            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE            FILED
                            JANUARY 1999 SESSION
                                                         March 15, 1999

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

STATE OF TENNESSEE,                 )    C.C.A. NO. 03C01-9804-CR-00164
                                    )
      Appellee                      )    SULLIVAN COUNTY
                                    )
v.                                  )    HON. R. JERRY BECK, JUDGE
                                    )
JOHN PERRY ROBERTS,                 )    (Sentencing)
                                    )
      Defendant/Appellant           )




FOR THE APPELLANT:                       FOR THE APPELLEE:

Terry L. Jordan                          John Knox Walkup
Assistant Public Defender                Attorney General & Reporter
2nd Judicial District
Office of the Public Defender            Ellen H. Pollack
P.O. Box 839                             Assistant Attorney General
Blountville, TN 37617                    Criminal Justice Division
                                         425 Fifth Avenue North
                                         Nashville, TN 37243




OPINION FILED


AFFIRMED
JOHN K. BYERS
SENIOR JUDGE
                                   OPINION

      The defendant entered nolo contendere pleas in case number S39,082 to two

counts of reckless endangerment, for which he was sentenced to serve two one

year sentences to be served concurrently. The defendant also entered nolo

contendere pleas to three counts of reckless endangerment, for which he was

sentenced to serve one year each to be served concurrently but consecutive to the

sentences in case number S39,082. He also entered a nolo contendere plea to

reckless aggravated assault, for which he was sentenced to serve three years. This

sentence was to run concurrent to the other sentences and consecutive to the

sentences in case number S39,082 for an aggregate sentence of four years.

      The trial judge denied the defendant’s application for probation or alternative

sentencing.

      We affirm the judgment of the trial court.

      The evidence presented by the State by way of stipulation and testimony

shows as follows:

             On June 5, 1996, Angela McHan and Sharon W arren . . . were in Ms.
      McHan’s vehicle which was sparked in Autumn Chase Apartments in Sullivan
      County. Ms. McHan [who was a friend of defendant’s estranged wife], was
      backing the vehicle out of the parking space when the Defendant, John
      Roberts, pulled up behind them. Mr. Roberts attempted to keep them from
      leaving, but Ms. McHan managed to get her car out and around the
      Defendant.

              She drove out of the apartment complex and Mr. Roberts followed
      them. They headed down West Stone Drive in Sullivan County, and then Ms.
      McHan made a u-turn and headed east. Mr. Roberts turned at the same
      location and continued following them. While traveling on West Stone Drive
      to an area east of 181, Mr. Roberts went to the left side of the vehicle. He cut
      in front or cut into Ms. McHan’s lane, she had to slam on her brakes to keep
      Mr. Roberts from hitting her vehicle.

             She slowed down to put distance between them. Mr. Roberts pulled
      into the far right of the road and began driving very slow. As Ms. McHan
      caught up with him, she went to the left lane to speed up and passed him.
      Mr. Roberts then sped up and caught up with her. He pulled along side Ms.
      McHan’s vehicle and once again swerved back into Ms. McHan’s lane
      causing her to have to slam on the brakes again to keep from being hit.




                                            -2-
             On July 28, 1996, the Defendant and Linda Roberts, the defendant’s
      estranged wife, and Jonathan Roberts, the couple’s son, Jody Day and
      Loretta Dotson, were at a cemetery.

           They had met for decoration day. At some point, the defendant
      pushed his wife, grabbed their son, and put him in his car.

             The defendant got into the car with his two and a half year old son and
      started to take off. The defendant, at some time before this, had kidnapped
      the couple’s son.

             Mrs. Linda Roberts requested the defendant to stop and got onto the
      hood of the car. At this point, Mr. Roberts started driving around the
      graveyard with her on the hood of the car. Ms. Jody Day and Loretta Dotson
      got into another vehicle and came up behind the Defendant.

              The Defendant stopped the car momentarily and requested that Linda
       Roberts get off the car and she responded that she would not get off the car
       without her child. At this point, Ms. Jody Day, the driver of the other car, and
       Loretta Dotson pulled in front of his car and attempted to block it. The
       Defendant made contact with their car and they were in danger of going over
       a steep embankment.

              After that, the Defendant got his car around their car and went out on
       the interstate. Mrs. Roberts was on the hood of the car which reached
       speeds of eight, ninety, and a hundred miles an hour. The son did not have a
       seat belt on during this time.

              Shortly after they left the cemetery, Linda Roberts was able to pull
       herself inside the car with the help of the Defendant. And the rest of the
       chase took place with her inside the car.

       The trial court acknowledged that the defendant had a somewhat different

version of the facts. The defendant did not testify in the plea entry hearing or in the

sentencing hearing. His view of the facts was submitted in the statement given by

him to a police officer in a pre-sentence report which stated:

               The appellant acknowledged he drove his vehicle from the cemetery
       with his son in it because he saw a gun in the vehicle of Mrs. Roberts’
       relatives. When he drove away Mrs. Roberts jumped on the hood of his
       vehicle and Mrs. Roberts’ relatives in the other vehicle rammed his vehicle as
       he went around them. At that time, one of the relatives had the gun and
       threatened to shoot the appellant. So, the appellant proceeded onto the
       highway with the other vehicle behind with gun shots being fired from the
       vehicle. The appellant grabbed Mrs. Robert from the hood of the vehicle and
       pulled her inside, and then, did the speeding pursuit begin.

              At the alternative sentencing/probation hearing, Mrs. Roberts testified
       she heard a noise while she was on the hood of the appellant’s vehicle, and
       she had testified at the preliminary hearing in this matter that she heard
       something go bang, bang and understood why the appellant did not stop
       because he was afraid he would be shot. Again at the preliminary hearing,
       Mrs. Roberts stated she understood her relatives were shooting at the
       appellant and that someone was shooting as the appellant left the graveyard.
       In another statement at the preliminary hearing, Mrs. Roberts said she heard
       something go bang, bang.



                                              -3-
        The defendant and his wife divorced sometime after this occurrence.

        In reaching a conclusion of whether to grant probation or alternative

sentencing, the trial court reviewed the defendant’s past history. The history

included a misdemeanor theft conviction in Florida and many traffic convictions in

the Kingsport area, mostly speeding offenses. In addition, the defendant was

convicted of “telephone harassment” and sentenced to serve 11 months and 29

days, for which it appears he was placed on probation. Also, the defendant was

convicted of criminal trespass and was given a 30 day suspended sentence.

        In reaching the judgment, the trial judge considered favorable factors for the

defendant, which in truth are few. He also considered unfavorable factors and

concluded that the nature of this offense, which placed the life of his wife and child

in obvious peril, was so enormous that probation or alternative sentencing was not

justified.

        We find the record supports this finding and shows the trial judge did not

abuse his discretion. The judgment of the trial court is affirmed. It appearing that

the defendant is indigent, costs of the appeal are taxed to the State.




                                          John K. Byers, Senior Judge

CONCUR:




James Curwood W itt, Jr., Judge




Norma McGee Ogle, Judge




                                          -4-
