         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE             FILED
                           JULY SESSION, 1997           December 16, 1997

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

STATE OF TENNESSEE,              )   C.C.A. NO. 03C01-9608-CR-00313
                                 )
      Appellee,                  )   HAMILTON COUNTY
                                 )
V.                               )
                                 )   HON. STEPHEN M. BEVIL, JUDGE
DAVIS OLIVER BROWN,              )
                                 )   (VEHICULAR ASSAUL T;
      Appe llant.                )   VEHICULAR HOMICIDE)



FOR THE APPELLANT:                   FOR THE APPELLEE:

ARDENA J. GARTH                      JOHN KNOX WALKUP
District Public Defender             Attorney General & Reporter

DONNA ROBINSON MILLER                JANIS L. TURNER
Assistant Public Defender            Assistant Attorney General
701 Cherry Street, Suite 300         2nd Floor, Cordell Hull Building
Chattanooga, TN 37402                425 Fifth Avenue North
                                     Nashville, TN 37243-0943

                                     WILLIAM COX
                                     District Attorney General

                                     JOH N A. BO BO, JR .
                                     Assistant District Attorney General
                                     600 Market Street, Suite 310
                                     Chattanooga, TN 37402



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                 OPINION
      The Defendant, Davis Oliver Brown, appeals as of right from the sentences

imposed by the trial court upon his pleas of guilty to vehicular homicide and

vehicular assau lt in the Crim inal Cou rt of Ham ilton Cou nty. Defen dant pled guilty

without any agreement between himse lf and the S tate as to the length or manner

of service of th e sente nces. T he trial cou rt senten ced De fendan t, as a Ra nge I,

Standard Offend er, to the maximum sentence of twelve (12) years for the

vehicular homicide conviction and the maximum sentence of four (4) years for the

vehicular assault conviction. The court further ordered the sentences to be

served conse cutively. In this appeal, Defendant presents two issues for review:

(1) whether the trial court erred by imposing the maximum sentences in each

case and (2) whether the trial court erred by orderin g the sen tences to be served

conse cutively. W e affirm the judgm ent of the tria l court.



       At appro ximate ly 11:18 p.m. on July 13, 1995, the Defendant was involved

in a two-vehicle wreck on Interstate 24 within the c ity limits of Chattanooga. The

record indicates that just prior to the wreck Defendant was traveling eastbound

on Interstate 2 4, and the victims, T imothy C levenge r and his b rother, Andy

Clevenge r, were traveling in a vehicle westbound on Interstate 24. The collision

occurred in the westbound lane. The vehicle was owned by T imothy Cleve nger,

who died as a resu lt of the wreck. Andy Clevenger suffered extensive injuries as

a result of th e collision. From the photographs of the wreck which are in the

record, and from the traffic accident report, it is indicated that the wreck was a

head-on collision. Although the traffic accident report indicates that it consists of




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six (6) pag es, on ly the first page was includ ed in the pre-se ntence repo rt as part

of the reco rd on ap peal.



       Chattanooga Police Officer Robert Simpson testified during the sentencing

hearing. After the wreck, he searched the Defendant’s vehicle pursuant to a

search warrant. He found various papers which were introduced into evidence,

including documents showing that the Defendant had been ordered to attend a

DUI school in February of 1995, but that he had failed to attend as required.

Officer Simps on also te stified that he found num erous beer cans inside the

Defe ndan t’s vehicle. The victims’ father testified at the hearing as to the impact

of the crime upon his family and his surviving son.



       At the time o f the sente ncing he aring, De fendan t was 32 -years-old . He

had been self-employed prior to the charges being placed against him in the

presen t case. H e testified tha t he takes full respon sibility for the ca r wreck.



       Defendant admitted during his testimony that he had “been drinking all day

long” and that he “sh ouldn’t have been out there driving.” The pre-sentence

report shows an extensive prior record of Defendant. He testified, however, that

someone else had used his name in the past and therefore, several of the

offenses in the record had not been committed by him. The State offered no

evidence to contradict Defendant’s assertions that certain of the listed offenses

had not been committed by him. However, the Defendant did admit to at least

four (4) prior arrests for various misdemeanors, which led to three (3) prior

convictions and one disposition by diversion. These prior convictions included

one for DU I, one fo r reckle ss driving and one for public intoxication. Further

                                          -3-
evidence at the sentencing hearing revealed that both the conviction for DUI and

the convic tion for public intoxication had occurred in 1995, and that Defendant

was convic ted of p ublic int oxicatio n while on probatio n from th e DUI o ffense. In

fact, Defendant had been charged with public intoxication approximately one

month prior to the automobile wreck which resulted in the present charges of

vehicular homicide and vehic ular assault. Defendant admitted that he was an

alcoholic, but that he had never received treatment for his alcohol abuse except

for AA meetings while in jail for the present offenses. Defendant expre ssed his

sympathy to the victims’ family and explained that he wished he could trade

places with Timothy C levenger. He stated that he thoug ht the a ccide nt wou ld

prevent him from ever drinking alcoholic beverages again.



       When an accused challenges the length, range, or the manner of service

of a sentence, this court has a duty to conduct a de novo review of the sentence

with a presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circums tances ." State v. Ashby, 823 S.W.2d

166, 169 (T enn. 1991 ).



      In conducting a de novo review of a sentence, this Court must consider the

evidence adduced at trial and the sentencin g hearing, the presentence report, the

principles of sentencing, the arguments of counsel relative to sentencing

alternatives, the nature of the offense, and the defendant’s potential for

rehabilitation. Tenn. Code Ann. § 40-35-2 10; State v. Parker, 932 S.W.2d 945,

955-56 (T enn. Crim. A pp. 1996).

                                          -4-
       If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and

that the trial c ourt's fin dings of fact a re ade quate ly supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991).



                            I. LENGTH OF SENTENCE



       The Defendant argues that the trial court erred by imposing the maximum

sentences of twelve (12) years for the vehicular homicide conviction and four (4)

years for the vehicular assault conviction. The trial court found that five (5)

enhan ceme nt factors w ere app licable:

       (A)    The Defendant has a previous history of criminal convictions or
              criminal behavio r in addition to those necessary to establish the
              appropriate ran ge. Tenn . Code An n. § 40-35-11 4(1);

       (B)    As to the vehicular assault conviction only, the personal injuries
              inflicted upon th e victim we re particula rly great. Tenn. Code Ann. §
              40-35-114 (6);

       (C)    The Defendant has a previous history of unwillingness to com ply
              with the conditions of a sentence involving release into the
              comm unity. Tenn. C ode Ann . § 40-35-114 (8);

       (D)    As to the vehicu lar assault conviction only, the Defendant had no
              hesitation about committing a crime when the risk to human life was
              high. Tenn. Code Ann. § 40-35-114(10); and

       (E)    The felonies were committed while the Defendant was on a form of
              release status, if such release is from a prior felony conviction.
              Tenn. C ode Ann . § 40-35-114 (13)(C).



The trial court found that no mitigating factors applied.

                                           -5-
      Therefore, the trial court found that three (3) enhancement factors under

Tennessee Code Annotated section 40-35-114 applied to the vehicular homicide

conviction, and five (5) of the enhancement factors in that statute applied to the

vehicular assau lt conviction.



      W e find that the trial court properly applied enhancement factor number (1)

in this case. The Defendant has at least four (4) prior arrests and three (3) prior

convictions for offenses involving alcohol or drugs. Two of the offenses also

involve unlawful conduct while operating a motor vehicle. Even though all of

these prior offenses were misdemeanors, the statute does not require the prior

record to be comprised of felonies. Tenn. Code Ann. § 40-35-114(1). We also

find that enhancement factor number (8) was properly applied by the trial cour t.

Defendant was on probation for a DUI conviction when he was arrested and

convicted of public drunkenness only a few weeks before the commission of the

offenses under re view in this ca se. The refore, it is clear th at De fenda nt is

unwilling to comp ly with cond itions involving release in to the com munity.



      W e find that the trial court erred by applying enhancement factor number

(6) to the vehicular assault conviction. In State v. Jones, 883 S.W.2d 597 (Tenn.

1994), our suprem e court held that “pro of of serious bodily injury will always

constitute proof o f particu larly gre at injury.” 883 S.W.2d at 602. In State v.

Rhodes, 917 S.W .2d 708 (Tenn . Crim. A pp. 199 5), our co urt held th at in a

vehicular assault case, the enhancement factor found at Tennessee Code

Annotated section 40-35-114(6) was an element of the offense requiring serious

bodily injury. 9 17 S.W .2d at 714 .




                                        -6-
      In addition, we find that the trial court erroneously applied enhancement

factor (13)(C). That statute plainly states as follows:


      (13) T he felo ny was com mitted while on any of the following forms
      of release status if suc h release is from a prior felony conviction
      ...
      (C) Probation
      ...

Tenn. C ode Ann . § 40-35-114 (13)(C) (em phasis add ed).


Since Defendant was not on probation from a prior felony conviction at the time

of the commission of the present offenses, this particular enhancement factor

cannot be applied.



      The Defendant also argues that the trial court improperly applied

enhancement factor (10) to the v ehicu lar ass ault co nviction . It is true th at this

factor is inapplicable to a vehicular assault conviction where th e only risk to

human life is the risk to th e victim. See State v. Hicks, 868 S.W.2d 729, 732

(Tenn. Crim. App . 1993). How ever, the factor may be applied in circumstances

where individu als oth er than the victim are in the area of the defendant’s criminal

conduct and are subject to injury. State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.

App. 19 95).

      The trial cou rt did no t spec ifically elaborate upon what facts were involved

in this case which caused the court to believe that factor (10) was applicable.

Howeve r, we note from this record that the wre ck occu rred on a n interstate

highway within the city limits of an urban area. The proof indicates a head-on

collision wherein the Defendant crossed from the eastb ound la nes of Inte rstate

24 to the westbound lanes of Interstate 24. It was undisputed that his blood

alcoho l content fo llowing the wreck w as .281 .

                                          -7-
       As stated above, this case proceeded to a sentencing hearing following

guilty pleas en tered by the Defendant. Rule 11(f) in the Tennessee Rules of

Criminal Procedure states that “Notwithstanding the acceptance of a plea of

guilty, the court should not enter a judgment upon such plea without making such

inquiry as shall satisfy it that there is a factual basis for the plea.” The transcript

of the guilty plea hearing was not includ ed in th e reco rd on a ppea l in this case.

It is the appe llant’s duty to have prepared an adequate record in order to allow

a meaningful review on appea l. Tenn. R . App. P. 2 4(b); State v. R oberts, 755

S.W.2d 833, 836 (Tenn. Crim. App. 1988); State v. Bunch, 646 S.W.2d 158, 160

(Tenn. 1983). It would h ave bee n muc h simp ler and e asier for this Court to

review this issue if the entire traffic accident report had been included within the

pre-sentence report, or if the State had elicited further proof as to the particular

circumstances of the offen se at the s entenc ing hea ring. How ever, we must

assume that the trial court did n ot allow a ju dgme nt to be ente red upo n the gu ilty

pleas without finding a factual basis for the pleas. This would normally include

the particular circumstances of this offense. In addition, we are able to glean

from this record , as stated above, th at the wre ck occu rred on a n interstate

highway within the city limits of an urban area after the Defendant had left the

eastbound lanes and entered the westbound portion of the highway. Without the

guilty plea hearing being m ade a p art of the tran script, we a re unab le to say that

the trial court erred in applying factor (10). We are able to reach this conclusion

even thoug h from this rec ord it is clear that enhancement factors (6) and (13)(C)

are not a pplicable by their very n ature.



       The Defendant argues that the trial court erre d by failing to find that he was

remorseful under miscellaneous mitigating factor (13). Tenn. Code Ann. § 40-35-

                                          -8-
113(13). At the sentencing hearing, the Defendant expressed his sympathy to

the victims ’ family and said he would trade places with their son, Timothy, if he

could. Although the record does reflect some expressions of remorse, the trial

court heard the evid ence, saw the Defendant firsthand, and then ruled based

upon its observation. Wh en a fa ctual iss ue is involved, we must generally defer

to the asse ssme nt of the trial co urt. Even if some evidence of mitigation did exist,

where the mitigation factors are strongly outweighed by the enhancement factors,

the maximum sentence w ould still be w arranted . State v. Ruane, 912 S.W.2d

766, 785 (T enn. Crim. A pp. 1995).



       We therefore find that there was no error in the trial court’s application of

enhancement factors (1) and (8) to both convictions, and in addition the

application of enhancement factor (10) to the vehicular assault conviction. Under

the circumstances of this case, great weight shou ld be placed upon enhancement

factors (1) and (8). As stated above, Defendant pled guilty to DUI in early 1995.

W hile on probation for this offense , he co mm itted the offens e of pu blic

intoxication . While on probation for both of these alcohol related offenses, one

of which also involve d operation of a motor vehicle, he committed the offenses

which led to the present conviction s on ap peal. W e also no te the reco rd reflects

that when a rrested fo r public intox ication in Ju ne of 19 95, he was passed out

inside his vehicle. We hold that the three (3) applicable enhancement factors,

along with a finding of no mitigating factors, justifies the sentences imposed by

the trial cou rt. This issu e is withou t merit.



                         II. CONSECUTIVE SENTENCING




                                            -9-
      The trial court ordered consecutive sentencing after making a finding that

Defendant is a dangerous offender whose behavior indicates little or no regard

for human life, and no hesitation about co mm itting a crime in which th e risk to

human life is high. Tenn. Code Ann. § 4 0-35-11 5(4). The trial court also noted

on the consecutive sentencing issue that Defendant was on probation at the time

of the comm ission of the offenses of vehicula r homic ide and vehicular a ssault.



      Defendant strongly argues that he is not a dangerous offender as defined

by the statute and case law, and as such, the trial court’s orde r of consecutive

sentencing should be re versed. How ever, there is no dispute that Defendant was

on proba tion at th e time of the c omm ission of the o ffense s.        Unlik e the

enhancement factor found in Tennessee Code Annotated section 40-35-

114(13)(C) in whic h there is a requirement that the Defendant be on probation

from a felony conviction, Tennessee Code Annotated section 40-35-115(6)

mere ly requires that to justify co nsecu tive senten cing, the Defenda nt is

sentenced for “an offense committed while on probation.” We also find from the

record that consecutive sentencing is necessary to protect the public against

further criminal conduct by the Defendant and th at con secu tive sen tencin g is

reaso nably related to th e severity of the offens es com mitted. State v. Wilkerson,

905 S.W .2d 933 , 939 (T enn. 19 95).



      This issu e is withou t merit.



      We affirm the ju dgme nt of the trial co urt.




                                        -10-
                         ____________________________________
                         THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
DAVID H. WELLES , Judge



___________________________________
JOHN K. BYERS, Senior Judge




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