         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs November 26, 2002

          STATE OF TENNESSEE v. GUADALUPE ARROYO, ALIAS

                   Direct Appeal from the Criminal Court for Knox County
                             No. 71869    Ray L. Jenkins, Judge



                                  No. E2002-00639-CCA-R3-CD
                                         March 27, 2003

The appellant, Guadalupe Arroyo, entered guilty pleas to two counts of vehicular homicide by
intoxication, Class B felonies. The trial court sentenced the appellant on each count to twelve years
incarceration in the Tennessee Department of Correction and ordered that the sentences be served
consecutively. On appeal, the appellant contends that the trial court erred in imposing the maximum
sentences and in ordering the sentences to be served consecutively. Upon review of the record and
the parties’ briefs, we affirm the convictions of vehicular homicide; however, finding error in the
trial court’s sentencing determinations, we remand for resentencing.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are Affirmed and
                                       Remanded.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY
L. SMITH, JJ., joined.

Glen B. Rutherford, Knoxville, Tennessee, for the appellant, Guadalupe Arroyo.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
Randall E. Nichols, District Attorney General; Philip H. Morton, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                               OPINION
                                        I. Factual Background
                At the guilty plea hearing, the parties stipulated to the following facts. On October
31, 2000, the appellant was driving down Henley Street in Knoxville and ran two red lights. As the
appellant ran the second red light, his vehicle struck another vehicle passing through the intersection.
The driver of the other vehicle, Anjanette Comer, was killed instantly, and the passenger, Dennis
Shockley, died a short time later. The appellant was taken to the hospital where blood testing
revealed that he had a blood alcohol level of .18 percent. Moreover, the appellant admitted to having
consumed approximately ten beers that day and “numerous alcohol containers, both full and empty,
[were] found inside the [appellant's] vehicle.”
               On January 22, 2002, the appellant entered “blind” guilty pleas to two counts of
vehicular homicide by intoxication. Following a sentencing hearing, the trial court sentenced the
appellant on each count as a Range I standard offender to twelve years incarceration and ordered that
the sentences be served consecutively. On appeal, the appellant contends that the trial court erred
in imposing the maximum sentences and in ordering the sentences to be served consecutively.

                                              II. Analysis
                 When an appellant challenges the length, range, or manner of service of a sentence,
it is the duty of this court to conduct a de novo review with a presumption that the determinations
made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). However, this
presumption of correctness “is conditioned upon the affirmative 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 the record demonstrates that the trial court failed to consider
the sentencing principles and the relevant facts and circumstances, review of the sentence will be
purely de novo. Id.

                  In conducting our review, this court must consider (1) the evidence, if any, received
at trial and at the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and
the arguments of counsel relative to the sentencing alternatives; (4) the nature and characteristics of
the offenses; (5) any mitigating or enhancements factors; (6) any statements made by the appellant
on his own behalf; and (7) the appellant’s potential for rehabilitation or treatment. Tenn. Code Ann.
§ 40-35-102 and -103 (1997), -210 (Supp. 2002); see also Ashby, 823 S.W.2d at 168. The burden
is on the appellant to show that the sentence is improper. Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments.

                  The appellant was sentenced as a Range I standard offender, for which the applicable
range for Class B felonies is eight to twelve years. Tenn. Code Ann. § 40-35-112(a)(2) (1997). The
presumptive sentence for a Class B felony is the minimum within the applicable range if there are
no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). If the trial court finds that
such factors do exist, the court must start at the presumptive sentence, enhance the sentence within
the range as appropriate for the enhancement factors, and then reduce the sentence within the range
as appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). There is no
mathematical formula for valuating factors to calculate the appropriate sentence. State v. Boggs, 932
S.W.2d 467, 475 (Tenn. Crim. App. 1996). “Rather, the weight to be afforded an existing factor is
left to the trial court’s discretion so long as the court complies with the purposes and principles of
the 1989 Sentencing Act and its findings are adequately supported by the record.” Id. at 475-76.

                At the sentencing hearing, the State introduced the following exhibits: the police
report of the incident, the appellant’s blood alcohol test results, and a transcribed statement by the
appellant’s wife regarding the circumstances that led to the incident. The trial court also reviewed
the presentence report and the State’s sentencing recommendations, and considered the arguments
of counsel, the testimony of the victims’ families, and the appellant’s apology in which the appellant



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claimed that he “didn’t plan this to happen.” Based upon this evidence, the trial court found no
applicable mitigating factors and applied the following enhancement factors:1
               (1) the appellant has a previous history of criminal convictions or
               criminal behavior in addition to those necessary to establish the
               appropriate range;
               (3) the offense involved more than one victim;
               (9) the appellant possessed or employed a deadly weapon during the
               commission of the offense;
               (10) the appellant had no hesitation about committing a crime when
               the risk to human life was high; and
               (16) the crime was committed under circumstances under which the
               potential for bodily injury to a victim was great.
Tenn. Code Ann. § 40-35-114 (1997). The trial court sentenced the appellant on each count to
twelve years incarceration and ordered that the sentences be served consecutively. On appeal, the
appellant challenges the application of enhancement factors (1), (10), and (16), and contests the
imposition of consecutive sentences. Because the trial court misapplied certain enhancement factors
and failed to make findings regarding the imposition of consecutive sentences, our review will be
de novo without a presumption of correctness.

                The appellant contends that the trial court erred in applying enhancement factor (1)
when it “[was] undisputed that the [appellant] had no prior convictions.” In support of his argument,
the appellant cites State v. Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993) and State v.
Buckmeir, 902 S.W.2d 418, 424 (Tenn. Crim. App. 1995) in which this court held that merely being
arrested or charged with a crime did not constitute “criminal behavior” within the meaning of
Tennessee Code Annotated section 40-35-114(1). While a trial court may not enhance a sentence
under enhancement factor (1) using only a defendant’s arrest record, our supreme court held in State
v. Carico, 968 S.W.2d 280, 288 (Tenn. 1998) that prior criminal acts for which there has been no
conviction may constitute “criminal behavior.” Moreover, the plain language of the statute, “a
previous history of criminal convictions or criminal behavior,” precludes this court from limiting
the application of this factor to those defendants who have been previously convicted. See State v.
Anthony Joel Allen, Jr., No. 01C01-9612-CC-00514, 1998 Tenn. Crim. App. LEXIS 525, at **9-10
(Nashville, May 7, 1998) (quoting Tennessee Code Annotated section 40-35-114(1)).

                 In the presentence report, the appellant admitted to illegally entering this country in
1997 and to using alcohol despite being underage. Additionally, the State noted at the sentencing
hearing that while in this country, the appellant operated a motor vehicle “on a regular basis without
the benefit of a license to do so here in the state of Tennessee or anywhere else in this country.” We
conclude that these acts constitute criminal behavior and support the trial court’s application of
enhancement factor (1).


         1
           W e note that the 2002 am endment to this section added present enhancement factor (1), thereby renumbering
former (1)-(22). See Tenn. Code Ann. § 40-35-114, Amendm ents. However, for the purp oses o f this opinion, we will
use the former designations applicable at the time of the appellant’s sentencing.

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              Next, the appellant contends that in sentencing the appellant the trial court should not
have considered enhancement factors (10) and (16), i.e., the appellant had no hesitation about
committing a crime when the risk to human life was high and the crime was committed under
circumstances under which the potential for bodily injury to a victim was great. Tenn. Code Ann.
§ 40-35-114(10) and (16). The appellant argues that these factors do not apply because the risk to
human life and the potential for bodily injury are inherent in the offense of vehicular homicide.

                In State v. Bingham, 910 S.W.2d 448, 452 (Tenn. Crim. App. 1995), this court held
that “where a high risk to human life is established with facts separate from those necessary to
establish an element of the offense, [enhancement factor (10)] is not an essential element of the
offense and may be applied if supported by the facts.” In other words, enhancement factor (10) may
be applied if the facts demonstrate that the appellant created a high risk to the life of a person other
than the named victim. Id. However, proof must exist “that other persons or motorists were either
in the vicinity or placed at risk by [the appellant’s] conduct.” State v. Janice Carol Biskner, No.
E2000-01440-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 887, at *39-40 (Knoxville, Nov. 13,
2001).

                 In the instant case, the trial court noted, “The [appellant] was driving while under the
influence of an intoxicant down a crowded area in Knoxville [and] after running several traffic
control signals, [he] ran into the car occupied by the two deceased.” However, our review of the
record fails to reveal any facts supporting the trial court’s finding that the area was crowded or other
persons were placed in danger. The presentence report indicates that the incident occurred at
approximately 11:42 p.m. The facts to which the parties stipulated at the guilty plea hearing and the
facts recited at the sentencing hearing and in the presentence report do not demonstrate that there
were other vehicles in the area at that time. Accordingly, we cannot conclude that the appellant
created a high risk to the lives of persons other than the victims. Thus, the facts do not support the
trial court’s application of enhancement factor (10).

                The appellant also contends that the trial court erred in applying enhancement factor
(16), arguing that the potential for bodily injury is an element of the offense of vehicular homicide.
This court has previously held that a great potential for bodily injury is inherent in the offenses of
vehicular homicide by recklessness, Bingham, 910 S.W.2d at 452, and aggravated vehicular
homicide where the defendant’s blood alcohol content was more than .20 percent. State v. Donald
W. Branch, No. W1999-00506-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 19, at *66 (Jackson,
Jan. 4, 2002); perm. to appeal denied, (Tenn. 2002). Likewise, we conclude that it is inherent in the
offense of vehicular homicide by intoxication. However, unlike enhancement factor (10),
enhancement factor (16) may not be applied when the risk is to persons other than the victim. Id.
at **67-68; State v. Charles Justin Osborne, No. 01C01-9806-CC-00248, 1999 Tenn. Crim. App.
LEXIS 465, at **6-7 (Nashville, May 12, 1999) (holding that “Bingham implicitly, but inescapably,
distinguishes between enhancement factors (10) and (16) in that factor (10) may be supported by risk
to persons other than a victim of the convicted offense while factor (16) may not”). Enhancement
factor (16) specifically requires that the potential for bodily injury be “to a victim.” Tenn. Code Ann.
§ 40-35-114(16); see also Osborne, No. 01C01-9806-CC-00248, 1999 Tenn. Crim. App. LEXIS 465,


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at *8. Because the potential for bodily harm is inherent in the offense of vehicular homicide by
intoxication and enhancement factor (16) does not apply to persons other than the victim of the
charged offense, we conclude that the trial court erred in applying enhancement factor (16).

                Although the appellant has not challenged the trial court’s application of enhancement
factors (3) and (8), we conclude that these factors do not apply in this case. Enhancement factor (3),
the offense involved more than one victim, may not be applied to enhance a sentence where a
defendant is separately convicted of the offenses committed against each victim. State v.
Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995); see also State v. Imfeld, 70 S.W.3d 698,
705-06 (Tenn. 2002). In the instant case, the appellant was separately convicted of the vehicular
homicide of each victim. Accordingly, enhancement factor (3) may not be used to enhance the
appellant’s sentences.

                Additionally, the trial court applied enhancement factor (9), finding the appellant’s
vehicle to be a deadly weapon. However, because the operation of a vehicle is a necessary element
of vehicular homicide, see Tenn. Code Ann. § 39-13-213, enhancement factor (9) may not be used
to enhance the appellant’s sentences. State v. Jimmy M. Millican, No. M2000-02298-CCA-R3-CD,
2002 Tenn. Crim. App. LEXIS 75, at *24 (Nashville, Jan. 31, 2002); perm. to appeal denied, (Tenn.
2002). Nonetheless, we note that the trial court afforded this factor no weight.

               The appellant also challenges the trial court’s imposition of consecutive sentences.
Under Tennessee Code Annotated section 40-35-115 (1997), a trial court may order a defendant to
serve consecutive sentences if the defendant is convicted of more than one offense and the trial court
finds by a preponderance of the evidence that:
               (1) [t]he defendant is a professional criminal who has knowingly
               devoted such defendant’s life to criminal acts as a major source of
               livelihood;
               (2) [t]he defendant is an offender whose record of criminal activity is
               extensive;
               (3) [t]he defendant is a dangerous mentally abnormal person so
               declared by a competent psychiatrist who concludes as a result of an
               investigation prior to sentencing that the defendant’s criminal conduct
               has been characterized by a pattern of repetitive or compulsive
               behavior with heedless indifference to consequences;
               (4) [t]he defendant is a dangerous offender whose behavior indicates
               little or no regard for human life, and no hesitation about committing
               a crime in which the risk to human life is high;
               (5) [t]he defendant is convicted of two (2) or more statutory offenses
               involving sexual abuse of a minor with consideration of the
               aggravating circumstances arising from the relationship between the
               defendant and victim or victims, the time span of defendant’s
               undetected sexual activity, the nature and scope of the sexual acts and



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               the extent of the residual, physical and mental damage to the victim
               or victims;
               (6) [t]he defendant is sentenced for an offense committed while on
               probation; or
               (7) [t]he defendant is sentenced for criminal contempt.

                 Regarding consecutive sentencing, the trial court stated, “The State urges [Tennessee
Code Annotated section 40-35-115(b)(4)] which is the [appellant] is a dangerous offender whose
behavior indicates little or no regard for human life, and no hesitation about committing a crime in
which the risk to human is high. The [trial court] . . . in considering the enhancing factors, find[s]
sufficient proof to sentence consecutively.” However, in State v. Wilkerson, 905 S.W.2d 933, 938
(Tenn. 1995), our supreme court held that satisfying Tennessee Code Annotated section 40-35-
115(b)(4), by itself, was not sufficient to sustain consecutive sentences. If the defendant is found
to be a dangerous offender under the statute, the trial court must also determine whether the
sentences imposed are reasonably related to the severity of the offenses and necessary to protect the
public from further criminal activity by the defendant, the “Wilkerson factors.” Id. Moreover, trial
courts must make specific findings regarding these factors before imposing consecutive sentences.
State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999). In the instant case, there is no evidence in the record
that the trial court considered the Wilkerson factors before ordering consecutive sentencing.

               Because the trial court misapplied enhancement factors (3), (9), (10), and (16) and
failed to make specific findings regarding the Wilkerson factors before imposing consecutive
sentences, we remand this case to the trial court for a new sentencing hearing.

                                         III. Conclusion
               For the foregoing reasons, we affirm the appellant’s convictions for vehicular
homicide, but remand to the trial court for a new sentencing hearing consistent with this opinion.




                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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