# FILED
March 12, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE DECEMBER SESSION, 1998

STATE OF TENN ESSEE, ) ) 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 Repor ter Suite 304 Kingsport, TN 37660 R. Stephen Jobe Assistant Attorney Gener al and Criminal Justice Div ision 425 Fifth Avenue North Daniel B. Minor 2d Floor, Cordell Hul l Building 247 Broad Street Nashville, TN 37243-0493 Suite 102 Kingsport, TN 37660 H. Greeley Wells, Jr. District Attorney General Lewis Combs Asst. District Attor

ney General Blountville, TN 37617

OPINION FILED: CONVICTION AFFIRMED;SENTENCE MODIFIED
David G. Hay

es Judge1 The record provi des no explanation as to why t he defendant, who was indict ed for vehicular

assault, Tenn. Code Ann. § 39-13- 106 (1991), was per mitted to pl ead to the non l esser 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 contendereplea to one count of reckless a ggravated a ssault, a class D fe lony. 1 Pursuant to the plea agreement, he received a senten ce of two years. Follo wing a sentencing he aring, the trial court ordered that the sentence be served in the Department of Correction. The defendant appeals, contending that the trial court erred in fai ling to grant probation or another sentencing alternative.

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

BACKGROUND

The trial court's summariz ation of the nature and circumstanc es of the offense as contained in its Order Denying Alternativ e Sentencing is recited as follows: The defendants, Phillips and Clar k, on the evening of Nov ember 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 w as seriously injur

ed. . . . When Kingsport Police Officer, Dion Spri ggs, arrived at the scene of the accident, he talked wi th both defendants. Both subjects adv ised the police officer that the ". . . other subject was dri ving the vehicle.

. . ." . . . Originally, the owner of the vehicl e, Brian Clark, was charged. . . . Kevin Phillips w

as not charged. Police Officer Spriggs

did obtain hair samples embedded i n the broken windshield of Clark's

vehicle. The sample w as removed from the portion of the windshield l ocated directly in front of the steering wheel on the driver's side.Both defendants had frontal head injuri es. . . .2 At the hospi tal, the defendant,Phill ips, advi sed personnel t hat he "di dn't know i f [he] was drivi ng or not."

Approximately

four or fi

ve months later,it became clear to Phil lips t hat he was not the driver.

3 As it became apparent that Clark and Phi lli ps were at opposi te poles, the court al lowed Phill ips' at

torney t o full y cross-examine Cl ark's wit nesses and clearly advised Phill ips' at torney of his rig hts in t he action. 3 The [co-]defendant Clark consist ently 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 sour ce of the hair found imbedded in the driver's side w

indshield. The Court was of the opinion that the DNA test eliminated Cl ark as the driver and would be strongly indicati ve 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 dri

ver in a civil tort action. Clark testified that after the a ccident he had talked to Phill ips and Phillips made admission to hi m 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 tw

enty-five years ol d, single and lived w ith his parents. He w

as employed although his "employ ment record shows a lack of discipline." He has no criminal history other than a conviction for fis hing without a licen se.
At the conclusion of the hearing, the trial court granted co-defe ndant Clark total probation and ordered penitentiary confinement for the defendant, Phi llips. In denying an alternativ

e sentence, the trial court noted the defendant's eligibili ty for alternative sentencing

finding, however, th at: 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 outw eighs all the positiv

e factors combined.4 ANAL YSIS Again, th e appella nt conte sts the tr ial court ’s denial of any alt ernative sentence. In the present case, the trial court essential ly imposed a sentence of confinement based upon the appellant’s “lack of candor” at the sentenci ng hearing.
It is apparent that our Sentenci ng Act has framed the basis of indi vidual 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) pr ovides that the potential or lack of potential for the rehabilitation or tr eatment of the defendant should b e conside red in det ermining the sent ence alte rnative or length of a term to be imposed. Consequently,this court has routinely held that "untruthfulness" or “lack of candor” can be the bas is 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 deni al of judicial divers ion 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 defen dant's "untrut hfulne ss" may per se warra nt a deni al of all alternative sentencing options, thus, resulting in a se ntence of total confinement. We hold that it will not.
When imposing a sentence of total confinement, the trial court should ba se its decision on the considerations listed in Tenn. Code Ann. § 40 -35-103(1): (A) Confineme nt is necessary to p rotect society by rest raining a defendant who has a long histor y of criminal conduct; (B) Confinement is necessary to avoid depreciating

the seriousness of the off ense or co nfinem ent is par ticularly s uited to provide an effect ive deterrence to others likel y to commit similar offenses; or (C) Measures less r

estrictive than confinement ha ve frequently or recently been applied unsuc cessfully 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 serious ness of the offense or necessary to pr ovide a deterrent to others. See Tenn. Code Ann. § 40-35-103(1)(B). There was no evidence presented at the sentencing hear ing supporting the need to deter others likely to commit a similar offense, thus deterr ence is not applicable to thi s 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 eff ect within the jurisdiction).
Additionally, to deny

alternative sentencing based upon the seriousness of the offens e, the "'circum stances of th e offense m ust be especial ly violent, horrifying, shocking, reprehensibl e, offensive, or otherwis e of an excessive or ex aggerated degree,'" and the nature of the off ense must outweigh all factors favoring a sentence other than confinement. State v. Bingham , 910 S.W.2d 448, 454 (Tenn.Crim.A pp.1995) (citin g State v. Hartley , 818 S.W.2d 370, 374- 75 (Tenn. Cri m. App. 1991)). Although the ci rcumstances of the present case demons trate the appellant's callous indifferenc e to the safety of motorists and pedes trians alike on the night of November 9, 1995, we are unable to conclude that the circumstances of this offense are especially v iolent, horrifying, shocking or reprehensi ble. Indeed, again, we note that the tr ial court's only findi ng of reprehensible conduct r elated to the defendant's untruthfulness at sentenci ng and not to the "circumstance s" 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 reprehen sible. The defendant's unwillingness to accept responsibility for his involvement in the offense is a4 “In co nsid ering false testim ony of a def end ant in the s ente ncin g pro ces s, the trial co urt is therefore exe rcising its tr aditi onal discr

etion by evaluati ng the defendant 's personal ity and prospe cts for reh abilitation. See Williams , 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L. Ed. 1337 (1949). I t is t hrough thi s evaluati on that t he trial court, pur

suant 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 i s relevant in determini ng his rehabilitativ e potential. As such, we also agree wi

th the trial court that the sentencing alternativ es of judicial diversi on and total probation are not w arranted under these facts. How ever, it is clear from the plain language of Tenn. Code Ann . § 40-35-103 that the untruthfulness of the defendant is relevant "in det ermining the sent ence alte rnative " and not as authority to deny all forms of alternativ es to incarceration. 4 Thus, we conclude, upon de novo review of the record before us, that a sentence of split c onfinement would both serve the ends of justice and fulfill the rehabilitativ

e needs of the appellant. Accordingly, the appellant's sentence of two years is modified to reflect that h e will be required to serve sixty days in jail followed by tw o years of supervised pr obation.
This case is remanded for entry of a judgment of conviction cons istent with this opinion and for imposition of other conditions and terms of super vision the trial court deems appropriate as defined b y Tenn. Code Ann. § 40-35-303.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

__________________________________ JERRY L. SMITH, Jud ge

__________________________________ JAMES CURW OOD WIT T, JR., Judge