# FILED
February 20, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE SEPTEMBER, 1997 SESSION

STATE OF TENN ESSEE, ) No. 01C01-9611-CC-00464 ) Appellee, ) ) Cheatham County vs. ) ) Honorable Robert E . Burch, Judge CHRISTOPHER DALE GIBBS, ) ) ) (Vehicular Homic

ide, Leaving the Scene) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: LIONEL BARR ETT JOHN KNOX WALKUP 222 Second Ave. N. Attorney General & Repor ter Nashville, TN 37201 LISA A. NAYLOR Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 DAN MITCHUM ALSOBROOKS District Attorney General Court Square, P.O. Box 580 Charlotte, TN 37036-0580 JAMES W. KIRBY Assistant District A

ttorney General 105 Sycamore St. Ashland City, TN 37015-1806 OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT JUDGE1 Both witnesses testified that they thought someone had been thr own out of the truck. 2 OPINION
The defendant, Christopher Dale Gi bbs, was convicted i n a jury trial in the Cheatham County Cir cuit Court of vehicular

homicide by

reckless driving, a Class C felony. The defendant pleaded guilty to leaving the scene of an accident,
a Class E felony. As a Range I, standard offender, he received a six-year sentence forvehicular homicide and a consecutive two-y ear sentence for leaving

the scene. In this direct appeal, the defendant challenges the suf ficiency of the evidence and contends that his sentences are ex cessive and that the tri al judge erred in imposi ng consecutive sentences.

We affirm the judgment of the trial court.

On July 5, 1995 at approximately 7:25 p.m., the defendant was driv ing in his 1970 red Dodge Power Wagon along the River Ro ad near Ashland City. As he crested a hill, eyew

itnesses saw

the truck swerve onto the gravel shoulder and sideswipe

a road sign. The truck then veered fart her off t he road into the yard of the eighty-seven y

ear old victim, Frank

Patterson Tant. T an t was pulling w eeds about six feet off the roadway when the truck struck him. The truck then bounced
over a culvert and eventually regained the road approximately six ty-five feet from the s ign. Two other motoris ts watched as the truck picked up speed . Th e witnesses

stopped about fifty yards below the accident

and ran back to where the victim’s body was lying in his daughter’s yard some twenty-three feet from the point of impact. 1 Finding no signs of l ife, they covered the body with a pink

towel. When the defendant attempted to turn off the River Road onto a side road about 3/4 mile from the scene of the accident, he drov e into a tree and then hit a fence post. At that point, the defendant fled on foot. Two days later the defendant turned himself in to the Cheatham County Sher iff’s Office.2 The state impeached Woods’s testimony with a video tape of an intervi ew

Woods gave to a television news reporter. In the interv

iew, Woods expressed the opinion that the defendant had been under the influence of some intoxicant. Woods made a similar statem ent to Sgt. Brown and to the grand jury. At trial, however, he insiste

d that the defendant did not appear drunk other than his red eyes. The record ind icates th at Wo ods was lat er indict ed for pe rjury. 3 Sgt. Robert Brown, an accident re co nstructionist, found pieces of shattered glass, fragments of red paint , and piecesof red plastic at the scene. The defendant’s red truck had a damaged headlig ht and a broken plastic bug deflector. The truck’s undercarriage was damaged. Inside thetruck were a Budwe iser carton,
some cassette tapes, and radio speakers. Sgt. Brown was u nable to estimate the speed a t whi ch the truck was movi ng because it traveled over three different surfaces -- pavement, gravel, and grass. Howev er, eyewitnesses

estimated that his speed was between 50 and 55 miles per hour. The posted speed limit along that stretch of road is 50 miles pe r hour. An FBI laboratory report indicated that the paintfragments found at the scene wer e consistent with the pai nt on the defendant’s truck.

Dr. Charles Harlan, who performed the autopsy, testified th at t h e victim died from multiple injuries inc luding fractured ribs, multiple punctures to the lungs, and fr

actured an d dislocated vertebrae. The victim’s live r was torn into several pieces and his aorta was severed. The doctor opined that the victim would have died within one or two minutes of the impact.

Other state witnesses t estified that the defendant had spent the day boating and swimming. Accord ing to their testimony , the defendantdrank onlypart of one beer during the afternoon. A t about four o ’clock, the defendant and three friends ate dinner. At that time, the defendant ordered two margaritas; however, he did not finis h the se cond drink. After leavin g the restaurant alone, the de fendant stopped briefly at

the home of Kenneth Woods. Woods testified that when he noted that the defendant’s eyes were red and that the defendant appeared tired, he invited him to stay and eat something , but the defendant declined the inv itation. 23 The written statement was not admitted into evidence at trial. The chief deputy read it aloud for the j ury. 4

According to Renee Batey, who saw the defendant several hours after the accident, the defendant told her that he was looking down to adjust a radio sitting on the console besid e him wh en he veered off the road. She said that the truckwas old and that she knew that the steering had a lot of slack in it. Although the defendant

did not t estify at tria l, he ga

ve a bri ef statem ent to th e sheriff. In his statement, he admitted that he drove the truck that struck the victim.He said that his head was hurting, and th at his steering had some sl ack in it. He hit the victim who “just popped up in front of him.” He did not mention the radio. 3 The defense rested w ithout p utting

on any p roof.

The trial court instruct

ed the jury on vehicul ar homicide while dri ving under the influence, a class B felony, and v ehicular homicide by

reckless operation of a vehicle, a class C felony. After deliberating for several hours, the jury found the defendant guilty of vehicul ar homicide by reckles s operation of a vehicle.

The defendant now contends that the st ate has f ailed to prove the element of recklessness beyond a reasonable doubt. He argues that the evidence provesnothing more than mom ent ary neglige nce beca use, acco rding to th e eye witnesses, he was not speeding far i n excess of the posted spee d limit o r driving erratically prior

to the accident. We disagree.

Since a jury conviction removes the presumption of in noc ence with which a defendant is initially cloaked and replaces it w ith one of guilt, a convi cted defendant has the burden of demonstra ting o n ap peal that the evidence is insufficient. State v, Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In determ ining that sufficiency, this court does n ot re weigh or reeval uate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is entitled to the stron gest legitimate vi ew of the evidence and all reasonable or legitimate5

infere nces which may be draw n therefrom. State v. Harris , 839 S.W.2d 54, 7 5 (Tenn. 1992). It is the appellate court’ s duty to affirm the conviction if the ev idence, viewed under these standards, was sufficient for any rational trier o f f act to ha ve found the essential elements of the offenses beyond a reasonable doubt. Jackson
v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); Stat e v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e).

A criminal offense may be establi shed exclusively by circumstantial
e vide nce. Duchac v. State , 505 S.W.2d 237 (Tenn. 1973); State v. Jones , 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire , 634 S.W.2d 608 (Tenn. Crim. App. 1987). However, before an accused may be convi cted of a criminal offense based upon circumstantial evidence alon e, the facts and circumstances "must be so strong and cogent as to exclu de every other reasonable hypothesis
save the guilt of

the defendant." State v. Crawford , 225 Tenn. 478, 470 S.W.2d 610 (19 71); State v. Jones , 901 S.W.2d at 396. Inferences to be draw n f ro m circumstantial evidenc

e are within the prov

ince of the trier

of fact. This court may not substitute its inferences for those drawn by the jur y from the evidence. Liakas v. State , 199 Tenn. 298, 286S.W.2d 856, 859 (1956), cert
. denied 325 U.S. 845, 77 S.Ct. 39 (1956); Farmer v. State , 5 74 S. W. 2d 49, 51 (Tenn. Crim. App. 1978).

To convict an accused of veh icular homicide due to recklessness, the state must prove beyonda reasonable doubt that (a) the accused killed the victim while operating a motor vehic le, (b) the killing

was done recklessly, and (c) the killing
was “the proximate result of conduct creating a substantial risk of death or serious bodilyinjury. Tenn. Code Ann. § 39-13-213(1)(a)(1997). A person acts recklessly when he is “aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the resul t wi ll occur.” Tenn. Code Ann. § 39-11- 302(c)(1997). The risk must be such “that its disregard consti

tutes a gross deviati on fro m the standard of care that an ordinar y person would ex

ercise under all the circumstances as viewed from the accused person’s viewpoint.” Id

.

While the case presented is a close case, a ratio na l juror could6

conclud e beyond a reasonable doubt that the defendant was driving reckles sl y when he struck Mr. Tant. We agree with the defendant that exceeding the speed limit by five miles per hour does not, by itself, constitut e a gross deviation

from the standard care that an ordinary person would exercise. See State v. Timothy Gose , No. 03C01-9406-CR-00244, slip op. at 3 (Tenn. Cri m. App., Knoxville, Jan.29, 1996). In Gose , the def endant wa s driving rou ghly ten mi les above the speed limit when he glanced down at the floor board because h e thoug ht his passenger had dropped a cigarette. Slip op. at 1-2. The vehic le went off the roadway and struck
a mai lbox. Id . at 2. The driver ove r-corrected, the brakes locked, the vehicl e crossed the center line and struck a dump truck. Id

. Thi s court affirmed a trial court’s judgment of acqu ittal fi nding t hat the e videnc e was l egally

insuffi cie nt to prove that the defendant acted reck lessly. Id . at 3.
However, unlike Gose , other facts prove that this defendant’s conduct
was reckless. When the defendant arrived at Woods’s reside nce just a f ew moments before the accident, Mr. Woodsrealized that something was wrong w

ith the defendant and urged him to stay. The defendant was also aware o f a problem because he spoke of the head ach e which had plagued him all afternoon. He admitted that his t ruck’s ste ering was f aulty. He knew th at he had cons umed some alcoholic beverages which might affect his reaction time and his j udgment. The record indicates he chose to ex cee d the speed limit by a small margin. He lost control of his truckas he rounded a curve at the crest of a hi ll. The truck hit a road sign and then vee red off at least six feet into M r. Tant’s yard wher e it struck and killed Mr. Tant. The truck traveled another 30 or 40 feet before it returned t o th e roadway.
Also, under Tennessee l aw, the defendant’s flight from the scene reflects culpability. Our c ourts view an attempt to avoid apprehension or prosecution as relevant because it tends to “show guilt, consciousness of guilt, or knowledge,” Buckingh am v. State , 540 S.W.2d 660, 665 (Tenn. Crim. App. 1976);7

Mitchell v. State , 3 Tenn. Crim. App. 153, 161, 458 S.W.2d 630 , 633 (1970). Such evidence may be considered by the trier of fact “as one of a series of circumst ances from whic h guilt may be inferred.” State v. Braggs , 604 S.W.2d 883, 886 (Tenn

. Crim

. App. 1980); see State v. Harris , 839 S.W.2d 54, 74 (Tenn. 1992); State v

. Zagorski , 701 S.W.2d 808, 813 (Tenn. 1985); Hill v. State , 3 Tenn. Crim. App. 331, 332, 461 S.W.2d 50, 52 (1970); Rogers v. State , 2 Tenn. Crim. App. 491, 501, 455 S.W.2d 182, 186 (1970). When the state presents sufficient evidence to establish flight, the state is entitle d to have an instruction included i n the charge setting forth the law of

flight. See State v. Howell , 868 S.W.2d 238, 254-55 (Tenn. 1993). The jury received suc

h an instruction in this case.

From the evidence presented at trial, a rational juror could reasonably conclude that the defendant fled to avoid arrest for his criminal actions. See State
v. Braggs , 604 S.W.2d 883, 886 (Tenn. Crim. App. 1980), and Rogers v. State , 2 Tenn. Crim. App. 491, 501, 455 S.W.2d 182, 186 (1970). Instead of stopping, the defendant i ncrea sed his speed and drove off know ing that he had struck and seriouslyinjured someone

. Then, after colliding w ith a tree and a fence post, he abandoned his vehicle and stay ed hidden for

two days before presenting himself to the authorities. During this time any evidence of his physical condition a

t the time of the accident would have dissipated. Fr om these act ions, the jury could h ave concluded that the defendant was well aware that the victim’s fatal injuries were not the result

of m ere accident but were caused by the defendant’s criminal recklessness.

Although we find this to be a close case, w e find that the evidence in the present case is legally sufficient for a rat ional juror to conclude that this defendant consciously disregarded a substantial and unjustifiable risk and that this disregard constituted a gross deviation from the standard of care that an ordinary person would exercise under these circumstances. The ev idence in therecord is sufficientto find that the defendant was guilty of vehicular h omicide by reckless8

driving beyond a r

easonable doubt.

Next the defendant contends that his agg regate sentence of eight years is excessive. Vehicular homicide by reckless driving is aclass C felony, and
as a Range I offender the defenda nt was potentially s ubject to a sentence of not less than three nor mor e t han six years incar

ceration. Tenn. Code Ann. § 40-35- 112(a)(3)(1997). For lea ving the scene

of an accident, a

class Efe l ony, the trial court could have sentenced the defendant to not les s than one but

not more than two years. Tenn. Code Ann. § 40-35-112)(a)( 5) (1997). In this case, the trial court determined that the maximum sentence was appropriate for both convictions.

When an accused challenges 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 made by the trial court are cor

rect. Tenn. Code Ann. § 40-35-401(d) (1990). This presumption is "conditi oned upon the affirm ative showing in the record that the trial court considered the sentenci ng principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The defendant has t he burden of demonstrating that the sentence is improper. Id . In the event the record fails to demonstrate the appropriate consideration by the trial court,appellate review of the sentence is purely de novo . Id

. If our review reflect

s thatthe trial court properly considered all relevant factors and the record adequately s upports it s findings of fact, this court mus t affirm the sentence even if we would have preferred a different result. State v. Fletcher , 805 S.W.2d 785, 789 (T enn. Crim. App. 1991).

In this instance, we find that the trial cou rt considered the sentencing principles

and all relevant facts and c ircumstances. Thus, we review the trial court’s determinations de novo with a presumption of correctness to a scertain whether

the trial court erred in orderin g the defendant to serve the max imum number ofyears in both convictions.9 The trial court found that the defendant ha s a long history of criminal condu ct and that he had previously demonstrated unwillingness to comply wit h conditionsof a sentence involvi ng release into the community

. See Tenn. Code Ann. § 40-35-114(1) and (8)(1997). The trial judge attached great weight to these tw o fa ctors. Both are supported by the record, and we agree that both are highly signif i c ant. The defendant’s record contains eighteen misde meanor offenses, mostlyfor driving related offenses including two prev ious convictions for

DUI. Two convictions

were for drug-rela

ted crimes. The sheer number of offense s for a man of twenty-six

years indicates that, even though hehad no prior felony convictions, this defendant has little respect for the law or for the safety of others. The presentence report shows that the defendant ha d been p laced on probation several times in the past and had committed other offenses while he was on probation. The trial court found no mitigating facto r s, and our review of the record has disclosed
none. In this instance, the trial court properl y considered all rel evant factors and the record adequately supports its findings of fact. Therefo re, this court must affirm the sentences imposed by the tr ial court.
Finally, the defendant contends that the trial court should not h ave ordered the consecutive serv ice ofhis sente nces. Con secutive sentencing may be imposed in the discretion of the trial c ourt upon a determination that one or more o f the criteria listed in Tennessee Code Annotated section 40-35-115(b) exist. The trial court found that the defendant i s a dang erous offender whose behavior indicateslittle or no regard for human life, that he had no hesitation ab out committing a crime in which the risk to human life is high, Tenn. Code Ann. § 40-35- 115(b)(4), and that the offense was committed w hile the d e fendant was on probation. Tenn. Code Ann. § 40-35-115(b)(6). The trial court properly found that extended sentences are necess ary in th is case to protect the publi c. As the trial judge noted, although this defendant is not a “John Dilli nger,”he is a danger to the
commun ity

when he gets behind the wheel. The defendant’s reckless driving cu t short the life an elderly man w ho was doing nothing mor e offensive than pulling10

weeds in his yard.

We find, as did the tri al court, that (1) an extended sentence in this
case is necessary to protect the public against further criminal conduc

t by th e defendant, and (2) that the lengt h of the aggregate sentences r easonably relates to the seriousness of the offense. State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995). The defendant has not met his burden of showing that the trial court err

ed in orderin g his sente nces to be served con secutivel y.

Therefore, we affirm the defendant’s convic tion for vehicular

homicide by reckless driv

ing and the sentences imposed by the trial court.

__________________________ CURWOOD W ITT, Judge

CONCUR:

______________________________ GARY R. WADE , Judge

______________________________ THOMAS T. W OODALL, Judge