### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Decemb er 11, 2001 Session STATE OF TENNESSEE v. JI MMY M. MILLICAN Direct Appeal from the Criminal Court for Davidson County No. 2000-T-181 J. Randall Wyatt, Jr. , Judge

No. M2000-02298-CCA-R3-CD - Filed January 31, 2002

A Davidson County jury convictedthe defendant of aggravated vehicula r homicide and driving on a revoked license. He was sentence d to 25 years for aggravated vehicular homicide and a

concurrent six months for dri ving on a revoked license. The defendant c ontends in this appeal that (1) the evidence was not sufficient to support his convictions; (2) a facially invalid judgment for a prior DUI conviction was used

to enhanc e his conv

icti o n to aggra

vated ve hicular homicide ; and (3) his sentence is excessive. We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R
. and J OHN E VERETT W ILL IAMS , JJ., joined.
Ross E. Alderman, Public Defender; and Jeffrey A. D eVasher (on appeal), Hollis I. Moore, Jr. (at trial), and Wend y S. Tucker ( at trial) , Assistan t Public Defender s, for the appella nt, Jimmy M. Millican.
Paul G. Summers, A ttorney General and Reporter; Thomas E. Williams, III, Assistant Attorney Genera l; V ictor S. Johnson, III, District Attorney General; and James D. Sledge and Ja mes Todd, Assistant District Attorneys General, for the appellee, State of Te nnessee.

OPINION According to the state’s proof, on the evening of March 3, 1999, a van dri ven by the severely inebriateddefenda

nt crashed into vic tim Ale x Haught’s car at the intersection of 20th Avenue and Wes t End Aven ue in Nashville and then p lowed into Amerigo’ s Restaur

ant. Hau ght died sh ortly after the accident. Kym Murphy, a business executive visiting in Nashville, was walking on West End toward Amerigo’s Restaurant. As he prepared to cro ss the stree t at the int

ersect ion, he he ard a ve

hicle-2-

accelerate. He testified he believed the van was traveling on 20 th Avenue, and further testified the van was traveling at a high rate of speed as it approached theintersection. He stated Haught’s car was traveling on West End toward the intersection. Murphy testified he was positive Haught’s car had the green light. He said he saw the van cross through the intersection, swerve slightly, and strike the car on the driver’s side before the van r icochet ed towar d the res taurant

. Murphy te stified he did notsee anyone flee the van, and he saw the valet a

nd othersapproac

h the van. Murphy sta

ted he fi rst went to assist the victim. After the paramedics arrived, he walked past the van where he observed the defendant sitting in the driver’s seat, leaning forward.
Patrick Winningha

m, the val et at Ame

rigo’s Re stauran

t, testified he was standing outside the restaurant when he heard a loud

crash and saw the vehicles collide. Winningham stated he c ould see two Caucasian men inside the van as it careened towards him, forcing him to move out of the way before it struck the restaurant, knocking out a glas s window, a nd imbedding itself in the bar area near the restaurant’s entrance. Winningham testified he opened the van’s passenger door a nd saw two Caucasian men inside the van. He stated the van’s ot herdoors were not open at that time. According to Winningh am, the defendant was in the driver’s seat, lea ned over the van’s console, withhis feet underneath the steering wheel. Winningham obser ved the unc o nscious passenger leaned over the dash. It was apparent the passenge r had struck

his head on the passenger side of the windshield. Winningham saw a whiskey bottle in the floorboard of the van. Winningham denied seeing a third person running from the scene.
David Conn, regional manager for Amerigo’s Restaurant, testified he was standing near the front door of the restaurant when he hear d a loud explosion. Conn said he was outside the restaurant in less than a minute, where he was one of the first peo ple to re ach the v an. Conn sa id a liquor bottle fell out of the van when the passenger door was opened. He saw two Caucasian men inside of the van; the defendant, who was in the area of the dr iver ’s seat, and the passenger, who was bleeding from the forehead. He testified that a short time later, an a pparently “homeless” African-Americ an man approached the van from the rea r. Conn said the man may have been trying to get in the van, butdisappea

red aft er someo ne asked

him to step a

way. The

man did not appea r to have been injured.
Chris Jacobs, the restauran t’s manager, testified the van plowed into the bar area of the restaurant near the front door. Jacobs sa w the van enter the building about six feet from where he was standing. Jacobs saw two dazed men in the van.
Michael Parish was eating at Amerigo’s Restaurant when he heard a cras h and then heard heavy pla te glass breakin g. He imme diately a rose fr om his table

and, with

in ten sec onds, walked outthe front door of the restaurant to the van. He saw the defendant in the driver’s seat ar ea. Pari sh said the defendant’s feet were in the a rea of the pedals and his buttocks were not completely on the driver’s seat. He testif

ied the de fendant babbled a

nd smelled

of alcohol. Acco

rding toParish, the defendant repeatedly said, “I’ve

done something terribly wrong. I’ve got to get out o f here. ” Parish described the defendant as belligerent. He stated the defendant fought an EMT and cursed.-3-

Jeff Boggs, a former

EMT, was in the restaurant when he heard the crash and made his way outto the van. After others removed the passenger from the van, he entered it through the pa ssenger door to tend to the defendant, whom Boggs said was on the floor between the seats. He stated the defendant smelled of alcohol. Boggs said he heard the defe ndant say , “I’ve

made a bi g mistake. I’m really sorry.” Boggs testified that a very animated and very pushy Afr ican -Americ an man “c ame outof nowhere” and urged those standing around the van to remove its occupants because the van might catch fire. Boggs stated he fended the man of

f and wa tched the man walk a

way. Bogg s said the man did not appear to be suffering from any injury.
Officer Philip Vincion tes tified his reconstruction of the accident showed the van wa s traveling east on West End as Haught turned lef t , or west, onto West End from northbound 20 th Avenue. Vincion opined the crash was caused when the va n failed to stop for a red

light and struck Haught’s car, which according to witnesses’ stateme nts, had a green light. Vincion testified there was a fluid and debris trail from the van, b eginning at the point of impact in the intersection and ending where the van struck the restaurant. He stated the physical evidence indicated the v an did not apply its brakes before impact.
Vincion testified the van’s passenger struck his head and cr acked the van’s wind shield o n the passenger

side, lacerating the passenger’s forehe ad. A toxicologist testified DNA tests showed the passenger’s hair and blood were found in the c racks in the windshield. V i ncion stated he observed the defenda nt in the van after the passenger was place d on a stretcher. He said the defendant was sitting upright on th e floor between the seats with his legs wedged betwee n the driver’s seat and the area below the steering column. Vincion testified there was a strong odor of alcohol coming from the defendant, who had bloodshot eyes and slurred speech. Vincion stated the defendant told him, “F-ck you. I wasn’t driving. Why don’t you just go ahead and whip myf-cking -ss. Get the light of out my face, you god–mn motherf-cker.” Vincion said the de fendant ha d n o visible injuries.
Officer Mack Peebles testified he was dispatched to the accident and

observed the defendant sitting in the driver’s seat, leaning across the gap between the seats. Officer Chris Hendry testified the d efend ant was laying between the front seats with his feet betwee n the van’s console and the pedals. Sgt. David Woods testified the defendant, who reeked of alcohol, was very combative and cursed medical personnel. As Woods was attempting to restrain the def endant, h e found a n empty whiskey bottle in the defendant’s coat pocket. Johnny Ghee, a pa ramed ic for the Nashville Fire Departm ent, testified he observed

the defendant sitting between thevan’s console and driver’s seat with his feet on the floorwall near the accele rator and pedal area.
Paramed ic Cary Arnes testif

ied the de fendant was sitting

in the van’s driver’s seat, slumped towardthe conso le, with hi s legs on bo th sides of th e console. A rnes said the defendant, who smelled of alcohol, cursed and tried to strike his partner.-4-

Officer Wallac e Taylor

testifie d th e victi m, Alex Haught, was pronounced dead at the hospital. Dr. Bruce Levy, the medical examiner, testified Ha ught died as a result of injuries he received in the collision.
The parties stipu lated

the defendant’s driver’s license was r evoked at the date of the collision. Blood tests indicated the defendant had a blood alcohol level of .34%.
Lori Roberts, an R.N. who was dining at Amerigo’s Restaurant at the time of the collision, testified for the defendant that when she exited the restaurant after the van struck the building, she askedthe valet how many people were in thevan. Roberts stated the valet replied there were three. Roberts said she then asked him where the third person was and he re sponded, “He took off.” Roberts testified she observed the driver’s door was slightly open. She stated she saw the defendant in the floor between the front and back seats with his legs stretched forward against the console. She said the defendant was belligere nt, vio lent, and “very intoxicated.” Roberts said the defenda nt admitted he had been drinking, but denied dr iving. Robe

rts testified that as she exited the van after checking the defendant, she said she found a man’s slip-on brown loafer on the ground. Its mate was found on the other sid

e of the v an. Rober

ts stated t he defe ndant and the passe nger we re wea rin g both of their shoes.
Patrick Winningham, the valet, was rec alled and tes tified he did not see a third person run ning away fr

om the van . He expl ained he may have

repeat ed what a nother pe rson told him

. Winningham stated he saw only two Caucasian men in the front of the van.
Vivian French testified for the defend an t that she was in the restaurant and saw two Caucasians in the van before it crashed into the restaurant. Fre nch said she was delayed from exiting the restaurant and when she reac hed the outside, she saw an African-America n man wearing a ski cap and baggy clothes stepping out of the van as if he had been the driver. French

stated the man looked over his shoulders and ran past her.
Based on this evidence, the jury found th e defendant guilty of vehicular homicide and driving on a revoked license. At the second phase of the bifurcated trial, the jury further found the defendant had a prior conviction for driving under the influence of a n intoxicant and, at the time of the present offense, had .20% or more blood al cohol co ntent. See Tenn. Code Ann. § 39-13-218(a)(3)(A). Therefore, the jury enhanced the conviction to aggra vated ve hicular homicide , a Class A felony. See id

. The trial court sentenced the defendant, a Range I standard offender, to the maximum sentence of 25 years for aggravated vehicular homicide and a concurrent sentence of six months for driving on a revoked license.

SUFFICIENCY OF THE EVIDENCE
The defendant argues the evidence wa s not sufficient to support his convictions. There are two prongs to his argument. First, he contends there was reasonable doubt as to whe ther he was the driver of the van based on t

he e vidence at trial concerning the appare ntly “homeless” African--5-

Americanman seen

near the van follo wing the a

ccident . Second, he submit s the “physica l facts rule” negates the jury’s finding that his intoxic ation was

the proximate ca

use of the victim’s death. We are unable to agree with either

claim.
In Tennessee, great weig

ht is given to the result reached by the jury in a

criminal trial. A jury verdict accredits the state's witnesses and resolve s all conf

licts in favor of the state. State v. Bigbee , 885 S.W.2d 797, 8 03 (Tenn . 1994). O n appea l, the stat e is entitle d to the strongest legitimate view of the evidence and all reasonable inferences whic h may be dra

wn therefrom. Id. ; Statev. Cab bage , 571 S.W.2d 832, 835 (Tenn. 1978).
Where sufficiency

of the evidence is challenged, the relevant question for an appellate court is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trie r of fact could have

found the essential elements of the crime or crimes bey ond a rea sonable d oubt. Tenn. R. App. P. 13( e); Jackson v. Virg inia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. A

brams , 935 S.W.2d 399, 401 (Tenn. 1996). The weight and cre dibility of the witness es' testimony are matters e ntrusted exclusively to the jury as the triers of fact. State v

. Sheffield , 676 S.W.2d 54 2, 547 (Te nn. 1984) ; State v. Brewer , 932 S.W.2d 1, 19 (Te nn. Crim. App. 1996). A. Identity of the Driver
As to the def

endant’ s argume

nt the evi dence w as not suf ficient t o establis h beyond a reasona ble doubt thathe was the driver, the testimony of numerous witnesses who reached the van within seconds following the collision indicated the defendant was sitting in the driver’s seat; there were only two men in the van; and no one else exited the van. Kym Murphy , who wit nessed the collision, testified he did not see anyone flee from the van, and he saw other people, including the v alet, approach the van immediately after it struck the building. Patrick Winningham, the valet , testified he saw only two Caucasian men inside the van just before it hit the building. Winningham also stated these two men wer e the only ones in the van when he opened the passenger door r ight after the crash. According to Winningham, the defendant wa s in the driver’ s seat wit h his feet under the steering

wheel. D avid

Conn and Chris Jacobs both testified they exited the restaurant seconds after the van plowed through the window and s aw only two men in the van. Conn stated the defendant was in the

area of the drive r’s sea t. Michae

l Pa ris h also observed the defendant in the driver’s seat with his feet

near the pedals. Officer Mack Peebles and pa ramedic Cary Arnes said the defendant was sitting in the driver’s seat. Officer Philip Vincion testified the defendant’s legs were wedged between the driver’s seat and are a beneath the steering column, though he was sitting on the floor between the seats. Viewing the evidence in a light most favorable to the state, this evidence was more than sufficient to support the jury’s finding that the defendant wa s driving the van. B. Physical

Facts Rul e The defendant also contends eyewitness Kym Murphy’s testimony thatdefendant’s van was on 20 th Avenue and

the victim ’s car w as on Wes t End conf licts with the physical evidence; therefore, the phys ica l facts rule requires Murphy’s testimony as to those facts be disrega rded. See State v.1 We also note that the diagrams introduced w ere v ery co nfusing . The d iagram s were d rawn with the w est

faci ng the t op of t he page where one woul d ordinaril y expect to f ind nort h. In sev eral ins tance s, witn esses re ferred to the diagrams as they testified; howe ver, the r ecord does not cle arl y convey al l of thei r te sti mony as to t he loc ati on of veh icles, pe ople , or oth er ob jects on the d iagra ms
. -6- Hornsby , 858 S.W.2d 892 (Tenn. 1993). In Hornsby , our stat e suprem e court h eld the ph ysical fa cts rule, which allows the courts to disregard a witness’s testimony whe re the te stimony is e

ntirely irreco ncilable

with the ph

ysical evidence , is applicable in criminal cases. Id . at 894-95. However, the court caut ioned tha

t the power to disregard testimony should be used sparingly, “[o]nly when testimony is inherently improbable and impossible of belief.” Id . at 895. It instructed that the matter sho uldbe left to

the jury w

hen the te stimony is c apable o f differ ent inter pretatio ns becau se it i s within the province of the jury to decide whether there a re incon sistencie s in testimo ny, to rec oncile conflicts in testimony, and to determine the credibility of witnesses. Id . at 895.
Just as the court in Hornsby , we too are reluctant to apply the physical facts rule in this case. We note the defendant is asking thi s court to disregard Murphy’s testimony that placed the defendant’s van on 20 th Avenue, yet give c redit to hi s testimony

that the v ehicle o n West

End had the green li ght. We a

re unabl e to do so w ithout inva ding th e province of the jury. Murphy emphatic ally stated that the victim’s car, and not thedefendant’s van, had the gree n light. If he did reflect on the diagram the wrong location of the vehic les, that does not entitle this court to conclude as a matte r of law t hat the de fendant ’s van ha

d the gre en light. 1 Even if we were to hold Kym Murphy’s testimony must be disregarded under the physical facts rule, Officer Vincion’s testimony would still have provided a sufficient basis for the jury’s finding that the defendant ’s intoxicat ion was the proximate cause of the victim’s death. Office r Vincion had experie

nce and special training in accide

nt investig ation. He

testifie d that his investigation revealed that the driver of the van wa s on West End and never applied his brakes. The transcript also reveals the following:

Prosecutor : Based on your investigation, your interviews, the dam ag e to the vehicle and the evidence you collected a t the scene, were you able t

o determ ine the pr oximate cause of that dea dly crash out there that night?
Officer Vincion : The cause of the crash was the drive r of the van not stopping for the red light, based on statements from witnesses that I interviewed, and crashing into the Haught vehicle, which, again, by witnesse s’ statemen

ts have [sic] thegreen light coming north on 20 th , across West End.
This testimony, admitted without objection, clearly presented a jury que stion as to whether the defendant’s intoxication was the proximate cause of the victim’s death. See State v. Far ner , ___ S.W.3d ___, ___, 2001 WL 1575024, at *12 (Tenn. Dec. 11, 2001, at Knoxville) (holding causation is generally a question of fact for a proper ly instructed jury).-7-

The trial court ins tructed

the jury th at “ ‘[p ]roximat e result’ is define d to mean a result, which in a natura

l and cont inuous seq

uence, is a p roduct of an act occurring or concur ring with another, which, had it not happened, the result would not have occurred.” See T.P.I - CRIM. 7.08(b) (5 th ed. 2000). The jury, as was its prerogative, concluded the victim’s death wa s the “pro ximate result” of the defendant’s intoxication. See Tenn. Cod e Ann. § 39 -13-213( a)(2); Farner , S.W.3d at , 2001 WL 1575024, at *12 (holding “a victim’s contributory negligence [in a criminally negligent homicide case] is not a complete defense but may be considered in determining whether or not the defendant’s conduct w as a proxima te cause of death ”). Viewing the ev idence in a light mos t favorable to the state, as we must, the evidence supports the ve rdict.

FACIAL VA LIDITY OF PR IOR CONVI CTION
The defendant

also argues the prior DUI judgment of conviction, which was used to enhance his vehicular homicide conviction to aggravated vehicular homicide at the second phase of

his bifurcated

trial, was facially invalid and inadmissible. He bases this argument on two facts: (1) the judge’s signature appears jus t below the signature line on the judgment, underneath two notes regarding forfeiture of the defendant’s bail bond; and (2) the date of disposition does not appear on the judgment. We respectfully disagree.
After the ju ry convicted the defendant of vehicular homicide and driving on a re voked license, the state

present ed the te stimony of G

iles County

Circuit Court employee Crystal Greene. Greene identified a certified copy of a Giles County Genera l Sessions Court warrant charging the defendant with driving under the influence on March 25, 1986. Greene also identified the signature of the general sessions court judge. It was located just below the line for the judge’s signature in the judgmentsection for

the warrant, and

the judgment form indicated the defendant pled guilty to DUI, was sentenced to serve two days in the county jail, and was fined $250. Just above the judge ’s signature were notes indicatin g there h ad been a conditi onal for

feiture on April 10, 1986, and a final forfeiture on October 10, 1986, of the defendant’s bail bond. There w ere line s drawn th rough the se notations and date s regar

ding the f orfeitur es. There was no date of final disposition reflected on the DUI judgment. Greene testified, however, that she pre pared an abstract

of the jud

gment to se

nd to the Department of Safety on June 14, 1990, the day the j udgm ent was entered, as was the usual procedurein the Giles County Circuit Court Clerk’s office. Defense counsel cross-exa mined Greene regarding the location of

the judge’s signature and the lack of the date of disposition on the judgment itself. As stated, the jury returned a guilty verdict for the enhanc ed offense of aggravated vehicular homicide.
This court has held that

an unsigned genera

l sessions c ourt judgm

ent is void and cannot be used as proof

of a prior conviction for enhancement purposes. State v. Mc Junkin , 815 S.W.2d 542, 543 (Tenn. Crim. App. 1991). After reviewing the judgment portion of the cer tified c opy of the general sessions court

warrant charging the defendant with DUI , we concur with the trial court that t he judgment w as not faci ally inva lid for la ck of a ju dge’s sig nature. The judge signed hisname directly underneath the line intended for his signature and, while it is also undernea th the court’s-8-

notes regard

ing the fo rfeitur e of the d efenda nt’s bail bond, the notes regarding the forfeitures were crossedout. We conclude, theref ore, the re was sufficien

t proof th at the judge’s sign ature r elated to the judgment of conviction. This, along with Greene’s testimony that the judgment of conviction was rendered on June 14, 1990, was sufficient to support the jury’ s finding that the defendant had a prior DUI conviction. Furthermore, the omission of the date on a general sessions court judgment does not void

it. State v. Tipton , 13 S.W.3d 397, 401 (Tenn. Crim. App. 1999). This issue has no merit.

SENTENCING
The defendant argues the trial court erred in sentencing him to the maximum 25-year Range I standar d offend er sente nce for the Class A felony, aggravated vehicular homicide. The probation officer who prepared the presentence report testified the defendant had 98 pr ior misdem

eanor a rrests between 1976 and 1 999. Of these arr ests, she was able to confir m 20 prior

convicti ons, the mo st recent being a conviction for criminal trespassing on March 1, 1999. The remainder of the charges were eitherdismissed, retired, or the probation officer was unable to dete rmine their disposition

. The defendant had been charged 13 times for failing to appear. There was no proof of the number of convictions resulting from these charges.
The trial court considered enhancement factors (1) (defendant has a previo us history of criminal convicti ons or cr iminal beh avior in a

ddition to those necessa

ry to esta blish the a ppropria te rang e), (8) (defendant has a previous history of unwillingness to comply with the cond itions of a sentence involving release into the community), (9) (defendant possessed or empl oyed a dea dly weapon du ring the commission of the offense), and (10) (defenda nt had no hesitation about committing a crime when the risk to human life was high). Tenn. Code Ann. § 40-35-114(1), (8), (9), (10). The defendant maintains the lower court erred in applying enhancement factors (8), (9), and (10).
The trial court declined to give any weight to mitigating factors. See Tenn. Code Ann. § 40- 35-113. Defendant contends the trial court erre d in no t mitiga ting the se ntence b ased upo n his favorable institutional record while incarcera ted in this case.

A. Standard of Review
This cour t’s revie w of the se

ntence imposed by

the trial court is de novo with apresumption of correctness. Tenn. Code Ann. § 40-35-401(d). This pre sumption is conditioned upon an a f firmative showing

in the re cord tha

t the tria l judge c onsidere d the sent encing principle s and all relevant facts and c ircumstan ces. State v. Pettus , 986 S.W.2d 540, 543 (Tenn. 1999). If the trial court fails to comply with the statutor y directi ves, there is no presumption of correctness and our review i s de novo

. State v. Poo le , 945 S.W.2d 93, 96 (Tenn. 1997).-9-

If no mitigating or enhancement fac tors for sentencing are present, Tenn. Code Ann. § 40-35- 210(c) provides that the presumptive sentenc e for a Cl ass A fel ony shall be th

e midpoint withinthe range; namely, 20 y

ears. See Tenn. Code Ann. § 40-35-112(a)(1). Howeve r, if such factors do exist, a trial court should enhance the presumptive sentence with in th e range for enhancement factors and then reduce the se ntenc e with in th e range f or the miti ga ting f actors. Tenn. Code Ann. § 40-35- 210(e); State v. A

rnett, , 49 S.W.3d 250, 257 (Tenn. 2001). No particular weight for each fa ctor is prescribed

by the statute, as the we

ight given to each factor is left to the discretion of the trial court as long as t

he trial c ourt comp lies with th e purpose s and princi ples of the sentencing act and its findi ngs are supported by the record. State v. Mo ss , 727 S.W.2d 2 29, 238 (T enn. 1986 ); State v. Kelley , 34 S.W.3d 471, 4 79 (Tenn . Crim. App . 2000); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments. B. Analysis
The trial court properly applied enhancement factor (1) based upon the defendant’s 20 prior misdemeanor convictions. See Tenn. Code Ann. § 40-35-114(1). The defenda nt does not

contest this factor.
The trial court applied enhancement factor (8) (pr evious his tory of un

willingne ss to comply withcondition s of sent ence involving release into community) for failing to appear in cour t on numerous occasio ns. However, this factor does not apply since the alleged failures to appea r were not “conditions of a sentence ” involving release. See Tenn. Code Ann. § 40-35-11 4(8) (e mphasis added); S tate v. Richard Ricardo King , CCA No. 01C01-9603-CR-00113, 1997 WL 71837, at *2 (Tenn. Crim. App. Feb. 20, 1997, at Nashville). Nevertheless, the presentence re port indicates that on February 22, 1998, defenda nt was ar rested f

or disord erly con duct; def

endant w as found g

uilty of the offense on February 23, 1998, and sentenced

to 30 days; and committed a cr iminal tre spass on March 4, 1998, for

which he was convicted on March 10, 1998. T

his justifie s applica

tion of this enhancement factor.
The trial court’s application of enhancement factor (9) (defendant possessed or employed a d eadly weapon during the commission of the offense) was based on the vehicle being a

deadl y weapon. See Tenn. Code Ann. § 39-11-106(a)(5)(B). Howev er, the oper ation of a vehicle is a necessary element of aggravated vehicular homicide. See Tenn. Code Ann. §§ 39-13- 213, -2 18. Therefore, we conclude the tria l court erred in using it to enhance the defendant’s c onviction.
Enhancement

factor (10) (defendant had no hesitatio n about co mmitting a c rime whe n risk to human life was high) can onl y be app lied to homicide offenses if the proof established the defendant created a high risk of life

to a person other than

the victim. State v. Bingham , 910 S.W.2d 448, 453 (Ten

n. Crim. Ap

p. 1995); State v. Sim s , 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). The defendant argues t his facto r is not applicable to his sentence because Kym Murphy testified at trial there was little

traffic in the vic inity at th e t ime of the collision. However, the proof at trial established the defendant’s conduct endangere d others beside the v ictim. The defendant’s passenger was injured. Patrick

Winningham, the valet, had to move from his position in front of the restaurant to avoid being struck by the van before it crashed into the re staur ant. T he restaurant manager-10-

testified the van c ame to rest inside the restaurant, a mere six feet from whe re he was standing. The defendant’s conduct created a great risk of de ath to many persons, including those inside the restaurant. This factor was properly applied.
Defendant

contends the trial court erred in failing to consider de fendant ’s favor

able institutional record sincehis arrest. See Tenn. Code Ann. § 40-35-113(13). The presentence report indicated the defendant

said he had been unjustly convicted; he had been “used;” and “they didn’t even loo k for anybody else.” The trial court found “ver y little mitigation in this case.” Th e tria l court further noted that defendant had not exhibited any remorse at all. We are unable to conclude the trial court erre d in not reducing the sentence because of de fendant’s favorable institutional behavior. Although the trial court misapplied enhancement factor (9), we conclude, based upon our de novo review, that the r

emaining en hancement factors and absence of any significant mitigating evidence justify the enhan cement o f the def endant’ s sentenc e as orde red by the

trial cou

rt. Therefore, we will not disturb the sentence imposed by the trial cour t.

CONCLUSION
Accord ingly, we affirm t he judgme

nt of the tr

ial cour t.

___________________________________ JOE G. RILEY, JUDGE