         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    March 1, 2005 Session

              STATE OF TENNESSEE v. BARBARA ANN BRYANT
                       a/k/a BARBARA ANN FAYNE

                       Appeal from the Circuit Court for Tipton County
                            No. 4713    Joseph H. Walker, Judge



                     No. W2004-01245-CCA-R3-CD - Filed April 1, 2005


The defendant, Barbara Ann Bryant, appeals the sentencing judgment of the Tipton County Circuit
Court, which resulted in an effective 33-year incarcerative sentence for vehicular homicide and
vehicular assault. We affirm.

              Tenn. R. App. P. 3; Judgments of the Circuit Court are Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL
and J.C. MCLIN , JJ., joined.

Frank Deslauriers, Covington, Tennessee, for the Appellant, Barbara Ann Bryant a/k/a Barbara Ann
Fayne.

Paul G. Summers, Attorney General & Reporter; David E. Coenen, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Colin Campbell, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION

                On April 14, 2004, the defendant submitted an open guilty plea to three counts of
vehicular homicide based on intoxication, one count of vehicular assault, and two counts of driving
while intoxicated. Following a sentencing hearing, the trial court sentenced the defendant to
standard offender, Department of Correction terms of ten years for each homicide and of three years
for vehicular assault. The trial court merged the convictions of driving while intoxicated into the
first conviction count of vehicular homicide. The court imposed the sentences to run con- secutively,
creating an effective incarcerative sentence of 33 years.

              The convictions resulted from the October 10, 2003, Highway 51 accident in which
the defendant, whose blood-alcohol content was .27 percent, collided her car into a pair of
motorcycles being ridden by the four victims. In the accident, John Wesley Sanders, Sr., the only
surviving motorcyclist and thus the victim of the vehicular assault conviction, lost his wife, daughter,
and son-in-law.

                At the sentencing hearing, Mr. Sanders testified that, as a result of the collision, two
bones in his leg were broken, and his ankle was crushed. He had undergone three surgeries to insert
plates and screws and faced the possibility of further surgeries. Mr. Sanders testified that his
personal loss of family members was extremely grievous and that the loss to the community was
substantial – two of the deceased victims were nurses and the third was a fireman. Mr. Sanders’
daughter and son-in-law who were vehicular homicide victims left behind three children and two
grandchildren. He explained the difficulty experienced by the children and grandchildren.

               Michael Gill, 24 years of age, testified that his wife lost her parents in the accident
and that the Gills were taking care of the children left behind.

                 The defendant, 38 years of age and mother of four children, testified that in 2003 she
maintained three jobs. She testified that she did not remember the accident but knew that she was
“extremely drunk that day.” The defendant testified that she had not eaten for three or four days
prior to the accident and had drunk some beer and gin after getting off from work shortly after noon.
Later, she went to the home of her “Avon lady” to pay a bill because the lady was “worrying [her]
about the money.” The accident occurred after the defendant left the Avon lady’s house. Later, the
defendant talked to the Avon lady and acknowledged at the hearing that the lady “said [she] tried to
stop me from driving, and I don’t even remember that.”

               The presentence report established that the defendant had been previously convicted
in 1998 of misdemeanor child abuse, in 1997 of driving without a license, and in 1987 of shoplifting.

                The trial court enhanced the length of the defendant’s sentences by considering the
defendant’s prior criminal history, that the offenses involved more that one victim, and that the
defendant committed the offense without hesitation when the risk to human life was high. See Tenn.
Code Ann. § 40-35-114(2), (4), (11) (2003). With respect to the vehicular assault, the court applied
the enhancement factor that the victim’s personal injuries were particularly great. Id. § 40-35-
114(7). In mitigation, the court found only that the defendant was remorseful for the deaths and
injuries she caused. See id. § 40-35-113(13). Based upon the enhancement factors far outweighing
the mitigating factor, the court imposed a sentence of ten years in each vehicular homicide case and
of three years in the vehicular assault case. Based upon its finding that the defendant had an
extensive record of criminal activity and that she was a dangerous offender, the court ordered
consecutive sentencing.

               On appeal, the defendant claims that the length of each vehicular homicide sentence
is excessive and that the trial court erred in imposing the sentences to run consecutively. We
disagree.




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                When there is a challenge to the length, range, or manner of service of a sentence, it
is the duty of this court to conduct a de novo review of the record with a presumption that the
determinations made by the trial court are correct. Id. § 40-35-401(d) (2003). This presumption 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). The burden of showing that the sentence is improper is upon the defendant. Id. In the event
the record fails to demonstrate the required consideration by the trial court, review of the sentence
is purely de novo. Id. If appellate review reflects the trial court properly considered all relevant
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. Fletcher, 805 S.W.2d 785,
789 (Tenn. Crim. App. 1991).

                The defendant’s Range I, ten-year sentence in each of the Class B felony vehicular
homicide convictions is a mid-range sentence, exceeding the eight-year presumptive sentence by two
years. See Tenn. Code Ann. § 40-35-112(a)(2) (2003) (establishing Range I, Class B felony
sentences at eight to 12 years). The Range I, three-year sentence in the Class D felony vehicular
assault conviction is a mid-range sentence, exceeding the two-year presumptive sentence by one
year. Id. § 40-35-112(a)(4) (establishing Range I, Class D felony sentences at two to four years); id.
§ 40-35-210(c) (providing that the presumptive sentence for Class B, C, D, and E felonies “shall be
the minimum sentence in the range”).

                At the threshold, we notice that the defendant, as the appellant, has not included in
the record on appeal the transcript of the defendant’s plea submission hearing. “Failure to include
the transcript of the guilty plea hearing in the record prohibits this Court’s conducting a full de novo
review of the sentence under Tennessee Code Annotated section 40-35-210(b).” State v. Quincy
Alexander Norman, No. W2003-00635-CCA-R3-CD, slip. op. at 4 (Tenn. Crim. App., Jackson,
Aug. 4, 2004). Typically, the result of an appellant’s failure to include in the record a fair and
complete account of the happenings in the trial court that form the bases of appeal results in the
appellate court presuming the correctness of the trial court’s determination. State v. Keen, 996
S.W.2d 842, 844 (Tenn. Crim. App. 1999); see Tenn. R. App. P. 24(g).1

               Furthermore, we point out that the defendant’s complaints about the length of each
vehicular homicide conviction seem to focus upon the trial court’s weighing of the enhancement and
mitigating factors. It is well settled that the “weight afforded to enhancement and mitigating factors


         1
          At least one issue in the present case reminds us of the reason for this rule. On the issue of whether
enhancement factor (11), that the defendant had no hesitation about committing the offense when the risk to human life
was high, was properly applied, the trial court relied upon the presence of vehicles other than the victims’ and the
defendant being on Highway 51 at the time of the accident. Although the prosecutor tried to elicit testimony from the
defendant at the sentencing hearing that Highway 51 was congested with “barbecue” traffic at the time of the accident,
he failed. Consequently, testimony of that nature was not presented through any witness at the sentencing hearing;
however, we do not know what evidence about congestion on Highway 51 may have been presented at the plea
submission hearing. See Tenn. R. Crim. P. 11(f) (requiring court to which guilty plea is submitted to determine accuracy
of plea by assuring a “factual basis for the plea”).

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is left to the trial court’s discretion.” State v. Souder, 105 S.W.3d 602, 606 (Tenn. Crim. App.
2002).

                That said, we believe the appellate record before us is adequate for us to conclude
that enhancement factor (4), that the offense involved more than one victim, was erroneously
applied. The defendant was convicted of an offense with respect to each person victimized by her
actions. In such a situation, factor (4) is inapplicable. State v. McKnight, 900 S.W.2d 36, 54 (Tenn.
Crim. App. 1994). Although this enhancement factor was apparently inapt in the present case, we
nevertheless conclude that the remaining enhancement factors justify enhancement of the sentence
to the mid-range level. Based upon the record before us, we discern no abuse of discretion in
weighing the applicable factors.2

               In the defendant’s second issue, she argues that the trial court erred in imposing
consecutive sentences. Consecutive sentencing may be imposed when the trial court determines that
one or more of the following criteria exist:

                           (1) The defendant is a professional criminal who has
                  knowingly devoted himself to criminal acts as a major source of
                  livelihood;

                          (2) The defendant is an offender whose record of criminal
                  activity is extensive;

                          (3) The defendant is a dangerous mentally abnormal person so
                  declared by a competent psychiatrist who concludes as a result of an
                  investigation prior to sentencing that the defendant’s criminal conduct
                  has been characterized by a pattern of repetitive or compulsive
                  behavior with heedless indifference to consequences;

                          (4) The defendant is a dangerous offender whose behavior
                  indicates little or no regard for human life, and no hesitation about
                  committing a crime in which the risk to human life is high;

                         (5) The defendant is convicted of two (2) or more statutory
                  offenses involving sexual abuse of a minor with consideration of the
                  aggravating circumstances arising from the relationship between the
                  defendant and victim or victims, the time span of defendant’s
                  undetected sexual activity, the nature and scope of the sexual acts and

         2
           At this juncture, we point out that, at the oral argument of this case, the question was raised whether the
defendant intended to make any claim based upon the right to jury fact-finding in criminal sentencing as elucidated in
Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). Defense counsel acknowledged that the sentencing
hearing occurred after the filing of Blakely and explained that the defendant declined to raise a Blakely issue because
it was in her best interests in avoiding a maximum sentence to eschew any claim to jury fact-finding or sentencing.

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               the extent of the residual, physical and mental damage to the victim
               or victims;

                      (6) The defendant is sentenced for an offense committed while
               on probation; or

                       (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b) (2003). In State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), the
supreme court imposed two additional requirements for consecutive sentencing when the “dangerour
offender” category is used – the court must find consecutive sentences are reasonably related to the
severity of the offenses committed and are necessary to protect the public from further criminal
conduct. Id. at 937-38.

                The defendant posits that her criminal record is not egregious enough to support a
finding of a record of extensive criminal activity, see Tenn. Code Ann. § 40-35-115(b)(2) (2003),
and that the finding that the defendant is a dangerous offender is undermined by her lack of mens rea
in committing the offenses. On the latter point, she argues that her lack of memory of the events
leading up to the accident and of the accident itself belies that she was aware of the risk to other
people that her drunken driving posed.

                We hold that the finding that the defendant is a dangerous offender is apt and is
sufficient to support an order of consecutive sentencing. Wilkerson provides a good illustration why
the record in the present case supports a dangerous-offender finding. In Wilkerson, the 27-year-old,
law-student defendant had no prior criminal record other than a driving-under-the-influence
conviction. When intoxicated, he caused a head-on collision on Highway 51 in Dyer County.
Wilkerson, 905 S.W.2d at 937. The resulting death and injuries became the bases for the defendant’s
guilty-pleaded convictions of vehicular homicide and vehicular assault. Id. Based upon the
dangerous offender rubric of Code section 40-35-115(b), the trial court in Wilkerson imposed the
sentence for vehicular homicide to be served consecutively with the effective sentence for vehicular
assault. Id. On appeal, Wilkerson claimed the trial court erred in finding him a dangerous offender.
 Specifically, he argued that the state had not shown the culpability implicit in the required finding
that “he had no hesitation about committing a crime in which the risk to human life is high.” See
id. (Emphasis added).

                Our supreme court disagreed, stating that “‘[l]ack of hesitation’ is semantically close
to ‘reckless indifference’ and signifies a conscious lack of concern for foreseeable consequences.”
Id. at 937-38. The court quoted favorably its own statement from State v. Jones, 883 S.W.2d 597
(Tenn. 1994): “As a practical matter, hesitation or lack of hesitation does not submit readily to proof
because of its subjective nature. The more logical interpretation of this enhancement factor places
the emphasis on ‘risk to human life was high.’” Wilkerson, 905 S.W.2d at 937. The high court
concluded that Wilkerson’s



                                                 -5-
                  conduct in this case demonstrated an indifference to the high
                  probability of calamitous consequences to himself and the motorists
                  whom he was certain to encounter as he drove in the wrong direction
                  on a heavily travelled divided highway while intoxicated. He created
                  a high risk of death or serious bodily injury to every motorist on that
                  road. Death or serious bodily injury was almost inevitable. His
                  conduct clearly satisfies the condition stated in Tenn[essee] Code
                  Ann[otated] section 40-35-115(b)(4) and defines the defendant as a
                  dangerous offender.

Id.

                 We believe the present defendant’s culpability as a dangerous offender is akin to that
of the defendant in Wilkerson. Despite the remonstrations of the Avon lady that the defendant not
drive in her drunken state, the defendant drove on Highway 51 with a blood alcohol content of .27
percent, an extremely high amount. Accepting our supreme court’s bidding to emphasize the “risk
to human life” and not the defendant’s hesitation to offend – or the lack thereof – we conclude that
the trial court had an adequate basis for finding that the defendant was a dangerous offender.3

                  For the foregoing reasons, the judgments of the trial court are affirmed.




                                                                 ___________________________________
                                                                 JAMES CURWOOD WITT, JR., JUDGE




         3
          To support the use of the dangerous-offender basis for consecutive sentencing, the trial court made the findings
required by Wilkerson. See Wilkerson, 905 S.W .2d at 938-39.

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