### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs N ovembe

r 26, 2002
STATE OF TENNESSEE v. HOM ER FRANK BEAVERS
Direct Appeal from the Criminal Court for Ham ilton County Nos. 234439, 234602, 233535 Douglas A. Meyer, Judge

No. E2002-00781-CCA-R3-CD March 26, 2003

The appellant, Homer F

rank Beave rs, pled guilty in the Ha milton County Criminal Court to two counts of aggravated

assault and one count of assault. The trial court sentenced the appella nt as a standard Range I

offender to a total effective sentenc e of five yea rs incarceration in the Tennessee Department

of Correction. The trial court denied the appellant’s re quest for probationand the appellant appealed to this court. Upon review of the recor d and the part

ies’ briefs, we affirm the judgment of the trial court. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cr

iminal Court is Affirm

ed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which D AVID G. H AYES and J ERRY L. S MITH , JJ., joined.

Mike A. L

ittle, Cha ttanoog a, Tenne ssee, fo

r the app ellant, H omer Fr ank Bea vers.
Paul G

. Summers, Attorney Genera l and Repo

rter; Eli zabeth B . Marney , Assistan t Attorne y General ; William H. Cox, District AttorneyGeneral; and Carl Huskins, Assistant District Attorney Genera l, for the appellee, State of Tennessee.

OPINION

I. Fact ual Backgro

und On Decemb er 11, 20 01, the ap pellant e ntered a guilty plea tot wo counts of aggravated

assault, Class C fel onies, and one count of assault, a Class A misd

emeanor . As a re sult of the plea, the State dismissed a reckless endange rment charge ag ainst the appellant. The appellant’s convicti ons stemme d from his a ctions dur ing a hig h-speed car cha se with police in the crowded streets of Chattanooga.

At the sentencing hearing, C orporal E rnest Martin with the Red Bank Police Department

testified that on the day

of the of fenses, he was c alled to a

Bi-L o groc ery store be cause the appellant was try

ing to pass a bad check. W hen Corporal Martin arrived at the Bi-L o parking-2-

lot, the appellant

“took off” in his vehicle and Corporal Martin pursued. During the car chase, the appellant was cons istently

driving betwee n seventy and ninet

y mil es per ho

ur on th e stree ts and hi gh wa ys in Chattanooga. The chase occurr ed at 2:00 p.m. on a weekday while the streets were heavily congested. The appellant twice swerved to hit Corporal Martin’s police ca r when the officer pulled along side the appellant. The appellant continued the c has e after on e of his tir

es blew out, driving on the rim. At the end of the chase, the appellant hit another police ca r, swerved and knockedover a utility pole, and cr ashedoff the side of the road. Corporal Martin asserted that if he had notapplied his brakes, the utility pole knocke d over by the a ppellant would hav e fallen

on his police car. The entire pursuit lasted twenty -five to thirty minutes.

Officer Scott Randolph with the Chattanoog a Pol ice Department also testified regarding the chase. Officer Randolph stated that the cha se occurred while the streets were suffused with“bumper-to-bumper” traffic. Off icer Randolph joinedin the pursuit of the appellant and saw the appellant’s vehicle hit a car on the interstate while repeatedly weaving from

the outsid

e lane to the inside lane. At o ne point du ring the chase, t he appellant rea

ched a sp eed of e

ighty miles per hour and, at this speed, swerved and deliberately “clipped” Officer Randolph’s police cruise r. Soon thereafter, th e a ppellant again swerved and ran into the of ficer’s vehicle. The second time the appellant’s vehicle

struck Of

ficer Ra ndolph’s v ehicle, the appe lla nt los t control of the Chevrolet Suburban he was driving , crosse d three lanes of traffic, hit a utility pole, and traveled down an embankme

nt.
S ergeant

John Carter

with the Ch attanoog a Police D epartme nt testified that h e became inv olved in the chase at the end of his shift. He witnessed the appellant exit Highway 27 into the downtown area

of Chattanooga at a speed of approximately seventy miles per hour and run several red lights without apply ing his brakes. Sergeant Carter stated that he saw the appellant “rolling pa st me. I mean, in my twelve years of

working and the ten y

ears downtown, I hadn’ t seen a car go downtown that time of day that fast.” Sergeant Carter believe d he knew which ro ut e t he ap pe ll an t w ou ld ta ke . A cc or di ng ly, he parked his police cruiser so as to block the road, anticipating that the appellant would stop. The officer got out of his vehicle and walked to a gra ssy

area approximately

thirty to forty

feet from the vehicle. The appellant

approa ched the

parked v ehicle, with other police ve

hicles in p

ursuit. However, the appellant did not stop. Instead, his vehicle “jump[ed] the curb,” and he drove dir ectly towardSerge ant Ca

rter at a spee d of approximately seventy or eighty miles per hour. Sergeant Carter fired hisweapon “

just to try to stop the threat of me getting killed.” The off icer then jumped out of the way of

the appellant’s speeding vehicle.

The appellant testified on his own behalf. He asserted that he lived i n Atlanta , Georgia, where he has a wife and seven children. The appe llant stated that he hadbeen employe d by Rentway HomeChoice for slightly ove r one yea r and provided the s ole fina ncial sup port for his fa mi ly, including his ailing eighty -five-ye ar-old grandmother. His wife and two of his sons we re a lso ill. The appellant testified that he had health insurance through his employ er, which insu

rance w ould be discontinued if he were incarcera ted. He was a

high sc hool gra

duate and worked

fifty to sixty-3-

hours per week. The appellant admitted that the instant offenses oc curred while he was on probation for a theft offense in Georgia. He additionally admitted that he ha d a p revious cocaine related conviction, for which conviction he had also received pr obation.

The appellant maintained that when police ar rived at the Bi-Lo store he “ took off” and he failed to stop because he was “scar ed.” He acknowledged that his wife and two other passengers were in his vehicle during the chase. H e also conceded that the chase e

nded only because he wrecke d his vehic le. The a ppellant allege d that he did no t intend to hit Officer Robinson, insisting that the officer struck the appellant’s vehicle. The appellant acknowledged that he made
a mistake and stated that he was sorry for his actions. The appellant stated that he had learned f rom his mistake and only wanted to take care of his family. He furthe

r asserted that probation

would be
a “blessing.” The appellant proclaimed that he had changed since the time of the of fenses, noting “I live my life every

day by the Lord.”

After c onsideri ng the e

nhance ment and m

itigatin g fact

ors, the trial court sentenced the appel lant to five year s incarceration for each of the aggravated assa

ult convictions and e leve n months an d t we nt y-n in e d ays fo r t he as sa ul t c on vi ct io n, wi th th e s en te nc es to be se rv ed co nc ur re nt ly. Without explanation, the trial court denied the appellant probation. The appellant timely appealed. II. Analysis Appellat e review of the length, rang e or manner of service of a sentence is de novo. Tenn. Code Ann. § 40-35-401(d) (1997). I n conducting its de novo review, this court considers the following fact ors: (1) the evidence, if any , received at the trial and the sentencing hearing; (2) the presentencereport; (3) the principles of sentencing a nd arguments as to sentencing alterna tives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence and information offe red by the parties on enhancement and mitigating factors; (6) any statement by the

appellant in his own behalf; and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102 and-103 (1997), -210 (Sup

p. 2002 ); see also State v. Ashby , 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on the appellant to demonstrate the impropriety of his sentence(s). Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments. Moreover, we note that because the record r eflects that

the trial court did not consider

the sentenc ing principles a nd beca use the tr ial cour t did not specifically s tate for the record

its reasons for deny

ing probation, we will not review the trial court’s determinations with a presumption of correctness. Id. at (d); Ashby , 823 S.W.2d at 169.

Ini ti al ly, we rec ognize th at an app ellant is e ligible f or proba tion if the

se nte nce actually imposed is eight ye ars or less. See Tenn. Code Ann. § 40-35-303(a) (1997). Moreover , an appellant who is an e special ly

mitigated or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing. See Tenn. Code Ann. § 40-35- 102(6). In the

instant ca se, the a

ppellant is a stand ard Rang e I o ffende r convic ted of Cla ss C felonie s; therefore, he

is presumed to be a favorable candidate f or alternative sentencing. However, the appellant is entitled to no presumption regarding his class A misdemeanor sentence. See State
v. Williams, 914 S.W.2d 94 0, 949 (Te nn. Crim. App. 1995). Regardless, the presumption in favor of alterna tive se ntencing may be rebutted by “ ‘evidence to the contrary .’” State v. Z eolia , 928-4-

S.W.2d 457, 461 (Tenn. Crim. App. 1996). The following sentencing consider ations, se t forth in Tennessee Code Annotated section 40-35-103(1), may constitute “evidence to the contrary ”: (A) Confi nemen t is n ecessa ry to prot ect so ciety by rest raini ng a defenda nt who has a long h

istory of crimin al conduct; (B) Confinement is necessary to avoid depreciating the seriousness of the offense or conf

inem ent is particularly suited to provide a n effective deterrence

to others likely to commit similar offenses; or
(C) Measures les s restr

ictive than confinement have frequently or recently been applied unsuccessfully to the defendant. Zeolia , 928 S.W.2d at 461

. First, we conc lude that

to gran t the appe llant prob ation in thi s case w ould depr eciate the seriousness of the offense. This court has previously stated that the nature and c ircumstances underlying

the criminal conduct may alone give rise to the denial of probation. See Tenn. Code Ann. § 40-35-210(b) (4); State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). When imposing confinement based upon the seriousness of the offense, the trial court must first determine if “‘the circumstances of the of fense[s] a s committe d [are] esp ecially violent, horri fying, sho cking, reprehensible, offensive, or otherwise of an excessive or exag gerated degree.’” Zeolia , 928 S.W.2d at 462 (q uoti ng Statev. Bingham , 910 S.W.2d 448, 4 54 (Tenn . Crim. App . 1995)). The appe llant, fleeing a crime, engag ed police in a high

speed ca r chase that last ed nea rly thirty

minutes and occurred in “bumper-to-bumper” traffic in downtown Chattanooga. The appellant’s wife and two other passengers were in the a ppellant’s vehicle at the time of the chase. The appellant continued to flee even after his tire blew out, flinging r ubber onto the windshield of Officer Robinson’s vehicle. The appellant endangered many lives with his reckless driving

. Accord ingly , denial o f probat

ion is appropr iateon this basis. See State v. Melissa Stearns , No. M1999 -182 6-CCA -R3- CD, 20 00 WL 1358632, at *3 ( Tenn. Cr im. App. a

t Nashvill e, Sept. 2 0, 2000); State v. Carol L. Hughes , No. 01C01-9903-CC-00097, 2000 WL 59913, at *3 (Tenn. Crim. App. at Nashville, Jan. 25, 2000).

Ad di ti on al ly, the record reflects that measures less restrictive than confinement have
re cent ly been applied unsuccessfully to the appellant. See Zeolia , 928 S.W.2d at 461. The appellant’s testimony at the sentencing hearing reflects that he

previously serve

d a probated sentence for a cocaine rela

ted offens e. Furthermore, the appellant was on proba tion in Georgia when he committed the instan

t offens es. See State v. Green , 947 S.W.2d 186, 189 (Tenn. Crim. App. 1997); Statev. Nora M cFall , No. W1999-01086-CCA-R3-CD, 2000 WL 705296, at *3 (Tenn. Crim. App. at Jackson, May 26, 2000); State v. Victor Coleman , No. 02C01-9607-CC-00235, 1998 WL 92512, at *1 (Tenn . Crim. App . at Jackso n, Mar. 5, 1998). Th erefor e, this ba sis for denying

probatio n is also applicable.

We recognize that the trialcourt found that the appellant had genuine remorse, had
some rehabilitative po tential, a nd had ac cepted r

esponsibi lity

for his a ctions. We als o ackn owled ge that the appellant

made an impassioned plea for mercy based upon his family’s need for his financial-5-

support. Howeve

r, notwith standing

his family ’s need f

or his fina

ncial s upport, based upon the seriousness of the offense and the appel lant’s unsuccessful foray s into alternative sentencing, we cannot conclude that the trial court abused its discretion in deny ing the appellant probation.

III. Conclusion Based upon the foregoing , we affirm the judgment of the trial court.

___________________________________ NORMA McGEE OGLE, JUDGE