# FILED
May 12, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE FEBRUARY

1999 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 01C01-9806- CC-00246 Appellee, ) ) Perry County V. ) ) Honorable Cornelia A. Clark, Judge ) CHARLES JUST

IN OSBORNE, ) (Criminally N egligent Homicide,

) Reckless Endangerment) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: JERRY C. COLLEY JOHN KNOX WALKUP P.O. Box 1476 Attorney General & Reporter Columbia, TN 38402-1476 ELIZABETH B. MARNEY Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 RONALD L. DAVIS District Attorney General DONALD W. SCHW ENDIMANN Assistant District A

ttorney General P.O. Box 937 Franklin, TN 37065-0937

OPINION FILED: ___________________ AFFIRMED IN

PART, REVERSE D IN PART, M ODIFIED
JOHN EVERETT WILLIA MS, Judge-2- 

### OPINION The defendant, Charles Justin Osbor ne, was convicted of tw o counts of criminally negli gent homicide and one count of reck less endangerment. The trial court sentenced him to two y ears on each count of criminall y negligent homicid e and to eleven months, twenty-nine days on the reckless endangerment, with all sentences to run consecutiv ely. Of these sentences, the t rial court ordered the defendant to serve one year’ s confinement, day-for-day, on count one and suspended the remaining balance of all sentences with super vised probation. The defendant argues (1) that these s entences are excessiv

e; (2) that the trial court erred in ordering consecutive service; and (3) that the trial court erred in denying an alternat ive senten ce, speci fically f ull proba tion. Upo n review, we REVERSE the imposition of consecutive sentencing and MO DIFY the defendant’s sentence to reduce his da y-for-day confinement from one y ear to two hundred and nineteen days . In all other respects, we AFFIRM the judg ment of the trail court.

BACKGROUND While driving at grossly excessive speed thoug h Linden, Tennessee, the defendant ran a red light and sw erved to avoid a ve hicle entering the intersection. When he swerved, the defendant lost control of his veh icle and collided head-on with an aut omobile driven by Ch arles Carr oll. Mr. Car roll’s two passengers, Eleanor and Al ice Carroll, wer e killed, and Mr. Carr

oll was injured. Witnesses estimated tha t the defendant was driving as fast as ninety miles-perhour immediately before the col lision, and the defendant himself esti mated that he was going six

ty to sixty-fiv

e. The posted speed limit was thirty miles-per- hour.

The defendant was indicted on tw o counts of vehicular homici de and one count of felony reckless endang erment. A jury found the defendant g uilty of criminally negli gent homicide on counts one and tw o and guilty of misdemeanor-3- reckless endangerment on count three. The def endant does not contest these convictions; he appeals hi s sentences only.

STANDARD OF REVIEW Appella te revi ew of a challeng e to the l ength or manner o

f servi ce of a sentence is de novo on the record, “with a presumption that the determinations made by the court from whic h the appeal is taken are corr ect.” Tenn. Code Ann. § 40-35-401(d). This presumpti on “is conditioned upon the affirmati ve showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If our review reflects that the trial cour t properly considered all relevant factors and its findings of fact are adequately suppo rted in the record, then this Court may not disturb the sentence even if we wo uld have preferred a different result. See State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The appellant carries the burd en of showing that his sent ence is improper. See Tenn. Code Ann. § 40-35-401(d) sent encing comm’n cmts; State v. Jernigan , 929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).
In conducting our review, this Court we must consider (1) the evidence, if any, received at the tr

ial and the sentencing heari ng; (2) the presentence r eport; (3) the principles of sentenc ing and arguments as to sent encing alternatives;(4) the nature and characteristics of the criminal conduct involved; (5) any statutory mitigating or enhancement factors; (6) any statement made by the accused in his own behalf; and (7) the potentia l or lack or potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, - 210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).-4- SENTENCING FACTORS The defendant first asserts that the trial court m isapplied, or erroneously failed to apply, certain enhancement and mitigating fa ctors and that his sentences are, therefore, exc essive. The trial cour

t found the defendant to be a range I offen der. Criminally neglige nt homicide is a Cl ass E felony, carr ying a range I sentence of one to two years. See Tenn. Code Ann. §§ 39-13-212; 40- 35-112(a)(5). Reckless endangerment committed without a deadly weapon is Class A misdemeanor, see Tenn. Code Ann. § 39-13-103(b), and is punishable by up to eleven months, twenty-nine days. The presumptive sentence for a Class E felony is the mini mum sentence in the range, absent e nhancement or mitigating factors. See Tenn. Code Ann. § 40-35-210(c). Misdemeanor sentences do not command a presumptiv e minimum.

The tria l court rec ognized no mitigatin g factors but did f ind two enhancement factors applicable to eac h of the defendant’s convictions: “The defendant had no hesitation about committing a crime when the risk

to human life was high” and “[t]he crime was committed under circumstances under which the potential for bodily in jury to a victim w

as great.” Tenn. Code Ann. § 40-35- 114(10), (16). In accordan ce with these findings, the trial court sentenced th e defendant to the range I maximum of tw o years on each felony conv iction and to eleven months, twenty

-nine days on the misdemeanor.
Citing State v. Bingham , 910 S.W.2d 448 (Tenn. Crim. App. 1995), the defendant first argues that enhancement fact or (16) is inapplicabl e to a conviction for criminal ly negligent homici de as a matter of law because the potential for bodily inju ry is an essential el ement of that offense. In Bingham , a panel of this Court held that potential bodily injury is inherent in the offense of vehicular homicide and i s therefore inapplicable to enhanc e a conviction for that offense. See id. at 452. In the present case, the trial court express ly noted the Bingham opinion and correctly concluded that, as with v ehicular homicide, the-5- proof necessary to establi sh the defendant’s offenses would compri se proof of potential bodily injur

y to any of the Carroll s. Nevertheless, the trial court found factor (16) applicable based on the potential for bodily i njury to persons other that than the Carrolls, i ncluding, specifically , a passenger of the defendant.
A panel of this Court specifical ly approved such an appl ication in State v. Sims , 909 S.W.2d 46 (Tenn. Crim. App. 1995), stating “[factor (16)] may be applied in situations w

here individuals other

than the victim are in the area and are subject to injury.” Id. at 50. Nevertheless, the subsequent opinion in Bingham appears to conflict with this holding.

While Bingham does not expressly r eject Sims , a caref ul readin g allows no other conclusion. In Bingham , the defendant appealed application of both enhancement factors (10) and (16). Although the pa nel found that both factors are inherent in the offense of vehicul ar homicide when consider ing only the homicide victim, the panel noted that persons other than the v ictim were present and subject to risk. Based on this risk, the Bingham panel found factor (10) applicable. Importantly,however, the panel did not similarly apply

factor (16). Thus, Bingham implicitly, but ines capably, distinguis hes between enhancement factors (10) and (16) in that factor (10) may be supported by risk to persons oth er than a victim of the convi cted offense while factor (16) may not.

In contrast, the Simsopinion holds, “Both factors [ (10) and (16)] may be applied in situations w

here individuals other

than the victim are in the area and are subject to injury.” Sims , 909 S.W .2d at 50 (citing State v. Makoka , 885 S.W.2d 366, 373 (T enn. Crim. App. 1994)). Thus, it appears that these authorities cannot be satisfact orily reconciled as

to whether factor (16) may be applied on the basis of potential i njury to persons other than the victim of the convicted offense. In resolv ing this conflict, w

e first note that the authority cited by Simssupports only applicat ion of factor (10) on the basis of r isk to others.1 The Sim s opinion, for example, speaks of “other potential victi ms.” Sim s , 909 S.W.2d at 50.

2 In the pres ent c ase , for e xam ple, th e evid enc e sug ges ts tha t mu ltiple additional c ounts o f reckles s enda ngerm ent m ight have b een ch arged re lating to the defendant’s passenger and other drivers who were in the immediate area and subjec t to imm inent dan ger. -6- See Makoka , 885 S.W.2d at 373. More importantly, w e find the language of the statute instructive.
Unlike enhancement factor (10), factor (16) specifically requires that the risk or potential inju ry be “to a victim .” Tenn. Code Ann. § 40-35-114(16) (emphasis added). We read “victim” h ere to mean a victim of the char ged offense, not a “potential victi m,” 1 a victim of some collatera l injury, or a v ictim of some uncharged offense. 2 This reading of the statute di rectly refutes the Sims holding that factor (16) is applicable when persons “ other than the victim ” are subject to injury. Sims , 909 S.W.2d at 50 (emphasis added). Thus, we co nclude that the enhancement statute does not cont emplate application of factor (16) based on risk to others. For these reasons, we hold that the trial court erred in applying enhancement factor ( 16) in the present case. Although the defendant does not challenge applicati on of factor (10), we affirm its ap plicability.
The defendant next argues that the tr ial court erred in rej ecting mitigating factor (6), regarding

his alleged lack of subst antial judgment due to youth. See Tenn. Code Ann. § 40-35-113(6). I n considering whether a defendant lacked substantial judgment because of hi s youth, chronologica l age is not determinative. See State v. Antonio D. Mason , No. 01C01-9607-CC-00315 (Tenn. Crim. App. filed Oct. 24, 1997, at Nashville). Rather, we are direct ed to “consider the concept of youth in context, i.e., the defendant’ s age, education, maturity, experience,mental capacity or dev elopment, and any other pertine nt circumstance tending to demons trate the defendant’s ability or inability to appreciate the nature of his conduct.” State v. Ada ms , 864 S.W.2d 31, 33 (Tenn. 1993).-7- The defendant was eighteen year s of age at the time of his offenses, and he relies entirely o n this chronological age to support applicability of this factor. He offers absolutely no other ev idence or argument, and w e find nothing in the record f rom which we might inf er a lack of substan tial judgm ent. To t he contra ry, in the only evidence on point, the defendant expressly disavowed any lac

k of judgment due to his youth:

STATE: You know that we’ re obligated to driv e the posted speed limits? DEFENDANT: Yes, sir. STATE: Do you think that because you were eighteen at the tim e this hap pened th at you did n’t realize that you weren’t suppos ed to speed? DEFENDANT: I knew y ou was not supposed to speed.

. . . . STATE: You knew that speeding can result in fatal injuries, for example? DEFENDANT: Yes, sir

.

. . . . STATE: So your youth does not explain your disregard for the la w? DEFENDANT: No, sir. Although this testimony is not determinative, it does tend “to demonstrate the defendant’s ability or inability to appreciate the nature of his con duct.” Id. Moreover, the activity of driving is so common to everyday life, and the dangers inherent in abusing that ac tivity are so ev

ident and so often observable, th at, absent some specific evidence,we will not si mply presume that an eighteen
year-old lacked “substantial judgment.” The record indicates that the trial court carefully considered thi s proposed mitigating fact or and concluded, “[the defendant] has convinced me that it is not a question of youth her e.” The evidence does not preponderate against the trial cour t’s decision. The defendant has failed to carry hi s burden of showing that the decision of the trial court is improper.

Next, the defendant asserts that the trial court erred i n rejecting mitigati ng factor (11)–that the defendant “committed the offense[s] under such unusual circumstances that it is unlikely that a sustai ned intent to violate the l aw-8- motivated the criminal co nduct.” Tenn. Code Ann. § 40-35-113( 11). The defendant argues that because one cannot “ intend ” to commit criminally negligen t homicide, he could not have had a sustained intent to vi olate the law. This argument is not wel l taken. It ignores the defendant’s sustained intent to violate traffic laws, which is overwhelmingly supported by the evidence. This issue is without meri

t.
In summary, we have c oncluded that the trial cour t’s application of enhancement factor (16) cannot be sustain ed and that factor (10) properly applies. We do not disturb the trial cou rt’s finding that no mitigating factors apply. Despite the tri al court’s misapplicati on of factor (16), we do not hesi tate to find the sentences below appropriate. The trial court fo und applicable enhancement factors (10) and (16), but did not indicate the w eight it accorded each. If both factors were appl icable, we would ac cord great weight

to either on the facts of this case. Howev er, because the factors are si milar and were based on the same facts, we would accord the other only sl ight additional weig ht. Thus, our elimination of factor (16) does not signif icantly lessen the overall weight of warranted sentence enhancement. Factor (10) alone suf ficiently justifies the defendant’s sentences. T he sentences imposed below are appropriate.

CONSECUTIVE SERVICE The def endant n ext challe nges the t rial court ’s imposi tion of c onsecut ive sentencing. The trial cour t ordered consecutive se ntencing based on its finding that “[t]he defendant is a dangerous offender whose behavior indi cated little or no regard for human life and no hesitation about committing a cri me in which the risk to human life is high.” Tenn. Code Ann. § 40-35-115(b)(4). W hile this finding, if supported by the ev idence, satisfies the statutor y criteria for consecutive sentencing , the Tennessee Supreme Court has hel d that when consecutive sentencing is predicated on a finding that the def endant is a-9- dangerous offender, “[t]he proof mu st also establish that the terms imposed are reasonably related to the severity of the offenses committ ed and are necessary in order to protect the public from further criminal acts by the off ender.” State v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995).

The tria l court ma de no fin dings rela tive to the se latter two criteri a, and we are unab le to conc lude tha t both ap ply. W e would fi nd that c onsecut ive sentencing resulting in less than a five-year effective sentence is reasonably related to the severity of the defendant’s off enses. Two persons were needlessly killed and others injured by the defendant’ s actions. Neverthel ess, the recor d contain s insuff icient evi dence to warrant a f inding th at conse cutive service is necessar

y to protect the public fr om further criminal acts. The defendant’s lack of remorse and apath etic, even despiteful, attitude toward his victims might indic

ate a lesser amiability

to rehabilitation and, thus, some degree of danger to society. Ho wever, the defendant’s compl ete lack of prior criminal history tends to supports the opposite inference. Thus, although the evidence supports the trial court’ s finding that the defendant is a dang erous offender whose behavior indic

ated little or no regar

d for human life, we are constr ained to conclude that the trial cour t erred in imposing cons ecutive sentencing.

ALTERNATIVE SENTENCING The defendant next asserts that the trial court erred in “fa iling to order a fair alternative sentence and failing to grant probation.” As the trial court recognized, the defendant is presumed to be a favorable candidat e for alternative sentencing , absence evidence to the cont rary. See Tenn. Code Ann. § 40-35-102(6). Finding this presumption partiall y, but not fully, rebutte

d, the trial court granted supervi sed probation after one year’ s confinement on count one and granted full probation on co unts two and three. The defendant compl ains th at “[ t] hi s i s n ot

al te rn at iv

e s en te nc in g as e nv is io ne d by t he le gi sl at ur

e. ” We disagree. This complaint i s without merit.-10- Nevertheless, we exa mine the trial c ourt’s imposition of a p eriod of confinement. The trial court justified conf inement as “necessary to avoid depreciating the serious ness of the offense.” Tenn. Code Ann. § 40-35- 103(1)(B). To warrant

confinement on this basis, “‘the circumstances of the offense as committed mu st be especially viole nt, horrifying, sh ocking, reprehensible, offensive or otherwise of an excessi ve or exaggerate

d degree,’ and the nature of the offense must outweig h all factors favoring a sentence other that confinement.” State v. Bingham , 910 S.W .2d at 454 (quot ing State v. Hartley , 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)). That deaths occurred is not itself sufficient to warrant such a finding. However, the evidence showed that the defendant’s speed w as grossly exc

essive in a usually

congested area, that he did not even attempt to brake, and that he cursed the surviving victim at the accident s cene and continued to demonstrate indi fference, if not detest, for the victims and their families throughout. The t rial court duly noted the defendant’s youth; lack of cr iminal record; and current, though unstable, employment status but found that the ci rcumstance of the defendant’s offenses outweighed these considerations. The evidence does not prepon derate against the trial court’s finding

.
As to the denial of full probation, these same considerations apply. In addition, a defendant’s lack of truthfulness or candor reflects neg atively on the defendant’s potential for rehabilitation and is thus, an appropri ate consideration. State v. Dowdy , 894 S.W.2d 301, 30 6 (Tenn. Crim. App. 1994). The trial court found that the defendant demonstrated lack of candor in that he often conveniently forgot or

contradicted himself when t estifying to matters that might be negative to him. We find that the evid ence supports the trial cour t's findings. This issue is without merit.
Finally, although w

e affirm the trial court’s i mposition of a period of confinement, we observe that the imposed one-year term would exceed the te rm-11- that the defendant would serv e prior to release elig ibility on a full-confine ment two-year sentence. As this Court recently explained in State v. John W. Hill , No. 01C01-9802-CC-00072 (Tenn. Cr im. App. filed Feb. 25, 1999, at Nas hville), a felony of fender who is sent enced to one or mo re nonco nsecutive terms of two years or less may n ot be sentenced to a period of confinement i n excess of the release eligibilit

y on a sentence of full confinement. Id. (citing Tenn. Code Ann. §§ 40-35-501(a)(3); -306(a); -102(5)-(6)). Therefore, we modify the def endant’s sentence to reduce his period of confinem ent to two hundred and nineteen days, day-for-day, and to beg in supervised probation at the expiration of that time.

CONCLUSION The sentence below is modified to reduce the defendant’s period of confinement to two hundred and ninetee n days, day-for-day . We further order that all sentences shall run concurrently. The judgment of the trial court is in all other respects affirmed.

_____________________________ JOHN EVERETT W ILLIAMS, Judge

CONCUR:

_____________________________ DAVID G. HAYES, Jud ge

_____________________________ JAMES CURW OOD WIT T, JR., Judge