FILED

March 12, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

DECEMBER SESSION, 1998

STATE OF TENNESSEE, )

) No. 03C01-9801-CR-00024

Appellee )

) SULLIVAN COUNTY

vs. )

) Hon. R. Jerry Beck, Judge

KEVIN S. PHILLIPS, )

) (Reckless Aggravated Assault)

Appellant )

For the Appellant: For the Appellee:

Nat H. Thomas John Knox Walkup

317 Shelby Street Attorney General and Reporter

Suite 304

Kingsport, TN 37660 R. Stephen Jobe

Assistant Attorney General

and Criminal Justice Division

425 Fifth Avenue North

Daniel B. Minor 2d Floor, Cordell Hull Building

247 Broad Street Nashville, TN 37243-0493

Suite 102

Kingsport, TN 37660

H. Greeley Wells, Jr.

District Attorney General

Lewis Combs

Asst. District Attorney General

Blountville, TN 37617

OPINION FILED: 

CONVICTION AFFIRMED; SENTENCE MODIFIED

David G. Hayes

Judge
1

The record provides no explanation as to why the defendant, who was indicted for

vehicular assault, Tenn. Code Ann. § 39-13-106 (1991), was permitted to plead to the non lesser

offense of aggravated as sault. Tenn. Code Ann. § 39-1 3-102(a)(2) (1995 Supp.).

2

OPINION

The defendant, Kevin S. Phillips, entered a nolo contendere plea to one

count of reckless aggravated assault, a class D felony.1 Pursuant to the plea

agreement, he received a sentence of two years. Following a sentencing hearing,

the trial court ordered that the sentence be served in the Department of Correction. 

The defendant appeals, contending that the trial court erred in failing to grant

probation or another sentencing alternative.

After review, we modify the sentence to reflect a sentence of splitconfinement.

BACKGROUND

The trial court's summarization of the nature and circumstances of the

offense as contained in its Order Denying Alternative Sentencing is recited as

follows:

The defendants, Phillips and Clark, on the evening of November 9,

1995, had been drinking and while traveling in an automobile on East

Stone Drive in Kingsport, Sullivan County, Tennessee struck an

automobile driven by Ms. Etta Luster.

A violent collision occurred and Etta Luster was seriously injured. . . .

When Kingsport Police Officer, Dion Spriggs, arrived at the scene of

the accident, he talked with both defendants. Both subjects advised

the police officer that the ". . . other subject was driving the vehicle. . .

." . . . Originally, the owner of the vehicle, Brian Clark, was charged. .

. . Kevin Phillips was not charged.

Police Officer Spriggs did obtain hair samples embedded in the broken

windshield of Clark's vehicle. The sample was removed from the

portion of the windshield located directly in front of the steering wheel

on the driver's side. Both defendants had frontal head injuries. . . .
2At the hospital, the defendant, Phillips, advised personnel that he "didn't know if [he] was

driving or not." Approximately four or five months later, it became clear to Phillips that he was not

the driver.

3As it became apparent that Clark and Phillips were at opposite poles, the court allowed

Phillips' attorney to fully cross-examine Clark's witnesses and clearly advised Phillips' attorney of

his rights in the action.

3

The [co-]defendant Clark consistently stated he was not the driver of

the car.[2] 

At the preliminary hearing, Clark agreed to furnish saliva for DNA

testing, but Phillips refused. . . . 

The DNA test, to a high statistical probability, eliminated the [co-]

defendant, Brian Clark, as source of the hair found imbedded in the

driver's side windshield.

The Court was of the opinion that the DNA test eliminated Clark as the

driver and would be strongly indicative that the defendant, Phillips, was

the driver.[3

] 

It was revealed further at the sentencing hearing that Phillips had sued

Clark on the theory that Clark was the driver in a civil tort action.

Clark testified that after the accident he had talked to Phillips and

Phillips made admission to him stating that it was Phillips' family that

was pushing the theory that Clark was driving. Phillips denied, in his

testimony, that he made such admissions.

At the sentencing hearing, the proof further established that the defendant,

Phillips, was twenty-five years old, single and lived with his parents. He was

employed although his "employment record shows a lack of discipline." He has no

criminal history other than a conviction for fishing without a license.

At the conclusion of the hearing, the trial court granted co-defendant Clark

total probation and ordered penitentiary confinement for the defendant, Phillips. In

denying an alternative sentence, the trial court noted the defendant's eligibility for

alternative sentencing finding, however, that:

The defendant [Phillips] has been untruthful upon the issue of who

was driving the vehicle and was untruthful concerning that issue before

the Court on January 15, 1998. This Court is of the strong opinion that

this negative factor outweighs all the positive factors combined.
4

ANALYSIS

Again, the appellant contests the trial court’s denial of any alternative

sentence. In the present case, the trial court essentially imposed a sentence of

confinement based upon the appellant’s “lack of candor” at the sentencing hearing. 

It is apparent that our Sentencing Act has framed the basis of individual

alternative sentencing determinations on the defendant’s potential for rehabilitation. 

In this context, the truthfulness of the defendant becomes an important

consideration for the trial court. State v. Dowdy, 894 S.W.2d 301, 305-306 (Tenn.

Crim. App. 1994). Indeed, Tenn. Code Ann. § 40-35-103(5) (1990) provides that the

potential or lack of potential for the rehabilitation or treatment of the defendant

should be considered in determining the sentence alternative or length of a term to

be imposed. Consequently, this court has routinely held that "untruthfulness" or

“lack of candor” can be the basis for a denial of total probation. See Dowdy, 894

S.W.2d at 305; State v. Chrisman, 885 S.W.2d 834, 940 (Tenn. Crim. App.), perm.

to appeal denied, (Tenn. 1994); State v. Gennoe, 851 S.W.2d 833, 837 (Tenn. Crim.

App. 1992). Additionally, this court has upheld the denial of judicial diversion on the

basis of untruthfulness. See State v. Anderson, 857 S.W.2d 571, 574 (Tenn. Crim.

App. 1992). The question before us in this case, however, is whether a defendant's

"untruthfulness" may per se warrant a denial of all alternative sentencing options,

thus, resulting in a sentence of total confinement. We hold that it will not.

When imposing a sentence of total confinement, the trial court should base

its decision on the considerations listed in Tenn. Code Ann. § 40-35-103(1):

(A) Confinement is necessary to protect society by restraining a

defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of

the offense or confinement is particularly suited to provide an effective

deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or

recently been applied unsuccessfully to the defendant.
5

In the present case, the defendant has, in effect, no criminal record. Thus,

we only need to consider evidence showing that confinement is necessary to avoid

depreciating the seriousness of the offense or necessary to provide a deterrent to

others. See Tenn. Code Ann. § 40-35-103(1)(B). There was no evidence

presented at the sentencing hearing supporting the need to deter others likely to

commit a similar offense, thus deterrence is not applicable to this case. See State

v. Bonestel, 871 S.W.2d 163, 169 (Tenn.Crim.App.1993) (holding that there must be

evidence in the record that the sentence imposed will have a deterrent effect within

the jurisdiction).

Additionally, to deny alternative sentencing based upon the seriousness of

the offense, the "'circumstances of the offense must be especially violent, horrifying,

shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated

degree,'" and the nature of the offense must outweigh all factors favoring a sentence

other than confinement. State v. Bingham, 910 S.W.2d 448, 454

(Tenn.Crim.App.1995) (citing State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim.

App. 1991)). Although the circumstances of the present case demonstrate the

appellant's callous indifference to the safety of motorists and pedestrians alike on

the night of November 9, 1995, we are unable to conclude that the circumstances

of this offense are especially violent, horrifying, shocking or reprehensible. Indeed,

again, we note that the trial court's only finding of reprehensible conduct related to

the defendant's untruthfulness at sentencing and not to the "circumstances" of the

aggravated assault. Having so concluded, we find no facts to support total

confinement pursuant to the sentencing considerations of section 103.

In conclusion, we agree with the trial court's finding that the defendant's

untruthfulness to the police and to the court is reprehensible. The defendant's

unwillingness to accept responsibility for his involvement in the offense is a
4

 “In co nsidering false testim ony of a def endant in the sente ncing pro ces s, the trial co urt is

therefore exercising its traditional discretion by evaluating the defendant's personality and

prospe cts for reh abilitation. See Williams, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337

(1949). It is through this evaluation that the trial court, pursuant to Tenn. Code Ann. § 40-35-

103(5), can determ ine the appropriate alternative sentence for each defendant.” Dowdy, 894

S.W.2d at 306.

6

circumstance which is relevant in determining his rehabilitative potential. As such,

we also agree with the trial court that the sentencing alternatives of judicial diversion

and total probation are not warranted under these facts. However, it is clear from

the plain language of Tenn. Code Ann. § 40-35-103 that the untruthfulness of the

defendant is relevant "in determining the sentence alternative" and not as authority

to deny all forms of alternatives to incarceration.4 Thus, we conclude, upon de novo

review of the record before us, that a sentence of split confinement would both

serve the ends of justice and fulfill the rehabilitative needs of the appellant. 

Accordingly, the appellant's sentence of two years is modified to reflect that he will

be required to serve sixty days in jail followed by two years of supervised probation.

This case is remanded for entry of a judgment of conviction consistent with

this opinion and for imposition of other conditions and terms of supervision the trial

court deems appropriate as defined by Tenn. Code Ann. § 40-35-303.

____________________________________

DAVID G. HAYES, Judge

CONCUR:

__________________________________

JERRY L. SMITH, Judge

__________________________________

JAMES CURWOOD WITT, JR., Judge