e t h e ra d i o station and must have

crosse d the ce nter line a nd struck the onc oming ve hicle.

Def endant wa s g iven eve ry

opportunity to disc uss w hat happene d with Office r B rown. He didno t me nti on a ny on e pu tti ng the ir br ake s o n o r th e need to a vo id the c ar i n f ro nt o f h im. Def endant a dm i t t ed to Office r B rown they he had ta

ken a trip to Tunica, Mississippi , over the

we e ke ndto c e le br a te a

frie nd ’s tw e nty -f

ir st b irthd a y . H e tol d O ff

ic e r B ro wn that du ri ng the c ou rs e of the we e ke ndhe us e d O xy c od on e , X a na x, a ndabo ut a qu art e r g ram of c oc a ine

. De fe nd a nt a lso

a dmi tte d to drinking be e r wh ile on the tr ip. As is c us tom ary in a c c ide nts inv olv ing fat ali ties
, Def endant submitted to a blood and urine test. The blood test was ne g ative for any type of drug s or-4-

alcohol. The urine test howe ver, w as positive f or Cocaine , Ecg onine methy l ester- -a me tabolite of C o ca i n e, Ox y co d o n e, a n d Di h y d ro co d ei n o n e. T h e u ri n e t es tal s o s h o we d tra ce s o f aco u gh

su pp re ssant anda nti his ta min e . D e fe nd a nt t oldOf fi c e r B ro wn that he le ft Tu nic a a t app ro xima te ly 2:00 p.m. on Sunday afte rnoon and arrived home in Jackson County at around 10:00 p.m. Sunday nig ht. He sa id that he g ot u p a bo ut 6 :20 a .m. on Mo nd a y , th e da y of the a c c ide nt, a ndg ot r e a dy to come into town. Off

icer Br own said the we ather

was c lear and dry on the day

of the a ccide nt. He also said that during questioning the morning of the accide nt, Def endant did not appea

r to be unde r the inf lue nc e of dr ug s o r a lc oh ol. Of

fi c er Brown a lso ve ri fi e d th a t th e vic tim ’s de a th c e rt if ic a te identified the c ause of

death a s multi ple trauma from a motor ve hicle ac cident.

Bonnie Smit h, the victim’s mother, testified that the vic tim was liv i n g wi t h her on Gainesbor o Gra de at the time of the ac cident. Ms. Smi th owned the r ed Saturn c onvertible that the victim was driving when she was kil led. S he stated that the victim had taken he r daug hter, Ama nda, to school and her

other c hild, a son, had stay ed at home w ith Ms. S mith.

De fe nd a nt t e sti fi e d th a t on the we e ke nd pr e c e din g the a c c ide nt, he we nt to Tun ic a wi th s ome friends to c elebr ate his best friend’s twenty -first birthday

. He said that he planned on drinking and g a mbl ing , b ut h e ha d n ot i nte nd e d o n u sin g dr ug s, no r d id h e take a ny

dru gs to Tu ni ca wi th h im. Def endant a cquire d the drug s that he used f rom someone he met in Tunica. He said the l ast time he

rec alled using drug s was ar ound 3:00 p.m. on Saturday , November 23, 2002. After

partying Friday and Saturda y

night, De fenda nt went to bed ar ound 2:30-3:00 a.m. Sun day morning and slept for about nine hours.

Def endant lef t T unica around 1:00 p.m. on Sunday , November 24, 2002, and af

ter driving a g irlfriend home , met his parents a round 10:00 p.m. at a re staurant in Columbi a, Tennessee

. Def endant r ode h o m e wi t h his mother in her c ar, a nd Def endant’ s father

drove D efe ndant’s truc k home. Def

endant testified that they arrived at their hom e around 12:30 a.m., Monday morning . At trial, both of Def

endant’ s pare nts testified to his his tory of drug abuse and his prior experience in a dr ug re ha bil itatio n c e nte r. Th e y

e xpla in ed th at th e y

dr ov e to C olu mbi a

to m e e t th e ir

so n b e c a us e the y kn e w h e wo uldbe tir e d a ndne e d h e lp dri vin g a ft e r s uc h a l on g wee ke nd . B othpa re nts a lso

conce ded that they

wer e wor ried, a nd they

had conc erns that De fenda nt may have r elapse d and used drug s during his trip to Tunica.

On the morning of the acc i d ent, Monday , November 25, Def endant woke up around 6:00 a.m., ate br eakf

ast, and left his pa

rent’s house around 7:00 a .m. to do community service work at the

re c y c lin g c e nte r. De fe nd a nt sa id that th e dr ug s h e ha d u se d o ve r the we e ke ndha d n o a c tua l bo dil y eff ect on his a b i l i ty

to drive Monday

morning . He a dmitted that he pulled out to pass Ms. Tay lor

a ndthe slo w- mov ing truc k, bu t de nie d a ny kn ow le dg e th at he sw e rv e d w he n tu rn ing on to Ga ine sb or o G ra de fr om H wy 56 . H e fu rthe r d e nie d a ny re c oll e c tio n o f t

rying to pa ss Ms. Tay lor

in

are as prohibiting passing
, and he denied having attempted to pa ss in the rig ht hand emer g ency lane. Def endant a dmitted that he never sai d M s. Tay lor put on her br akes immediate ly prec eding the

a c c ide nt andthat he didno t be lie ve sh e did . D e fe nd a nt c la ime d th a t he wa s n ot dri vin g re c kle ssl y on the day

of the a ccide nt.-5-

Dr. Ople ss Walker, Direc tor of Pharma cy at the Cookeville Reg ional M ed ical Center
, provided e x pert testimony that the drug s found in Def endant’ s urine did not aff

ect his ability

to drive the mornin g of

the a c c ide nt. Dr .Wa lke r t e st if ied that he a na ly zede a c h o f the dr ug s f ou ndin Def endant’ s urine ac cording to the pharma colog y , or beha vior, known about the drug. He state d that in his opini on, on November 25, 2002, at 7:32 a.m., Def end ant was not unde r the influenc e of a n intox icant. Dr . Walker explained that there was no e vidence of drug s in Defe ndan t’s blood, and beca use bl ood dictates the actions of the hum an body , the drug s Defe ndant consumed c ould not have

a ff e c te d h is a c tio ns the mornin g of the a c c ide nt b e c aus e th ere was no e vid e nc e of the dr ug s in Def endant’ s blood.

I. Su ff iciency of the Evid ence

Def endant f irst arg ues that the e vidence prese nted at trial wa s insufficient to establish the element of rec klessness bey ond a rea sonable doubt. When an acc used challeng es the sufficie ncy of the evidenc e, this Court's standa rd of r eview is whether, a fter c onsidering the evidenc e in the lig ht

mos t f a vo ra ble to the pr os e c uti on , a ny ratio na l trie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble do ub t. T e nn . R

. App

. P . 1 3( e ); State v. Goodwin, 143 S.W .3d 7 7 1
, 7 7 5 (T en n

. 2 0 0 4 ) ( ci t i n g State v. Re id, 91 S.W .3d 247, 276 (Tenn. 2002) ). This rule a pplies to f ind ing s of

g uil t ba se d u po n d ir e c t e vid e nc e , c ir c ums ta nti a l e vid e nc e , o r a c omb inatio n o f b oth direc t and circ umstantial evidence

. Sta te v . P e nd e rg ra ss, 13 S.W .3d 389, 392-93 (Te nn. Crim. App. 1999). Que stions concerning the cre dibilit y of t he witnesses, the weig ht and value of the evidenc e,
an d al l factual issues raised by the evidenc e ar e re solved by the trier of

fac t. Liakas v. State, 1 99 Te nn . 2 98 , 3 05
, 28 6 S. W.2 d 8 56 , 8 59 (1 95 6) . In d e te rm ini ng the su ff ic ie nc y of the e vid e nc e , th is Cou rt do e s n ot r e -w e ig h or re e va luate the e vid e nc e a nd ma y no t subs titute its inf e re nc e s f or tho se draw n by the trier of

fac t from circ umstantial evidence

. State v. Cabbage, 571 S.W .2d 832, 835 (T e nn . 1 97 8) ; Lia k

as , 1 99 Tenn. at 305, 286 S.W .2d at 859. This Court must afford the State the strong e s t le g it im a te v ie w o f th e e v id e n c e c o n tain e d in th e r e c o r d a s w e ll a s a ll r e a s o n able a nd leg itimate infere nces w hich may be dra wn from the e vidence

. State v. He rrod, 754 S.W .2d 627, 632 (Tenn. Crim. App. 1988) . Be cause a ver dict o f guilt removes the pre sumption of innocence and repla ces it with a pre sumption of guilt, the acc used has the burde n in this court of illustrating why the evidence is insufficient to support the verdict returne d by the trier of fac t. State v. Tuggle, 639 S.W .2d 913, 914 (Tenn. 1982)

.
Def endant wa s convicted of

vehicular homicide by

rec klessness. “Ve hicular homicide is the

rec kless killing of another by the oper ation of an automobile . . .[ a]s the prox imate re sult of conduct

cre ating a substantial risk of death or serious bodily

injury to a per son.” T.C.A. § 39-13- 213(a) (1) (2003). “‘Rec kless’ refer s to a person who acts rec klessly with respe ct t o circ umstances surr ounding the c on du c t or

the re su lt o f the c on du ct whe n th e pe rs on is a wa reof bu t c on sc iou sly

dis re g ard s a substantial and unjustifiable risk that the cir cumstance s exi st or the re sult will occur .” T.C.A. § 39- 11-106(a )(31) (2003). “ The risk must be of suc h a nature and de g ree that its disreg ard c onstitut es a g ross deviation fr om the standard of car e that an or dinary

per s o n would exercise unde r all the circ umstances a s viewed f rom the ac cused pe rson’s standpoint.” Id.-6-

The e vidence established that on November 25, 2002, at approx imately 7:30 a.m., Def endant was driving his truck when it collided wit h a red Saturn conve rtible, killing the drive r. Witnesses
te sti fi e d th a t in the min ute s p re c e din g the c oll isi on , D e fe nd a nt wa s sw e rv ing e rr a tic a lly , d ri vin g in
t h e em er gen cylane, a nd attempting to pa ss in the oncoming la ne of tra ffic w ithout reg ard f or the double y ellow line. T h ere was testimony that one witness wa s so conce rned prior to the collision that she pulled out he r phone to c all 9-1-1. The witnesses also testified that at th e m o m en t o f t he

acc ident, Def

endant c rossed over a double y ellow line into the victim’s la ne of traff ic and ran ove r the top of her

car befor e g oing airborne in his truck and landing upside down.

The inves t i gat i o n conducte d by the Cookeville Police Depa rtment and the Te nnessee Hi g hw a y Pa tr ol c on fi rm e d th e wi tne sse s’ a c c ou nt s of the a c c ide nt. Th e inv e sti g a tio n a lso

e sta bli sh e d that the vic tim wa s in no way a t fa ult fo r the a c c ide nt, a ndthat D e fe nd a nt d id c ro ss i nto the victim’s lane of

traff ic immediately

prec eding the collision. De fe n d ant ar g ues that he looke d

a way fr om the ro a d o nly

to o pe rate his c ar r a dio , a ndin that mo me nt h e drift ed ov er th e do ub le y ellow line and collided with the victim. He contends that ope rating a ca r ra dio does not rise to the level of r eckle ssness contemplated by the vehicula

r homicide statute. The jury was fr ee to a cce pt Def endant’ s theory

and his acc ount of the events leading up to the acc ident. Se e Sta te v . S um me ra ll
, 926 S.W .2d 272, 275 (Tenn. Crim. App. 1995) . L ikewise, the jury was free to fully

acc redit the theory prese nted by the State and disreg ard D efe ndant’s asse rtions. Id. As e vid e nc e d b y it’ s v e rd ic t, the jury chose to a ccr edit the theory of the prosec ution. W e find the e vidence sufficie nt to support the jury ’s determination. Defe ndant is not entitled to relief on this issue.

II. Due P roce ss Violation

Def endant ne x t arg ues that his due proc ess rig hts were violated bec ause he wa s not allowed
to prese nt evidenc e that the vi ctim may have been influenced by an int ox icant which hindere d her ability to avoid the ac cident. The State filed a Motion in L imine to preclude Def enda n t from int ro du c ing e vid e nc e wh ic h r e ve a le d th a t th e vic tim ha d c on tr oll e d sub sta nc e s in he r b od y a t th e tim e of the a c c ide nt. Th e tr ia l cou rt g rante d the Sta te ’s mot ion . D e fe nd a nt a rg ue s th a t th e g ranti ng of

thi s motion viol ated his due pr ocess rights unde r the fe dera l and s t ate constitut ions because he w as unable to pre sent a de fense that might have neg ated the State’ s theory of re cklessness.

I n the rec ord submitt ed on appea l, Defe ndant fa iled to include a tra nscript of the he aring on the Mo tio n in L imi ne. Th e defe nd ant h a s th e ob lig a tio n to e ns ur e that th e re c or d o n a pp e a l is sufficie nt to allow meaning ful revie w. State v. Ba lla rd , 855 S.W .2d 557, 560-61 (Te nn. 1993). Th us , th e failu re to i nc lud e the tr a ns c ri pt o f the Mo tio n inL imi ne he ari ng g e ne ra lly c on sti tut e s a waiver of the issue. See Te nn . R. Ap p. P. 2 4( b) ; Tho mp so n v . S tat e , 958 S.W .2d. 156, 172 (Tenn. Crim. App. 1997). When no transcript is included in the rec ord, this Court must pre sume that the ruling of t he trial c ourt is corre ct. See B allard, 85 5 S.W. 2da t 56 0- 61 ; State v. Taylor , 669 S.W .2d 694, 699 (Tenn. Crim. App. 1983)

. Be cause the record on appeal doe s not contain a transcript of the Motion in L imine he aring
, Def endant has waived this issue on appea l and there fore is not e ntitled to relief.-7-

III . Se nt e nc ing

Finally
, Def

endant asserts that the trial court err ed in se ntencing him to serve four y ear s for h i s co nviction of vehicula r homicide by

rec klessness, a Class C felony . Def endant a rg ues that he should have re ceive d the minimum s entenc e for a Rang e I , standard offende r bec ause the re w ere no enhan ce m ent fa ctors applica ble to his offense . Specifica lly , Def endant a rg ues that the trial c ourt i m p r o p e r l y f

o u n d t h a th i s p r e v i o u s d r i v i n g r e c o r d c o n t a i n e d o f f e n s e s c o n s t i t u t i n g a

c r i m i n a l h i s t o r y. He a sserts that spee ding ticke ts, and tickets for improper turns do not constitute criminal behavior

.
Whe n a de fe nd a nt c ha lle ng e s th e le ng th, range, or man ne r o f s e rv ic e of his se nte nc e , th is Court conducts a de novo revie w of the r ec o rd wi t h a pre sumption t hat the trial c ourt’s de te rm inatio ns are c or

re c t. T .C. A. § 4 0- 35 -4 01 (d ) ( 20 03 ). Th is p re su mpt ion of c or re c tne ss i s conditioned upon the af

firmative showing in the rec ord t hat the trial c ourt consider ed the se ntencing principles and all rele vant fac ts a nd circ umstances. State v. Pe ttus , 986 S.W .2d 540, 543-44 (Te nn. 1999). I f our revie w ref

lects that the trial court f

ollowed the statutory

sentenc ing pr ocedur e, that the

court imp o s e d a la w f

u l s e n te n c e a f

te r h a v in g g iv e n d u e c o n s id e r a ti o n a n d p r o p e r w e ig h t to the fac tors and prin ci p l es s et out under the se ntencing law, and the trial court’ s findings of fac t are adequately

supported by

t h e re co rd
, the pre sumption i s applicable and we may not modify

the
sentenc e even if we would have pr efe rre d a diffe rent re sult. See State v . Fletche r , 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991) . We will uphold t he sente nce imposed by the trial court if (1) the
sentence co m p l ies with the purposes a nd principles of the 1989 Sentencing Act, and ( 2) the trial

co u rt ’s finding s are adequately supported by

the re cord. Se e Sta te v . A rn e tt , 4 9 S. W. 3d 250, 257 (Tenn. 2001) . Howeve r, if the r ecor d shows that the trial court fail ed t o co nsider the se ntencing princ ipl e s a nda ll r e le va nt f a c ts a nd c ir c ums ta nc e s, the n r e vie w o f the c ha lle ng e d s e nte nc e is p ur e ly de novo without the presumption of corr ectne ss. State v. Ashby
, 823 S.W .2d 166, 169 (Tenn. 1991)

. On app e a l, the de fe nd a nt ha s the bu rd e n of sho wi ng that the se nte nc e imp os e d b y the tr ia l c ou rt

is improper. T.C.A. § 40- 35-401(d) , Sentencing Commi ssion Com ments.

We find that the trial court properly considere d the sentenci n g principles, ther efor e our
re vie w i s de novo with a pre sumption of corre ctness. As stated, D efe ndant was c onvicted of the Class C felony of vehicular homicide by rec klessness and se ntence d as a Rang e I , standard of fende r. Pursuant to T e n n e s s e eCo d eA n n o ta te d section 40-35- 112(a) (3) ( 2003), De fenda nt may be sente nced to serve “ not less than three (3) nor more than six (6) y ear s” for this conviction. The presumptive
senten ce fo r a C l ass C felony is three ( 3) y ear s provided ther e ar e no enhanceme nt or mitigating fac tors. See T.C.A. § 40-35-210( c)( 1) (2003) . I f the trial co u rt fi n d s that there a re e nhance ment fac tors, an d m i t i g ating fac tors, “[t] he sente nce le ng th within the rang e should be a djusted, as appropriate.” T .C.A. § 40-35-210(c )(2)

.
The trial c o u rt applied only enhanc ement fa ctor number two under Te nnessee Code Annotated se ction 40-35-114 ( 2003). Enhancement f actor number two is conc erne d with whether the de fe nd a nt h a s a

“ pr e vio us his tory of

c ri min a l c on vic tio ns or

c ri min a l be ha vio r, in a dd iti on to thos e n e c e s s ar y to e s ta

b li s h th e ap p r o p r iate r a n g e

. ” T

. C. A

. § 4 0

- 3 5

- 1 1 4 ( 2 )

. D e f e n d ant had f

our prior spee ding ticke ts, one ticket for improper turn, he was orde red to atten d a d ef ensive driving-8-

course in J anuary

2002, and he w as on pre trial diversion for another offe nse at the time the a ccide nt

occur red. D efe ndant also admitted to the use of narc otics on the wee kend immediately prec eding the Monday

morning acc ident. Not surprising ly , the trial court found it imp o rt ant that af ter the

a c c ide nt o n N ov e mbe r 2 5, 20 02 , D e fe nd a nt re c e ive d two mor e tic ke ts, a nda lth ou g h th e y we re bo th dismiss ed af

ter a trial, he re ceive d one such ticket t he day afte r a night of drinking

. The court stated, “I do consider that c riminal behavior and

. . . [t ]hat kind of driving history in this particular kind of

c a se , I do g ive it a lot of we ig ht, qu ite a bit of we ig ht. ” Th e tr ia l c ou rt didfi ndDe fe nd a nt’ s a g e to be a mitig ating fac tor, but did not give it much we ight in lig ht of his ext ensive driving history

.
We find that it was within the trial court’ s discretion to consider Def endant’ s driving history

as criminal behavior in dete rmining the leng th of his se ntence

. We a g ree with this dete rmination, and we will not overturn the trial c ourt’s dec ision. I t is our conclusion that a four y ear sentenc e of

c on fi ne me nt i n th is c a se is c on sis te nt w ith the se nte nc ing princ ipl e s a nd su pp orte d by re le va nt f a c ts

an d c ir c u ms tan c e s

. A c c o r d in g ly
, th e tria l c o u r t d id n o t e rr in s e n te n c in g D e f e n d a n t to se rve f

our y ear s for his conviction of ve hicular homicide b y re ck l essness. De fenda nt is not entit led to relief on this iss ue.

CO NC LU SION

For the fore g oing r easons, the judg ment of the trial c ourt is affirmed.

___________________________________ THOMAS T. WOODAL

L , J UDGE