.          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                           APRIL 1998 SESSION
                                                    FILED
                                                        May 1, 1998

                                                    Cecil Crowson, Jr.
STATE OF TENNESSEE,                )                Appellate C ourt Clerk
                                   )    NO. 02C01-9708-CC-00329
      Appellee,                    )
                                   )    DECATUR COUNTY
VS.                                )
                                   )    HON. C. CREED McGINLEY,
GREGORY R. MILLER,                 )    JUDGE
                                   )
      Appellant.                   )    (Reckless Homicide, DUI)



FOR THE APPELLANT:                      FOR THE APPELLEE:

GUY T. WILKINSON                        JOHN KNOX WALKUP
District Public Defender                Attorney General and Reporter

RICHARD W. DeBERRY                      CLINTON J. MORGAN
Assistant Public Defender               Assistant Attorney General
117 N. Forrest Avenue                   Cordell Hull Building, 2nd Floor
P.O. Box 663                            425 Fifth Avenue North
Camden, Tennessee 38320-0663            Nashville, TN 37243-0493

                                        G. ROBERT RADFORD
                                        District Attorney General

                                        JERRY W. WALLACE
                                        Assistant District Attorney General
                                        P.O. Box 637
                                        Parsons, TN 38363-0637




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION



       The defendant, Gregory R. Miller, appeals as of right his convictions for

reckless homicide and driving under the influence. He was sentenced to concurrent

terms of three (3) years for reckless homicide and eleven (11) months and twenty-

nine (29) days for DUI, with ten (10) days of the DUI sentence to be served in

confinement. The defendant contends on appeal that:

       (1)    the evidence was not sufficient to support his convictions;

       (2)    the trial court erred in not suppressing his pre-trial statement
              made to police; and

       (3)    the trial court erred in its sentencing of the defendant.

After a thorough review of the record, we AFFIRM the judgment of the trial court.



                                       FACTS



       The defendant was the driver of a van which, while traveling east on I-40 in

Decatur County, abruptly left the road and collided with a guardrail in the median.

Sandra Taylor, defendant’s common law wife, was a passenger in the van. She died

shortly after the accident in a local hospital. The Tennessee Highway Patrol was

dispatched to the accident scene. Trooper Michael Melton noticed the odor of

alcohol on the defendant and arrested him.



       Trooper Larry Forsythe, a certified accident reconstructionist, investigated the

scene shortly after the accident. He testified that the physical evidence indicated the

van was accelerating when it left the highway, and there was no indication the

defendant ever applied the brakes. Trooper Forsythe further testified that he was

unable to determine why the van left the highway.




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       The defendant was in an extremely agitated state while the medical personnel

attempted to treat him. He continuously refused treatment, instead urging the

medical personnel to treat his wife. Medical personnel at the emergency room

described defendant as “combative, uncooperative, hostile [and] agitated.”



       The defendant made a statement at the hospital to Investigator John Paul

Dunaway with the Criminal Investigative Division of the Highway Patrol.            The

defendant stated to the officer that he was traveling east on I-40 after eating at a

restaurant in Jackson, Tennessee. The defendant admitted that he drank beer at the

restaurant, and that he purchased “one for the road” at some point before the

accident occurred. The defendant stated that he was in the left lane and “hit” his

brakes after seeing the brake lights of a car that had passed him on the right and

pulled in front of him in the left lane. He claimed his van skidded to the right, and he

lost control.



       When the defendant arrived at the hospital, a sample of his blood was drawn

to determine his blood alcohol content. Subsequent analysis by the Tennessee

Bureau of Investigation laboratory showed a blood alcohol content of .12%.



       The defendant did not testify at trial. The defense offered three (3) witnesses

who testified they did not smell alcohol on the defendant immediately after the

accident.



       The jury was charged in Count 1 as to vehicular homicide and the lesser

offenses of reckless homicide and criminally negligent homicide. In Count 2 the jury

was charged as to driving under the influence. The defendant was convicted by the

jury of reckless homicide, criminally negligent homicide, and driving under the

influence. The trial court merged the criminally negligent homicide conviction into the

conviction for reckless homicide.




                                           3
                         SUFFICIENCY OF THE EVIDENCE



       The defendant contends the evidence presented at trial was insufficient to

sustain his convictions for reckless homicide and DUI. Specifically, the defendant

alleges the state failed to prove his actions caused the death of the victim.



                               A. Standard of Review



       In Tennessee, great weight is given to the result reached by the jury in a

criminal trial. A jury verdict accredits the state's witnesses and resolves all conflicts

in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); State v.

Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to the

strongest legitimate view of the evidence and all reasonable inferences which may

be drawn therefrom. Id.; State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Moreover, a guilty verdict removes the presumption of innocence which the appellant

enjoyed at trial and raises a presumption of guilt on appeal. State v. Grace, 493

S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of overcoming this

presumption of guilt. Id.



       Where sufficiency of the evidence is challenged, the relevant question for an

appellate court 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 or crimes beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v.

Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the

witnesses' testimony are matters entrusted exclusively to the jury as the triers of fact.

State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d

1, 19 (Tenn. Crim. App. 1996).



                            B. Driving Under the Influence


                                           4
       Driving a motor vehicle under the influence of an intoxicant on any public road

or highway in the state of Tennessee is prohibited. Tenn. Code Ann. § 55-10-401.

The state presented testimony that the defendant’s blood alcohol content was .12%.

This level of alcohol in the defendant’s blood allowed the jury to infer the defendant

was under the influence of an intoxicant and impaired. See Tenn. Code Ann. § 55-

10-408(a). The evidence was sufficient to support the DUI conviction. This issue is,

therefore, without merit.



                              C. Reckless Homicide



       Reckless homicide is the reckless killing of another. Tenn. Code Ann. § 39-

13-215. A person acts recklessly when the person is aware of but consciously

disregards a substantial and unjustifiable risk that the circumstances exist or the

result will occur. Tenn. Code Ann. § 39-11-106(a)(31). The risk must be so great

that disregarding it would constitute a gross deviation from the standard of care that

an ordinary person would exercise under all the circumstances as viewed from the

defendant’s standpoint. Id.



       The testimony at trial revealed the defendant was driving under the influence

of an intoxicant at the time of the accident. Evidence of intoxication is relevant to a

jury’s determination of reckless conduct. See State v. Billy E. Johnson, C.C.A. No.

02C01-9605-CR-00162, Shelby County (Tenn. Crim. App. filed March 19, 1997, at

Jackson). The jury heard other evidence that could also establish reckless conduct

by the defendant. Although the defendant’s statement indicated he swerved to the

right, the physical evidence indicated his van ran off the road to the left into the

median. Trooper Forsythe testified the evidence indicated the van was accelerating

when it left the road, and there was no evidence the van’s brakes were ever applied.




                                          5
       When the evidence is viewed in a light most favorable to the state, we find that

a rational jury could have found the defendant acted recklessly, and that his

recklessness was the cause of the victim’s death. This issue is without merit.



                           DEFENDANT’S STATEMENT



       The defendant contends the trial court committed error by admitting a

statement he gave to Investigator Dunaway. At the suppression hearing Investigator

Dunaway testified that, prior to taking defendant’s statement, he advised defendant

of his Miranda rights. The defendant executed a written waiver before giving his

statement. The investigator further testified that no force or threats were used, and

defendant gave the statement voluntarily. Defendant, on the other hand, testified that

he did not recall giving a statement, denied signing the waiver and denied being

advised of his Miranda rights. The trial court found the officer’s testimony to be

credible and rejected the defendant’s testimony. The motion to suppress was

overruled.



       When an accused moves to suppress his statement given to a law

enforcement officer, the findings of fact made by the trial court at the hearing on the

motion are binding upon this Court unless the evidence contained in the record

preponderates against these findings. State v. Smith, 933 S.W.2d 450, 455 (Tenn.

1996); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v. Stephenson, 878

S.W.2d 530, 544 (Tenn. 1994). The trial court, as the trier of fact, is able to assess

the credibility of the witnesses, determine the weight and value to be afforded the

evidence and resolves any conflicts in the evidence. See State v. Odom, 928 S.W.2d

at 23. The defendant has the burden of establishing that the evidence contained in

the record preponderates against the findings of fact made by the trial court. Braziel

v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).




                                          6
       The evidence does not preponderate against the trial court’s findings that the

defendant was advised of his Miranda rights and voluntarily gave the statement. This

issue is without merit.



                                   SENTENCING



                             A. Enhancement Factors



       The defendant claims the trial court erred in its application of enhancing and

mitigating factors. This Court’s review of the sentence imposed by the trial court is

de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This

presumption is conditioned upon an affirmative showing in the record that the trial

judge considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply

with the statutory directives, there is no presumption of correctness and our review

is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).



       The burden is upon the appealing party to show that the sentence is improper.

Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments. In conducting

our review, we are required, pursuant to Tenn. Code Ann. § 40-35-210, to consider

the following factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing
       hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
       and arguments as to sentencing alternatives; (4) [t]he nature and
       characteristics of the criminal conduct involved; (5) [e]vidence and
       information offered by the parties on the enhancement and mitigating
       factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
       defendant wishes to make in his own behalf about sentencing.

       If no mitigating or enhancement factors for sentencing are present, Tenn.

Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the

minimum sentence within the applicable range. See State v. Fletcher, 805 S.W.2d

785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court

should start at the minimum sentence, enhance the minimum sentence within the


                                          7
range for enhancement factors and then reduce the sentence within the range for the

mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for each

factor is prescribed by the statute, as the weight given to each factor is left to the

discretion of the trial court as long as the trial court complies with the purposes and

principles of the sentencing act and its findings are supported by the record. State

v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848

(Tenn. Crim. App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App.

1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.

Nevertheless, should there be no mitigating factors, but enhancement factors are

present, a trial court may set the sentence above the minimum within the range.

Tenn. Code Ann. § 40-35-210(d); see Manning v. State, 883 S.W.2d 635, 638 (Tenn.

Crim. App. 1994).



       The range of punishment for reckless homicide as a Standard Offender is two

(2) to four (4) years. The trial court enhanced the defendant’s sentence one (1) year

to the midpoint of Range I, three (3) years.



           The court found a previous history of criminal behavior or convictions in

addition to those necessary to establish the appropriate range. Tenn. Code Ann. §

40-35-114(1). The defendant had one (1) prior conviction for simple battery. 1



       The trial court refused to apply the defendant’s suggested mitigating factors;

namely, that substantial grounds exist to justify or excuse the defendant’s conduct

though failing to establish a defense, and that it is unlikely a sustained intent to

violate the law motivated the crime. See Tenn. Code Ann. § 40-35-113(3) and (11).

We find no error in the rejection of these factors.


       1
        The defendant was a non-resident of Tennessee. He had numerous out-of-state
charges as well as military charges. The pre-sentence report officer was unable to ascertain
the disposition of many of these charges. Arrests, without more, may not be used to enhance
a sentence. State v. Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993). However, we
note that the defendant was totally uncooperative and refused to be interviewed by the pre-
sentence report officer. It is difficult to feel sympathetic toward a defendant who refuses to
cooperate in providing accurate information to the court for sentencing.

                                              8
      After a thorough review of the record, we find the trial court adhered to the

statutory sentencing procedure. The defendant has failed to show that the length of

the sentence was improper. This issue is without merit.



                           B. Alternative Sentencing



      Defendant contends his sentence should have been suspended or, in the

alternative, he should have been placed in the community corrections program. 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 in the absence of

evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). A trial court must

presume that a defendant sentenced to eight years or less and who is not an

offender for whom incarceration is a priority is subject to alternative sentencing.

State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). It is further

presumed that a sentence other than incarceration would result in successful

rehabilitation unless rebutted by sufficient evidence in the record. Id. at 380.

However, although a defendant may be presumed to be a favorable candidate for

alternative sentencing, the defendant has the burden of establishing suitability for

total probation. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see

Tenn. Code Ann. § 40-35-303(b). Even though probation must be automatically

considered, “the defendant is not automatically entitled to probation as a matter of

law.” Tenn. Code Ann. § 40-35-303(b) Sentencing Commission Comments; State

v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991).



      In determining whether to grant or deny probation, a trial court should consider

the circumstances of the offenses, the defendant’s criminal record, the defendant’s

social history and present condition, the need for deterrence, and the best interest

of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978);

State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State v. Black, 924

S.W.2d 912, 917 (Tenn. Crim. App. 1995).



                                         9
       The trial court correctly noted that the defendant was presumed eligible for

alternative sentencing; however, the trial court found that other factors outweighed

the granting of alternative sentencing. We find no error in the denial of probation by

the trial court.



       The defendant alleges he should have been sentenced pursuant to the

Community Corrections Act. The Community Corrections Act establishes a program

of community-based alternatives to incarceration for certain eligible offenders. See

Tenn. Code Ann. § 40-36-103.          A defendant is eligible for participation in a

community corrections program if the defendant satisfies several minimum eligibility

criteria set forth at Tenn. Code Ann. § 40-36-106(a)(1)-(7).



       The defendant did not meet the minimum eligibility criteria for community

corrections as reckless homicide is a crime against the person as provided in title 39,

chapter 13, parts 1-5. Tenn. Code Ann. § 40-36-106(a)(2). However, an offender

who does not meet the minimum criteria under Tenn. Code Ann. § 40-36-106(a) and

is considered unfit for probation due to substance abuse or mental problems may still

be eligible for community corrections under the special needs provision of Tenn.

Code Ann. § 40-36-106(c). Before an offender may be sentenced pursuant to

subsection (c), the offender must be found eligible for probation. State v. Staten, 787

S.W.2d 934, 936 (Tenn. Crim. App. 1989). Second, the court must determine that:

(1) the offender has a history of chronic alcohol abuse, drug abuse, or mental health

problems; (2) these factors were reasonably related to and contributed to the

offender’s criminal conduct; (3) the identifiable special need(s) are treatable; and (4)

the treatment of the special need(s) could be best served in the community rather

than in a correctional institution. State v. Grigsby, 957 S.W.2d 541, 546-7 (Tenn.

Crim. App. 1997).




                                          10
       Although this defendant meets the first prerequisite in that he is eligible for

probation, there is no proof that establishes a special need requiring treatment in the

community. Accordingly, the trial court properly rejected the community corrections

alternative.



       For the above stated reasons, the judgment of the trial court is AFFIRMED.




                                                 _________________________
                                                 JOE G. RILEY, JUDGE




CONCUR:




_________________________
DAVID G. HAYES, JUDGE




_________________________
WILLIAM M. BARKER, JUDGE




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