          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE

                            APRIL 1998 SESSION
                                                          FILED
                                                              July 2, 1998

                                                          Cecil W. Crowson
                                  §                      Appellate Court Clerk
STATE OF TENNESSEE ,
          APPELLEE
                                  §
VS.                                   C.C.A. No. 01C01-9705-CR-00176
                                  §   DAVIDSON COUNTY
                                      HONORABLE FRANK G. CLEMENT, JR.
BENJAMIN SNYDER,                  §
         APPELLANT                    (SENTENCING)




FOR THE APPELLANT                     FOR THE APPELLEE

C. Edward Fowlkes                     John Knox Walkup
172 Second Avenue N., Suite 214       Attorney General and Reporter
Nashville, TN 37201-1908              425 Fifth A venue, N orth
                                      Nashville, TN 37243

                                      Karen M. Yacuzzo
                                      Assistant Attorney General
                                      425 Fifth A venue, N orth
                                      Nashville, TN 378243

                                      Bernard McEvoy
                                      Assistant District Attorney General
                                      Washington Square, Suite. 500
                                      Second Avenue N.
                                      Nashville, TN 37201-1649




OPINION FILED: _______________________


AFFIRMED

L. T. LAFFERTY, SPECIAL JUDGE
                                         OPINION

       The defendant, Benjamin S. Snyder, appeals as a matter of right the sentence

imposed by the Davidson County Probate Court. In counts one and two, the

defendant was charged with the offense of vehicular homicide involving the death of

Gregory Flair. In counts three and four, the defendant was charged with the offense

of reckless endangerment involving two passengers in the operation of a motor

vehicle. The defendant entered a plea of guilty to the offense of vehicular homicide

due to reckless conduct as charged in count two of the indictment. Counts one, three

and four were dismissed. After a sentencing hearing, the trial court sentenced the

defendant to five years in the Corrections Corporation of America Facility. The

defendant was ordered to serve six months and then be placed on probation for four

years, six months. There were other conditions imposed on the defendant during the

period of probation. In his ap peal, the defendant raises two issues; (1) the trial court

erred as a matter of fact and law in applying enhancement factor #3 “the offense

involved more than one victim,” and (2) the trial court erred in sentencing the

defendant to five years instead of the presumptive minimum of three years. Upon a

close review of the record, briefs of the parties, and the applicable law, we affirm the

trial court’s judg ment.

       The evidence in this record establishes that the defendant and his two friends,

passengers in the car, John Clark and Brent Batson, on the night of March 16, 1996,

went to a bonfire party for a celebration of a potential wedding. The deceased arrived

with another companion. All four chipped in to buy beer for the event. The deceased

and his comp anion w ent to a c onven ience sto re whe re they b ought t wo ca ses of b eer.

The defendant consumed approximately five or six beers during this evening, keeping

his portion o f the beer (a six -pack) in the trunk of his c ar. The de fendant an d his


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companions, at about 10:00 p.m. decided to “cruise 2nd Ave.” The defendant drove

his car. Brent Batson occupied the right front passenger seat. Behind Batson was

John C lark (righ t passen ger rear ) and th e dece ased w as seate d behin d the de fendan t.

While inbound on Lebanon Road, in Davidson County, the defendant swerved, lost

control of h is car causing extensive d amage , killing the dec eased and injuring his

other two passengers. The Nashville Police Traffic Investigator described that the

physical evidence established the defendant lost control of his car on the shoulder of

the road and attempted to correct the path of the car. The defendant left the road

again resultin g in an im pact with a concrete w all and the ca r then bega n sliding on its

side. The vehicle traveled sideways striking and severing a fire hydrant, then began

to roll over and struck a pole. A photograph was introduced showing cans of beer

hanging from the trunk of the car. Friends of all four persons were following the

defendant and before the police arrived, they removed beer from the car, hiding the

same in som e bush es.

                                SENTENCING HEARING

       In his request for alternative sentencing, the defendant presented co-

employees, a mother of one of the passengers, his father, step-mother and mother. At

the time of th e sentencin g, the defen dant was a 20-year- old high sc hool grad uate

employed at Opryland. The defendant began his drinking when he was about 18

years old and developed an addiction to marijuana. Due to the accident, the defendant

could not recall the details, but returned to the accident scene. The defendant believes

he looked down while going around a curve, just going too fast, sliding in the gravel

and appa rently losing c ontrol of his c ar. The de fendant ad mits that alco hol and his

speed o f 55 to 6 0, in a 45 mile sp eed zo ne, we re contr ibuting factors to the acc ident.

Also, the defendant admits he felt a slight buzz at the time leaving the party although


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he contends he was not drunk. Between March, 1996, the accident event, and

November 20, 1996, the defendant continued to use marijuana every other month on

weekends, the last usage four months before the sentencing hearing. The defendant

admitted to the probation officer he drank beer on weekends, but at the time of the

interview he had quit drinking. Also, the defendant had driven his car while drinking

and admitted on one occasion being impaired. The defendant expressed remorse at

the dea th of his f riend, th e dece ased.

        The defendant’s mother, father, stepmother and co-employees confirmed the

defendant was very remorseful over the death of his friend. Also, his parents had

couns eled him on the a buse o f alcoho l and m arijuana .

        The State, in support of its reque st for enhanceme nt of the defendant’s

sentence, offered the testimony of a probation officer, an accident investigator, the

two passengers and the deceased’s mother. The two passengers, boyhood friends of

the defendant, testified about the evening’s events. Both passengers did not believe

the defendant was under the influence of alcohol or speeding at the time of the

accident. However, both admitted each had been drinking, each was well under the

influence of alcohol and injured in the accident. The deceased’s mother, in a prepared

statemen t, explained th e family’s d evastation a t the death o f their child an d its effect;

and she has serious doubts concerning the defendant’s remorse over this death.

        Accord ing to the ac cident repo rts, the deceas ed was e jected from the vehicle

and pronounced dead at Vanderbilt Medical Center. The cause of death was blunt

force injuries, fractures of the skull, both femurs and multiple left ribs, with internal

injuries to the spleen, liver, lung and aorta. The defendant’s BAC was 0.14% one

hour af ter the ac cident.

                             1. Principles of Sentencing Review


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       When there is a c hallenge to the length, range, or m anner of service of a

sentence, it is the duty of this Court to conduct a de novo review o f the record w ith

presumption that the determinations made by the trial court are correct. Tenn., Code

Ann. § 40-35-401(d). This presumption is conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts an d circum stances . State v. Ashby 823 S.W.2d 166, 169 (Tenn. 1991). “The

burden of showing that the sentence is improper is upon the appellant.” Id.

       In the event the record fails to demonstrate the required consideration by the

trial court, review of the sentence is purely de nov o. Id. If appellate rev iew reflects

that trial court properly considered all relevan t factors and its findings of fact are

adequately supported by the record this Court must affirm the sentence, “even if we

would have preferred a different result.” State v. F letcher, 805 S.W.2d 785, 789

(Tenn . Crim . App. 1 991).

       In making its sentencing determination, the trial court, at the “conclusion of the

sentencing hearing,” determines the range of the sentence and then determines the

specific sentence and the propriety of sentencing alternatives by considering; (1) the

evidence, if any, received at trial and the sentencing hearing; (2) the pre-sentence

report; (3) the p rinciples of se ntencing a nd argum ents as to sen tencing altern atives;

(4) the nature and characteristics of the criminal conduct involved; (5) evidence and

information offered by the parties on the enhancement and mitigating factors; (6) any

statements the defendant wishes to make in the defendant’s behalf about sentencing;

and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-

210(a)(b); T enn. Cod e Ann. § 40-35-10 3(5) (1990 ); State v. Holland, 860 S.W.2d 53,

60 (Te nn. Crim . App. 1 993).

       A defendant who,


                                          5
       “is an especially mitigated or standard offender convicted of a Class C,
       D, or E felony is presumed to be a favorable candidate for alternative
       sentencing options in the absence of evidence to the contrary.” Tenn.
       Code Ann. § 40-35 -102(6 ) (1997 ).

Our sente ncing law provides th at

       “convicted felons committing the most severe offenses, possessing
       criminal histories evincing a clear disregard for the laws and morals of
       society, and evincing failure of past efforts at rehabilitation, shall be
       given first priority regarding sentences involving incarceration.” Tenn.
       Code An n. 40-35- 102 (5) (19 97).

Thus, a defendant who meets the above criteria is presumed eligible for alternative

sentencing unless sufficient evidence rebuts the presumption. However, the act does

not provid e that all offend ers who m eet the criteria are entitled to suc h relief; rather it

requires that sentencing issues be determined by the facts and circumstances

presen ted in ea ch case . State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App,

1987). The defendant was convicted of vehicular homicide, a Class C felony, and

thus is considered a favorable candidate for alternative sentencing, including

probat ion.

       The trial court, in determining the appropriate sentence, referred to the

guidelines as required by the Tennessee Sentencing Act. The trial court found one

enhancement factor applicable, to wit: the offense involved more then one victim,

and three mitigating factors, to w it: the defendant’s youth, lack of crim inal history

and w as rem orseful, i n determ ining th e defen dant sh ould re ceive a five yea r senten ce.

Split confinement was applicable in the form of six months followed by a probation

period of four years, six months. The defendant complains the trial court was in error

in finding applicable the factor “the offense involved more than one victim.” Thus

the defendant was entitled to a three year sentence, with 30 days in confinement

followed by three years probation. The State complains the trial court was in error for



                                           6
failing to find two additional enhancement factors--the defendant had a history of

criminal behavior and the defendant had no hesitation about committing an offense

when the risk to huma n life w as high .

       The defendant would argue that the trial court was incorrect in assessing the

factor “ the offe nse inv olved m ore than one vic tim” T enn. C ode A nn. § 40 -35-11 4(3).

For authority, the defendant relies on State v. R aines, 882 S.W.2d 376 (Tenn. Crim.

App. 1994). The defendant contends that the trial court cannot consider the

passengers who sustained injuries as “victims.” In Raines, supra, the late Judge Joe

Jones, Presiding Judge of this Court, defined the word “victim” as used in Tenn. Code

Ann. § 40-35-114(3) is limited in scope to a person or entity that is injured, killed, had

property stolen, or had prop erty destroyed by the p erpetrator of the crime. Ho wever,

in Raines, supra, the trial court found factor (3) applied to the fam ily members o f a

person killed in a murder. The term, “victim” does not include a person who has lost

a loved one or means of support because the perpetrator of the crime killed a loved

one.

       Also, the defendant argues that the two passengers cannot be considered

“victims” since they both were willing passengers and testified the defendant was not

under the in fluence an d engage d in no act w hich cause d the collision . The evide nce is

to the contrary. The defendant was driving under the influence of alcohol, a BAC

reading of 0.14%; operating his vehicle at a high speed of 55-60 mph, losing control

of his vehicle and causing a very heavy impact. Both passengers were injured and

received medical treatment. The trial court properly applied this enhancement factor

in determ ining an approp riate sen tence.

       The State, in it’s request for enhancement of the defendant’s sentence, urged

the trial court to apply factor (10), Tenn. Code Ann. § 40-35-114, “the defendant had


                                             7
no hesitation about committing a crime when the risk to human life was high.” The

trial court declined to apply this factor, stating it “was very close.” We believe that

this facto r was a pprop riate in th e particu lar facts o f this cas e. The d escriptio n, supra,

conce rning th e even ts leadin g to this a cciden t suppo rt this fact or. State v. Lambert

741 S.W .2d 127 (T enn. Crim . App. 198 7); State v Jones, 883 S.W.2d 597 (Tenn.

1994); State v. M akoka , 885 S.W.2d 366, 373 (Tenn. Crim. App. 1994). (This factor

applied in vehicular hom icide where accuse d placed third party at risk.) State v.

Dock ery, 917 S.W .2d 258 (T enn. Crim . App. 199 5) (This ap plied in DU I case due to

passen ger in ca r).

        Also, the State urged the trial court to apply factor (1), Tenn. Code Ann. § 40-

35-114, “the defendant has a history of criminal behavior.” The trial court rejected

this factor believing the State had failed to file notice of this enhancement factor. The

State believe s that the defe ndant’s ad mitted con tinuous use of alcohol a nd driving his

vehicle, to the point of being under the influence, establishes a pattern of “criminal

behavior.” (There seems to be some indication in the pre-sentence report the

defend ant con tinued to use alco hol, to-w it: beer, af ter the ar rest on th ese cha rges).

Also, coupled with the frequent use of marijuana after this accident, the defendant

continu es to ind ulge in c rimina l activity.

        In State v. W illiam Je ffery Ca rico,       S.W.2d         (Tenn., 1998), filed at

Knoxville Ap ril 27, 1998, the Suprem e Court, for the first time, addressed the term

“criminal behavior” applicable in a sentencing hearing. The Court of Criminal

Appeals had previously held that merely being arrested or charged with a crime is not

“crimi nal beh avior” w ithin the mean ing of th e statute . State v. B uckm eir, 902 S.W.2d

418 (Ten n. Crim. A pp 1995 ); State v. M arshal l, 870 S.W.2d 532 (Tenn. Crim. App.

1993). The Supreme Court stated:


                                             8
                The phra se “crimin al behavio r” has not b een define d by this
        Court for purposes of the enhancement factor, but, whatever the precise
        definition m ay be, sexu al acts with a ten year old child clearly
        constitutes criminal behavior. The evidence of the appellant’s prior
        sexual acts was properly considered by the trial court as criminal
        behavior. That evidence supports the finding that enhancement factor
        (1) wa s establis hed in th is case.

        Since the trial c ourt did no t specifically find this factor (1) ap plicable, this

Court h as jurisd iction to so find. State v. P earson , 858 S.W.2d 879, 884-5 (Tenn.

1993). We believe that the defendant’s conscious decision to continue to drive and

drink, even to the point of under the influence of alcohol, coupled with the frequent

use of m arijuana co nstitutes crim inal behav ior. This facto r is applicable to the facts

of this pa rticular c ase.




        In conclusion, we find the evidence in this record fully supports the trial

court’s decision. The judgment of the trial court is affirmed.




                                                ___________________________
                                                L. T. Lafferty, Special Judge




                                            9
CONCUR:


_________________________
Gary R. Wade, Judge




_________________________
Thomas T. Woodall, Judge




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