         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                   December 19, 2006 Session

              STATE OF TENNESSEE v. CHARLES STAN MARTIN

                         Appeal from the Circuit Court for Sevier County
                            No. 10470-II   Richard R. Vance, Judge



                   No. E2005-02155-CCA-R3-CD - Filed September 18, 2007



The defendant, Charles Stan Martin, was convicted by a Sevier County jury of one count of reckless
homicide, a Class D felony, and received a four-year sentence to be served on probation. On appeal,
the defendant contends that: (1) the evidence was not sufficient to support his conviction, (2) the
reckless homicide statute is unconstitutional as applied to him, (3) the trial court erred in admitting
evidence of a prior incident, (4) the trial court erred in failing to instruct the jury on an alibi defense,
and (5) the trial court abused its discretion in denying him judicial diversion. We affirm the
judgment of the trial court.

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

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES
CURWOOD WITT , JR., JJ., joined.

Bryan E. Delius, Sevierville, Tennessee, and Richard L. Gaines, Knoxville, Tennessee, for the
appellant, Charles Stanley Martin.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
James B. (Jimmy) Dunn, District Attorney General; and Steven R. Hawkins, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                               OPINION

      On March 14, 2004, June Alexander fell to her death while riding the Hawk thrill ride at the
Rockin Raceway amusement park in Pigeon Forge. The defendant was the general manager of
Rockin Raceway and was responsible for maintenance of the Hawk. In September 2004, a Sevier
County grand jury charged the defendant by presentment with second degree murder and reckless
homicide.1 The state attempted to prove that the defendant attached a jumper wire to the electrical
panel of the ride in order to bypass its safety restrictions.

        At the trial, the victim’s son, Cody Alexander, testified that he lived in Ashland City,
Tennessee, and that he, his mother, and two aunts were visiting Pigeon Forge in March 2004 to
celebrate his fifteenth birthday. He said that on March 14, 2004, the last day of their weekend trip,
they visited Rockin Raceway because he wanted to ride the Hawk. He described the Hawk as a
“gondola type ride” that “swings back and forth and goes upside down.” He, his mother, and one
aunt sat next to each other in the front of the Hawk, with Cody sitting in the center and his mother
sitting on his left side. He said the ride’s operator pressed a button that lowered the over-the-
shoulder harnesses that were to secure them on the ride. The operator then came to them and pulled
on their harnesses to check if they were secure. He said his aunt and mother had changed their minds
about riding the Hawk and told the operator that they wanted to get off the ride. The operator told
them that the machine would not release them from the ride until the ride had finished its course.

         Cody testified that the ride began and moved backwards so far and high that they were facing
the ground. He said that when it started going forward again, his mother’s harness “jilted–moved
a little bit.” His mother said she was “loose,” first in a low voice, and then loudly to his aunt. He
said the ride came back down and the harness moved again. At a height of approximately sixty feet,
the victim’s harness opened completely and the victim fell out of her seat. At that point, the ride
made a 360 degree turn. Cody said he began screaming at the attendant to stop the ride. The ride
soon stopped, and he and his aunt came back down to the ground. He said he was stuck in his seat
for approximately thirty minutes because his harness would not release. He estimated that his aunt
was stuck in her seat for about forty-five minutes. He said that after he was released from his seat,
he ran to see his mother and learned that she was dead. He said the defendant had never expressed
condolences to his family.

         Pigeon Forge Police Officer Mark Vance testified that he was called to Rockin Raceway
around 12:15 p.m. on March 14, 2004. When he got there, he saw a young man and a woman sitting
on the Hawk and the victim lying face-up on the ground. Another officer indicated that the victim
was not responding, and Officer Vance went to assist the two people stuck on the ride. He said they
were very upset and screaming. He said Rockin Raceway personnel were trying to get them off the
ride, but he was not certain if the defendant was there. He said that after the two were released from
the ride, he stayed with the young man who had been operating the ride. Police roped off the area
around the ride with crime scene tape later in the afternoon and kept a log to document who came
to the scene. Officer Vance said that only essential personnel should have been allowed on the scene
after it was declared a crime scene.

       Sevier County paramedic Timothy Hughes testified that he attended to the victim on March
14, 2004, after her fall. He said officers were on the scene when he arrived at Rockin Raceway. The


         1
          Before the end of the trial, the court merged the two charges, as reckless homicide is a lesser-included offense
of second degree murder.

                                                           -2-
victim was lying face-up on the ground. He said there was a large pool of blood above her head and
that blood and cerebral spinal fluid were coming out of her ears. The victim had no pulse and was
not breathing. Mr. Hughes said it appeared that she had hit her head on the compressor that was at
the back of the ride. He believed that her death was instantaneous. He said he was with the victim
for six or seven minutes and did not remember if the defendant was there.

       Sergeant Gary Campbell of the Pigeon Forge Police Department testified that he was called
to Rockin Raceway after the victim’s fall. He said that by the time he arrived at the scene, the victim
had been removed and the area was being treated as a crime scene. He said he took control of the
crime scene log and started a crime scene log book for the day after the victim’s fall. He
acknowledged that there were several names on the log that did not belong to law enforcement
personnel, even though he was trained to limit the public’s access to a crime scene in order to
preserve evidence. He said that the second day of the log included names of people representing
Rockin Raceway and Zamperla, the manufacturer of the Hawk.

        John Hryhorchuk testified that in March 2004 he worked as an independent insurance
adjuster and was hired by the insurance company that represented Rockin Raceway to investigate
the victim’s fall. He said he went to Rockin Raceway in the evening and took photographs of the
Hawk. He said he did not touch or lift anything from the ride or remove from or put anything on the
ride. On cross-examination, he testified that he told the defendant not to talk to anyone until the
defendant talked to counsel.

        Pigeon Forge Police Officer Scott Finney testified that he was at Rockin Raceway on March
15, 2004, the day after the victim’s death, in order to provide scene security. He said that others
were also on the scene while he was there, including William Aldrich, who was with a consulting
firm; the defendant; Thomas Sheehan, an attorney for Zamperla; Valerio Ferrari, a Zamperla
representative; Detective Rene Kendall of the Pigeon Forge Police Department; and Jerry Lindsey,
Rockin Raceway owner. Officer Finney’s job was “to make sure that nobody was in there that we
didn’t have logged down, and that while they were in there that they didn’t touch anything.”

         Officer Finney testified that he was present when the electrical cabinet on the back of the
Hawk was opened. He said he could see electrical wiring in the box. He said two wires–one red and
one black–that were attached to other wires with alligator clips caught his eye. He explained that
he formerly inspected rides as the “chief safety security officer” for Silver Dollar City amusement
park and that he never saw alligator clips used in the electrical panels of rides there. He said that if
he had seen such wiring in a ride he would have “shut the ride down.” The insulation of the wires
to which the alligator clips were attached was peeled in order for the alligator clips to touch the
copper wiring. He said he also saw in the electrical cabinet a cardboard box that contained, among
other things, black wire and alligator clips. Officer Finney testified that he did not know how long
the alligator clipped wires were in the electrical panel and did not know who put them there. He said
that no fingerprints were taken from any wires. He said no one touched the inside of the electrical
cabinet while he was there and that the cabinet was closed before he left the scene on March 15,
2004.


                                                  -3-
        Officer Wayne Knight testified that he was an evidence technician for the Pigeon Forge
Police Department. He said he went to Rockin Raceway on the morning of March 16, 2004, and that
Detective Kendall was also there. He mentioned several people who were there in addition to law
enforcement officers: Phil Castellano, a Zamperla technician; Niles Nimmo, an attorney for the
victim’s family; Thomas Sheehan, an attorney for Zamperla; Jerry Aldrich,2 a consultant for
Zamperla; Claude Wagner, a consultant for Rockin Raceway’s insurance company; and Donald
Howell, an attorney for Rockin Raceway. Officer Knight took photographs while the electrical
cabinet was examined and while Mr. Castellano removed components from it. The electrical panel
consisted of numerous wires connected to various numbered circuits. A photograph of the electrical
panel when it was first opened showed a red jumper wire and black jumper wire attached with
alligator clips to other wires. Officer Knight spoke in detail about the placement of the black jumper
wire: “It ha[d] been attached to a black wire that ha[d] been spliced open and that wire is labeled
number 144 and the other end of the black jumper is attached to another black wire that ha[d] been
spliced and that number is 145.” He said all the parties present had looked through the electrical
panel. The next day, a test was performed on the ride, which Officer Knight videotaped. He said
that once testing was complete, the ride was turned off, and he collected the black jumper wire as
evidence.

         On cross-examination, Officer Knight testified that he never saw the defendant put a jumper
wire in the Hawk’s electrical panel or perform any maintenance on the Hawk. He said that between
March 14 and 17, 2004, representatives from Zamperla and Rockin Raceway had access to the ride.
He acknowledged that he was trained to limit access to and movement within a crime scene to
prevent alterations or destruction of evidence. He acknowledged that he did not seal off the
electrical cabinet when he left the crime scene on March 15 or 16. He said that he did not take notes
while Mr. Castellano modified the electrical panel and the ride, although he did take photographs
and record a videotape. He discussed some of the changes that Mr. Castellano made to the ride
during the investigation, including that he took panels off some seats on the ride, took top covers off
the lap bars on the seats, and raised the operator panel onto a platform. He said that no one was told
to wear gloves before touching any part of the machine and that Mr. Castellano did not wear gloves
when opening the electrical cabinet. He said people, including Mr. Castellano, touched the black
jumper wire and that no attempt was made to take fingerprints from the wire or from any other part
of the electrical panel. He said he was unsure whether it would have been possible to get fingerprints
off the wire and that it was not tested because of how small the surface area was.

        Officer Knight testified that he collected the black jumper wire as evidence because everyone
present when the ride was examined had a reaction to the presence of that wire. He said he knew
it was significant but did not know how. He said that after he left the scene on March 17, 2004, he
returned briefly on March 18 and then on March 24, when Ed Pribonic, who was hired by the city
of Pigeon Forge and assisted by city electrician Bill Bradley, investigated the Hawk. However, the
ride was not turned on after it was shut down on March 17, and Mr. Pribonic did not conduct any
investigations or tests while the ride had power.


       2
           Other witnesses referred to M r. Aldrich as “W illiam Aldrich.”

                                                         -4-
        Bradley Burns testified that he was a seasonal employee of Rockin Raceway between March
1997 and August 2001 and that he was as an assistant manager there between August 2001 and
September 2002. He was working at Rockin Raceway during the time that the Hawk arrived. He
said that he sometimes operated the Hawk and that, at times, the lap bars came down but the ride did
not move. At these times, an alarm on the ride would sound. Sometimes when this happened,
people requested to get off the ride and demanded refunds.

        Mr. Burns described the Hawk’s seating and restraint system. He said the seats were lined
in several rows with three to a row. When he pressed a button, the lap bars3 of each seat lowered.
He said latches, or pins, were on the sides of the lap bars. These pins latched into holes on panels
that were on the right and left sides of each seat. The holes into which the pins latched depended on
the size of the rider. Before starting the ride, the operator was supposed to check that all lap bars
were secure. He said that when an alarm sounded, he would check again that all lap bars were secure
because the ride would not move if the lap bars were not all securely latched. He explained, “[If you
had started [the ride] and the latches weren’t out, the platforms wouldn’t lower or anything. It
wouldn’t do anything. It would just sit perfectly still.” If he discovered that the lap bars were secure
on each seat, he would raise the lap bars, reset the ride, lower the bars again, and try to start the ride.
He said that if he went through this procedure two or three times and the ride still did not work, he
would inform the riders that they could ride another ride or get a refund. He said that if he could not
get the Hawk to run, he would inform the defendant of the problem. He could not recall people
opening panels to get the ride to work, although he saw Mike Stepp, an assistant manager, open a
panel on the lap bars to wipe away moisture on the sensors. He said that he only saw the defendant
work on the Hawk from a distance. Mr. Burns said that he had seen the ride’s instruction manual
but that he never actually looked through the manual himself. He said he had seen the defendant and
Mr. Stepp look at it.

        Mr. Burns testified on cross-examination that he never saw the defendant put a jumper wire
in the Hawk’s electrical panel. He said he saw the defendant working in the motor area of the ride
but not in the electrical area. He said his only interaction with the Hawk’s electrical system was
flipping the breaker switch, which was located in the electrical panel. He said that whoever was
operating the Hawk at closing time was responsible for making sure it was shut down each night and
that whoever operated it in the morning would make sure it was turned on. He said different people
turned the ride on and off. Mr. Burns said he saw the Hawk shortly after it was set up and saw
damage to the platform that resulted from a malfunction. He said he remembered that a lady’s foot
was injured soon after the ride was first set up due to problems with the platform. He was present
when a “push bar” was installed on the ride to prevent people’s feet from being caught in the
platform.

       Mr. Burns described the defendant as a “great employer” who was “more than fair to all of
the employees.” He said the defendant exhibited a great deal of concern for the safety of the Hawk


         3
          Several witnesses referred to the seat restraints or harnesses as “lap bars.” In the summary of the facts, we use
the term that the witness testifying used.

                                                           -5-
and another ride, called the Rip Line, because those two rides involved more safety concerns than
other rides at Rockin Raceway. He said that when there was a problem with a ride, the defendant
would check the ride and instruct employees not to operate the ride or sell tickets for it until it was
fixed. There were times when the Hawk was shut down for two to three days at a time. He said he
never saw the defendant take “shortcuts” relating to the rides and that the only modification he was
aware the defendant ever made to a ride was once removing the air filter from a go-cart. He said the
defendant expressed concern when he noticed that one go-cart was significantly faster or slower than
the others, as the defendant said this created a dangerous situation. He said that the defendant was
very generous and that he had no reason to believe the defendant was more concerned with selling
tickets than with the safety of the Hawk.

         Edward Pribonic, a mechanical engineer, testified as an expert in amusement ride safety. He
was contacted by Detective Rene Kendall to investigate the Hawk in March 2004, following the
victim’s death. He described the ride as follows: “The ride[] consists of one long boom . . . . At the
upper end is the counterweight, at the lower end are 24 passenger seats. It’s hinged in the center, or
has an axle in the center, and it’s motor driven and it rotates clockwise and counterclockwise.” He
said that the “passenger gondolas” consisted of twenty-four seats in rows of three and that the ride
had an “over-the-shoulder restraint mechanism” for each seat. He explained that the ride was
designed to ensure that each passenger was securely restrained through a system of three locking pins
on each restraint, one located behind the headrest and one on each side of the lap bar. These pins
locked into access holes and sent electronic signals to the computer when they were properly
secured. Mr. Pribonic said that if the ride were “configured as manufactured,” it would not run if
any of the three pins on any seat were not properly positioned and the proper signals were not sent
to the ride’s computer.

        Mr. Pribonic testified that he examined the Hawk at Rockin Raceway on March 24, 2004,
with the assistance of Pigeon Forge electrician Bill Bradley. He said he examined the pins and the
electronic switches on the seat from which the victim fell and that all were functioning. He said he
looked at the electrical panel, which was open, and saw a red jumper wire attached to two other
wires, which he thought was “highly unusual.” The red jumper wire was attached to wires numbered
126 and 146. He said he had never seen such a jumper wire in any ride he had ever inspected or
worked on during his career. He said he also saw that some of the insulation was removed from
several wires, including two wires that were next to each other, numbered 144 and 145. He was
informed that another jumper wire was found connecting those two wires and was removed. He also
saw some loose material and a cardboard box filled with paper and wires, which indicated to him
that “someone was apparently using the electrical cabinet as a storage location.” He said he also saw
in the electrical cabinet a yellow jumper wire attached to another wire on one end with electrical
tape.

       Mr. Pribonic testified that he was asked by the Pigeon Forge Police Department to determine
the probable cause of the victim’s fall. He said he determined that a connection between wires
numbered 144 and 145 would bypass the “entire ride restraint system.” He said that when a jumper
wire connected those two circuits, the seventy-two lap bar safety switches–three on each of the


                                                 -6-
twenty-four seats–became useless and no longer had any control over the operation of the ride. Thus,
the ride would run even if one of the pins was not properly positioned and the switch did not send
the appropriate signal to the computer. He said Mr. Burns’ testimony that the ride sometimes would
not operate while he was working at Rockin Raceway indicated that the safety system was not
bypassed at that time. He also said that, after speaking with Ken Mace, who nearly fell out of his
seat on the Hawk in July 2003, he thought that the restraint safety system was bypassed at that time.
He said he “firmly believed” this because if the safety system were functioning properly, two things
would have prevented the incident: (1) the “ride would never have left the station” if Mr. Mace was
not secured in his seat; and (2) if some kind of force pulled the pins out of their secured position, the
ride would have shut down immediately. Mr. Pribonic testified that it was “absolutely not” standard
for a ride to have a jumper wire with alligator clips in its electric panel and that he was of the opinion
that the black jumper wire was purposefully placed on wires 144 and 145.

         On cross-examination, Mr. Pribonic testified that he did not know who put the jumper wire
on the ride. He acknowledged that he was a member of the Amusement Industries Manufacturers
and Suppliers International and that Zamperla, the Hawk’s manufacturer, was also a member of that
organization. He said he never saw the black jumper wire on the electrical panel because it was
removed by the time he arrived at the scene. He also acknowledged that he did not turn on the ride
during his inspection of it. Although he said he did not initially intend to power the ride, he admitted
that he tried but was unable to do so. He said that the ride was the only Hawk 24 trailer-mounted
ride in existence and that he was not able to look at any other ride that operated in the same fashion.
He said he reached his conclusions by reviewing drawings, the ride’s manual, other documents
provided by the manufacturer, and witness statements relayed to him by Detective Kendall. He said
he believed the ride’s manual to be well-written and reliable. He said he was not an electrical
engineer but consulted with one to confirm his conclusions.

         Mr. Pribonic acknowledged that the Hawk had other safety systems in addition to the restraint
safety system. For instance, the ride’s platform had switches designed to ensure that it was
completely lowered before the ride started. He said he reviewed only the restraint system and not
the platform safety system. He said he learned while inspecting the ride that someone had been
injured because the platform malfunctioned. He said he did not test the emergency stop button, the
“go station button,” or the air cylinders because to do so would have required the ride to be in
operation. He said he did test the springs and switches attached to the pins on the victim’s seat and
determined that they were operating effectively. He admitted that the diagram he used during his
direct testimony was simplified and that each seat actually had four switches, not three. He said the
fourth switch indicated the position of the lap bar. He said that if a person were too large to allow
the restraint to be in secure position, the fourth switch would not send a permissive signal to the
computer system and the ride would not run. He said he determined that the fourth switch was not
bypassed by the black jumper wire and was not directly involved in the victim’s fall.

        Mr. Pribonic acknowledged that he cited in his report that operator error was also a cause of
the victim’s fall because the operator did not properly check the victim to ensure that her restraint
was secure. He said, however, that operator error would not have caused the victim’s death if the


                                                   -7-
safety system had not been bypassed. He acknowledged that the Hawk was set up at Rockin
Raceway by Phil Castellano within two days and that he may have earlier said that it should take at
least four days to set up the ride. He said that, generally, it would be unacceptable to spend only
thirty minutes training someone on how to operate the ride. He also acknowledged that the Hawk’s
manual appeared to have been written after the ride was already at Pigeon Forge and that normally,
a ride should be delivered with its manual.

        Bill Bradley testified that he worked for the city of Pigeon Forge as an electrician and that
he assisted Ed Pribonic’s examination of the Hawk at Rockin Raceway. He said he used a volt ohm
meter to test whether the electronic switches on the victim’s seat were functioning and determined
that they were. He said he also tested the black jumper wire that was in the possession of police and
determined that it was also functional. He said that he opened the electrical box and attempted to
turn on the power for the ride but that “the main breaker was tripped.” He said that he tried to reset
the breaker three times but that the ride still would not operate. He testified that Mr. Pribonic wanted
the ride’s power turned on but that after he was unable to do so, Mr. Pribonic said they would test
the ride without power.

        Phil Castellano testified that he lived in New Jersey and worked for Zamperla, Inc. as a Field
Service Manager. He said part of his duties involved setting up new rides, performing repairs and
troubleshooting in the field, and providing technical support over the phone. He came to Pigeon
Forge on March 4, 1998, to set up the Hawk at Rockin Raceway. He said that he was assisted with
the set-up by the defendant and four or five other Rockin Raceway personnel and that they completed
the set-up in less than one day. He said that the electrical system was involved in the set-up only to
the extent that he had to run large cables into the electrical cabinet and to turn on a “set up key
switch” to allow the ride to set up. He said the ride was assembled three times before it came to
Pigeon Forge, once in Italy and twice at trade shows in Florida. He said he spent March 5 and 6,
1998, operating the ride and training Rockin Raceway personnel. He left on March 6 but came back
in October 1998 to repair the hydraulic lifting platform of the Hawk. He said he came back again
in July 2000 because of a problem with the Hawk’s motor. He said he identified the problem in July
2000 as a broken coupler that joined the encoder to the motor. He said that he temporarily fixed the
problem by installing a rubber hose but that he ordered a replacement coupler to be shipped to
Rockin Raceway the next day. He said he used this temporary solution because the defendant
wanted to keep the ride in operation. He said he instructed the defendant to install the replacement
part when it arrived. However, when Mr. Castellano returned to Rockin Raceway in March 2004,
following the victim’s death, he saw that the replacement part was still in its package and that the
temporary hose was still affixed to the motor. He said that by the second time he visited Rockin
Raceway to make repairs, in July 2000, the Hawk was no longer under warranty by Zamperla.

        Mr. Castellano testified that after July 2000, he did not come to Rockin Raceway again until
March 16, 2004, during the investigation of the victim’s death. He said that the electrical cabinet
was opened on March 15, before he arrived. He said he saw red and black jumper wires in the
electrical cabinet that were not there when he brought the ride to Pigeon Forge. He said that the red
jumper wire connected wires numbered 146 and 126 and that the black jumper wire connected wires


                                                  -8-
numbered 144 and 145. He said he performed a series of tests in the morning of March 17, 2004,
to determine what effect the jumper wires had. One test involved using a metal ruler to block the
access holes for the pins on the side of the lap bar of a seat, to prevent the pins from being properly
secured. Mr. Castellano said that, normally, the ride should not start in this condition. However,
he said that with the black jumper wire connected, the ride started and went through a complete
cycle. He conducted another test in which the lap bar of one seat was raised so that it was not in
secure locking position and the locking pin behind the headrest of the seat was not properly secured.
He said the ride should not be able to start in this unsafe condition but that with the black jumper
wire attached, it did. He said he removed the black jumper wire from the electrical cabinet and tried
to start the ride while in an unsafe position but that it did not start. He said he also tested the ride’s
emergency stop button. He said that the button worked but that the brakes were either worn out or
out of adjustment because they did not stop the ride as fast as they should have. Mr. Castellano also
identified the contents of a cardboard box found in the electrical cabinet, which included a vise grip;
the package of a replacement valve sent to Rockin Raceway that was dated May 12, 2000; a module,
a device that allowed the main circuit breaker of the Hawk to be turned off and on from outside the
electrical cabinet; some fuses and other “small parts”; and “alligator clip jumpers,” one of which
looked identical to the black jumper wire that was connecting wires 144 and 145 on the electrical
panel.

        On cross-examination, Mr. Castellano acknowledged that the Hawk’s manual given to
Rockin Raceway was dated after the ride arrived at the park. He said it was possible to train
someone to operate the Hawk in thirty to forty-five minutes. He said that he trained the defendant
and that the defendant was responsible for training other personnel. He admitted that he told the
defendant that only one person was needed to operate the ride, although the manual said that two
people should operate the ride at all times. He said he became aware not long after he set up the ride
that the Hawk’s platform was malfunctioning and that a lady’s foot was injured by it. He also
acknowledged a letter he wrote to the defendant mentioning a problem involving vibrations in the
motor of the ride and a problem with the “go station.” He admitted that the electrical panel
contained a red wire that was installed by Zamperla in Italy and that eliminated the gate sensor
switch. He said that gate switches are not used in the United States and, thus, it was not built in the
ride even though it was in the design. He noted, however, that this red wire was not attached to
others using alligator clips and did not involve splicing other wires, as did the jumper wires
connecting wires 144 and 145 and wires 126 and 146.

        Mr. Castellano testified that he did not recall whether he tried to operate the ride without the
black jumper wire but with all lap bars securely in place. The video of the tests done on March 17,
2004, did not show that he did. He admitted that there was an alarm to indicate if the brakes were
not functioning properly, but he could not remember if he heard or saw this alarm during his tests
on March 17. He said that Zamperla was a major contributor of rides at many carnivals and parks
in the United States, that they made about 100 different varieties of rides, and that many of their rides
could be found in Sevier County, including at Dollywood. He acknowledged that Zamperla had a
financial incentive to ensure that they did not get a bad reputation in Sevier County. He said,
however, that it was not in Zamperla’s interests to bypass the critical safety systems of its rides.


                                                   -9-
        Pigeon Forge Police Detective Rene Kendall testified that he was the lead investigator of the
victim’s death. He said that after he arrived on the scene for the first time on March 14, 2004, he
spoke to the defendant who informed Detective Kendall that he was the general manager of Rockin
Raceway. The defendant said he performed maintenance on the ride but did not have a maintenance
log. Upon Detective Kendall’s questions about the defendant’s qualifications, the defendant said
that he was not a certified mechanic but that the ride was failsafe and that anyone could run it.

        Detective Kendall testified that although he did not initially believe a crime had been
committed, they treated the area around the Hawk as a crime scene until further investigation. He
and other officers secured the scene by questioning people and making sure only authorized people
were there. He said that officers guarded the area over a twenty-four-hour period. Detective Kendall
returned to the scene on the morning of March 15, along with Officer Scott Finney, William Aldrich,
Tom Sheehan, Valerio Ferrari, and the defendant. While there, the group looked at the Hawk’s
electrical panel, and Detective Kendall said two jumper wires caught his eye. He said that no one
touched the jumper wires at that time and that the defendant did not say anything or express any
surprise about the presence of the wires. Detective Kendall said that before they made any
alterations to the ride, they wanted to consult with someone who was “intimately familiar” with it.
He said Mr. Sheehan, the attorney for Zamperla, contacted Mr. Castellano, who arrived in Pigeon
Forge on March 16, 2004. On March 16, Detective Kendall was present at Rockin Raceway with
Mr. Castellano and other representatives from Zamperla, Rockin Raceway, and the victim’s family.
He said that they looked at the electrical panel again but that no one altered anything on the machine
until the next day, when tests were performed and a videotape was made.

        Detective Kendall testified that he met with the defendant on August 14, 2004, at the Pigeon
Forge Police Department. He said the defendant told him that Mr. Castellano and another technician
from Zamperla performed maintenance on the platform soon after Rockin Raceway obtained the
Hawk and that Mr. Castellano had rewired the electrical panel to nullify the gate safety function.
The defendant told Detective Kendall that Mr. Castellano also returned to Rockin Raceway one time
after the Hawk’s warranty had expired to repair a broken coupler on the ride. Detective Kendall said
the defendant told him that either the defendant or Mike Stepp “did greasing of the rides” and that
the ride operators were responsible for turning on the machine each day. The defendant said David
Webb, who was the Hawk’s operator at the time the victim fell, was competent to run the ride. The
defendant told Detective Kendall that he had instructed Mr. Webb how to turn the ride off if
someone wanted to get off it.

        Detective Kendall testified that the defendant denied having any knowledge of a previous
incident involving someone nearly falling out of the Hawk. He said the defendant said he was aware
of an incident in July 2003 in which a large man had ridden the ride without having all the pins on
his lap bar secured. Detective Kendall said the defendant told him that if one safety pin was secure,
the ride would run even if another safety pin was not secure as long as the insecure pin was “close
enough” to the hole that was supposed to secure it. Detective Kendall asked the defendant about the
red and black jumper wires. He said the defendant told him that he had never seen the jumper wires.
The defendant said he only opened the electrical cabinet as necessary and that the last time he opened


                                                -10-
the electrical cabinet was about six weeks before the victim’s death. Detective Kendall also spoke
with the defendant in September 2004, at which time he outlined the investigation to the defendant.
The defendant again denied putting the jumper wires on the electrical panel, although he
acknowledged that only he or someone from Zamperla could have done it. He said that he could not
recall seeing the jumper wires on the machine but that Mr. Castellano must have put them there
when he last worked on the ride in 2000. After this interview, the defendant prepared a written
statement for Detective Kendall, which only outlined what the defendant did and observed after
being notified of the victim’s death.

        On cross-examination, Detective Kendall testified that the defendant never confessed to
putting the jumper wires in the electrical panel. He said he never interrogated Zamperla
representatives, including Mr. Castellano, about the origins of the jumper wires. He said he also
never investigated Zamperla’s rewiring of the panel to eliminate the safety gate function or the
platform problems. He acknowledged that Mr. Castellano did not volunteer information about past
problems with the ride or the work he had done on it. Detective Kendall said he contacted Ed
Pribonic after being referred to him by Robbie Fox, the security director of Dollywood. He said he
accompanied Mr. Pribonic when he performed tests on the Hawk on March 26, 2004, but did not
take notes or record a video. He confirmed that Mr. Pribonic did not turn on the ride while testing
it. Detective Kendall recalled seeing the defendant at Rockin Raceway on March 16, 2004, but said
the defendant did not come to the scene. He said he did not recall seeing the defendant on March
17. He said he would have allowed the defendant on the scene. He said that after Mr. Pribonic’s
investigation of the Hawk on March 26, the ride was released to the defendant with the black jumper
wire removed from it.

        Judy Chance, a former employee of Rockin Raceway, testified that she was working in the
ticket booth on March 14, 2004. She said that she called the defendant after the victim fell that day
and that the defendant arrived a short time later and immediately tried to release the victim’s family
members who were stuck on the ride. She said that during her time working at Rockin Raceway, the
Hawk “would not work a lot of times” and that she often had to give refunds on Hawk tickets. She
said that when the ride was not working, the defendant would be called because “he was the one that
worked on the ride.” She said that, to her knowledge, no one else fixed the ride. She said that during
the nine months she worked at Rockin Raceway while the Hawk was there, she saw the defendant
“work on” the ride three times. Each time, he would be working in an area behind the ride but she
never saw exactly what he did or on what part of the machinery he worked. She said that after the
victim’s death, the defendant appeared very quiet and sad.

        Jerry Lindsey, the owner of Rockin Raceway and the defendant’s brother-in-law, testified
that, as manager, the defendant was responsible for overseeing outside operations at Rockin
Raceway, including rides and go-carts. He said the defendant was probably the person who would
handle any electrical problems on the rides or make necessary repairs to the rides. He said he
experienced problems with the Hawk when it was first purchased. Mr. Lindsey said the defendant
was a salaried employee whose pay was not tied to the profitability of the business but who received
a bonus at the end of the year, which depended, in part, on how well the business did that year. He


                                                -11-
said that about a year before the victim’s death, the defendant expressed a desire to resign his
position at Rockin Raceway. The defendant agreed to continue as manager after Mr. Lindsey told
him he would no longer be responsible for maintenance. Mr. Lindsey acknowledged, however, that
the defendant continued after this time to oversee some maintenance on the rides and that, when
interviewed by Detective Kendall, he never said the defendant had stopped doing maintenance on
the rides. He said that other employees may have performed maintenance on the Hawk but that any
“major problems” probably would have been handled by the defendant. Mr. Lindsey agreed that he
was a “hands off” owner who was not involved in the daily operations of Rockin Raceway. He
acknowledged that the business made more money when the Hawk was in operation, but he said he
would never prioritize money ahead of safety.

        Josh Williams testified that he worked at Rockin Raceway from March 2002 to March 2004.
He said that he regularly operated the Hawk as part of his work duties and that he was fifteen years
old when he first started operating it. He said the defendant was the only person he had ever seen
or heard of doing electrical work on the Hawk. He said he accessed the electrical panel himself
either to turn on the ride in the morning or to reset the breaker. He said he noticed the red jumper
wire in the electrical panel and thought it “looked odd.” He said that he saw the jumper wire when
he first opened the electrical cabinet to turn on the ride and that it was there the entire time he
worked at Rockin Raceway. He said he thought the red jumper wire looked unusual but was not
worried about it and never talked to the defendant about it. Mr. Williams said he quit working at
Rockin Raceway about a week before the victim’s death.

         Ken Mace testified that he lived in Indiana and that on July 22, 2003, while in Pigeon Forge
on vacation with his family, he rode the Hawk at Rockin Raceway. He said that after he sat on the
ride, a restraint harness was pulled over him. He described the harness as a “hard rubber covered
yoke that comes down over your shoulders and across the chest” and which had two chrome handles
on the outside of it. He said the ride’s operator came to him to check if his harness was secure. Mr.
Mace said the harness appeared to be secure. However, he said that after the ride started and went
through two partial revolutions, and when he was at the highest point facing the ground, his harness
“released forward” about one foot or one and one-half feet. He tried to pull the harness back down,
but it was stuck. He said he then tried to keep himself steady in his seat to prevent his falling. He
yelled to the operator as the ride was coming down, but the operator was standing about ten to fifteen
feet away from the control panel. He said he started to slide out of his seat but held on as best he
could. He said he was worried that the harnesses had released on all the seats and worried about his
two children who were also riding. He said the ride made one full revolution before it stopped.
After he got off the ride, Mr. Mace talked to someone at Rockin Raceway and also reported the
incident to Officer Wyrick with the Pigeon Forge Police Department. Mr. Mace said that he was five
feet, eleven inches tall and weighed 260 pounds.

        On cross-examination, Mr. Mace testified that he was certain he saw and talked to the
defendant on July 22, 2003. He said he would be shocked to find out that the defendant was
attending his father’s funeral in West Tennessee that day. He acknowledged that in two previous
statements to police, he did not mention the defendant, but he said it was because he spoke with a


                                                -12-
man who did not identify himself but whom he recognized as the defendant in court. Mr. Mace said
he rode the Hawk between 9:00 and 9:30 p.m. on July 22, 2003. He said that afterwards, he first
talked to the ticket booth operator. He said he then talked to a lady who was in the arcade and then
a man, who he said was the defendant. Later that night, he reported the incident to the Pigeon Forge
Police Department. He said the police officer led him to believe the matter would be referred to
some state department or agency for investigation, but he was never contacted by anyone regarding
the matter until Detective Kendall contacted him after the victim’s death. Mr. Mace said that the
defendant did not operate the Hawk when he was riding it.

        Tony Hardwick, a resident of South Carolina, testified that he was at Rockin Raceway in
Pigeon Forge on July 22, 2003, when Ken Mace rode the Hawk. He said he was observing his
daughter, who was riding the Hawk, when he saw a man “hanging.” He commented on the man to
a woman who was standing next to him, who turned out to be Mr. Mace’s wife. He said he only saw
Mr. Mace for a “split second” because he quickly returned his attention to his daughter. It was
unclear to what extent Mr. Hardwick saw Mr. Mace “hanging,” but Mr. Hardwick testified that he
saw Mr. Mace “holding onto something” and that it appeared at one “split second” that Mr. Mace
was holding on with his hands while his entire body was out of the ride. After the ride stopped, Mr.
Hardwick immediately checked on his daughter. He said he saw and heard Mr. Mace talking to the
ticket booth attendant and some other people. He approached Mr. Mace and the two exchanged
business cards.

        Joey Dickson testified that he worked at Rockin Raceway from 1991 until 2003 and that he
eventually became an assistant manager there. He said the defendant was his step-father. He said
he was at Rockin Raceway on July 22, 2003, when Ken Mace rode the Hawk. After speaking with
Mr. Mace, Mr. Dickson ordered that the ride be shut down until it could be inspected. He said the
defendant was out of town attending his father’s funeral at the time and that he and the defendant
inspected the ride one or two days later. He said that the defendant “was the one who did
maintenance” on the Hawk, which he said included replacing light bulbs and fuses, and that the
defendant would call Zamperla if the ride was broken. He said he did not know if the defendant
called Zamperla regarding the Mace incident, but he did know that Zamperla did not come to Rockin
Raceway to address the problem.

        Mr. Dickson said that following the Mace incident, he and the defendant checked the Hawk’s
seat restraint safety system by lowering the safety bars and holding them up in order for the pins in
the bar not to engage in the holes in the seat. He said that they tried to start the ride while seats were
in this non-secure position but that the ride would not run and an alarm sounded. Thus, they
concluded that the safety system was working. He said their inspection of the Hawk following the
Mace incident took one to two hours and that the defendant concluded that Mr. Mace’s size likely
prevented the lap bar from lowering enough for the pins to engage in the holes. He said the
defendant instructed the assistant managers not to allow large people to ride the Hawk. Mr. Dickson
acknowledged a prior statement in which he said that Mr. Mace was saved from falling out of his
seat by the safety pin in the rear of the seat, even though the safety pins on the sides of the seat
appeared not to have been engaged. He said that as designed, the ride should not have operated if


                                                  -13-
any of the safety pins were not in proper position. Mr. Dickson testified that to his knowledge, only
the defendant and Phil Castellano had performed electrical work on the Hawk while it was at Rockin
Raceway.

         On cross-examination, Mr. Dickson testified that the Hawk had problems since it was first
set up at Rockin Raceway and that it was shut down a couple of times per year. He said the ride was
assembled at Rockin Raceway in two days and that he was one of the first people trained to operate
the ride by Mr. Castellano. He said his training lasted about thirty minutes and that he was not
shown the ride’s operations manual during training. He said Rockin Raceway did not receive the
manual until four to six months after the ride was set up. He acknowledged several things that Mr.
Castellano did not tell him regarding the operation of the ride, including that people under the
influence, pregnant women, and people with certain health conditions should not ride; that Rockin
Raceway staff should perform daily checks of the ride’s safety systems; and that the ride’s operator
should be in full control and paying full attention to the ride while it was running. He said the first
problem with the ride involved a malfunction of the platform that was supposed to lower when the
ride started. He said he observed Mr. Castellano and an Italian-speaking Zamperla employee work
on the platform and add a hydraulic mechanism to correct the platform problems. He said they
added sensors to the platform, which involved adding wires to the Hawk’s control panel. He said
the last time he saw Mr. Castellano at Rockin Raceway was in 2000.

        Mr. Dickson testified that the defendant was a very meticulous and exacting person, that he
was a demanding employer, and that he had warned Mr. Dickson against “cutting corners.” He said
the defendant was also fair and generous and that the defendant ran a “tight shop” at Rockin
Raceway. He said the defendant made sure all go-carts ran at approximately the same speed in order
to avoid accidents. He said that he knew the defendant very well and that the defendant would never
recklessly injure or knowingly kill someone.

         Starr Johnson testified for the defense that she was in Pigeon Forge on March 13, 2004, with
a youth group, when some members of her group wanted to ride the Hawk at Rockin Raceway. She
said that when several members of her group went to ride the Hawk, the lap bars would not lock
down. She said operators started the ride and “swung it a couple of times” to see if the bars would
lock. Eventually, they stopped the ride, and all the riders were offered a refund. Ms. Johnson said
she sat on a bench and observed two men working on the Hawk for about twenty minutes before
telling people that the ride was working and that people would be given a free ride. She said she was
in Pigeon Forge the day of the victim’s death but did not hear about it until the morning after. She
said that about two weeks later, she informed the Pigeon Forge Police Department of what had
happened when she was at Rockin Raceway. She said that she wrote a letter about the incident but
that no one from the police department contacted her afterwards. Ms. Johnson said she did not see
the defendant at Rockin Raceway while she was there.

      Ms. Johnson’s daughter, Chelsey Johnson, testified that she was also at Rockin Raceway on
March 13, 2004. She said she sat on a nearby bench while members of her group attempted to ride
the Hawk. She said riders were instructed to get off the ride and seek a refund after the lap bars


                                                 -14-
failed to lock down properly. She said that the ride’s operator said he was going to find someone
to fix the ride and that she saw him get another man from the arcade area to work on the ride. She
said that the young man who was operating the ride stayed in the area at the front of the ride where
the control buttons were but that at one point, the other man went to the rear of the ride. She said
that the man was at the rear of the ride for about five minutes and that soon after he returned, they
were told that the ride was working. She said that the man did not take any tools with him toward
the rear of the ride and that she did not see what he did while back there.

         The defendant testified that he grew up on a farm in West Tennessee, graduated from high
school, and served in the U.S. Air Force, where he worked on a missile maintenance team. He
worked at a paper plant before being selected for the instrument mechanic apprenticeship program
with TVA. He worked for TVA for twelve years, first as an instrument mechanic, working on
instruments that kept the rectors safe, and later as a quality assurance evaluator. He retired from
TVA and went to work at Rockin Raceway, which was co-owned by his brother-in-law, Jerry
Lindsey. He and his wife became managers; his wife managed the indoor arcade, while the
defendant “would overlook everything on the outside.” At that time, there were only go carts
outside, but over time, Rockin Raceway acquired different outdoor rides. The defendant said that
the Hawk was the last ride to arrive at Rockin Raceway. He said that Rockin Raceway owners made
the decisions about what rides to acquire and that they decided to purchase the Hawk after Mr.
Lindsey saw the Hawk at a trade show in Florida. It was purchased in February 1998 and set up
about three weeks later by Phil Castellano. The defendant identified photographs that Mr. Castellano
used in setting up the Hawk and said that Mr. Castellano did not have a manual at the time. He said
that the set-up took about two days and that it took Mr. Castellano about two hours to train him and
some other Rockin Raceway employees. He said that Mr. Castellano informed him that the ride was
“completely automatic, completely safe, and you didn’t have to know a lot more than that.” Mr.
Castellano told him that several safety and backup devices were on the ride and that “if the ride
started, then it was safe.” He said Mr. Castellano specifically told him that there was a backup safety
device in the backs of the seats that would always keep a rider from falling out, even if the other
safety devices failed.

        The defendant testified that the Hawk had problems from its inception at Rockin Raceway.
The platform began malfunctioning soon after it was set up. The defendant said that he reported the
platform problems to Zamperla and that he was instructed to install a piece of metal across the
platform and later to replace a rail that had broken. He said Mr. Castellano and another Zamperla
associate came to Rockin Raceway and installed on the Hawk hydraulic stands that they
manufactured onsite. He said the Zamperla representatives also added some wires to the electrical
panel having to do with the platform system. He said the lap bars also began malfunctioning, as they
sometimes would not close and sometimes would not open. He said there were also times when the
bars were locked down but the ride still would not start. He said that he talked to Mr. Castellano
about these problems and that Mr. Castellano taught him to reset the restraint system in order to fix
the problems. He said the ride also had problems with its lights and motor. Mr. Castellano came
to Rockin Raceway in July 2000 to address the motor problem and discovered that a coupling device
was broken. He instructed the defendant to replace the coupling device with a rubber gas hose that


                                                 -15-
the defendant had. The defendant said he would not have performed any work on the motor without
the direction of Zamperla. He said he never installed the replacement coupler that Mr. Castellano
ordered because Mr. Castellano never instructed him how to install it.

        The defendant testified that his responsibilities as general manager at Rockin Raceway were
to oversee the outside activities and to ensure the safety of patrons. He said he performed training
and made sure employees were performing their jobs properly. He said he performed maintenance
on the Hawk and other rides. He listed the work he did on the Hawk as follows: replacing light
bulbs, resetting breakers, replacing fuses, cleaning, and greasing. He said the only work he had ever
done in the electrical panel was replacing a fan, replacing fuses, resetting breakers, and entering data
in a computer upon Mr. Castellano’s direction. He said that about a year before the victim’s death,
he stopped doing maintenance work on the rides because it was too much for him to handle, although
he later said he did work in the Hawk’s electrical cabinet six weeks before the victim died. He said
he saw Mr. Castellano or another Zamperla associate do the following work in the Hawk’s electrical
panel: replace a converter, add two wires related to the platform system, add jumper wires when the
gate safety switches were taken out, and turn on the alarm bypass switch during set up. He said that
neither the cardboard box that was found in the electrical cabinet nor the items that were inside it
belonged to him.

        The defendant testified that on July 22, 2003, when Ken Mace rode the Hawk, he was in
West Tennessee, due to his father’s death that morning. He said that his wife informed him that
someone’s lap bar had come forward while riding the Hawk and that the passenger was very upset.
He said he was not told that someone almost fell out of the ride. He said that when he arrived back
to Pigeon Forge, he and Joey Dickson checked all the safety devices of the ride and that they all
appeared to work. He said he determined that an anomaly had occurred due to Mr. Mace’s large
size, and he made the decision to put the ride back in operation. He said it appeared to him that the
safety device in the back of Mr. Mace’s seat kept him from falling out of the seat, and this was
consistent with what Mr. Castellano had told him.

        The defendant testified that on March 14, 2003, he was spending time with his brother, who
was visiting from out of town. He said that he stopped by Rockin Raceway that morning to check
in and that his brother’s family spent much of the day there riding rides, including the Hawk. He
said he learned about the victim’s fall from the Hawk when he received a telephone call from Judy
Chance on March 14, 2003. He immediately drove to Rockin Raceway and assisted the passengers
who were stuck on the ride. He spoke to police three times about the victim’s death, once on the
scene and twice later in Detective Kendall’s office. He said that during the second time he spoke
to Detective Kendall, it was clear to him that he was being blamed for the victim’s fall. He said that
before this incident, he had never been arrested. He maintained that he did not knowingly or
recklessly kill the victim and that he did not place the jumper wire on the Hawk.

       On cross-examination, the defendant testified that he was aware the Hawk cost over
$400,000, and that Rockin Raceway’s owners had to take a bank loan to pay for it. He
acknowledged that Rockin Raceway lost money every time the Hawk had to be shut down. He said


                                                 -16-
that during his fifteen years working at Rockin Raceway, he worked with twenty to thirty different
rides and often looked at the manuals of those rides. He said, however, that he did not feel that the
Hawk was unsafe to operate without a manual, and he estimated that the Hawk was at Rockin
Raceway for four months before Zamperla sent its manual. He said he read parts of the manual but
not all of it, including the parts about the need to have two ride operators and that someone should
check the safety systems periodically. He said that when the Hawk had motor problems, he set up
the temporary gas hose coupling in order to keep the ride running and never replaced the temporary
part. He agreed that, ultimately, he made the decisions about whether the Hawk should be shut down
but said he always followed Zamperla’s orders.

        The defendant agreed that the Hawk was the most dangerous ride at Rockin Raceway and that
it could be deadly without the lap bars. He was aware that all three safety pins on the lap bar and
seat of the Hawk were supposed to be secured before the ride could run. He said he did not call
Zamperla after the Ken Mace incident, even though he previously had called Zamperla about other
problems with the ride, such as those with the platform, fuses, and the lap bars not opening or
closing. He said he did not call Zamperla because his own tests did not indicate that anything was
wrong and convinced him that the ride was safe to operate. He said the ride had a one-year warranty
and acknowledged that the warranty had expired by July 2003. However, he also said the warranty
was expired in July 2000, which was the last time Phil Castellano or any Zamperla representative
had gone to Rockin Raceway to work on the Hawk.

        The defendant testified that Mr. Castellano used a key that bypassed the Hawk’s security
systems during the initial set-up, that the key was then locked in the office at Rockin Raceway, and
that it was never used after the initial set-up. He testified that while he had opened the Hawk’s
electrical cabinet many times, he was not the only person who did so. He said Mike Stepp once
replaced a device on the main breaker. He said he did not keep a maintenance log for the Hawk and
did not think it was important to do so. He said the cardboard box full of tools that was found in the
electrical cabinet could have belonged to any of the managers at Rockin Raceway. He said he never
saw the red and black jumper wires on the electrical panel, including when he worked on the ride
six weeks before the victim’s death. He said he did not see them until after the ride was released
back to him following the victim’s death. He agreed that the wires looked very unusual. He said
that he was present at Rockin Raceway on March 15 and 16, 2004, but that he was not part of the
group that examined the Hawk. He said he was also at Rockin Raceway on March 17, 2004, when
Mr. Castellano performed tests on the Hawk. He said he did not ask to be part of the group that was
examining the Hawk because he was told officers wanted to restrict access to the ride and he thought
someone would call if he was wanted. He agreed that no one told him he could not be involved. The
defendant testified that he did not tell Detective Kendall that he never had problems with the Hawk’s
lap bars. He said Detective Kendall lied when he said that the defendant told him that the only
people who could have attached the jumper wire to the electrical panel were the defendant and Mr.
Castellano. He denied that the reason he did not call Zamperla about the Mace incident was because
the ride was out of warranty.




                                                -17-
        The defendant’s brother, Ted Martin, testified that on July 22, 2003, the defendant was in
West Tennessee with him, making arrangements for their father’s funeral. He said that he was with
the defendant on March 13, 2004, the day before the victim’s death and that they stopped by Rockin
Raceway for about fifteen minutes. He said that they left and that while they were at the flea market,
his family was at Rockin Raceway riding the Hawk.

        Milford Brinton testified for the defense as an expert in electrical engineering. He said he
examined the electrical design of the Hawk and reviewed the ride’s manual, which included logic
diagrams and wiring schematics. He reached the conclusion that the defendant did not put the
jumper wires on the Hawk that bypassed the Hawk’s safety systems. He said the ride could not have
operated without the jumper wires and that the wires had to have been in place when the ride was
operated at the trade shows in Florida, before Rockin Raceway purchased it, and when it was first
set up at Rockin Raceway. Mr. Brinton explained that circuits numbered 144 and 145, upon which
the black jumper wire was found, each involved multiple switches that needed to be closed for an
electric relay signal to allow the ride to “leave the station.” He said that number 144 contained
switches that closed when the seat restraints were lowered to a safe position. Number 145 contained
switches corresponding to the three safety locking pins on each of the twenty-four seats, for a total
of seventy-two switches. He said the ride should have been designed for each switch to close only
when the corresponding pin was locked, thus preventing the ride from running if any of the seventy-
two pins were not secure. He said that as the schematics were actually designed, however, some of
the seventy-two switches were opened even when all the seventy-two pins were locked. He
attributed this to a design defect. He said that a jumper wire could be installed on the wire for circuit
145 to bring electricity to that circuit and allow the ride to run. He said that this would bypass the
safety switches and allow the ride to run regardless of whether the pins were in their proper
positions. Mr. Brinton said that Ed Pribonic’s simplified diagram of circuits 144 and 145 was not
accurate in that it did not actually show the position of the switches as designed. He said that the
same design defect on circuit 145 was also on circuit 146 and that the red jumper wire was connected
to that circuit to correct the defect. He said that, in his experience, the use of jumper wires was a
common way to troubleshoot electrical problems.

        On cross-examination, Mr. Brinton testified that he did not try to run the ride because it was
inoperative. He said running the ride was not necessary to his investigation, although he agreed that
he could have demonstrated the effects of the jumper wires and supported his theory that the machine
had a design defect by running the ride with and without the jumper wires. He said that he relied on
the design drawings to reach his conclusion and that he had studied those for about a month. He
identified a red wire that had been installed by Zamperla to bypass the ride’s safety gate switch and
was installed in a manner he said was less temporary and more consistent with what he would have
done than were the jumper wires installed on the circuits dealing with the lap bar safety system. He
said the way the wires on circuits 144 and 145 were installed, by attaching them with alligator clips
to “skinned” wires, was common in troubleshooting and that they may have been placed that way
in haste, such as when the ride was set up at a trade show. He said he would not have left the wires
that way for the long-term because he preferred to do neat and meticulous work. He said that it was
also not uncommon to find a box of tools in a machine’s electrical cabinet. He acknowledged,


                                                  -18-
though, that this was the only amusement ride electrical cabinet into which he had looked. He
explained that the difference between his conclusion and Mr. Pribonic’s conclusion was that Mr.
Pribonic assumed all the switches on circuit 145 would close when the pins were secured, whereas
he found that the circuit was designed defectively such that some of the switches were open when
the corresponding pins were secured. Mr. Brinton acknowledged that he was being paid for his
services in investigating the Hawk and testifying in court.

         Frank Johnson, the owner of an engineering consulting firm in Texas, testified as an expert
in the fields of mechanical engineering, electrical engineering, and amusement ride safety inspection.
He said he was contacted in April 2005 to review the manual and schematics for the Hawk, along
with Mr. Pribonic’s report and some other documents. He said he reviewed the Hawk’s electrical
diagrams with the assistance of Mr. Brinton, who works for his consulting firm. He said he agreed
with Mr. Brinton’s testimony that the Hawk was defectively designed. He said Mr. Pribonic’s
simplified drawing of circuit 145 was not accurate, in part because it omitted representations of the
switches that were normally closed when the pins were not in position. He stated that the way the
ride was designed, jumpers had to be placed on circuits 144, 145, 146, and 126 in order for the ride
to operate. He agreed with Mr. Pribonic that the jumpers bypassed the safety restraint systems, but
he stated that Mr. Pribonic did not answer the question of why the jumpers were there. He said the
answer was that the ride would not operate without them. He said he watched the video which
showed Mr. Castellano and others performing tests on the Hawk after the victim’s death. He said
he noted a serious omission in the testing in that the Hawk was not operated with all the seat
restraints down, pins secured in place, and jumpers removed.

        On cross-examination, Mr. Johnson testified that he did not prepare a report because he was
not asked to. He said he did not know whether the jumpers were first put on the Hawk while it was
at the manufacturing plant in Italy because he did not know whether it was set up and operated there.
He said the wires had to have been in place the first time that the ride was fully assembled and
operated. He said that he would have noticed the jumper wires on the electrical panel because he
would be looking for them but that it was conceivable that the defendant did not notice them, as he
could not be certain that he would have seen them if he were not expecting them. He agreed that
attaching jumper wires with alligator clips, as was done on the Hawk, was not a good practice and
that he would not have done it. He said that, as a safety inspector, if he noticed the jumper wires,
he would have shut down the ride until he determined what anomaly the jumpers were supposed to
be correcting. He said he never tried to operate the ride.

         On rebuttal, Audie Layman testified that he worked at Rockin Raceway in the summers of
1997, 1998, and 1999. He said he started working at Rockin Raceway soon after the Hawk was first
set up. He said he had operated the Hawk and that on occasions the ride would not start because not
all the lap bars were secured. He said that when the ride would not start, he would walk around to
each seat and see which one was not properly secured. He said he could tell which one was not
secure because red lights beside each seat would light up if the pins were locked. He said he had to
stop relying on the red lights because some of the lights burned out over time and were never



                                                -19-
replaced. He said that up to the time that he left Rockin Raceway in 1999, the ride would not start
unless the lap bars on all the seats were secured.

         Christopher Caldwell testified that he worked at Rockin Raceway from the spring of 1998
until July 2000. He said he became a manager during his second year working there. He said that
he operated the Hawk on many occasions and that, on some occasions, the ride would not start after
he lowered all the lap bars and tried to start it. He said that when that happened, he had to check
each seat to make sure the safety pins in the lap bars were extended in their proper positions. He said
if the ride still did not start after he checked all the lap bars, he would have to reset the control panel,
raise the bars, and start over again. He said the ride would not start unless all the lap bars were
secured. Mr. Caldwell agreed that the defendant was fair and generous and that he was concerned
for the safety and well-being of others. He never saw the defendant place a jumper wire in the
Hawk.

        Robert Fox testified that he was the Director of Safety and Security at Dollywood and
formerly worked in law enforcement. He said that in his position at Dollywood, he was responsible
for ensuring that rides were safely maintained, which involved overseeing the set-up of new rides.
He said that Dollywood had recently acquired four new rides manufactured by Zamperla and that
Phil Castellano had assisted in assembling those rides. He said Mr. Castellano was professional and
competent. He said that none of the rides had wires connected with alligator clips in them and that
he would not have allowed a ride with alligator-clipped jumper wires to be operated. He said that
Dollywood personnel checked the emergency stop button and lap bar safety restraints on their rides
daily. He kept a maintenance log on the rides that documented problems with the rides and who was
performing work on them. He said he referred the Pigeon Forge Police Department to Ed Pribonic.
He said rides are usually set up using the ride’s manual, not just pictures, and that if he did not
receive a manual for a ride and he thought he needed the manual, he would not let anyone ride it until
the manual was received.

       Based on this evidence, the jury found the defendant guilty of reckless homicide as a lesser-
included offense of second degree murder. After a sentencing hearing, the defendant received a
sentence of four years to be served on probation.

                             I. SUFFICIENCY OF THE EVIDENCE

        The defendant contends that the evidence presented at trial was not sufficient to convict him
of reckless homicide. He argues that (1) the circumstantial evidence did not prove that he placed on
the Hawk the jumper wire that bypassed the ride’s safety restrictions, (2) evidence was insufficient
to show that he was aware of and disregarded a substantial and unjustifiable risk that constituted a
gross deviation from a standard of care, and (3) that his actions were not the proximate cause of the
victim’s death. The state counters that the evidence was sufficient.

       Our standard of review when the defendant questions the sufficiency of the evidence on
appeal is “whether, after viewing the evidence in the light most favorable to the prosecution, any


                                                   -20-
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh
the evidence; rather, we presume that the jury has resolved all conflicts in the testimony and drawn
all reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding
witness credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “A crime may be
established by direct evidence, circumstantial evidence, or a combination of the two.” State v. Hall,
976 S.W.2d 121, 140 (Tenn. 1998).

                                   A. Circumstantial Evidence

        The defendant contends that the state’s circumstantial evidence did not prove that he placed
on the Hawk the jumper wires that bypassed the ride’s safety restraint system. He argues that, in
fact, the evidence proves his alternate theory: that the ride could not operate without the jumper
wires and that, thus, the wires were on the Hawk since it was first assembled and operated, before
arriving at Rockin Raceway.

       The defendant was convicted of reckless homicide, which is defined as the “reckless killing
of another.” T.C.A. § 39-13-215. “Reckless” means that

               a person [] acts recklessly with respect to circumstances surrounding
               the conduct or the result of the conduct when the person is aware of,
               but consciously disregards a substantial and unjustifiable risk that the
               circumstances exist or the result will occur. The risk must be of such
               a nature and degree that its disregard constitutes a gross deviation
               from the standard of care that an ordinary person would exercise
               under all the circumstances as viewed from the accused person’s
               standpoint[.]

T.C.A. § 39-11-302(c).

        The state’s primary theory of the case was that the defendant attached to the Hawk’s
electrical panel a jumper wire that bypassed the safety restrictions of the ride and that led to the
victim’s fall and death. The state presented no direct evidence that the defendant placed the jumper
wire on the Hawk but rather attempted to prove the defendant’s conduct through circumstantial
evidence. Circumstantial evidence alone may be sufficient to support a conviction. State v.
Richmond, 7 S.W.3d 90, 91 (Tenn. Crim. App. 1999); State v. Buttrey, 756 S.W.2d 718, 721 (Tenn.
Crim. App. 1988). However, to warrant a criminal conviction on circumstantial evidence alone, the
evidence “must be not only consistent with the guilt of the accused but it must also be inconsistent
with his [or her] innocence and must exclude every other reasonable theory or hypothesis except that
of guilt.” Pruitt v. State, 3 Tenn. Crim. App. 256, 267, 460 S.W.2d 385, 390 (1970). While
following these guidelines, we must note that the jury decides the weight to be given to


                                                -21-
circumstantial evidence and that “[t]he inferences to be drawn from such evidence, and the extent
to which the circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.” Marabel v. State, 203 Tenn. 440, 452, 313 S.W.2d 451, 457 (1958) (quoting
2 Wharton’s Criminal Evidence 1611).

         We review the evidence regarding the placement of the jumper wires in the light most
favorable to the state. The defendant was responsible for performing regular maintenance on the
Hawk and other rides at Rockin Raceway. The defendant, alone from Rockin Raceway, was known
to perform repairs and work in the electrical cabinet of the Hawk. When employees experienced
problems with the ride, they notified the defendant, who worked on the ride and who made the
decision whether to put the ride in operation or to shut it down. Two jumper wires were attached
in an unusual manner to existing wires in the Hawk’s electrical panel, one of which had the effect
of bypassing the safety restraint mechanisms on the ride, thereby allowing the ride to operate even
if all the lap bars on the ride were not secured. Several people who investigated the ride after the
victim’s death said they noticed the jumper wires in the electrical panel and thought them highly
unusual. According to the state’s expert witness, Mr. Pribonic, the ride was designed to prevent
itself from operating unless all the pins securing all the lap bars were locked in place. Several
Rockin Raceway employees testified that the ride would not operate unless the pins securing the lap
bars on all the seats were locked in place. Rockin Raceway personnel experienced many problems
with the Hawk, and the ride would not operate on many occasions. Josh Williams, a former Rockin
Raceway employee, noticed the jumper wires in the electrical panel after he started working at
Rockin Raceway in March 2002. By the time that Ken Mace’s lap bar became loose while riding
the Hawk, the safety restraint mechanism had been bypassed, allowing the ride to operate even
though Mr. Mace’s lap bar was not secure. The defendant did not contact anyone from Zamperla,
the ride’s manufacturer, regarding this incident. A cardboard box containing tools, a package
addressed to Rockin Raceway, and jumper wires matching those found on the Hawk was stored in
the ride’s electrical cabinet. According to Detective Kendall, the defendant acknowledged that only
he or someone from Zamperla could have put the jumper wires on the ride. Phil Castellano said that
when he examined the ride after the victim’s death, he noticed the red and black jumper wires, which
he said were not on the ride when he assembled it at Rockin Raceway.

        In the light most favorable to the state, the evidence reflects in particular that the black
jumper wire was installed on the Hawk sometime after Mr. Castellano last worked on the ride in July
2000. According to Bradley Burns, in September 2002, an alarm on the ride would sound and the
ride would not move if the lap bars were not all securely latched. This is evidence that the safety
system was operating at that time. In July 2003, Mr. Mace was able to ride the Hawk, despite his
restraint not being secure. According to Mr. Pribonic, the Mace incident was indicative of a safety
system bypass in July 2003. There was additional evidence to refute the defendant’s claim that the
safety system had been bypassed before the Hawk arrived at Rockin Raceway. Rockin Raceway
employees Audie Layman and Christopher Caldwell testified that in 1999 and 2000, the ride would
not start if the lap bars were not secure.




                                               -22-
         The defendant avers that the evidence at trial actually proves that he did not place the jumper
wires on the ride. He points to the testimony of his two expert witnesses, Mr. Brinton and Mr.
Johnson, that the ride was defectively designed such that it was inoperable without the jumper wires.
They stated that because the ride was assembled and operated before it was purchased by Rockin
Raceway, the jumper wires must have been on the ride before the defendant ever had access to it.
At trial, the defendant presented the theory that someone from Zamperla, presumably Mr. Castellano,
had placed the jumper wires on the Hawk. The jury had the opportunity to hear and consider this
theory. They considered the defendant’s testimony that he did not place the jumper wires on the ride
and that he, in fact, had never even seen the wires there even though he performed various
maintenance tasks in the electrical cabinet. The jury likewise considered Mr. Castellano’s testimony
that the wires were not in the ride when he first set it up at Rockin Raceway. The jury heard the
testimony of Mr. Pribonic and the contrary testimony of Mr. Brinton and Mr. Johnson. It is true that
none of the experts or any other witnesses attempted to operate the ride without the black jumper
wire but with all the seat restraints secured. However, as noted above, the state did present testimony
from Rockin Raceway employees that there was a time during which the ride would operate only if
all the seat restraints were secured, which indicates that the safety system was not bypassed at that
time. Rockin Raceway staff understood that each of the safety pins on each seat had to be secure for
the ride to start. It is the province of the jury to weigh conflicting evidence and to judge the
credibility of witnesses. If the jury accredited the testimony of Mr. Castellano, Mr. Pribonic, and the
various Rockin Raceway employees, it could reject the defendant’s theory that the jumper wires were
on the Hawk before it arrived at Rockin Raceway and accept the state’s theory that the defendant had
placed the wires on the ride. As such, the evidence was sufficient to prove that the defendant was
responsible for placing on the ride the jumper wire that bypassed the safety restraint mechanisms.

                                      B. Proof of Recklessness

        To prove that the defendant’s actions constituted recklessness, the state’s evidence must show
that the defendant was aware of but consciously disregarded a substantial and unjustifiable risk,
which risk constituted a gross deviation from the standard of care that an ordinary person would have
exercised under the same circumstances. See T.C.A. § 39-11-106(a)(31). The defendant contends
that the evidence at trial failed to prove any conduct of his that constituted recklessness. He argues
that he was not aware of a substantial and unjustifiable risk of death and that no conduct of his
amounted to a gross deviation from a standard of care. The state argues that the defendant’s actions
regarding the jumper wires and the Ken Mace incident are sufficient proof that he was aware of but
disregarded a substantial risk and that he acted in gross deviation of the applicable standard of care.

                                        1. Awareness of Risk

        To be culpable for reckless homicide, a defendant must have been aware of, but consciously
disregarded, a substantial and unjustifiable risk, which disregard resulted in the victim’s death. See
T.C.A. § 39-11-302(c) (defining “reckless” mental state). Reckless homicide differs from criminally
negligent homicide only in that the latter requires that the defendant ought to have been aware of the
risk. Id. at § 39-11-302(d) (defining “criminal negligent” mental state). This court has explained


                                                 -23-
the findings a jury must make in determining whether someone is guilty of criminally reckless
behavior:

                       The risk of which the accused is aware must be substantial in
               order for the recklessness judgment to be made. The risk must also be
               unjustifiable. The awareness of the risk is measured from the actor’s
               point of view. The question remains as to what standard is used in
               determining how substantial and how unjustifiable the risk must be
               in order to warrant a finding of culpability. These are questions to
               which the jury must evaluate the actor’s conduct and determine
               whether it should be condemned. Thus, the jury must answer two
               questions: (1) to what extent was the actor aware of the risk, of
               factors relating to its substantiality, and of factors relating to its
               unjustifiableness; and (2) whether the actor’s conscious disregard of
               the risk justifies condemnation.

State v. Dean Benjamin Clark, II, No. 02C01-9705-CC-00186, Hardeman County, slip op. at 7
(Tenn. Crim. App. May 8, 1998). Although a crime defined by a reckless mental state requires that
the offender was actually aware of the risk, the Sentencing Commission Comments to section 39-11-
302(c) explain that “reckless” conduct “provides liability for conscious risk creation where there is
no desire that the risk occur or no awareness that it is practically certain to occur.”

        In the present case, the evidence proved that the Hawk’s electrical panel was altered by the
black jumper wire to bypass the safety restraint mechanisms of the ride and allow the ride to operate
even if riders were not secured in their seats. The defendant admitted at the trial that the ride could
be deadly without its lap bars, or seat restraints. The presence of the black jumper wire created a
condition allowing the ride to make its 360 degree rotations, to a height of sixty feet, without a
rider’s seat restraint being properly secured. We conclude that the presence of the jumper wire on
the Hawk created a substantial and unjustifiable risk of injury or death to those who rode it.

        The evidence must also be sufficient to prove that the defendant was aware of this risk and
that he consciously disregarded it. Having concluded that the evidence is sufficient to prove that the
defendant placed the jumper wires on the Hawk, we likewise conclude that the evidence is sufficient
to prove that the defendant was aware of the risk he created. Mr. Pribonic testified that, in his
opinion, the person who put the black jumper wire on the ride was attempting to bypass the safety
restraint mechanisms of the ride. There was also circumstantial evidence from which the jury could
infer that the defendant was aware of the dangerous condition of the ride. For instance, the jury
could infer from the defendant’s actions following Mr. Mace’s near-fall from the ride–particularly,
that the defendant examined the ride and did not contact Zamperla about the problem–that he was
aware a substantial risk existed. Furthermore, the jury could infer that the defendant knew the
function of the wires and circuits that he attempted to manipulate through the jumper wires,
especially considering that the defendant had possession of the Hawk’s instruction manual which
included wiring schematics. The defendant makes much of the fact that he allowed his family


                                                 -24-
members to ride the Hawk, from which he means us to infer that he was not aware of any risk
involved with riding the Hawk in its condition. However, it is not necessary that the defendant was
aware that the restraints were likely to come loose and someone was likely to fall from the ride.
Riders still could have been safe on the ride as long as the seats were properly secured. The
substantial and unjustifiable risk which was created by the black jumper wire was that the ride would
operate and make its 360 degree revolutions even if someone was not securely restrained in his or
her seat. The evidence was sufficient to prove that the defendant was aware of this risk and
consciously disregarded it.

                           2. Gross Deviation from the Standard of Care

        With the evidence being sufficient to establish that the defendant was aware of the substantial
and unjustifiable risk created by the safety restraint mechanisms being bypassed on the Hawk, the
next question is whether the evidence was sufficient to show that the defendant’s disregard of the
risk constituted a gross deviation from the standard of care of an ordinary person under the
circumstances. The defendant argues that the required showing was not made, as evidenced by the
defendant’s affirmative steps to ascertain the cause of Mr. Mace’s problem with the ride and the
defendant’s instructions to employees to prevent obese people from riding the Hawk. The defendant
further argues that there was no clear standard of care that the defendant violated. The state counters
that a gross deviation from a standard of care was proved by evidence that the defendant had
apparent knowledge of a potentially dangerous amusement ride under his control and did not take
sufficient measures to protect patrons from the dangerous condition.

         When determining whether a defendant’s conduct constituted a gross deviation from the
standard of care that an ordinary person would exercise under the circumstances, we may look to the
civil law of negligence for guidance and instruction. State v. Roger Hostetler, C.C.A. No. 02C01-
9707-CC-00294, Lauderdale County, slip op. at 9-11 (Tenn. Crim. App. Mar. 27, 1998). However,
criminal liability is based on a higher degree of negligence than that required for civil liability.
T.C.A. § 39-11-302(d), Sent’g Comm’n Cmts. Where a mere deviation from a standard of care may
result in civil liability, criminal culpability based on recklessness or negligence requires a “gross
deviation.” Roger Hostetler, slip op. at 12. To convict someone of reckless homicide or criminally
negligent homicide, evidence must show that the accused knew, or should have known, “that his or
her conduct, or the result of the conduct, will imperil the life of another given the circumstances that
exist when the conduct takes place.” State v. Goodwin, 143 S.W.3d 771, 779 (Tenn. 2004) (quoting
State v. Adams, 916 S.W.2d 471, 474 (Tenn. Crim. App. 1995)). Consequently, our courts have
upheld convictions only in cases in which “the risk is of such a nature and degree that injury or death
is likely and foreseeable.” State v. Gillon, 15 S.W.3d 492, 498 (Tenn. Crim. App. 1997).

       We do not agree with the defendant’s argument that he cannot be criminally culpable for his
conduct because there was no standard of care regarding his maintenance and operation of the Hawk.
Under civil law, operators of amusement rides owe a high duty of care toward patrons of their
rides–“the same degree of care owed by a common carrier to its passengers,” which is “that care
which the most prudent man would be expected to exercise under circumstances similar to those


                                                 -25-
shown in evidence, in the design, construction, maintenance, inspection, and repair of his vehicle
and its approaches and exits.” Lyons v. Wagers, 55 Tenn. App. 667, 675, 404 S.W.2d 270, 274
(1966) (quoting Tennessee State Fair Ass’n v. Hartman, 134 Tenn. 149, 161, 183 S.W. 735 (1915);
Banner v. Winton, 28 Tenn. App. 69, 70, 186 S.W.2d 222 (1944)). Furthermore, the duty of care
in criminal cases may be dictated by common sense, such as in cases in which a person exercises
“extremely poor judgment” in the handling of a dangerous weapon. Goodwin, 143 S.W.3d at 779
(affirming defendant’s conviction for reckless endangerment and criminally negligent homicide
based on defendant’s actions in leaving loaded, cocked weapon in the woods behind a crowded
neighborhood). A thrill ride like the Hawk has the potential for being extremely dangerous, even
deadly. The defendant recognized this. It is common sense that as the general manager of an
amusement park, the defendant, who admitted that he was responsible for the maintenance and safety
of the rides under his charge, had a duty, in the least, to take reasonable measures to protect patrons
against foreseeable death and injury related to the rides.

         Both parties cite the case of Roger Hostetler in their arguments regarding whether the
defendant grossly violated the standard of care that an ordinary person would exercise. The
defendant in that case was convicted of criminally negligent homicide after two of his dogs attacked
and killed his elderly neighbor. A few weeks earlier, the dogs had attacked the victim and her
husband, who informed the defendant of the incident. Id., slip op. at 3. Evidence showed that the
dogs had been digging holes under their fenced enclosure to escape and that a sawhorse had been
placed in the path of one of the holes, presumably to keep the dogs from leaving that way. Id., slip
op. at 5. In reviewing the defendant’s conviction, this court first summarized the standard of care
in civil law that a dog owner owes to others and determined that the applicable standard of care the
defendant owed to the victim “was to save her from harm once he elects to keep the dogs after he
‘ought to have been aware’ of the danger.” Id., slip op. at 12. The court concluded that there was
sufficient evidence that Hostetler grossly violated this standard of care when he had been informed
of a previous occasion when his dogs may have attacked the victim and her husband, had apparent
knowledge of a breach allowing his dogs to escape from their fenced enclosure, and took
insubstantial efforts to correct this breach. Id., slip op. at 14.

        The defendant in the present case argues that his actions are distinguishable from those of
the defendant in Hostetler in that he made an effort to determine what caused Mr. Mace’s seat
restraint to move and took measures to prevent the incident from reoccurring when he instructed
employees not to allow obese people to ride the Hawk. We disagree with the defendant that his
actions were sufficient to avoid criminal liability. As discussed above, the evidence was sufficient
to prove that the defendant was aware that a malfunction of the seat restraints had occurred and, thus,
that the ride was in a condition in which serious injury or death was foreseeable. The defendant had
a duty to protect patrons from such a risk. The evidence was sufficient to prove that the defendant
actually put patrons at risk by altering the electrical panel of the Hawk and bypassing the safety
restraint mechanisms. That the defendant informed employees not to allow obese people to ride the
Hawk was an insubstantial effort to avoid liability, just as was Hostetler’s attempt to prevent his dogs
from leaving their fenced enclosure by merely placing a sawhorse in the path of a hole. We also
reject the defendant’s argument that his actions were not criminal in light of the fact that several


                                                 -26-
months passed between the Mace incident and the victim’s death, during which time no other
problems with the seat restraints were reported. The defendant should have been aware at least from
the time of the Mace incident, if not before, of the substantial and unjustifiable risk that existed.
That it took nine months for the harm of this risk to be realized does not absolve the defendant.

        As previously noted, our courts have upheld reckless homicide and criminal homicide
convictions in cases in which “the risk is of such a nature and degree that injury or death is likely and
foreseeable.” Gillon, 14 S.W.3d at 498. The risk involved in the present case–that people could ride
the Hawk without being restrained in their seats–was such that injury or death was likely and
foreseeable. The defendant’s disregard of this risk was a gross deviation from the standard of care
that an ordinary person would exercise under the circumstances.

                                             C. Causation

        The defendant’s final challenge to the sufficiency of the evidence is that the evidence was
insufficient to prove that the defendant’s actions were the cause of the victim’s death. He argues that
because the evidence cannot support a finding that he placed the jumper wires on the Hawk, the
evidence also cannot prove that he was the actual cause of the victim’s death. He also cites three
intervening causes of the victim’s death, which he says negate his culpability: (1) that the ride
operator and ticket booth attendant disobeyed his orders not to allow obese people to ride the Hawk
by allowing the victim to ride; (2) that the operator did not adequately check the victim’s restraint
before starting the ride; and (3) that the operator refused to allow the victim to get off the ride when
she requested.

        We reject the defendant’s argument. We have concluded that the evidence was sufficient to
show that the defendant placed on the Hawk the jumper wire that bypassed the safety restraint
mechanisms. Regarding intervening causes, to convict the defendant of homicide, “it is not
necessary that his act or failure to act be the sole cause, nor the most immediate cause of death. It
is only necessary that the defendant unlawfully contributed to the death of the deceased.” State v.
Roberson, 644 S.W.2d 696, 698 (Tenn. Crim. App. 1982) (citing Letner v. State, 156 Tenn. 68, 299
S.W. 1049 (1927)). The requisite causation is generally “established by showing that the victim’s
death was the natural and probable result of the defendant’s unlawful act.” State v. Ruane, 912
S.W.2d 766, 774 (Tenn. Crim. App. 1995). Whether the defendant’s actions were the proximate
cause of the victim’s death is a factual issue to be determined by the jury. Id. at 775.

        It is true that the victim would not have died if the ticket booth attendant had not sold her a
ticket to ride the Hawk or if the ride operator had not permitted the victim to ride, had properly
checked the security of her restraint, or had allowed the victim to get off the ride when she asked.
However, none of these facts would have led to the victim’s death if the safety restraint system was
working properly and the ride was prevented from operating without the victim’s seat restraint being
secured. The risk of death preceded the actions of the ticket booth attendant and ride operator. The
victim’s death was the natural and probable result of the defendant’s recklessness. Thus, the
evidence was sufficient to prove causation.


                                                  -27-
       In summary, we conclude that the evidence was sufficient to support the defendant’s
conviction for reckless homicide.

           II. CONSTITUTIONALITY OF RECKLESS HOMICIDE STATUTE

         The defendant contends that our reckless homicide statute is unconstitutionally vague as
applied to him because, in the absence of any state regulations governing amusement ride safety or
other established standard of care, the defendant did not have notice that his conduct could subject
him to criminal liability. He does not argue that the statute is unconstitutional on its face; rather, he
argues that the state failed to provide a reasonable standard of care, the violation of which subjected
him to criminal sanction. Thus, the defendant argues, his conviction for reckless homicide violated
the fair warning requirement embodied by the due process clause of the Fourteenth Amendment to
the United States Constitution. The defendant acknowledges that he failed to raise this issue in his
motion for a new trial, explains that his counsel only recognized the propriety of this issue while
preparing his appellate brief, and asserts that he is entitled to relief under plain error review. The
state contends that the issue is waived and that, because there is no plain error, the defendant is not
entitled to relief under plain error review.

         Because the defendant failed to raise this issue in his motion for a new trial, he has waived
the issue, Tenn. R. App. P. 3(e), and is only entitled to relief on its basis if plain error has occurred,
Tenn. R. Crim. P. 52(b). Under Tennessee Rule of Criminal Procedure 52(b), appellate courts can
consider an error that was not raised in the motion for new trial when that error “has affected the
substantial rights of the accused” and when consideration of the error is “necessary to do substantial
justice.” When deciding whether an error constitutes “plain error” we are to consider the following
factors:

                (a) the record must clearly establish what occurred in the trial court;
                (b) a clear and unequivocal rule of law must have been breached; (c)
                a substantial right of the accused must have been adversely affected;
                (d) the accused did not waive the issue for tactical reasons; and (e)
                consideration of the error is necessary to do substantial justice.

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)) (footnotes omitted).

        We conclude that consideration of this issue is not necessary to do substantial justice because
no clear and unequivocal rule of law was breached. The “fair warning requirement” embodied in
the due process clause prohibits holding an individual “criminally responsible for conduct which he
could not reasonably understand to be proscribed.” United States v. Harriss, 347 U.S. 612, 617, 74
S. Ct. 808, 812, 98 L. Ed. 989 (1954). In State v. Butler, 880 S.W.2d 395 (Tenn. Crim. App. 1994),
this court rejected the argument that the culpable mental state described by the criminal negligence
definition in Tennessee Code Annotated section 39-11-202(d) was unconstitutionally vague. The
court explained:



                                                  -28-
                         In simple terms, the statutory definition of criminal negligence
                relates to (1) the defendant’s conduct, (2) a substantial and
                unjustifiable risk existing at the time of the conduct or resulting from
                the conduct, (3) the defendant’s failure at the time of the conduct to
                perceive the risk, and (4) that failure being a gross deviation from the
                standard of care of an ordinary person under the circumstances. The
                Sentencing Commission Comments to T.C.A. § 39-11-302(d) state
                that the definition “is in line with case law of Tennessee on the degree
                of negligence required for criminal culpability.” In this respect,
                criminal negligence has historically been recognized as an appropriate
                standard for assessing criminal liability. See, e.g., State v. Davis, 798
                S.W.2d 268, 271-72 (Tenn. Crim. App. 1990). We conclude that the
                statutory definition provides adequate notice of what conduct is
                covered.

Butler, 395 S.W.2d at 397. Thus, the element of both criminally negligent and reckless homicide
involving a “gross deviation from the standard of care” is not unconstitutionally vague. Regarding
the defendant’s claim that it is unconstitutionally vague as applied to him, we note that the defendant
has not cited any authorities that a state regulation is necessary to define the standard of care. The
defendant also argues that the state’s citation in its brief to civil authorities to establish the standard
of care, as well as the state’s argument that he was properly denied judicial diversion because of the
deterrent effect his conviction will have on amusement park owners and ride operators in Sevier
County, demonstrate the lack of an established standard of care. However, as we discussed
previously, civil common law can be instructive in determining whether criminal negligence or
recklessness has occurred, and the evidence sufficiently showed that the defendant’s actions
constituted a gross deviation from the standard of care of an ordinary person under the
circumstances. We see no clear and unequivocal rule of law that was violated by the defendant’s
conviction. Thus, further consideration of this issue is not necessary to do substantial justice.

                          III. EVIDENCE OF KEN MACE INCIDENT

         The defendant argues that the trial court erred in admitting evidence related to Ken Mace’s
experience on the Hawk on July 22, 2003. Before trial, the defendant filed a motion in limine to
exclude this evidence under Tennessee Rule of Evidence 404(b). At the hearing on the motion, Mr.
Mace, Mr. Pribonic, Mr. Dickson, and Ted Martin testified, and their testimony related to the events
of July 22, 2003, was substantially the same as it was during trial. The defendant also called the
defendant’s niece, Paulette Martin, at the motion hearing. She corroborated Ted Martin’s testimony
that the defendant was in West Tennessee on July 22, 2003. The state presented evidence of another
witness, Robert Butler, who said his harness came loose while he was riding the Hawk in August
or September 2003. At the conclusion of the hearing, the court ruled that evidence of the July 22,
2003 incident involving Mr. Mace was admissible, stating that the evidence was relevant to the
issues of the mental state requirement of the offense, causation, and identity. The trial court



                                                   -29-
excluded evidence involving Mr. Butler on the basis that the circumstances surrounding this incident
were not established by clear and convincing evidence.

         Tennessee Rule of Evidence 404(b) prohibits the introduction of evidence of other crimes
or acts, except when the evidence of other acts is relevant to a litigated issue, such as identity, intent,
or motive, and its probative value is not outweighed by the danger of unfair prejudice. The rule
states:

                Evidence of other crimes, wrongs, or acts is not admissible to prove
                the character of a person in order to show action in conformity with
                the character trait. It may, however, be admissible for some other
                purpose. The conditions which must be satisfied before allowing
                such evidence are:

                (1) The court upon request must hold a hearing outside the jury’s
                presence;
                (2) The court must determine that a material issue exists other than
                conduct conforming with a character trait and must upon request state
                on the record the material issue, the ruling and the reasons for
                admitting the evidence;
                (3) The court must find proof of the other crime, wrong, or act to be
                clear and convincing; and
                (4) The court must exclude the evidence if its probative value is
                outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). The purpose of the procedural requirements of Rule 404(b) is to prevent the
admission of a prior act of the defendant which has no relevance except to prove the defendant’s
character and that the defendant acted in conformity with that character in committing the crime
charged. See Tenn. R. Evid. 404(a); DuBose, 953 S.W.2d at 653; Neil P. Cohen et. al, Tennessee
Law of Evidence § 4.04[7][a] (5th ed. 2005). We review a trial court’s ruling on evidentiary matters
under Rule 404(b) for abuse of discretion, provided the trial court has substantially complied with
the procedural prerequisites of the rule. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). If the
court did not substantially comply with the procedure, its decision is not entitled to deference by the
appellate court. See id. at 653.

        We conclude that the evidence was admissible non-character evidence. The evidence was
relevant to the mental state element of the crime, as the evidence indicates the defendant’s awareness
that the safety features of the ride were not functioning properly. The evidence established that, in
the least, the defendant was aware that several months before the victim’s death, someone’s seat
restraint “came loose” while on the ride, even though the ride was not supposed to start unless all
restraints were secure. Evidence that the defendant examined the ride after this incident and did not
consult Zamperla is also circumstantial evidence that the defendant was aware of the condition with
the jumper wires. Further, as the trial court stated, the evidence is relevant to the issue of identity.


                                                   -30-
Evidence that it was the defendant whom Rockin Raceway personnel called in response to this
incident and that it was the defendant upon whom they relied to inspect and perform maintenance
on the ride is circumstantial evidence that it was the defendant who altered the electrical panel.

        In sum, this evidence was not admitted to prove the character of the defendant. The trial
court complied with the procedures in Rule 404(b) and determined that the evidence was admissible.
The trial court did not abuse its discretion in admitting the evidence.

        The state also argues that the evidence is admissible because its theory of the case was
broader than just that the defendant put the jumper wires on the ride; rather, the state argues that
evidence that the defendant put the ride in operation following Mr. Mace’s incident is itself evidence
of criminal conduct. The defendant responds that this argument amounts to an unlawful variance
of the stated prosecution theory at trial. Having held that the evidence was sufficient to prove that
the defendant did place the jumper wires on the Hawk and that evidence of the Mace incident is
relevant, non-character evidence, we will not further address the defendant’s complaints.

                                        IV. ALIBI DEFENSE

        The defendant contends that the trial court erred in failing to instruct the jury on the
defendant’s alibi defense. The state counters that the trial court did not abuse its discretion in failing
to charge the jury on the alibi defense because the defendant’s presence at the scene of the victim’s
death was not an issue in the case.

        The defendant filed a notice of alibi and stated his alibi as follows: “The Defendant was at
his residence . . . on March 14, 2004 at the time of the accident. The defendant could not have
committed the offenses . . . in the Indictment filed against him.” At the initial charge conference
following the proof at the trial, defense counsel explained that the defendant sought an alibi
instruction not only because he was not present when the victim fell off the Hawk but also because
the evidence showed that he was not near the Hawk when its electrical panel was altered to bypass
the safety mechanisms. After originally stating that it would charge the jury on the alibi defense, the
court later decided not to include an alibi defense instruction with the jury charge. The following
exchange occurred after defense counsel objected to the absence of an alibi defense instruction:

                [Court:]                The Court has reviewed that again. The alibi
                                        defense, that is those witnesses who testified
                                        that Mr. Martin was not present when Ms.
                                        Alexander fell, that evidence is not contested
                                        by the State and in fact is conceded in their
                                        own proof that he was not present when she
                                        fell.

                                                The case law further goes on to say
                                        that an alibi instruction must be given where


                                                  -31-
                                        the time and place of a particular act is
                                        important and that the defendant’s presence at
                                        that time and place is required if there’s proof
                                        that he was elsewhere. Those are not the facts
                                        that have been proven in this case.

                                                And I’ve re-examined that. I’ve re-
                                        examined the case law, and under the facts of
                                        this case, the Court does not feel that the
                                        defense of alibi, that is, the instruction should
                                        be given. That’s been adequately explained,
                                        presented and it’s uncontroverted [sic] Mr.
                                        Martin was not there at the time this lady fell
                                        ....

                        ....

                [Defense counsel:]              For the record, it is our position that
                                        Mr. Martin could not have been present at the
                                        time that this ride was altered as is the State’s
                                        theory; the predicate act was the placement of
                                        the jumper.

                                                 We have properly raised in this proof
                                        that that was done at a time and place where
                                        he was not located - - in the State of Florida.
                                        We’re specifically requesting the instruction
                                        of alibi as relates to those events.

                [Court:]                        The Court will note your objection, but
                                        will not give an alibi instruction.

         In Tennessee, when the issue of alibi is raised and supported by credible evidence at trial, the
trial court must give the jury an instruction on the alibi defense, whether requested or not. Christian
v. State, 555 S.W.2d 863, 864 (Tenn. 1977). Our courts have held that a trial court’s failure to give
an alibi charge, when the defendant is entitled to one, impacts the fundamental fairness of the trial
and constitutes reversible error. Manning v. State, 500 S.W.2d 913, 915 (Tenn. 1973). However,
“the evidence must first fairly raise the defense of alibi before [an appellate court] will reverse for
failure to charge.” Id. (emphasis in original).

       We agree with the trial court that an alibi defense instruction was not warranted in this case.
Black’s Law Dictionary defines “alibi” as “[a] defense based on the physical impossibility of a
defendant's guilt by placing the defendant in a location other than the scene of the crime at the


                                                  -32-
relevant time.” Black’s Law Dictionary 72 (7th ed. 1999). As evidenced by this definition,
traditionally, alibi evidence revolves around the location of the defendant at the time the crime was
committed. This is further apparent from the Tennessee Rules of Criminal Procedure’s requirements
of a defendant’s notice of alibi. In response to the state’s request of notice of alibi defense, a
defendant seeking to offer an alibi defense must provide the state with the written notice of “the
specific place or places at which the defendant claims to have been at the time of the alleged offense”
and “the name and address of each alibi witness on whom the defendant intends to rely.” Tenn. R.
Crim. P. 12.1(2)(A). When, as in the present case, the place and time of the offense have not been
defined and are not essential elements for the state to prove, alibi is not a relevant defense. See, e.g.,
United States v. Erlenbaugh, 452 F.2d 967, 975 (7th Cir. 1971) (holding that defendant was not
entitled to an alibi instruction because the defendant’s presence at a particular place at a particular
time was not an element of the charged offense), aff’d on other grounds, 409 U.S. 239, 93 S. Ct. 477
(1972).

        The defendant’s original notice of alibi defense stating that he was at his home at the time
the victim died and evidence of the same did not entitle him to an alibi defense because, as the trial
court stated, the state did not dispute that fact. More importantly, based on the state’s theory, the
defendant’s presence at the scene and at the time of the victim’s death was not relevant to the
question of whether he was guilty of a homicide offense. Furthermore, the defendant mis-
characterizes his defense and the evidence that he produced at trial as alibi in nature. His defense
was that he could not have placed the jumper wires on the Hawk because they were there before the
Hawk arrived at Rockin Raceway. The defendant presented a theory that contradicted the state’s
theory of what occurred and led to the victim’s death. He presented this theory primarily through
expert testimony regarding a defect in the ride. He did not provide evidence of his whereabouts at
the time the criminal act occurred, largely because the exact time of the criminal act was not
established. The defendant was not entitled to an alibi charge because the evidence did not properly
raise an alibi defense. The trial court did not err in refusing to give the jury an instruction on alibi
defense.

                                    V. JUDICIAL DIVERSION

       At the sentencing hearing, the state called Detective Rene Kendall of the Pigeon Forge Police
Department. Detective Kendall testified that there were over seventy-five amusement rides at
fourteen locations in Sevierville, Pigeon Forge, and Gatlinburg. He said the area is visited by
millions of tourists each year. He said his investigation revealed that there were no inspections of
amusement rides other than those done by the owners or operators.

       On cross-examination, Detective Kendall acknowledged that he had spoken with John
Leonard, the owner of Smoky Mountain Speed Park, which he agreed was a reputable business in
the community. He said he did not speak with Mr. Leonard about the contents of a letter Mr.
Leonard wrote to the court, in which Mr. Leonard determined after the defendant’s trial that there
were improper wires on a ride at his business of which Mr. Leonard had been unaware. He said he
had no knowledge of this. Detective Kendall said that in his seventeen years as a police officer, Ms.


                                                  -33-
Alexander’s death was the only fatality from an amusement ride of which he was aware. He testified
that there had been other incidents, one of which involved two children being dropped from a ride
when a shaft broke, another which involved a mechanical bull, and others involving go-carts. He
said he had no knowledge of incidents other than those in Pigeon Forge.

        The victim’s sister, Judy Sprinkles, testified that she and the victim’s son were on the Hawk
with the victim when the victim fell to her death. She said the victim’s family had been devastated.
She said that she, the victim’s son, and her sister Gail were still receiving psychological counseling.
She said the victim’s husband was also distraught. She said the victim had two children.

       The defendant called the victim’s son, Cody Alexander. He testified that he did not see the
defendant at the amusement park on the date the victim died. He said he was not able to see the
defendant assisting patrons off the ride.

        The defense read into the record portions of several letters. These letters generally attested
to the defendant’s positive character and actions. Some of the letters specifically asked the court to
grant judicial diversion and probation.

        The presentence report included as attachments letters from the victim’s family members and
a friend which generally attested to the victim’s good character and the impact of her death on them.

        The defendant argues that the trial court erred when it denied his request for judicial
diversion. The defendant claims that the trial court erroneously considered the need to avoid
depreciating the seriousness of the offense and failed to consider all of the proper factors other than
the need for general deterrence. The state responds that the trial court did not abuse its discretion
in denying diversion.

         A defendant is eligible for judicial diversion when he or she is found guilty or pleads guilty
to a Class C, D, or E felony and has not previously been convicted of a felony or a Class A
misdemeanor. See T.C.A. § 40-35-313(a)(1)(B). Judicial diversion allows the trial court to defer
further proceedings without entering a judgment of guilt and to place the defendant on probation
under reasonable conditions. Id. When the probationary period expires, if the defendant has
completed probation successfully, then the trial court will discharge the defendant and dismiss the
prosecution with no adjudication of guilt. See id. at (a)(2). The defendant may then apply to have
all records of the proceedings expunged from the official records. See id. at (b). A person granted
judicial diversion is not convicted of an offense because a judgment of guilt is never entered. See
id. at (a)(1)(A).

        Judicial diversion is not a sentencing alternative for a defendant convicted of an offense. See
T.C.A. § 40-35-104(c). Therefore, there is no presumption that a defendant is a favorable candidate
for judicial diversion. See State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995),
overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). When a defendant
challenges the manner of serving a sentence, this court conducts a de novo review of the record with


                                                 -34-
a presumption that “the determinations made by the court from which the appeal is taken are
correct.” T.C.A. § 40-35-401(d). However, when the accused challenges the trial court’s denial of
a request for judicial diversion, a different standard of appellate review applies. Because the
decision to grant judicial diversion lies within the sound discretion of the trial court, this court will
not disturb that decision on appeal absent an abuse of discretion. State v. Electroplating, Inc., 990
S.W.2d 211, 229 (Tenn. Crim. App. 1998); State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim.
App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). An abuse
of discretion exists if the record contains no substantial evidence to support the denial. State v.
Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983); Bonestel, 871 S.W.2d at 167.

         In determining whether to grant judicial diversion, the trial court must consider (1) the
defendant’s amenability to correction; (2) the circumstances of the offense; (3) the defendant’s
criminal record; (4) the defendant’s social history; (5) the defendant’s physical and mental health;
(6) the deterrence value to the defendant and others; and (7) whether judicial diversion will serve the
ends of justice. Electroplating, 990 S.W.2d at 229; State v. Parker, 932 S.W.2d 945, 958 (Tenn.
Crim. App. 1996); Bonestel, 871 S.W.2d at 168. In addition, “the record must reflect that the court
has weighed all of the factors in reaching its determination.” Electroplating, 990 S.W.2d at 229. If
the trial court refused to grant judicial diversion, it should state in the record “the specific reasons
for its determinations.” Parker, 932 S.W.2d at 958-59. If the trial court “based its determination on
only some of the factors, it must explain why these factors outweigh the others.” Electroplating, 990
S.W.2d at 229.

        In the present case, the trial court made extensive findings on the record relative to its
sentencing determination. The court first examined the issue of the length and manner of service of
the sentence. In so doing, it recited the relevant considerations, made findings relative to the
enhancement and mitigating factors, and weighed the factors in arriving at its four-year probationary
sentence. The court then turned to the issue of judicial diversion. In addressing the issue of
diversion, the trial court said the following:

                        The next consideration is the application for judicial
                diversion. The Court has considered all of the circumstances of the
                offenses, the entire record that I’ve discussed already. The Court
                must also look to the seriousness of this offense. Ms. June Alexander
                died. Nothing can be more serious. A family devastated, still
                undergoing counseling for the emotional trauma they suffer. A lady
                died right before the eyes of her young son and sister who were sitting
                beside her. So the Court must deny the application for judicial
                diversion on that ground, to avoid depreciating the seriousness of the
                offense.

                       Evidence was also presented that this community has more
                than 74 amusement rides, some of which have caused injuries in the
                past. That there is no official method or – or agency that inspects


                                                  -35-
               rides for safety, or for any other reason, for that matter. That is a
               matter for the legislature to determine, as to whether or not such
               inspections should be done, that inspectors should be hired. That is
               not a matter for this Court.

                       But the Court must consider that there is no such inspection
               scheme, so that there must be a deterrent----that is, an encouragement
               for those who operate amusement rides, particularly those that – that
               may be somewhat dangerous----to make sure that those rides are
               operated safely, maintained properly, and that there is [a] deterrent
               factor. So that the Court, for that reason, as well, denies the
               application for judicial diversion.

        Upon review, we discern some shortcomings in the trial court’s findings. First, the court
placed determinative weight on factors related to the offense without considering the factors related
to the defendant himself. The trial court made no comment on the record when addressing the
question of diversion that it had considered the defendant’s amenability to correction, his criminal
record, his social history, his physical and mental health, and the deterrence value to the defendant.
Although the court made findings which were pertinent to some of these factors in determining the
length and manner of service of the sentence, the court never acknowledged that it considered and
weighed these factors in denying diversion.

        Second, although the court made specific mention of the factors to be considered in
determining the length and manner of service of the sentence, the court did not mention the factors
which must be considered in an application for judicial diversion. Although these factors are similar,
there are distinctions. Compare T.C.A. §§ 40-35-102, -103, -210 (stating considerations relevant
to determining the length and manner of a defendant’s sentence) with Electroplating, 990 S.W.2d
at 229 (listing factors relevant to granting or denying judicial diversion). Moreover, in the case of
sentencing, the standard with which the court must comply in explaining its determination is less
exacting than when the court denies an application for judicial diversion. Under sections § 40-35-
210(b) and (e), in determining length and manner of a sentence, a trial court need only consider
factors relevant to that case and state orally or in writing what factors were considered and the
reasoning behind its decision. Under Electroplating, 990 S.W.2d at 229, the trial court considering
judicial diversion must address and weigh all the factors relevant to judicial diversion. See also
Parker, 932 S.W.2d at 958-59 (stating that court denying judicial diversion is required to give
specific reasons for a denial of diversion). The state urges us to hold that the court’s earlier
consideration of the defendant’s personal characteristics was a sufficient acknowledgment.
However, given the distinct factors to be considered and the requirements of acknowledgment and
weighing of the diversion factors, we are not prepared to hold that the trial court made an adequate,
affirmative showing of its consideration and weighing of all of the relevant considerations.

        Additionally, we believe that the trial court erred in denying diversion to avoid depreciating
the seriousness of the offense on the basis that the crime involved a death which traumatized the


                                                -36-
victim’s family. We recognize that the need to avoid depreciating the seriousness of the offense may
be considered in whether judicial diversion will serve the ends of justice. However, the fact that the
crime involved a homicide is not an appropriate basis to deny diversion. Our legislature has
provided that reckless homicide is one of the offenses for which judicial diversion may be granted.
See T.C.A. § 40-35-313 (defining offenses excluded from pretrial diversion); State v. Cutshaw, 967
S.W.2d 332, 344 (Tenn. Crim. App. 1997) (holding that trial court abused discretion in denying
judicial diversion based upon seriousness of offense of aggravated perjury, an offense which was
statutorily eligible for diversion, without considering the defendant’s personal characteristics).

        Having determined that the trial court erred in its analysis, we are still able to determine
“whether the trial court reached the correct result notwithstanding its failure to explain its
reasoning.” Electroplating, 990 S.W.2d at 229. First, we note that several factors weigh in favor of
granting judicial diversion. The record reflects that the defendant was fifty-seven years old at the
time of sentencing and had no prior criminal history. He was in good physical and mental health and
had never abused alcohol or drugs. He was married, had a history of gainful employment, and was
honorably discharged from the Air Force after six years of active duty. He was the father of an adult
daughter. The defendant had the support of several friends and members of the community, many
of whom attested in letters to the defendant’s generosity, good character, and involvement with his
church. Nothing in the record indicates that the defendant would not be amenable to correction or
that his interests would not be served by diversion.

        Despite these positive factors, there are also factors that weigh against granting judicial
diversion. The circumstances of the offense do not favor diversion. The defendant was the general
manager of an amusement facility which operated a thrill-seeking ride which had been altered to
override the safety mechanisms in place to prevent the machine from operating if patrons were in
danger of falling to their death. The victim was killed in such a fall in front of her child and sister,
who were also on the ride. Despite reckless homicide being an offense for which judicial diversion
is available, these facts are particularly troubling. Likewise, the particular need to deter others from
unsafe practices and the interests of the public are served by ensuring that amusement rides are safely
maintained, particularly given lack of oversight that the state and the City of Pigeon Forge have
assumed. The trial judge properly considered deterrence as a factor within the specific context of
the community’s amusement ride industry. See State v. Davis, 940 S.W.2d 558, 561 (Tenn. 1997)
(holding that trial court properly considered the particular need for deterrence in a vandalism case
in the context of a labor dispute that led to criminal acts).

       Balancing these competing considerations, we conclude that the defendant was, in many
respects, an optimal candidate to receive judicial diversion based upon his positive personal
characteristics, including his history of productive citizenship and the strong indicators of his
amenability to correction. However, we cannot conclude that the defendant’s exemplary lifestyle
outweighs the circumstances of the offense, the need for deterrence, and the interests of the public.
The defendant’s recklessness endangered the lives of many people and cost the victim her life. Also,
the Hawk had several problems from the time of its arrival at Rockin Raceway, and, yet, the
defendant, who was responsible for the safety of the rides, did all he could to keep the ride in


                                                 -37-
operation. The public places a high level of trust in amusement ride operators, and those in the
amusement ride industry must know that they will be held accountable for their actions that risk the
public’s safety. Moreover, we give the deterrence factor great weight, considering the apparent
financial motivation for the defendant’s crime, the size of the amusement ride industry in the
defendant’s community and likelihood that others will be motivated to commit similar crimes, and
the publicity surrounding the defendant’s case. See State v. Hooper, 29 S.W.3d 1, 10-12 (discussing
circumstances relevant to deterrent value of a sentence). A grant of diversion would subvert the
interests of the public and the need to deter others from similar dangerous conduct. We conclude
that the defendant is not entitled to judicial diversion.

                                         CONCLUSION

       Based on the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                      ___________________________________
                                                      JOSEPH M. TIPTON, PRESIDING JUDGE




                                               -38-
