IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 15, 2022

STATE OF TENNESSEE v. NOAH CASSIDY HIGGINS

Appeal from the Circuit Court for Williamson County

No. J-CR200237 Deanna B. Johnson, Judge

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No. M2021-00281-CCA-R3-CD

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Defendant, Noah Cassidy Higgins, pled guilty as a Range I standard offender to 

vehicular homicide by recklessness with the sentence to be determined by the trial court. 

Following a sentencing hearing, the trial court denied judicial diversion and probation and

sentenced Defendant to five years’ incarceration with a thirty percent release eligibility. 

Defendant appealed, arguing that the trial court: (1) improperly denied judicial diversion; 

(2) improperly denied probation; (3) considered facts outside the record; and (4) erred in 

applying and balancing certain enhancement and mitigating factors. Following our review 

of the record and the parties’ briefs, we affirm the judgment of the trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT L. HOLLOWAY,JR.,J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS, P.J., and ROBERT H. MONTGOMERY, JR., J., joined.

Erik R. Herbert, Nashville, Tennessee, for the appellant, Noah Cassidy Higgins.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant 

Attorney General; Kim Helper, District Attorney General; and Carlin Hess, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

In June of 2020, Defendant was indicted by the Williamson County Grand Jury for 

vehicular homicide pursuant to Tennessee Code Annotated section 39-13-213(a)(1), 

aggravated assault, reckless endangerment, and reckless driving. Defendant entered a 

negotiated plea agreement and pled guilty to vehicular homicide with the other charges 

being dismissed. The plea agreement provided that Defendant could seek judicial 

04/25/2022
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diversion, but if diversion was denied, the length of the Range I sentence and the manner 

of service would be determined by the trial court. 

At the sentencing hearing, Brentwood Police Department (“BPD”) Officer Brent 

Phelan testified that police dispatch notified him of an automobile accident involving

personal injury around 7:10 p.m. on March 25, 2020. Dispatch informed Officer Phelan

that the 911 caller was involved in the accident. The caller said that his vehicle left the 

road, striking a female bicyclist. Officer Phelan testified he was not the first officer to 

respond but arrived within two minutes of the accident. It was dusk, and there was some

moisture on the road. Officer Phelan described the road as an undulating, two-lane road 

with a 35-miles-per-hour speed limit. A paved bike path ran parallel to the road. Behind 

the bike path, there was an “antebellum style rock wall” on the bordering property. 

Officer Phelan observed a silver Nissan Maxima upside down on the bike path. 

Kelly Duggan, the deceased victim, was “slumped” against the rock wall with “the mangled 

remains of a silver bicycle [] underneath and behind her.”

Officer Phelan testified that he spoke with Defendant at the scene. Defendant told 

him that he had turned off his traction control system in his car and that he lost control of 

the car when he went around the curve in the road. Defendant told him he likely exceeded 

the posted speed limit prior to crashing. Officer Phelan asked Defendant why he turned 

off the traction control, and he recalled Defendant saying that “he like[d] to hear the wheels 

spin a little.” Officer Phelan said that Defendant seemed “very shaken up” but did not 

appear intoxicated or impaired. Defendant was cooperative and voluntarily submitted to 

an impairment examination. Officer Phelan testified that Officer Steve Holder conducted

the test and found no evidence of impairment. 

Officer Phelan obtained a search warrant to download the “event data recorder,” 

commonly referred to as the “black box,” of Defendant’s vehicle. The black box recorded

data five seconds before the airbags deployed and indicated that the vehicle was traveling 

at 87 miles per hour. The data indicated that Defendant overcorrected the steering wheel

and that the car vaulted into the air and barrel rolled. 

On cross-examination, Officer Phelan confirmed that Defendant was polite and 

“extremely remorseful” at the scene. Officer Phelan admitted that he did not recall 

Defendant’s exact words regarding Defendant’s statement, “I like to hear the wheels spin 

a little.” On redirect examination, the State refreshed Officer Phelan’s memory with a 

supplemental report from Officer Holder where Defendant said “he wanted to open [the 

car] up and hear the exhaust roar.” 
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Several family members of the victim shared impact statements. The State read a 

letter from the victim’s brother, Charles Duggan, which expressed his wish that the 

punishment for Defendant would deter others from committing similar crimes. Katherine 

Sanders, the victim’s stepdaughter, testified as to the victim’s impact on her life and noted 

that Defendant had not reached out to her family to apologize for his actions. Geoff 

Duggan, the victim’s older brother, testified regarding the victim’s life and 

accomplishments. 

Brad Sanders, the victim’s husband, testified that on March 25, 2020, he got “a very 

bad feeling” when his wife had not returned from her bike ride. He got in his truck, began 

driving, and soon after saw emergency vehicles. Police informed him of the incident, and 

he saw his deceased wife. He testified that he would have been more sympathetic towards 

Defendant if Defendant had been drunk or on drugs. However, Defendant acted with full 

cognition in driving 87 miles per hour in a residential area. 

Defendant testified, apologizing to the victim’s family and everyone who had cared 

for the victim. Defendant testified, “Driving now seem[s] like a nightmare.” Defendant 

requested the court sentence him to three years’ probation with an additional 500 hours of 

community service work.

Defendant testified that he was twenty-two years old and had no prior criminal 

history. He currently worked as a shift manager at a restaurant in Cool Springs. Defendant 

read a character testimony from his employer into the record. Defendant’s employer 

described him as “one of [his] best hires[]” and a “natural born leader.” Defendant’s 

parents and girlfriend also wrote character testimonies that were admitted as exhibits. 

Defendant testified that he would learn from his mistakes and had already begun 

volunteering at a local hospital. An employee of the hospital wrote a letter based on her 

experience with Defendant over the past five months. She described him as “a special, 

caring person.” 

Defendant testified that on March 25, 2020, he clocked out of work around 7:00 

p.m. and got in his car. Defendant claimed that he turned off the car’s traction control 

because it “could help [] with fuel [economy.]” Defendant detailed the route he took home 

from work and explained that he lost control of his vehicle as the road curved up a steep 

hill. Defendant said, “I could not tell you the speed that I was going and I wasn’t trying to 

take it for a joyride[.]” Defendant said that he realized he was driving too fast as he 

approached the bend in the road; he said that he overcorrected and did not recall “what 

really exactly happened after that[.]” Defendant remembered the car going airborne and 

barrell rolling. He punched out the airbag and exited the upside-down car. Defendant saw 

the victim and immediately realized she was not breathing. He proceeded to call 911. 
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Defendant testified that he knew what he did was wrong and that he wanted to cooperate 

with the police officers “110 percent.” 

Defendant testified that he was involved in a prior motor vehicle accident on 

October 9, 2019. He confirmed that he was not charged with any speeding violations 

stemming from that accident. Defendant explained that the accident occurred because of 

a faulty emergency brake system. Defendant testified that he had one prior instance of 

alcohol abuse but had not been intoxicated since 2017. Defendant said that since March 

25, 2020, he had completed a driver improvement program with the Tennessee Department 

of Homeland Security along with several “generic online driving” courses. 

On cross-examination, Defendant admitted to speeding 65 miles per hour in a 40-

miles-per-hour zone in Brentwood, Tennessee, in December of 2016. When asked about 

the October 2019 car crash, Defendant claimed he was not speeding. Defendant admitted

that in November 2019, he received a traffic citation for traveling 10 miles per hour over 

the speed limit of 70 or 75 miles per hour on a Texas interstate. Defendant admitted that 

he received a speeding ticket in Arkansas for traveling 85 miles per hour in a 70-miles-perhour zone on February 15, 2020. Defendant affirmed that the financial penalties for his 

prior speeding infractions did not disincentivize him from speeding. 

Regarding the March 25, 2020 crash, Defendant testified that he had driven on the 

road “a hundred times” and knew it very well. Defendant admitted that he did not know

whether 87 miles per hour was the fastest he drove that day. 

Upon hearing the evidence, the trial court found Officer Phelan’s testimony 

credible. The court found that Defendant was remorseful and that he accepted 

responsibility for his actions. However, the court discredited Defendant’s testimony that 

he disabled traction control for fuel economy and credited Officer Phelan’s statement that 

Defendant said he liked how the engine sounded with traction control disabled. The court 

discredited Defendant’s statement that he was not speeding during the 2019 car crash. The 

trial court applied as enhancement factors that Defendant had a previous history of criminal 

convictions or behavior in addition to those necessary to establish the appropriate range 

and that Defendant had no hesitation about committing a crime when the risk to human life 

was high. Tenn. Code Ann. § 40-35-114(1), (10) (2020). In mitigation, the court found 

that Defendant accepted responsibility for his actions, was remorseful, and was attempting 

to improve his life. Tenn. Code Ann. § 40-35-113(13) (2020). 

The trial court recited the factors from State v. Electroplating, Inc., 990 S.W.2d 211, 

229 (Tenn. Crim. App. 1998), and State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 

1996). The trial court found Defendant not amenable to correction because of his history 

of speeding tickets and a prior car crash. The court noted that Defendant “had plenty of 
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financial incentive to stop speeding, to stop driving recklessly, but he didn’t do so.” The 

trial court found the circumstances surrounding this offense weighed against judicial 

diversion because Defendant had driven on this particular road for roughly four years and 

was aware of the 35-miles-per-hour speed limit. The court reasoned that Defendant knew

it was a “wind[ing] country road,” that people “were out and about,” and nevertheless

decided to drive 87 miles per hour. The trial court considered Defendant’s lack of a 

criminal record as “not really applicable.” In regards to Defendant’s social history, the 

trial court sympathized with Defendant because Defendant moved many times during his 

childhood and his mother suffered from drug addiction. 

Other than Defendant’s drinking incident in college, the trial court did not find 

anything “particularly noteworthy” regarding Defendant’s mental and physical health. The

trial court found that the deterrence value to Defendant and other defendants and whether 

judicial diversion would serve the interest of the public weighed against judicial diversion. 

The trial court did not provide its reasoning in connection with those factors. In denying

judicial diversion, the trial court stated, “So the Court has weighed all these factors, every 

one of them. The Court has weighed every one of these factors and finds that judicial 

diversion is not appropriate in this particular case.” 

The trial court considered alternative sentencing. It again emphasized Defendant’s 

knowledge of the road and speed limit. The trial court found confinement necessary to 

avoid depreciating the seriousness of the offense and to deter others from committing 

similar offenses. The trial court denied probation and sentenced Defendant to five years’

incarceration with a thirty percent release eligibility. 

Defendant appeals.

Analysis

Defendant raises the following sentencing issues on appeal: (1) that the trial court 

erred in denying judicial diversion; (2) that the trial court erred in denying probation and 

in sentencing Defendant to incarceration; (3) that the trial court abused its discretion in 

considering “a fact not supported in the record”; and (4) that the trial court erred in applying 

enhancement factor (10) and in its balancing of the enhancement and mitigating factors. 

The State responds that the trial court properly sentenced Defendant.

I. Judicial Diversion

Defendant claims that the trial court improperly denied judicial diversion, arguing 

that this court should apply a de novo standard of review and overturn the trial court’s 

decision. The State responds that the trial court’s denial of judicial diversion was proper 
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and that its decision should be entitled to a presumption of reasonableness. We agree with 

the State.

A trial court “may defer further proceedings against a qualified defendant and place 

the defendant on probation upon such reasonable conditions as it may require without 

entering a judgment of guilty and with the consent of the qualified defendant.” Tenn. Code 

Ann. § 40-35-313(a)(1)(A) (2020). A defendant is a “qualified defendant” and eligible for 

judicial diversion if he or she is found guilty or pleads guilty or nolo contendere to a Class 

C, D, or E felony; has not been previously convicted of a felony or Class A misdemeanor

for which a sentence of confinement has been served; has not been previously granted 

judicial or pretrial diversion; and is not seeking deferral for a sexual offense, a DUI, certain 

offenses against elderly or vulnerable adults, or vehicular assault. See Tenn. Code Ann. § 

40-35-313(a)(1)(B)(i) (2020). 

In this case, Defendant was eligible for judicial diversion because he pled guilty to 

vehicular homicide by recklessness, a Class C felony, had no prior felonies or Class A 

misdemeanors, and had not received diversion in the past. “Eligibility under the statute 

does not, however, constitute entitlement to judicial diversion; instead, the decision of 

whether to grant or deny judicial diversion is entrusted to the discretion of the trial court.” 

State v. King, 432 S.W.3d 316, 323 (Tenn. 2014). In determining if a qualified offender 

should be granted judicial diversion, the trial court must consider the following common 

law factors:

(a) The accused’s amenability to correction, (b) the circumstances of the 

offense, (c) the accused’s criminal record, (d) the accused’s social history, 

(e) the accused’s physical and mental health, and (f) the deterrence value to 

the accused as well as others. The trial court should also consider whether 

judicial diversion will serve the ends of justice—the interests of the public as 

well as the accused.

Parker, 932 S.W.2d at 958. “[T]he trial court must weigh the factors against each other 

and place an explanation of its ruling on the record.” King, 432 S.W.3d at 326 (citing 

Electroplating, Inc., 990 S.W.2d at 229). 

When the trial court considers the common law factors, “specifically identifies the 

relevant factors, and places on the record its reasons for granting or denying judicial 

diversion,” this court will “apply a presumption of reasonableness and uphold the grant or 

denial so long as there is any substantial evidence to support the trial court’s decision.” Id. 

at 327. If “the trial court fails to consider and weigh the applicable common law factors, 

the presumption of reasonableness does not apply and the abuse of discretion standard, 

which merely looks for ‘any substantial evidence’ to support the trial court’s decision, is 
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not appropriate.” Id. In such case, this court will either conduct a de novo review or remand 

the case to the trial court for reconsideration. Id. at 328. 

Here, the trial court began its judicial diversion analysis with a recitation of the 

Parker and Electroplating factors. The trial court specifically found that Defendant was 

not amenable to correction, noting that Defendant had been issued multiple speeding tickets 

and, therefore, “had plenty of a financial incentive to stop speeding, to stop driving 

recklessly, but he didn’t do so.” The court noted that Defendant was very familiar with the 

road on which the wreck occurred, having driven it from home to work and back for four 

and a half years. The court found that Defendant knew he was traveling on “a wind[ing]

country road,” where “people were out and about” and “riding bikes,” but even knowing 

the route, Defendant sped through the area at 87 miles per hour in a 35-miles-per-hour 

speed zone. The court found that Defendant consciously drove recklessly and that the 

circumstances of the offense “weigh[ed] against him in a determination regarding judicial 

diversion.” The court noted that, other than speeding tickets, Defendant did not have a 

criminal record. The court considered Defendant’s social history in regard to his childhood 

but did not indicate the factor’s weight. The court sympathized with Defendant’s moving 

several times during childhood and his mother’s drug addiction. Defendant’s parents, 

girlfriend, employer, and volunteer supervisor wrote letters describing Defendant’s 

positive attributes. The court found Defendant’s mental and physical health not 

“particular[ly] noteworthy,” noting that Defendant had one incident of alcohol abuse in 

college. However, the evidence indicated that Defendant was in good physical and mental 

health and that he worked at a restaurant and volunteered at a medical center. Without 

making specific factual findings, the court determined the deterrent effect of the sentence 

and the interest of the public both weighed against diversion. The court “also considered 

additional factors laid out in State v. Washington,” 866 S.W.2d 950 (Tenn. 1993), including 

a “defendant’s attitude, behavior since arrest, prior record, home environment, current drug 

usage, emotion stability, past employment, general reputation, marital stability, family 

responsibility and attitude of law enforcement.” The court stated that it “has weighed all 

these factors, every one of them” and “finds that judicial diversion is not appropriate in this 

particular case.”

It is apparent from the findings of the trial court that it gave great weight to the

circumstances of the offense and to Defendant’s amenability to correction. The court 

determined that the deterrent effect of the sentence and the interest of the public also 

weighed against diversion. 

In King, our supreme court explained:

Although the trial court is not required to recite all of the Parker and 

Electroplating factors when justifying its decision on the record in order to 
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obtain the presumption of reasonableness, the record should reflect that the 

trial court considered the Parker and Electroplating factors in rendering its 

decision and that it identified the specific factors applicable to the case before 

it. Thereafter, the trial court may proceed to solely address the relevant 

factors.

King, 432 S.W.3d at 327. 

The trial court considered all of the Parker and Electroplating factors. The court 

identified the specific factors it felt relevant and placed on the record its reasons for denying 

judicial diversion. We, therefore, apply a presumption of reasonableness, we determine 

that there was substantial evidence to support the trial court’s decision, and we uphold the 

denial of judicial diversion. 

II. Probation

Defendant contends that the trial court erred in denying probation. The State 

responds that the trial court properly denied probation. We agree with the State.

When a trial court denies probation or any other alternative sentence to an eligible 

defendant and states on the record reasons that are in accordance with the purposes and 

principles of sentencing, the court’s decision is reviewed under an abuse of discretion 

standard, accompanied by a presumption of reasonableness. State v. Caudle, 388 S.W.3d 

273, 278-79 (Tenn. 2012); State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). If the trial 

court fails to articulate the reasons for denying an alternative sentence, the “abuse of 

discretion standard with a presumption of reasonableness” does not apply on appeal and an 

appellate court can either (1) conduct a de novo review to determine whether there is an 

adequate basis for denying probation; or (2) remand for the trial court to consider the 

requisite factors in determining whether to grant probation. See State v. Pollard, 432 

S.W.3d 851, 864 (Tenn. 2013).

Before imposing a sentence, the trial court is statutorily required to consider the 

following factors:

(1) The evidence, if any, received at the trial and the sentencing hearing;

(2) The presentence report;

(3) The principles of sentencing and arguments as to sentencing alternatives;

(4) The nature and characteristics of the criminal conduct involved;

(5) Evidence and information offered by the parties on the mitigating and 

enhancement factors set out in §§ 40-35-113 and 40-35-114;
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(6) Any statistical information provided by the administrative office of the 

courts as to sentencing practices for similar offenses in Tennessee;

(7) Any statement the defendant wishes to make on the defendant’s own 

behalf about sentencing; and

(8) The result of the validated risk and needs assessment conducted by the 

department and contained in the presentence report. 

Tenn. Code Ann. § 40-35-210(b) (2020). The trial court must state on the record the 

statutory factors it considered and the reasons for the ordered sentence. Tenn. Code Ann. 

§ 40-35-210(e) (2020); Bise, 380 S.W.3d at 705. “Mere inadequacy in the articulation of 

the reasons for imposing a particular sentence, however, should not negate the presumption 

[of reasonableness].” Bise, 380 S.W.3d at 705-06. A trial court’s sentence “should be 

upheld so long as it is within the appropriate range and the record demonstrates that the 

sentence is otherwise in compliance with the purposes and principles listed by statute.” Id. 

at 709-10.

“A defendant shall be eligible for probation under this chapter if the sentence 

actually imposed upon the defendant is ten (10) years or less,” with some exceptions. See 

Tenn. Code Ann. § 40-35-303(a) (2020). In determining whether confinement is 

appropriate, the trial court should consider the following principles:

(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[.]

Tenn. Code Ann. § 40-35-103(1)(A)-(C) (2020). Additionally, the sentence imposed 

should be (1) “no greater than that deserved for the offense committed[,]” and (2) “the least 

severe measure necessary to achieve the purposes for which the sentence is imposed[.]” 

Tenn. Code Ann. § 40-35-103(2), (4) (2020). The trial court may consider the 

Electroplating factors in determining whether to impose a sentence of probation. State v. 

Trent, 533 S.W.3d 282, 291 (Tenn. 2017) (citing Electroplating, Inc., 990 S.W.2d at 229). 

To deny probation solely based upon the seriousness of the offense, the trial court must 

find that the circumstances of the offense, “as committed, 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 probation.” State

v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991) (internal quotations and 

citations omitted).
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Defendant mistakenly asserts that the trial court relied solely on the seriousness of 

the offense in denying Defendant’s request for probation. Concerning the seriousness of 

the offense, the court stated that

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. In this case, the [c]ourt finds that 

both of those apply. . . . We’ve all heard the proof and we all feel for the 

family and, again, to point out the fact that [Defendant] drove this road twice 

a day for four and a half years, knew what was on this road. It was hilly, 

windy two-lane road, . . . and he drove this road knowing it was 35 miles per 

hour, knowing that people would be out, it’s a neighborhood. We all saw the 

pictures. He drove 87 miles per hour and lost control and killed somebody. 

And to avoid depreciating the seriousness of the behavior, of that offense, 

confinement is necessary, and confinement is particularly suited to provide 

an effective deterrent to others likely to commit similar offenses.

The trial court also relied on Tennessee Code Annotated section 40-35-103(1)(C) in 

denying probation, finding Defendant not amenable to correction because of his history of 

speeding tickets and a prior car crash. The trial court stated on the record reasons to deny 

an alternative sentence that were in accordance with the purposes and principles of 

sentencing. We determine that the trial court did not abuse its discretion in denying

Defendant’s request for probation.

III. Consideration of Facts Outside the Record

Defendant argues that the trial court improperly considered facts outside of the 

record when it considered his prior car crash. The State responds that the trial court did 

not abuse its discretion in considering Defendant’s prior car crash. 

The presentence report contained information regarding Defendant’s prior crash in 

October 2019, and Defendant testified regarding the accident. When asked whether the 

2019 crash was similar to the crash in this case, Defendant replied, “Yes, sir.” Defendant 

confirmed it happened on a winding two-lane road. Defendant testified, “[]I wasn’t 

speeding or -- I just kind of wanted to get out of the house and, you know, get -- get some 

air.” When asked how he crashed, Defendant said, “I simply was driving. I had both my 

hands on the wheel. The [dashboard] light popped on. I looked down, and when I looked 

up it was -- the road was turning and I’m still going straight.” The 2019 crash report

indicated Defendant overcorrected the steering wheel. 
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The trial court found Defendant’s testimony not credible regarding his statement 

that he was not speeding when he crashed in 2019. The court discredited Defendant’s 

explanation of the 2019 accident and said, “The court believes [Defendant] was speeding 

on that wind[ing] country road, similar to the incident which brings us here today, 

unfortunately.” Defendant misinterprets “facts not in the record” with the trial court’s 

ability to make credibility determinations. The trial court’s statement that Defendant was 

speeding in the 2019 crash was based on its interpretation of Defendant’s testimony. 

Regardless, the trial court only referenced Defendant’s speeding in the 2019 crash during 

its application of enhancement factor (1). In applying this factor, the trial court also relied 

on Defendant’s three prior speeding tickets. When the trial court analyzed Defendant’s 

amenability to correction, it referenced the 2019 crash generally. The trial court properly 

considered the evidence, and Defendant is not entitled to relief on this issue. 

IV. Enhancing and Mitigating Factors

Defendant argues that the trial court erred in applying enhancement factor (10) and 

in sentencing Defendant to five years’ incarceration with a thirty percent release eligibility. 

The State responds that the trial court properly sentenced Defendant. We agree with the 

State. 

When a defendant challenges the length, range, or manner of service of a withinrange sentencing decisions, this court reviews the trial court’s sentencing decision under 

an abuse of discretion standard with a presumption of reasonableness if the record reflects

the trial court properly applied the purposes and principles of the Sentencing Act. Caudle, 

388 S.W.3d at 278-79; Bise, 380 S.W.3d at 708.

The trial court applied enhancement factor (10), that Defendant had no hesitation 

about committing a crime when the risk to human life was high, because Defendant drove 

87 miles per hour and “knew that people were around[.]” See Tenn. Code Ann. § 40-35-

114(10) (2020). The record indicates that Defendant drove 87 miles per hour in a 

residential area at dusk. The trial court stated, and we agree, that “[Defendant] knew there 

was that big park right there where people would be walking, riding their bikes, doing that 

sort of thing.” We conclude that the trial court properly applied enhancement factor (10). 

The trial court also correctly applied enhancement factor (1) based on Defendant’s 

three prior speeding tickets. See Tenn. Code Ann. § 40-35-114(1) (2020) (“The defendant 

has a previous history of criminal convictions or criminal behavior, in addition to those 

necessary to establish the appropriate range”). The trial court applied mitigating factor 

(13) because Defendant accepted responsibility for his actions and was remorseful. See 

Tenn. Code Ann. § 40-35-113(13) (2020). The trial court commended Defendant for 

attempting to improve his life and recognized Defendant’s volunteer work at the medical 
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center. However, it was within the trial court’s discretion to apply greater weight to 

enhancement factors (1) and (10) and to sentence Defendant to five years’ incarceration 

with a thirty percent release eligibility. The trial court did not abuse its discretion in 

fashioning Defendant’s sentence.

Conclusion

Based on the foregoing, we affirm the judgment of the trial court. 

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ROBERT L. HOLLOWAY, JR., JUDGE