             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE                  FILED
                        FEBRUARY 1997 SESSION
                                                          February 4, 1999

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
STATE OF TENNESSEE,     )
                        )
          Appellee,     )        No. 03C01-9608-CR-00302
                        )
                        )        Hamilton County
v.                      )
                        )        Honorable Stephen M. Bevil, Judge
                        )
CHARLES FRANK BANKSTON, )        (Second degree murder and reckless
                        )        endangerment with a deadly weapon)
                        )
          Appellant.    )


For the Appellant:               For the Appellee:

Don W. Poole                     Charles W. Burson
732 Cherry Street                Attorney General of Tennessee
Chattanooga, TN 37402                   and
                                 Elizabeth T. Ryan
                                 Assistant Attorney General of Tennessee
                                 425 Fifth Avenue North
                                 2d Floor, Cordell Hull Building
                                 Nashville, TN 37243-0493

                                 William H. Cox
                                 District Attorney General
                                         and
                                 David Denny
                                 Assistant District Attorney General
                                 600 Market Street
                                 Chattanooga, TN 37402




OPINION FILED:____________________


CONVICTIONS AFFIRMED; SENTENCE FOR SECOND DEGREE MURDER
MODIFIED

Joseph M. Tipton
Judge
                                       OPINION



              The defendant, Charles Frank Bankston, appeals as of right following his

convictions by a jury in the Criminal Court of Hamilton County of second degree

murder, a Class A felony, and reckless endangerment with a deadly weapon, a Class E

felony. He received sentences of twenty-five years and two years to be served

concurrently in the custody of the Department of Correction. The defendant presents

the following issues for our review:

              (1) whether the indictment is sufficient;

              (2) whether the evidence is sufficient to support the
              defendant’s convictions;

              (3) whether the trial court erred by denying the defendant’s
              motion for a change of venue;

              (4) whether the defendant was denied a fair trial when the trial
              court limited the defendant’s questioning of two potential jurors
              during voir dire;

              (5) whether the trial court erred by failing to dismiss the case
              on the grounds of double jeopardy;

              (6) whether the trial court erred by refusing to allow testimony
              and refusing to instruct the jury regarding the legal
              presumptions of people with certain blood alcohol levels;

              (7) whether the trial court erred in its charge to the jury
              regarding multiple indictments and the definitions of reckless
              and knowing;

              (8) whether the statute providing for instructing the jury about
              parole eligibility, T.C.A. § 40-35-201(b), is unconstitutional;

              (9) whether the trial court erred in its charge to the jury by
              incorrectly calculating the minimum number of years the
              defendant would spend in jail;

              (10) whether the trial court erred by admitting certain evidence
              at the sentencing hearing; and

              (11) whether the trial court erred in sentencing by applying
              certain aggravating factors, failing to apply certain mitigating
              factors, and imposing an excessive sentence.




                                             2
We conclude that the convictions should be affirmed but the sentence for second

degree murder should be modified.



             Steve Gentry testified that on August 26, 1994, he and his friend, Dr. Don

Jezewski, met at the Ocean Avenue Cafe in Chattanooga at about 6:15 p.m. He said

they each drank about six bourbon and cokes and ate a sampler platter, which is a

large dish. He said they left the restaurant at about 8:45 p.m. and went toward

Jezewski’s car in the parking lot. He said that as they were walking, Jezewski saw the

defendant, whom neither of them knew, and said the defendant was too drunk to drive.

He said Jezewski suggested they talk to the defendant.



             Gentry testified that the defendant was driving a red Camaro. He said

that Jezewski approached the defendant and told him, “My friend, I think you shouldn’t

be driving home. You’ve had too much to drink.” He said Jezewski was not threatening

the defendant. He said the Camaro door on the driver’s side was open, and he and

Jezewski were standing in the doorway. He testified that the defendant replied that he

was fine and could drive. He said the defendant was slurring his words. He said that

the conversation between Jezewski and the defendant was pleasant. Gentry testified

that he told the defendant his car was pretty, and it would be a shame to mess it up.

He said Jezewski asked the defendant where he lived and offered to drive the

defendant home. He said the defendant refused, insisting that he was fine to drive. He

said the defendant appeared to understand everything they were saying to him, and he

gave logical responses to their questions.



             Gentry testified that after Jezewski offered to pay for a taxi cab to drive

the defendant home, which he refused, the defendant started to back up. Gentry stated

that the driver’s side door was open, and Jezewski told the defendant he was not going

to let him close his door. He said the tone of the conversation between the two men



                                             3
was still pleasant. He said the defendant continued to back out, and his door became

wedged between the front and back door of an adjacent car, causing the defendant’s

car to become stuck. Gentry said the defendant continued to accelerate, causing his

wheels to spin, and he told Jezewski that they should let the defendant drive home. He

testified that the defendant then let up on the gas and accelerated quickly, causing the

driver’s side door side to bend back then disengage, hitting him and Jezewski. He said

the force of the hit knocked him across the parking lot. He said that when he got up, he

saw Jezewski lying under the defendant’s car, and the back right wheel of the

defendant’s car ran over Jezewski. He said the defendant had to accelerate to do this.



              Gentry testified that Jezewski sat up, looked around, and saw that blood

was coming from his mouth. He said he went over to Jezewski and asked him if he was

all right, but Jezewski lay back down. He said he called for an ambulance and in the

meantime, the defendant veered to the left, struck another car, and he left the parking

lot. Gentry said that nothing was obstructing the defendant’s view of Jezewski. He said

that he drank with Jezewski on several occasions and that Jezewski never became

belligerent or confrontational when he drank. He said he sustained one broken rib and

a bruised growth plate in his rib as a result of the accident.



              On cross-examination, Gentry admitted that he and Jezewski each had six

drinks. He said that Jezewski weighed about two hundred and forty pounds, and he

weighs two hundred and twenty pounds. He admitted that he did not see the defendant

as the defendant was getting into his car and that he relied on Jezewski’s initial

observations of the defendant. Gentry said the defendant’s slurred speech was the

reason he decided the defendant should not be driving. He said he did not see the

defendant walk nor did he smell alcohol on the defendant. He said the parking lot was

close to a freeway and that it was noisy.




                                             4
             Tracy Cook testified that he arrived at the Ocean Avenue Cafe around

5:30 p.m. and left at around 9:00 p.m. He said that as he entered the parking lot, he

saw a car that appeared to be in reverse, and the driver was accelerating. He said

there was smoke coming from the back of the car. He said that two men were leaning

over talking to the driver. He said that one of the men was leaning into the car. He said

the defendant disengaged the brake, throwing one man across the parking lot and

knocking the other over. He said that Jezewski looked like he was trying to move away

from the front of the Camaro. He said Jezewski was getting up on all fours, his knees

were off the ground, and he was almost standing up when the Camaro went forward

and ran over Jezewski. He said the Camaro continued and hit another car, and his wife

got the defendant’s license plate number. He said that when he went to check on

Jezewski, he was semiconscious and was trying to talk. He said he had an

unobstructed view of Jezewski before he was hit, and he did not see anything that

would prevent the defendant from seeing Jezewski.



             On cross-examination, Cook admitted he had four or five beers, possibly

as many as seven, between the hours of 6:00 and 9:00 p.m. He said that he had a

small buzz. He also said Jezewski was leaning close to the defendant inside the car.



             Randy Murray testified that he arrived at the Ocean Avenue Cafe at about

5:00 p.m. and had a seafood salad and three drinks. He said that when he went to the

parking lot, he heard tires squealing. He said the defendant floored the accelerator

while the car was in reverse, throwing Jezewski into the middle of the parking lot. He

said the defendant then moved forward at a regular pace. He said Jezewski was on his

hands and knees getting up when the defendant ran over him. He said Jezewski was

able partially to stand up before he was hit, and Jezewski’s hands were on the hood of

the car. He said the defendant accelerated as fast as he could go when he ran over

Jezewski.



                                           5
              On cross-examination, Murray admitted that he had one beer at a golf

course the afternoon of the accident. He said the defendant’s car door appeared

closed. He admitted giving a statement to the police in which he said the Camaro came

to a stop while backing up, then someone jumped in front of the Camaro. He said he

meant that Jezewski was on his hands and knees and jumped up from the pavement so

the defendant could see him.



              Sheila Murray testified that she met Randy Murray at the restaurant at

about 8:00 p.m. She said she did not have anything to drink that night. She said when

they went to the parking lot, she heard the defendant revving his engine. She said she

saw Gentry and Jezewski standing between the defendant’s car and another car. She

said the defendant sped backwards, causing Gentry to be thrown to the back of the car

and Jezewski to be thrown in front. She said there was nothing obstructing the

defendant’s view. She said Jezewski was off the ground and in front of the Camaro,

and he either had his hands on the car or was trying to get his hands on the car when

the defendant ran over him.



              Herman Stout testified that he had about five or six beers at the restaurant

that night, along with appetizers and a meal. He said that when he went to the parking

lot, he saw the defendant’s car go backwards, slinging Jezewski into the middle of the

parking lot. He said there was nothing obstructing the defendant’s view. He said the

defendant went forward and ran over Jezewski, who was on his hands and knees. On

cross-examination he admitted that the defendant appeared to drive fine when he left

the parking lot. He also admitted that in his report to the police, he did not write that the

defendant ran over Jezewski.



              Dr. Frank King, the medical examiner for Hamilton County, testified that

he examined Jezewski’s body and determined that Jezewski died of multiple injuries.



                                             6
He said Jezewski had multiple abrasions, bruises, and bone fractures. He said

Jezewski’s chest cavity was crushed, he had a fractured pelvis, and there was bleeding

in his body, chest cavity, and pelvis. He said Jezewski’s blood alcohol content based

on a blood sample was .05 percent, and a vitreous fluid sample test registered .07. He

said that an earlier blood alcohol test performed at 9:40 p.m. when Jezewski was

admitted to the hospital registered .10 percent. He said Jezewski weighed two hundred

and twenty-six pounds.



             On cross-examination, Dr. King said that Jezewski’s blood alcohol content

was probably .11 to .12 percent at the time of the accident. He said blood alcohol

content at that level can cause decreased inhibition, altered judgment, slowed reaction

time, incoordination, slurred speech, and sedation. He said Jezewski’s blood alcohol

content indicated that he had between six and eight drinks within a two and one-half

hour period. He said the impact that caused Jezewski’s death was a very low speed

impact. He testified that if a person weighing one hundred and sixty to one hundred

and seventy pounds drank two beers in two hours after consuming four to five beers

four hours earlier, that person’s blood alcohol content would be less than .05 percent.



             Officer William Neblette of the Chattanooga Police Department’s D.U.I.

Task Force testified that he took pictures and interviewed witnesses at the scene. He

said that none of the witnesses appeared drunk or impaired. He said Officer Robert

Simpson notified him that the defendant’s car had been located, and he went to the

defendant’s house. He said that when he arrived, Officer Simpson had the defendant

in custody in Simpson’s car. He said he went to talk to the defendant and as soon as

he opened the door, he noticed the odor of alcohol. He said the defendant’s head was

moving from side to side, his eyes were watery and bloodshot, and he seemed

unsteady. He said he would not have wanted to drive on the same road as the

defendant that night.



                                            7
             Officer Neblette testified that he saw the defendant later that night in jail.

He said the defendant was as impaired if not more impaired than he was earlier that

night. He said the defendant was unsteady, his eyes were watery and bloodshot, his

speech was affected, and he smelled strongly of alcohol.



             On cross-examination, Officer Neblette said that six drinks would probably

result in a blood alcohol content of close to .10 percent. He admitted that he did not

ask any of the witnesses how much they had to drink that night. He said one of the

factors he used to determine that the defendant was intoxicated was the defendant’s

speech.



             Officer Robert Simpson, also of the D.U.I. Task Force, testified that he

located the defendant’s car at the defendant’s house. He said that when the defendant

came to the door, he was eating a sandwich and seemed surprised to see a police

officer. He said the defendant smelled of alcohol, his speech was muddled, and there

was a small abrasion on his forehead. He said that his police car had video equipment

and that he wore a wireless microphone and recorded his conversation with the

defendant that night.



             The jury listened to the audio portion of the tape because the camera was

pointed away from the defendant during the conversation. In the audiotape, Officer

Simpson asked the defendant how his car became damaged. The defendant

responded that earlier that night, he thought he was going to be robbed. He told Officer

Simpson that two men were at Ocean Avenue and approached him. He said he told

the men he was going home, but the men told him they wanted to talk to him. He said

he told them no, pushed the gas, and the tires squealed. The defendant said he told

the men to get out of the way, backed up, put the car in drive, then went forward and hit

one of the men. He admitted that he had something to drink after he came home. He



                                             8
laughed and told Officer Simpson that his address was too easy to find. Officer

Simpson testified that it was obvious the defendant was drunk. He said he arrested the

defendant for being drunk in public in order to keep the defendant from leaving.



              On cross-examination, Officer Simpson said that one reason he thought

the defendant was intoxicated was because of the defendant’s muddled speech. He

said the defendant’s car was not hidden from view. He also said the defendant told him

he had hit somebody, not run over somebody. He said he saw a liquor bottle on the

table but no other evidence that the defendant had anything to drink at his house.



              William Polen, Jr., an audiologist, testified that he treated the defendant in

1985 because the defendant complained of dizziness. He said the defendant had mild

high frequency hearing loss in his right ear and moderately severe high frequency

hearing loss in his left ear. He said the defendant also had a slight difference in speech

discrimination ability between his right and left ear, with his left ear being worse. He

said the defendant had difficulty detecting the presence of high frequency or high pitch

sounds. He said this type of hearing loss would cause one to have difficulty

distinguishing between words that sound alike. He said the defendant would have more

difficulty hearing and understanding others when there was background noise, including

traffic noise. He said that subsequent testing by other doctors revealed a general

worsening of the defendant’s ability to hear sounds in the high frequency range.



              On cross-examination, Polen admitted that male voices generally have a

lower pitch and fundamental frequency. He said he had not examined the defendant

within the last year.



              Carolyn Hogan, the defendant’s sister, testified that the defendant had

lived with her since the accident. She testified that the defendant has a daughter and a



                                             9
granddaughter. She said the defendant could not hear very well, and she had to repeat

everything two or three times. She also said the defendant has had a stuttering

problem all of his life.



               George Griggs, an acquaintance of the defendant, testified that he was at

the Ocean Avenue Cafe the night of the incident. He said he saw the defendant at

about 6:30 or 7:00 p.m. He said he talked to the defendant for about two minutes, and

the defendant did not have any problem talking to him and did not smell of alcohol. On

cross-examination, he admitted telling a detective that he had not been around the

defendant enough in the past to know if the defendant had been drinking that night.



               Kimberly Edwards testified that she was working as a waitress at the

Ocean Avenue Cafe the night of the accident, and she waited on the defendant. She

testified that it was happy hour when he arrived, during which customers would receive

two shots of liquor for the price of one or discounts on beer. She said she served the

defendant two beers. She said she had training to recognize people who have had too

much to drink. She said the defendant did not look like he had too much to drink.



               On cross-examination, Edwards testified that the defendant could have

ordered drinks from the bar without her knowledge. She admitted that the seafood

sampler is a huge platter, and some people order it as a meal for two people to share.

She said the management of the restaurant was concerned with whether impaired

people were served, and the managers asked her to write a statement detailing her

actions on the night of the accident. She said she was aware that the restaurant was

being sued, although she was not aware the lawsuit was for ten million dollars. She

said the defendant did not pay for his drinks that night.




                                            10
              The defendant testified that on the day of the accident, he ran errands

then went to the pool from 2:30 to 4:00 p.m. He said he drank two beers during this

time. He said he went into Georgia to play the lottery then arrived at the Ocean Avenue

Cafe around 7:00 p.m. He said he saw some people he knew at the restaurant, then he

sat down and drank two beers. He said he decided to leave at about 9:00 p.m.

because he had to get up early for work the next morning. He said he thought he had

paid for his drinks.



              He said he got into his car in the parking lot, and Jezewski and Gentry

approached him. He said he did not know them and had never seen them before. He

said he thought he was going to be carjacked and robbed. He testified that they said

they wanted to talk to him, but he told them he did not want to, and he was going home.

He said he could not hear all of their conversation. He said he asked them several

times to move out of the way because they were standing in the door preventing him

from shutting the door. He said both men were talking and the freeway was close. He

said he started the car, put it in reverse, and held the brake to “squall” the tires, hoping

they might leave. He said one of the men then told him to get out of the car and

reached inside the car. He said he took his foot off of the brake, went backwards, hit

the man standing in the door, and hit his head on the mirror. He said his car door

became stuck on the adjacent car. He said he did not know what was happening, and

he started forward and hit the adjacent car with his door. He said he did not see

anyone in front of him after he pulled out, and he did not knowingly run over anyone.

He said he did not know that he had run over anyone when he went home.



              He said that when he arrived home, he had two big drinks of whisky

because he was “scared to death.” He said he started to change clothes and fix himself

a sandwich when he decided to call the police. He said an officer showed up before he

could make the call. He said he did not know that he had run over Jezewski.



                                             11
              On cross-examination, the defendant admitted that he told Officer

Simpson he had hit someone. He said he meant to say that he hit the man while he

was backing up. He admitted that he never stopped to call 9-1-1. He admitted that

neither Gentry nor Jezewski had any weapons. He said that he did not tell Officer

Simpson about the beers he drank earlier in the day.



              The stipulated testimony of FBI Agent Wayne Jackson was admitted into

evidence. Jackson defined the federal crime of carjacking.



              Marla Clingman testified that she was the manager of a convenience store

in Georgia. She said the defendant would come into her store almost daily to play the

lottery, and he came in between 5:30 and 6:00 p.m. the day of the accident. She said

he stayed about fifteen or twenty minutes. She said he did not buy anything to drink,

and he did not demonstrate that he had been drinking that day. On cross-examination,

she admitted that she was not trained to detect impairment.



       I. SUFFICIENCY OF THE RECKLESS ENDANGERMENT INDICTMENT

              The defendant contends that the indictment charging reckless

endangerment is insufficient because it does not name a specific victim. In the heading

for this argument in the defendant’s brief, he states that the trial court erred in its charge

to the jury regarding the reckless endangerment indictment. However, his argument is

really two-fold: that the indictment is insufficient because it fails to name a specific

victim, and that the jury could have erroneously concluded that the reckless

endangerment charge applied to Jezewski. He argues that the jury could have

erroneously convicted the defendant of both second degree murder and reckless

endangerment of Jezewski. The state contends that the indictment is sufficient and

that the jurors were adequately apprised that the reckless endangerment charge

applied only to Gentry.



                                             12
              Initially, we note that an objection to the indictment should have been

made in a pretrial motion, and the failure to do so may constitute a waiver. See Tenn.

R. Crim. P. 12(b), (f). In any event, the defendant’s contention is without merit. The

indictment alleged that the defendant “did unlawfully and recklessly engage in conduct

which placed or may place another person in imminent danger of death or serious

bodily injury . . . .” Both the state and the defendant proceeded at trial on the theory

that Gentry was the victim of reckless endangerment. Furthermore, there was no risk

that the jury was confused and erroneously convicted the defendant for the reckless

endangerment of Jezewski because the trial court instructed the jury that the reckless

endangerment charge applied only to Gentry. Thus, we conclude that the issue is

waived, and even if it were not, it is without merit.



                          II. SUFFICIENCY OF THE EVIDENCE

              The defendant argues that the evidence is insufficient to support his

convictions for second degree murder and reckless endangerment with a deadly

weapon and that the verdicts are against the weight of the evidence. With respect to

the second degree murder conviction, he contends that there is insufficient evidence to

support a finding that he knowingly ran over Jezewski. With respect to the reckless

endangerment conviction, he contends that the evidence is insufficient to show that he

acted recklessly and that the evidence merely shows that he was trying to get away

from the victims whom he believed were threatening him. The state argues that the

evidence is sufficient.



              Our standard of review when the sufficiency of the evidence is questioned

on appeal is "whether, after viewing the evidence in the light most favorable to the

prosecution, any 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). This means that we do not reweigh the evidence, but presume that



                                             13
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).



              Second degree murder is defined as a knowing killing of another. T.C.A.

§ 39-13-210(a)(1). “A person acts knowingly with respect to the result of that person’s

conduct when the person is aware that the conduct is reasonably certain to cause the

result.” T.C.A. § 39-11-302(b). We conclude that the evidence is sufficient to support a

finding that the defendant acted knowingly. The evidence presented shows that

Jezewski, who was over six feet tall and weighed about two hundred and forty pounds,

was either upright or almost upright when the defendant ran over him with his Camaro,

a car that sits low to the ground. Several witnesses testified that there was nothing

blocking the defendant’s view of Jezewski. Based on this evidence, the jury could have

concluded that the defendant knowingly ran over Jezewski.



              The evidence is also sufficient to support a conviction of reckless

endangerment. Reckless endangerment occurs when a person “recklessly engages in

conduct which places or may place another person in imminent danger of death or

serious bodily injury” and is a felony when committed with a deadly weapon. T.C.A. §

39-13-103. A person acts recklessly when he is aware of, but consciously disregards a

substantial and unjustifiable risk that the circumstances exist or the result will occur.

T.C.A. § 39-11-302(c). “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 the circumstances as viewed from the accused person’s

standpoint.” Id.



              The evidence presented shows that the defendant attempted to back out

of the parking lot while Gentry was standing in his doorway. When the defendant



                                             14
backed out, his door became stuck in an adjacent car. The defendant then continued

to accelerate in an attempt to disengage his door while Gentry was still standing in the

doorway. When the defendant finally disengaged his door, the impact caused Gentry to

be thrown across the parking lot. Based on this evidence, the jury could have

concluded that the defendant acted recklessly. Although the defendant argues that he

presented evidence that he was frightened of the victims and was trying to escape, the

jury accredited the testimony of the state’s witnesses, and its decision will not be

disturbed on appeal.



              Finally, we conclude that the trial court did not fail in its capacity as the

thirteenth juror. Once the trial court approves the verdict as the thirteenth juror and

imposes judgment, the review of the evidence on appeal is quite limited, requiring us to

“accredit the testimony of the witnesses for the state and resolve the evidentiary

conflicts in favor of the state.” State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim.

App. 1993) (citation omitted). When viewed in this light, we conclude that the trial court

did not err by refusing to set aside the verdict or grant the defendant a new trial.



                                 III. CHANGE OF VENUE

              The defendant contends that the trial court should have granted his

motion for a change of venue based upon the deluge of prejudicial media coverage

surrounding the incident. He argues that because the publicity permeated Hamilton

County through television, radio and newspapers, it was impossible for him to receive a

fair trial, and the jury’s verdicts of guilt demonstrate that he was prejudiced. He

contends that even if actual prejudice is not shown, the convictions must be set aside

based on the totality of the circumstances. The state argues initially that the defendant

waived the issue by failing to prepare an adequate appellate record that shows he used

all of his peremptory challenges. The state argues that if the issue is not waived, it is

nevertheless without merit because the trial court excused all potential jurors who had



                                             15
read or seen something about the case in the media and could not put it aside.

Furthermore, the state contends that the defendant failed to show prejudice.



              With respect to the defendant failing to prepare an adequate record on

appeal, the state asserts that the defendant must show that he used all of his

peremptory challenges before he can complain about jurors’ qualifications. See

Sommerville v. State, 521 S.W.2d 792, 797 (Tenn. 1975). We agree that the record is

unclear about the defendant’s challenges. Nevertheless, we will address the merits of

the issue presented.



              The decision of whether to grant a motion for a change of venue based on

pretrial publicity rests within the sound discretion of the trial court and will not be

reversed on appeal unless the trial court abused its discretion. State v. Howell, 868

S.W.2d 238, 249 (Tenn. 1993). Furthermore, the defendant must show that the jurors

were biased or prejudiced against him before his conviction will be overturned on

appeal. State v. Melson, 638 S.W.2d 342, 360-61 (Tenn. 1992). Mere exposure to

news accounts of the incident does not, standing alone, establish bias or prejudice.

Prospective jurors can have knowledge of the facts surrounding the crime and still be

qualified to sit on the jury. State v. Bates, 804 S.W.2d 868, 877 (Tenn. 1991). The test

is “whether the jurors who actually sat and rendered verdicts were prejudiced by the

pretrial publicity.” State v. Kyger, 787 S.W.2d 13, 18-19 (Tenn. Crim. App. 1989).



              We conclude that the trial court did not abuse its discretion by denying the

defendant’s motion for a change of venue. During voir dire, each prospective juror was

asked if he or she knew anything about the case from the media. If a juror indicated

that he or she had read, heard, or seen something, both the attorneys and the trial court

questioned the prospective juror on exactly what he or she had heard. Most

prospective jurors said that they vaguely remembered hearing or reading about the



                                              16
incident, but most could not provide details. Several prospective jurors said they did not

know anything about the case. The trial court also asked the prospective jurors if they

had formed an opinion on the defendant’s guilt or innocence based on what they had

heard and whether they could set aside what they had heard and decide the case

based on the evidence at trial. Prospective jurors who indicated that they had formed

an opinion regarding the defendant’s guilt or innocence or could not set aside what they

had heard in the media were excused. Each juror that actually heard the case told the

trial court that they could listen to the evidence and make a decision on the defendant’s

guilt or innocence based on that evidence.



              We do not dispute the fact that the incident garnered a lot of media

coverage. One radio station in Chattanooga ran fifty-two news stories, and both

newspapers in Chattanooga printed a combined forty-four stories. However, as this

court has previously recognized, a defendant who commits a serious crime cannot be

expected to remain anonymous in the community. State v. Griffis, 964 S.W.2d 577,

597 (Tenn. Crim. App. 1997). Based on our review of the trial court’s proceedings

during voir dire, we conclude that it did not abuse its discretion by denying the

defendant’s motion for a change of venue. In addition, the defendant has failed to

establish that the jurors selected to serve during his trial were biased or prejudiced

against him in light of the fact that all jurors empaneled expressed that they could listen

to the evidence and base their verdicts on the evidence presented at trial.



                      IV. VOIR DIRE OF PROSPECTIVE JURORS

              The defendant contends that the trial court abused its discretion by

refusing to allow him to voir dire certain prospective jurors individually regarding

whether they felt the defendant could receive a fair trial in Hamilton County.

Specifically, he argues that a prospective juror’s testimony regarding the ability of the

defendant to receive a fair trial amounts to an affidavit averring undue excitement,



                                             17
which can be grounds for a change of venue. See Tenn. R. Crim. P. 21(b). The state

argues that the trial court did not abuse its discretion.



              The control of the voir dire is within the sound discretion of the trial court

and will not be found to be error unless the defendant shows that he was prejudiced.

Howell, 868 S.W.2d at 247. We conclude that the trial court did not abuse its

discretion, and defendant has failed to show that he was prejudiced.



              The trial court permitted individual questioning of the venire. After

questioning thirty-eight jurors, the defendant asked one juror, who had already

determined that the defendant was guilty based upon pretrial publicity, whether the juror

thought the defendant could receive a fair trial in Hamilton County. Seventeen jurors

later, the defendant sought to ask the same question of a juror who had been excused

because she had already formed an opinion regarding the defendant’s guilt and could

not put it aside. This time, however, the state objected and the trial court sustained the

objection.



              We do not believe that the trial court erred by not allowing the defendant

to question prospective jurors who had been dismissed for cause in order to support his

motion for a change of venue. Our supreme court has ruled that the “ultimate goal of

voir dire is to insure that jurors are competent, unbiased, and impartial.” State v.

Cazes, 875 S.W.2d 253, 262 (Tenn. 1994). The two jurors whom the defendant sought

to question regarding whether he could receive a fair trial stated that they had formed

an opinion regarding the defendant’s guilt and could not set it aside. These jurors were

dismissed for cause by the trial court because they were clearly biased. Further

questioning of jurors, who have already been shown to be biased, in order to support a

motion for a change of venue does not further the goal of voir dire, and a trial court’s

decision to deny such questioning is not an abuse of discretion. Cf. State v. Marvin



                                             18
Readus, No. 01-C-01-9006-CR-00141, Davidson County (Tenn. Crim. App. Feb. 13,

1991), applic. denied, (Tenn. July 1, 1991) (holding that Rule 24(b), Tenn. R. Crim. P.,

and T.C.A. § 22-3-101 do not provide a defendant with the right to question prospective

jurors when the record shows the jurors are not competent). Furthermore, in light of the

fact that the jurors who were impaneled stated that they either knew nothing or very

little about the case and could set aside what they knew and base their decision on the

facts presented at trial, we conclude that the defendant has failed to establish

prejudice.



                                 V. DOUBLE JEOPARDY

              The defendant contends that the trial court erred by not granting his

motion to dismiss based on double jeopardy. He argues that because the conditions of

his bond before trial constituted punishment, he could not be subsequently tried and

punished for second degree murder and reckless endangerment. The state argues that

the conditions of the defendant’s bond did not constitute punishment.



              The double jeopardy clause of the Fifth Amendment to the United States

Constitution provides that no person shall “be subject for the same offense to be twice

put in jeopardy of life or limb . . .” Article 1, § 10 of the Tennessee Constitution provides

that “no person shall, for the same offence, be twice put in jeopardy of life or limb.” In

State v. Pennington, 952 S.W.2d 420, 423 (Tenn. 1997), our supreme court determined

that a policy of detaining for twelve hours suspected drunk drivers who refused to

submit to a breathalyzer test did not constitute punishment for purposes of double

jeopardy. The court noted that “the policy was intended, at least in part, to protect the

public from individuals who had been arrested on suspicion of driving under the

influence. This is a remedial purpose, not a punitive one . . . .” Id.




                                             19
                  The defendant in the present case was initially released on a thirty-nine

thousand-dollar bond.1 The next day he attempted to rent a car, and the state

requested that the trial court reexamine the defendant’s bond. At the second bond

hearing, the trial court placed the defendant under house arrest by requiring him to

wear an electronic monitor, required him to live with his sister, and prohibited him from

driving a vehicle. The house arrest and prohibition against driving were removed in July

1995 when the trial court determined that the defendant had satisfactorily attended

court appearances.



                  Initially, we note that the restrictions were reasonable, particularly in light

of the fact that the defendant left the scene of the accident, had four prior convictions

for D.U.I., and attempted to rent a car the day after his initial bond hearing. We also

believe that the conditions of the defendant’s bond in the present case were remedial,

not punitive, in order to ensure the defendant’s appearance at court. Once the trial

court was satisfied that the defendant did not present a risk of flight, the conditions were

removed. Reasonable conditions for bond or pretrial detention do not implicate double

jeopardy concerns.



                  Also, the defendant cites several civil forfeiture cases in support of his

argument. We believe that those cases are factually inapposite and of no consequence

in light of United States v. Ursery, 518 U.S. 267, 270, 116 S. Ct. 2135, 238 (1996).




                  1
                    We note that the information regarding the conditions of the defendant’s bond comes
from the state’s brief and the defendant’s motion to dismiss because transcripts of the original and second
bon d hea rings were not m ade a par t of the reco rd on appe al. It is th e dut y of the appe llant to prov ide th is
court with tra nscripts neces sary to con vey a fair, acc urate an d com plete acc ount of w hat trans pired with
respect to the issues that are the bases of the appeal. T.R.A.P. 24(b). Nevertheless, we will rely on the
conditions of bond as gleaned from the record we have before us and address the merits of the
defend ant’s argu men t.

                                                         20
              VI. TESTIMONY AND JURY INSTRUCTION REGARDING
             PRESUMPTIONS OF BLOOD ALCOHOL CONTENT LEVELS

              The defendant argues that the trial court erred by not allowing the medical

examiner or the officers from the D.U.I. Task Force to testify regarding the legal

presumptions that accompany blood alcohol content levels of .05 percent and .10

percent and by failing to instruct the jury on the legal presumption of those levels. He

argues that the testimony is relevant because it shows that the victims were not thinking

clearly or acting soberly at the time of the accident, and it is relevant to the defendant’s

state of mind in that it supports his claim that he was scared of the victims. He

contends that the evidence supported such an instruction. The state argues that the

defendant never asked the witnesses about the legal presumption of intoxication, and in

any event, the testimony is irrelevant to the defendant’s state of mind. It argues that the

trial court properly denied the requested instruction.



              A trial court has discretion in determining the relevance of proffered

evidence, and its decision will not be overturned on appeal absent an abuse of that

discretion. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). In addition, an

accused is entitled to an instruction on every issue that is fairly raised by the evidence.

See State v. Zirkle, 910 S.W.2d 874, 892 (Tenn. Crim. App. 1995) (citations omitted).

Furthermore, a defendant has a right to have every issue of fact raised by the evidence

and material to his or her defense submitted to the jury on proper instructions. Poe v.

State, 370 S.W.2d 488, 489 (Tenn. 1963).



              The defendant asked Dr. King, the medical examiner, a hypothetical

question regarding impairment based upon the defendant’s weight and the number of

drinks the defendant claimed he had before the accident. Dr. King testified that if a

person weighing one hundred and sixty to one hundred and seventy pounds had two

beers in the afternoon, then four to five hours later drank two beers over a two-hour

period, that person’s blood alcohol content would be less than .05 percent. Dr. King


                                             21
testified that some individuals would be impaired at that level while others would not.

He also estimated that Jezewski’s blood alcohol level was probably about .11 to .12

percent at the time of the accident.



              The defendant sought to elicit from Dr. King and from the officers on the

D.U.I. Task Force that a person with a .10 percent blood alcohol level is presumed to

be intoxicated pursuant to T.C.A. § 55-10-408(a) and that a blood alcohol content of .05

percent means that a person is not legally presumed to be intoxicated. The trial court,

while allowing the defendant to ask hypothetical questions regarding blood alcohol

content levels and their effects, would not allow testimony regarding the legal

presumptions that accompany those levels. The trial court found that the testimony

was not relevant and that the facts of the hypothetical questions were not borne out by

the proof.



               With respect to the state’s argument that the defendant did not attempt to

ask the witnesses about the legal presumption, we note that the defendant was

prohibited from so doing by the trial court’s ruling. Next, with respect to the defendant’s

contention that the trial court erred by not allowing the testimony, we conclude that the

trial court did not err. The defendant argues that the legal significance of Jezewski’s

intoxication level is relevant to the defendant’s state of mind because if Jezewski was

intoxicated, he could have been acting in such a way that the defendant was justified in

fearing him. However, we believe that whether Jezewski was under the influence of an

intoxicant is irrelevant, particularly in light of the fact that Dr. King testified regarding the

effect that a blood alcohol content level of .10 percent would have on one’s actions. He

testified that a blood alcohol level of .10 percent would result in decreased inhibition,

altered judgment, slowed reaction time, incoordination, slurred speech, and sedation.

Thus, the testimony regarding the victim’s possible impairment that might arguably

relate to the defendant’s state of mind was admitted. There was no need for the



                                               22
additional, speculative testimony that if Jezewski’s blood alcohol content was .10

percent, he was intoxicated.



              The defendant summarily argues that testimony should have been

allowed regarding the legal presumption of a blood alcohol level of .05 percent. The

defendant does not explain, either on appeal or during the trial, why such testimony is

relevant. We conclude that it is not. The fact that the defendant may not have been

under the influence does not make the existence of any fact of consequence to the

determination of the action more or less probable, see Tenn. R. Evid. 401, particularly

in light of the fact that Dr. King testified that a person with a blood alcohol content level

of .05 percent may or may not be impaired depending on the individual.



              We also conclude that the trial court did not err by not instructing the jury

on the legal significance of blood alcohol content levels of .05 and .10 percent. The trial

court need not instruct the jury on matters not raised by the proof. State v. Leaphart,

673 S.W.2d 870 (Tenn. Crim. App. 1983) (citations omitted). The amount of alcohol

the defendant had on the day of the accident, as well as the precise blood alcohol

content level of the victim at the time of the accident, is speculative. Although the

defendant testified that he had two beers in the afternoon and two beers later that

evening, he also said that he failed to tell the police officer of any of the drinks he had

that day, except for the whiskey he said he drank at home after the accident. In

addition, Dr. King’s estimate of Jezewski’s blood alcohol content level at the time of the

accident was just that, an estimate. Furthermore, we have already concluded that

whether the victims were under the influence is irrelevant in light of the fact that

testimony regarding the effect of a blood alcohol level over .10 percent was admitted

into evidence.




                                             23
                                    VII. JURY CHARGE

              The defendant contends that the trial court erred with respect to its charge

to the jury. First, the defendant argues that the trial court erred by instructing the jury

that it could find the defendant guilty of the crimes charged in all indictments. The

defendant also argues that the trial court erred in its instruction on the definition of a

knowing killing. The state contends that the trial court properly charged the jury.



                                             A.

              The defendant contends that the trial court erred when it instructed the

jury that he could be found guilty of all crimes charged in the indictments. He argues

that although the trial court later corrected the error, the correction came too late, and

the jury was probably confused. The state contends that the defendant waived any

error in the charge by failing to object contemporaneously. See T.R.A.P. 36(a). It

argues that in any event, the instruction was not misleading or confusing.



              Initially, we note that the fact that the defendant failed to object

contemporaneously to the jury charge relating to multiple indictments does not waive

the issue on appeal because a defendant can raise the issue in a motion for a new trial.

See Tenn. R. Crim. P. 30(b). Nevertheless, we conclude that the trial court’s charge to

the jury was not erroneous.



              The defendant was indicted for second degree murder, vehicular

homicide, and reckless endangerment. The trial court initially instructed the jury as

follows:

              The crime charged in each indictment and each lesser
              included offense of the indictment is a separate and distinct
              offense. You must decide each indictment and lesser included
              charge separately on the evidence and the law applicable to it.
              A defendant may be found guilty as to one or two indictments,
              or he may be found not guilty as to all indictments. Your
              finding as to each indictment must be stated in your verdict.



                                             24
                ....

              You must first determine if the defendant is guilty of the
              offense of murder in the second degree or vehicular homicide
              as charged in these indictments. If you agree that the
              defendant is guilty beyond a reasonable doubt of murder in the
              second degree or vehicular homicide, you may stop your
              discussions and return your verdict. You can find the
              defendant guilty of only one of these offenses.

The trial court then instructed the jury that they should only consider lesser included

offenses after first determining that the defendant was not guilty of the primary offense.

It also instructed the jury that the reckless endangerment charge only pertained to

Steve Gentry.



              We do not believe that the trial court’s charge was confusing or

misleading. The trial court’s initial instruction merely informed the jury that the

defendant could be convicted of more than one offense or acquitted of all the offenses.

In light of the fact that the state’s theory was that the defendant committed second

degree murder of one victim and reckless endangerment of another, the instruction was

correct. The defendant’s contention that the instruction was confusing because the jury

may have concluded that they could find the defendant guilty of both second degree

murder and reckless endangerment of Jezewski is without merit. The trial court

instructed the jury that the reckless endangerment charge applied only to Gentry. Thus,

we conclude that the trial court’s charge to the jury with respect to the multiple

indictments was not erroneous.



                                             B.

              Next, the defendant argues that the trial court’s initial definition of knowing

and its subsequent answer to the jury’s question regarding when the knowing must

occur misled the jury. We believe that the trial court’s instruction was correct.



              The trial court instructed the jury as follows:



                                             25
               A person acts “knowingly” or “with knowledge” if that person
               acts with an awareness either,

               (1) that his or her conduct is of a particular nature, or

               (2) that a particular circumstance exists.

               A person acts knowingly with respect to a result of the person’s
               conduct when the person is aware that the conduct is
               reasonably certain to cause the result.

After several hours of deliberation, the jury asked the trial court, “As a matter of law,

does knowing take place before, during, or after an act?” In response, the trial court

instructed the jury as follows:

               Every criminal offense requires a culpable mental state. A
               culpable mental state is either intentionally, knowingly, or
               recklessly. When the offense is committed, the person must
               be acting intentionally, knowingly, or recklessly. Read again
               the elements of the offenses to find the culpable mental state.



               First, we conclude that the trial court’s initial instruction on the definition of

knowing was appropriate. The definition is a variation of the definition of knowing in

T.C.A. § 39-11-302(b) and was not confusing or misleading. Cf. State v. Raines, 882

S.W.2d 376, 383 (Tenn. Crim. App. 1994) (holding that the term “knowing” is commonly

used and can be understood by persons of ordinary intelligence).



               The defendant also argues that the trial court’s response to the jury’s

question was misleading because the jurors could have concluded that they only had to

find that the defendant acted recklessly in order to convict him of second degree

murder. We do not believe that the trial court’s instruction supports such an assertion.

The trial court informed the jurors of the three culpable mental states, instructing the

jury to review the elements of the offenses to determine which mental state applied to

the offense they were considering. The jury’s question to the trial court did not specify

which offense it was considering in asking its question, and the trial court’s answer

merely ensured that the jurors were looking at the appropriate culpable mental state for

the offense.


                                               26
                Finally, the defendant argues that the trial court’s answer did not

adequately address the jury’s concern about when one must possess the culpable

mental state. He contends that the trial court’s answer led the jury to believe that the

knowing mental state can occur after the act. However, the plain language of the trial

court’s answer belies the defendant’s claim. The trial court instructed the jury that the

culpable mental state must take place when the offense is committed. This issue is

without merit.



                    VIII. CONSTITUTIONALITY OF T.C.A. § 40-35-201(b)

                The defendant argues that T.C.A. § 40-35-201(b)2 violates the equal

protection and due process clauses of the United States and Tennessee Constitutions

because it allows a jury to convict a defendant based not on the evidence but on the

punishment the jury feels is most appropriate. He also argues that the statute is

unconstitutional because sentencing matters are irrelevant to the jury’s determination of

guilt or innocence. The state argues that the statute is constitutional.



                 T.C.A. § 40-35-201(b) provides that “upon the motion of either party, filed

with the court prior to the selection of the jury, the court shall charge the possible

penalties for the offense charged and all lesser included offenses.” When such a

charge is requested by either party, section (b)(2)(A)(i) provides:

                 When a charge as to possible penalties has been requested
                 pursuant to subdivision (b)(1), the judge shall also include in
                 the instructions for the jury to weigh and consider the meaning
                 of a sentence of imprisonment for the offense charged and any
                 lesser included offenses. Such instruction shall include an
                 approximate calculation of the minimum number of years a
                 person sentenced to imprisonment for the offense charged and
                 lesser included offenses must serve before reaching such
                 person’s earliest release eligibility date. Such calculation shall
                 include such factors as the release eligibility percentage


                2
                  We note that effective May 18, 1998, the Tennessee General Assembly amended
T.C.A. § 40-35-201, deleting subsection (b) and replacing it with a new provision that provides that juries
in non-capital cases shall not be instructed on the possible penalties for the offense charged or lesser
included offenses. This amendment does not apply to cases tried before the effective date of the
ame ndm ent. 1998 Tenn . Public Ac ts CED RIC H ART S:. 1041 , § 2.

                                                     27
              established by § 40-35-501, maximum and minimum sentence
              reduction credits authorized by § 41-21-236 and the governor’s
              power to reduce prison overcrowding pursuant to title 41,
              chapter 1, part 5, if applicable.



              Our supreme court recently addressed the same claims the defendant

makes in the present case with respect to T.C.A. § 40-35-201(b) in State v. King, 973

S.W.2d 586, 587 (Tenn. 1998). In King, the defendant argued that T.C.A. § 40-35-

201(b) was unconstitutional because it violated his due process rights under both the

United States and Tennessee Constitutions. The defendant in King, like the defendant

in the present case, relied on Farris v. State, 535 S.W.2d 608, 612-13 (Tenn. 1976) to

support his argument that the statute was unconstitutionally vague and impossible to

apply. Our supreme court distinguished the statute at issue in Farris, holding that

T.C.A. § 40-35-201(b), in contrast, “does not leave a jury to speculate about release

eligibility dates, good time credits and safety valve release provisions.” King, 973

S.W.2d at 589. The court concluded that the statute provides explicit and unambiguous

guidance such that the defendant’s claim of vagueness was without merit. Id. at 950.

The same reasoning applies to the present case, and we conclude that the statute is

not unconstitutionally vague.



              In King, the defendant also claimed that T.C.A. § 40-35-201(b) was

unconstitutional because sentencing considerations are irrelevant to the jury’s

determination of guilt or innocence. The court held that deference should be given to

the legislature’s determination that the sentencing information is relevant, noting that

the jurors were properly instructed that the state had the burden of proof and that they

were not to fix punishment. Id. at 591.



              The defendant in the present case makes the same argument as the

defendant in King with respect to relevance. In the present case, as in King, the trial

court instructed the jury that it was not to attempt to fix any sentence but that it was to


                                             28
weigh and consider the meaning of a sentence of imprisonment. It also instructed the

jury that the state had the burden of proof. W e believe that our supreme court’s

analysis in King applies to the present case, and we conclude that the statute is not

unconstitutional as applied in the present case.



                    IX. INSTRUCTION REGARDING DEFENDANT’S
                           EARLIEST RELEASE ELIGIBILITY

              The defendant contends that the trial court erred by instructing the jury

regarding his earliest release eligibility date for second degree murder because the trial

court incorrectly calculated his earliest release eligibility date. Also, he contends that

the trial court should have instructed the jury on the earliest release eligibility date for a

twenty-five-year sentence, which is the maximum sentence in the range and is the

sentence he received. He contends that the errors were prejudicial and require a new

trial. The state first contends that the defendant waived any argument with respect to

the trial court’s instruction for failing to object timely. The state argues that if the issue

is not waived, any error in the instruction was harmless because the trial court, not the

jury, sentenced the defendant.



              Initially, we note that the defendant’s failure to object contemporaneously

to the trial court’s instruction does not waive our review of the issue on appeal. See

Tenn. R. Crim. P. 30(b). After careful review, we conclude that any error in the trial

court’s instruction was harmless because it is unlikely that the error more probably than

not affected the judgment or would result in prejudice to the judicial process. T.R.A.P.

36(b).




                                              A.

              First, the defendant argues that the trial court erred in its instruction to the

jury regarding the defendant’s earliest eligibility for release. The trial court instructed

                                              29
the jurors, pursuant to T.C.A. § 40-35-201(b), that the range of punishment for second

degree murder is fifteen to twenty-five years. The trial court then instructed the jurors

that the earliest time at which the defendant could be released would be after serving

1.77 years. The defendant claims that the earliest he could possibly be released,

based upon a fifteen-year sentence, would be after serving 2.95 years. At the hearing

for the motion for a new trial, the trial court acknowledged its error but concluded that

the error was harmless. We agree.



              The defendant argues that our supreme court’s decision in State v. Cook,

816 S.W.2d 322, 327 (Tenn. 1991), is controlling. In that case, the defendant was

charged with aggravated rape and aggravated sexual battery. The trial court

erroneously instructed the jury on the range of punishment for a Range I offender, even

though the aggravated nature of the offenses necessitated that the defendant be

sentenced as a Range II offender. Thus, the minimum sentence in the range of

punishment provided to the jury for the aggravated rape charge was twenty years lower

than the minimum sentence in the range that was actually imposed. Id. at 323.



              Our supreme court determined that T.C.A. § 40-35-201(b) (1989) provides

a defendant with a statutory right to have the jury informed of the applicable range of

punishment. Id. at 326. The court reversed the defendant’s convictions and remanded

the case for a new trial, noting that “whatever rights or benefits the Legislature had in

mind for the defendant when it passed T.C.A. § 40-35-201(b) would be lost if the

defendant were to be sentenced to punishments greater than what the jury finding guilt

was instructed would be imposed.” Id. at 327.



              We believe that the defendant’s reliance on Cook is misplaced. Unlike in

Cook, the trial court in the present case did not err in its instruction on the range of

punishment but rather on the earliest release eligibility date. In addition, the



                                             30
discrepancy between the trial court’s instruction and the defendant’s actual earliest

release eligibility date is only a little over a year, whereas the discrepancy in Cook was

twenty years. We also note that the statute requires the trial court to give an

approximate calculation of the defendant’s earliest release eligibility date, not an exact

calculation. T.C.A. § 40-35-201(b)(2)(A)(i). Although the trial court’s calculation was

wrong, we do not believe that the error prejudiced the defendant, as it did in Cook, such

that a new trial is warranted. See State v. J.C. Meyer, No. 03C01-9705-CR-00165,

McMinn County (Tenn. Crim. App. June 26, 1998), applic. filed, (Tenn. July 8, 1998)

(holding that trial court’s erroneous instruction on the defendant’s earliest release

eligibility date was harmless when trial court instructed the jury on the elements of the

offense charged and the evidence was substantial).



                                            B.

              The defendant also contends that the trial court erred by not instructing

the jury that if he received the maximum sentence of twenty-five years, his earliest

release eligibility would be after serving five years. He contends that because the state

filed a notice to seek enhanced punishment before the trial court gave its instruction,

the trial court was aware that there was a good chance that he would receive a longer

sentence than the statutory minimum. We conclude that the trial court’s instruction was

accurate.



              The statute provides a defendant with the right to “an approximate

calculation of the minimum number of years a person sentenced to imprisonment for

the offense charged and lesser included offenses must serve before reaching such

person’s earliest release eligibility date.” T.C.A. § 400-35-201(b)(2)(A)(i). The offense

of second degree murder carries with it a minimum sentence of fifteen years for a

Range I offender and an earliest release eligibility date of 2.95 years. Although the trial

court committed harmless error when it instructed the jury that the earliest release



                                            31
eligibility date was 1.77 years, the trial court otherwise complied with the statute. There

is no requirement in the statute that the trial court instruct the jury as to all possible

early release eligibility dates. The fact that the defendant might possibly receive an

enhanced sentence within the range does not affect the requirements of the statute.

See King, 973 S.W.2d at 590-91 (holding that the trial court’s instruction on the

defendant’s earliest release eligibility date was accurate even though the state filed a

notice of enhancement because “the actual decision whether to permit enhancement

does not occur until after conviction . . .”).



                    X. ADMISSION OF EVIDENCE AT SENTENCING

               The defendant argues that the trial court erroneously admitted certain

evidence at the sentencing hearing. Specifically, the defendant argues that the trial

court should not have admitted evidence that he threatened to run over a coworker in

1977 and should not have admitted a defensive driving certificate found in the

defendant’s car after the accident. The state argues that the evidence was properly

admitted.



                                                 A.

               The defendant first contends that the trial court should not have admitted

into evidence a statement from his employer contained in the defendant’s personnel file

reflecting that in 1977, the defendant threatened to run over a security guard at work

who would not let him park in a certain area. The defendant asserts that he was not

informed of the statement until one day before the sentencing hearing, the statement is

hearsay, and the statement is irrelevant. The state contends that the statement was

part of the defendant’s employment record which, as part of the state’s file, was

available to the defendant long before the sentencing hearing. The state also contends

that the statement is not hearsay because it is part of a business record, and it is

relevant because it provides details about the incident.



                                                 32
              Initially, we note that a trial court has discretion in determining the

relevance of proffered evidence, and its decision will not be overturned on appeal

absent an abuse of that discretion. DuBose, 953 S.W.2d at 652. We also note that the

defendant’s contention that he did not have knowledge of the incident is without merit in

light of the fact that the incident was acknowledged and explained in the employment

information section of the presentence report. As the trial court noted, the statement

admitted at the sentencing hearing merely provided more detail.



              We agree with the defendant’s contention that the employment statement

is hearsay, however we believe that the statement is admissible under the business

records exception to the hearsay rule of exclusion. Tenn. R. Evid. 803(6).

Furthermore, T.C.A. § 40-35-209(b) provides for the admission of reliable hearsay at a

sentencing hearing if the opposing party is accorded a fair opportunity to rebut such

evidence. The defendant had a fair opportunity to rebut the evidence, and we note that

the defendant did so by having his sister testify at the sentencing hearing that the

defendant was quiet and “never said anything about anybody.”



              The defendant also argues that the statement is irrelevant. However, the

defendant requested that the trial court consider, as a mitigating factor, the defendant’s

long and steady work record. Although the statement is not relevant to show a

propensity to engage in or threaten to engage in dangerous conduct, we believe that

the fact that the defendant was discharged and subsequently reinstated for threatening

a security guard bears on the trial court’s consideration of the defendant’s work record

as a mitigating factor.



                                             B.

              The defendant also argues that the trial court erred by admitting into

evidence an agreement found in the glove compartment of his car in which the



                                             33
defendant agreed to attend defensive driving school. He contends that the agreement

is irrelevant because it alludes to a previous conviction that was already in the record.

The state argues that the agreement is relevant to sentencing because it shows that at

the time of the offense, the defendant was under an obligation to attend a national

defensive driving course because of prior offenses, and it is probative of his criminal

conduct and inability to comply with the law.



              We question the agreement’s relevance regarding its tendency to make

the existence of any fact of consequence more or less probable. Tenn. R. Evid. 401.

In any event, the fact of the defendant’s inability to comply with the law and his criminal

conduct was already known to the trial court by the admission of his prior convictions in

the presentence report. We believe that the admission of the agreement was harmless.



                                    XI. SENTENCING

              The defendant contends that the trial court erroneously applied certain

aggravating factors, failed to consider applicable mitigating factors, and imposed an

excessive sentence. The state argues that the defendant was properly sentenced.



              Appellate review of sentencing is de novo on the record with a

presumption that the trial court's determinations are correct. T.C.A. §§ 40-35-401(d).

As the Sentencing Commission Comments to this section note, the burden is now on

the defendant to show that the sentence is improper. This means that if the trial court

followed the statutory sentencing procedure, made findings of fact that are adequately

supported in the record, and gave due consideration and proper weight to the factors

and principles that are relevant to sentencing under the 1989 Sentencing Act, we may

not disturb the sentence even if a different result were preferred. State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991).




                                            34
              However, "the presumption of correctness which accompanies the trial

court's action is conditioned upon the affirmative showing in the record that the trial

court considered the sentencing principles and all relevant facts and circumstances."

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of

meaningful appellate review,

              the trial court must place on the record its reasons for arriving
              at the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the
              mitigating and enhancement factors have been evaluated and
              balanced in determining the sentence. T.C.A. § 40-35-210(f)
              (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1995).


              Also, in conducting a de novo review, we must consider (1) the evidence,

if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the

principles of sentencing and arguments as to sentencing alternatives, (4) the nature

and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement

factors, (6) any statement that the defendant made on his own behalf and (7) the

potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103 and -210; see

Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).



              Under the Criminal Sentencing Reform Act in effect at the time of the

offense, the sentence to be imposed by the trial court for a Class A felony is

presumptively the minimum in the range when there are no enhancement or mitigating

factors present. T.C.A. § 40-35-210(c) (1989). Procedurally, the trial court is to

increase the sentence within the range based upon the existence of enhancement

factors and, then, reduce the sentence as appropriate for any mitigating factors. T.C.A.

§ 40-35-210(d) and (e). The weight to be afforded an existing factor is left to the trial

court's discretion so long as it complies with the purposes and principles of the 1989

Sentencing Act and its findings are adequately supported by the record. T.C.A. § 40-




                                             35
35-210, Sentencing Commission Comments; Moss, 727 S.W.2d at 237; see Ashby,

823 S.W.2d at 169.



              At the sentencing hearing, Reverend Gayland Wiley testified that the

defendant had been a regular member of his church since 1991. He testified that the

defendant made regular financial contributions to the church.



              Carolyn Hogan, the defendant’s sister, testified that the deaths of two of

their brothers thirty years ago affected the defendant. She said the defendant has a

daughter and a granddaughter whom he had supported. She said the defendant had

been depressed since the incident, and he told her he thought he was protecting

himself on the night of the incident. She said the defendant was attending Alcoholics

Anonymous meetings. She also said the defendant has an eighty-two-year-old mother.

She said the defendant was quiet and never said anything to anybody. She introduced

a letter, signed by the defendant’s friends and family, asking the court for leniency.



              Dr. John Hendrick, a psychiatrist, testified that he treated the defendant

on September 2, 1994, at Valley Hospital. He said the defendant suffered from major

depression, suicidal thoughts, and alcohol dependence. He said that he was continuing

to treat the defendant. He said the defendant expressed remorse and guilt over the

incident. He testified that the defendant told him he generally cannot hear. He said the

defendant’s speech was fluent and coherent, but the defendant stuttered, had difficulty

completing words, and had difficulty hearing, particularly in the left ear. He said he

often had to repeat things to the defendant. He said the defendant’s hearing problems

contributed to his depression and caused paranoia.



              A presentence report was introduced into evidence. The report reflects

that the then forty-eight-year-old defendant completed high school and attended



                                            36
welding and maintenance trade school. It reflects that the defendant worked for W.R.

Grace since 1973, although he was discharged then reinstated in 1977 for using

abusive language to a security guard at the company. The report shows that the

defendant has ten convictions from 1971 to 1989, four for drug offenses, two for driving

on a revoked license, and four for driving under the influence of an intoxicant (D.U.I.).



              With respect to the second degree murder conviction, the trial court

applied the following enhancement factors, as listed in T.C.A. § 40-35-114:

              (1) The defendant has a previous history of criminal
              convictions or criminal behavior in addition to those necessary
              to establish the appropriate range; and

              (9) The defendant possessed or employed a firearm, explosive
              device or other deadly weapon during the commission of the
              offense;

With respect to the reckless endangerment conviction, the trial court also applied factor

(1), along with the following additional factors:

              (10) The defendant had no hesitation about committing a crime
              when the risk to human life was high; and

              (16) The crime was committed under circumstances under
              which the potential for bodily injury to a victim was great.

The trial court found no applicable mitigating factors.



              At the conclusion of the sentencing hearing, the trial court sentenced the

defendant as a Range I, standard offender to twenty-five years confinement for the

second degree murder conviction, and two years confinement for the reckless

endangerment conviction, to be served concurrently. The trial court gave the defendant

credit for the time he spent in house arrest as part of his bond before trial.



              The defendant argues that the trial court erroneously applied all

enhancement factors. The defendant does not cite any case law in support of his

argument. Generally, the failure to cite any authority acts as a waiver of the issue.



                                             37
Tenn. Crim. App. R. 10(b). Nevertheless, in conducting our de novo review we must

address the propriety of the defendant’s sentence, which includes an analysis of the

applicable enhancement and mitigating factors.



              First, we conclude that enhancement factor (1) is applicable to both the

second degree murder and reckless endangerment convictions. The defendant’s

extensive prior criminal history is apparent from the record. Although the defendant

argues that the convictions are old and are for nonviolent offenses, the convictions may

still be used to enhance.



              Next, we conclude that the trial court correctly applied factor (9) to the

second degree murder conviction and factors (10) and (16) to the reckless

endangerment conviction. Factor (9) applies because the car was used as a deadly

weapon against Jezewski. See State v. Norris, 874 S.W.2d 590, 601 (Tenn. Crim. App.

1993). Although we believe that factor (16) is an essential element of the offense of

reckless endangerment, factors (10) and (16) nevertheless apply because when the

defendant accelerated, causing the door to disengage and strike Gentry, there was also

a high risk and a great potential for bodily injury to Jezewski, who was standing in the

doorway. See State v. Ruane, 912 S.W.2d 766, 784 (Tenn. Crim. App. 1995) (holding

that factor (10) may be applied when someone besides the victim is present and at

risk); State v. Sims, 909 S.W.2d 50, 51 (Tenn. Crim. App. 1995) (holding that both

factors (10) and (16) may be applied when someone other than the victim is in the area

and subject to injury).



              We also note that the record reflects that the defendant had previously

driven on a revoked license while he was on probation for D.U.I. This can be

considered as some history of an unwillingness to comply with conditions of sentence

involving release in the community. See T.C.A. § 40-35-114(8). In context, though, it is



                                            38
of little or no consequence above the culpability shown by the repetitive offenses

relative to intoxicants and driving.



              The defendant argues that the trial court should have applied the following

mitigating factors, as listed in T.C.A. § 40-35-113:

              (2) the defendant acted under strong provocation;

              (3) substantial grounds exist tending to excuse or justify the
              defendant’s criminal conduct, though failing to establish a
              defense;

              (8) the defendant was suffering from a mental or physical
              condition that significantly reduced the defendant’s culpability
              for the offense . . .;

              (11) the defendant, although guilty of the crime, committed the
              offense under such unusual circumstances that it is unlikely
              that a sustained intent to violate the law motivated the criminal
              conduct; and

              (13) any other factor consistent with the purposes of this
              chapter.

With respect to factor (13), the defendant argues that the trial court should have

considered the fact that he had a steady work record, supported his daughter,

expressed remorse, and regularly attended and supported his church.



              We conclude that although mitigating factors (2), (3), and (8) are not

applicable, factors (11) and (13) are. With respect to factors (2) and (3), we believe that

the record does not support their application. Although the defendant contends that the

victims were drunk, that he thought they were going to carjack him, and that they

demanded that he get out of his car, Gentry testified that the defendant understood

what they were saying because he responded logically to their questions. He also

testified that the conversation between Jezewski and the defendant remained pleasant.

The defendant testified that neither Gentry nor Jezewski had any weapons. Thus, we

conclude that factors (2) and (3) are not applicable.




                                             39
               The defendant argues that factor (8) should apply because he could not

hear what the victims were saying. He argues that if he had been able to understand

them, he would have realized that they were trying to help him and the accident would

have been avoided. Although the proof established that the defendant had hearing

loss, we do not believe that this significantly reduced the defendant’s culpability for the

offense. Again, the proof established that the defendant was able to respond logically

to the victim’s questions, thus showing that the defendant could understand what they

were saying.



               The defendant also argues that factor (8) should apply because he

stuttered. He contends that if not for his stuttering, Gentry and Jezewski might not have

tried to keep the defendant from driving and the accident might not have occurred.

However, the proof showed that Jezewski spotted the defendant in the parking lot and

determined, without ever talking to him, that he should not drive. The defendant argues

that his stuttering, combined with the hearing problem, shows that the defendant and

the victims could not communicate. However, the record belies this argument because

it shows that the defendant could respond logically to the victim’s questions.



               Finally, the defendant states in his brief that he suffered from major

depression and alcohol dependence. He does not explain how this relates to the

application of factor (8), and we conclude that it does not.



               We believe that the trial court erred by not applying mitigating factors (11)

and (13). Initially, we note that there is no evidence in the record that the trial court

considered mitigating factor (13), although the defendant raised it at the sentencing

hearing. It is incumbent upon the trial court to state on the record its evaluation of

enhancement and mitigating factors. T.C.A. § 40-35-210(f) (1990). Failure to do so in

material fashion strips its determinations of the presumption of correctness.



                                             40
              With respect to factor (11), we believe that the bizarre circumstances of

the offense, as depicted in the testimony of most of the eyewitnesses, show that a

sustained intent to violate the law did not motivate the defendant’s conduct, and we

believe this factor warrants significant weight. With respect to factor (13), we conclude

that the defendant’s steady work record, support of his daughter, expression of

remorse, and regular attendance and support of his church should be considered in

mitigation in the present case, although we believe they are of very little weight. See

State v. Leggs, 955 S.W.2d 845, 850 (Tenn. Crim. App. 1997) (concluding that remorse

is an appropriate mitigating factor under (13)); State v. McKnight, 900 S.W.2d 36, 55

(Tenn. Crim. App. 1994) (indicating that family contributions and work ethic might be a

mitigating factor). But see, State v. Keel, 882 S.W.2d 410, 423 (Tenn. Crim. App.

1994) (concluding that a stable work history is expected of every citizen and should not

be applied in mitigation).



              Now we must determine whether the application and weighing of

mitigating factors alters the defendant’s sentence. We conclude that it does. With

respect to the second degree murder conviction, we believe that great weight should be

given to enhancement factors (1) and (9). The defendant’s previous criminal history,

including four convictions for drinking while operating a potentially deadly weapon, show

the defendant’s repeated disregard for the law and for the safety of others. In

mitigation, we believe that the defendant’s lack of a sustained intent to violate the law

warrants significant weight, but his work history and his contributions to his family and

his church should be given only marginal weight. We are mindful that while a sentence

should reflect the seriousness of the circumstances surrounding the offense, it also

“should be the least severe measure necessary to achieve the purposes for which the

sentence is imposed . . . .” T.C.A. § 40-35-103(5). After applying and weighing the

enhancement and mitigating factors, we conclude that a sentence of twenty-three years



                                            41
confinement for the second degree murder conviction is appropriate and is not

excessive.



              With respect to the reckless endangerment conviction, great weight may

be given to enhancement factor (1) and moderate weight to factors (10) and (16).

Again, we give significant weight to mitigating factor (11), very little weight to factor (13),

and we conclude that the two-year sentence imposed by the trial court was appropriate.



                                    XII. CONCLUSION

              In consideration of the foregoing and the record as a whole, we affirm the

convictions and the sentence for reckless endangerment. We modify the sentence for

second degree murder to twenty-three years confinement.



                                                   ________________________________
                                                   Joseph M. Tipton, Judge

CONCUR:



______________________________
Jerry L. Smith, Judge



______________________________
Thomas T. W oodall, Judge




             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE            FILED
                                      AT KNOXVILLE                     February 4, 1999

                              FEBRUARY 1997 SESSION                  Cecil Crowson, Jr.
                                                                      Appellate C ourt Clerk
STATE OF TE NNE SSE E,                    )         C.C.A. NO. 03C01-9608-CR-00302
                                                     )
                    Appellee,                        )
                                                     )   HAMILTON COUNTY
V.                                                   )
                                                     )
                                                     )   HON. STEPHEN M. BEVIL,
JUDGE
CHARLES FRANK BANKSTON,                   )
                                                    )   (Second degree murder and
reckless
                    Appe llant.                     )    endangerment with a deadly
weap on)




                    SEPARATE OPINION CONCURRING
                    IN PART AND DISSENTING IN PART


                    I agree w ith all parts of the majority’s opinion in this case except

that portion wherein the sentence for second degree murder is reduced to twenty-

three (23) years . Wh ile I agree that the mitigating factors under Tennessee Code

Annotated section 40-35-113(13) are applicable but should be entitled to little weight,

I respectfully disagree that the mitigating factor in Tennessee Code Annotated

section 4 0-35-11 3(11) is ap plicable.



                    Specifically, that mitigating factor states as follows:

             (11) The defendant, although guilty of the crime,
             committed the offense under such unusual circumstances
             that it is unlikely that a sustained intent to violate the la w
             motivate d the crim inal cond uct;




                    It is my opinion that Tennessee Code Annotated section 40-35-

113(11) refers to a defendant’s intent which motivates his or her conduct involved

                                          - 4 3 -
in the particu lar offense (s) for which he or sh e is being senten ced. See State v.

Larry Trent, C.C.A. No. 137, Hawkins County (Tenn. Crim. App., Knoxville, June 7,

1991).   In the present case, Randy Murray specifically testified that Defendant

“floored” the accelerator while it was in reverse, throwing Dr. Jezewski into the

midd le of the park ing lot. More importa nt for sente ncing pu rposes , Mr. Murray

further testified that the Defe ndan t then o perate d his ve hicle in a forward motion at

a “regular pace” until he came right up in front of Dr. Jez ewski. T hen, ac cording to

Murray, the Defendant accelerated as fast as he could when he ran over the victim.

To me, this proof demonstrates a sustained intent to violate the law on the part of

Defen dant.



                    Another factor which justifies the sentence imposed by the trial

court is the fact tha t enha ncem ent fac tor num ber (8) is app licable , even th ough it

was not relied upon by the trial court. That factor states that “[t]he defendant has a

previous history of unwillingness to comply with the conditions of a sentence

involving release in the community.”         Tenn. Code Ann. § 40-35-114(8).         The

Defendant has a rather lengthy criminal record. It reflects in part that he was

convicted of DUI on November 15, 1985, and received a sentence of eleven (11)

months and twenty-nine (29) days, suspended after ten (10) days. During the period

of the suspended sentence, on March 5, 1986, Defendant was arrested for the

offense of driving on a revoked license for which he was convicted on July 22, 1986.

A normal condition of a sentence involving release in the community is to obey the

laws of the S tate. C learly, D efend ant did not comply with that condition during the

service of his suspended sentence for the November, 1985 conviction of DUI. W hile

this may not be entitled to as much weight as other factors imposed by the trial co urt,


                                          - 4 4 -
it does h elp to justify the senten ce imp osed, e specially in ligh t of the fact that

mitigating factor num ber (11) s hould n ot apply.



                     For the reasons stated herein, I would affirm the conviction and

senten ce imp osed b y the trial cou rt.



                                           ____________________________________
                                           THOMAS T. W OODALL, Judge




                                           - 4 5 -
