         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs October 28, 2003

         STATE OF TENNESSEE v. CHRISTOPHER PAUL WILSON

               Direct Appeal from the Criminal Court for Washington County
                           No. 27319     Robert E. Cupp, Judge



                                 No. E2003-00344-CCA-R3-CD
                                      December 31, 2003

The defendant, Christopher Paul Wilson, pled guilty to one count of reckless vehicular homicide,
a Class C felony, and three counts of reckless aggravated assault, Class D felonies. Pursuant to the
plea agreement, the trial court sentenced him as a Range I, standard offender to concurrent terms of
six years for the reckless vehicular homicide conviction and two years for each of the reckless
aggravated assault convictions, for an effective sentence of six years. On appeal, the defendant
argues that the trial court erred in denying alternative sentencing. Following our review, we affirm
the judgments of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOSEPH
M. TIPTON, J., joined.

David F. Bautista, District Public Defender, and Deborah Black Huskins, Assistant District Public
Defender, for the appellant, Christopher Paul Wilson.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Joe C. Crumley, Jr., District Attorney General; and Steven R. Finney, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

        The defendant’s offenses stemmed from an automobile accident that occurred during the
early morning hours of September 21, 2000, on Cherokee Road in Washington County. The then
eighteen-year-old defendant, driving in the rain and fog with no headlights, crashed head-on into a
guardrail which resulted in the death of one passenger, Heather Nicole Tipton, and injuries to the
three other passengers, Brandy Greene, Stephanie McCurry, and Trista Jones.

       At the defendant’s January 13, 2003, probation hearing, Trooper Diane Mays testified that
she was called to the scene of the accident where she found the defendant’s blue Honda automobile
sitting with the front end against a guardrail. She said that Heather Nicole Tipton, who was riding
in the front seat, died as a result of her necklace becoming hung on the seat and being ejected, cutting
her carotid artery in the process. Trooper Mays subsequently spoke to Greene, McCurry, Jones, and
the defendant at the hospital. Initially, all three girls said they did not remember what had happened,
but thirteen-year-old Greene later said that the defendant and some of the girls had taken some pills
and that she had driven the group to Wal-Mart. According to Greene, even though the defendant was
“really out of it,” he decided to drive when the group left Wal-Mart at about 4:00 a.m. Greene told
Trooper Mays that the defendant drove erratically, going from one side of the road to the other, and
she screamed at him to let her drive.

        Because the defendant told Trooper Mays that there was a problem with his brakes, she had
his vehicle inspected at a local body shop where the brakes were found to be in working condition.1
Greene also had told Mays that the brakes on the defendant’s car were soft but not inoperable.
Trooper Mays read the results of the defendant’s toxicology report which was positive for one
narcotic drug.

         Stephanie McCurry testified that the defendant picked up her and the other girls around
midnight. Everyone, except Greene, ingested “quite a bit of pills” during the night, and Greene
drove the group to Wal-Mart. McCurry said she thought the defendant took four Somas and about
ten Valiums. She did not know if the defendant had driven erratically because she passed out from
the pills she took. McCurry also said she had driven the defendant’s car earlier that evening and the
brakes were “very bad.”

        Cindy Harrell, the mother of Heather Nicole Tipton, testified that Tipton was eighteen years
old at the time of her death and had been living with her grandmother, Dorothy Burrow. Both Ms.
Harrell and Ms. Burrow testified that the defendant deserved a sentence of more than six years. Ms.
Burrow said that the defendant had never apologized to her, and she had not received the letter he
wrote to the deceased’s family.

        The defendant testified that the accident occurred at about 4:00 a.m., and it was raining and
foggy at that time. He said he had never driven down Cherokee Road before, and his brakes were
not “doing too good. They’d go almost to the floor before they’d start stopping, then it would take
a while for them to stop.” He denied that Brandy Greene drove the group to Wal-Mart. Although
admitting that he drove with no headlights, the defendant denied driving erratically or speeding. The
defendant also admitted that he ingested “[m]aybe two” Valiums that night but denied taking ten,
in contradiction to McCurry’s testimony. The defendant’s letters of apology addressed to each of
the victim’s families were admitted into evidence.

       The defendant further testified that he had no prior criminal record, his bond for the instant
offenses had been revoked in August 2002, and he was currently incarcerated at the Washington


         1
            A statement dated September 27, 2000, from Olde Jonesborough B ody S hop, admitted into evidence, reflects
that all fluid levels, as well as the brake p edal, were normal.

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County Detention Center.2 He said that he was diagnosed with a hereditary blood disease in 1997
and is under the care of Dr. David Beals.3 The defendant said he has had one blood clot since being
incarcerated, resulting in an overnight stay at the Unicoi County Hospital. The defendant said that
he receives his Coumadin medication in jail but has not seen a physician.

          Several witnesses testified on behalf of the defendant. Tiffany Edwards, the defendant’s
cousin, testified that the defendant takes daily medication for his hereditary blood condition, and the
medication affects the way he acts. She described the defendant as an “excellent young gentleman
. . . a kindhearted person.” She said the defendant told her that “he wished it would have been him
in [Tipton’s] place.” The defendant’s aunt, Donna Powers, testified that she, as well as the
defendant’s mother and uncle, has the same hereditary blood condition as the defendant. The
condition causes pain, swelling, and, occasionally, inability to walk. Powers said she takes blood
thinner and pain medications and must have her blood tested on a regular basis. She described the
defendant as “a good boy” and said he had never been in trouble before.

        Teresa Higgins, the defendant’s mother, testified that the defendant’s hereditary blood
condition is worse than hers, and the defendant’s doctor recommended that he have his blood
checked twice a month. She said that the defendant has had blood clots in his lungs and leg since
being incarcerated, and he did not receive the proper medical treatment. According to Ms. Higgins,
the defendant had been taking Valium for depression at the time of the accident and had only had
his driver’s license and car for three days before the accident. She said that the videotape made of
the defendant’s car at the impound lot showed that the master cylinder was empty and showed what
appeared to be brake fluid around the rim of a tire. If granted probation, the defendant could live
with her and she would drive him wherever he needed to go.

        Jerome Hall, a mechanic with twenty years of experience, testified that he inspected the
defendant’s car at defense counsel’s request. He said that the brake line on the left front wheel was
seeping brake fluid and the master cylinder reservoir was empty. There was also evidence of a leak
inside the car under the carpet. Regarding the report showing that the brake fluid level was normal,
Hall said that “if you don’t put a lot of pressure on it . . . the fluid will sit in the reservoir for weeks.”
On cross-examination, Hall acknowledged that a head-on collision into a guardrail could cause some
damage as well.




         2
          During the pendency of the charges comprising the present appeal, the defendant was arrested in U nicoi C ounty
and charged with “DUI under the influence of drugs.” As we will discuss, he asserted his Fifth Amendment rights when
asked at the probation hearing about this pending charge.

         3
           A letter from Dr. Beals dated August 21, 2002, was admitted into evidence and states that the defendant “has
a protein-s deficiency, which has cause d him bloo d clots in the right calf in the pa st times two and to the right lung times
two. The patient needs chronic Coumadin blood thinner for this. He has blood wo rk checked at least once a month,
sometimes more often, depending on what the blood thinness shows. The patient is also on Xanax 1 mg twice a day for
anxiety.”

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        At the conclusion of the probation hearing, the trial court found, inter alia, the Valium the
defendant took the night of the accident was not prescribed, his driving with no headlights in the rain
and fog was recklessness, and he had a juvenile conviction for assault. The trial court also noted that
the defendant had been employed prior to the accident, had received treatment for depression and
detoxification after the accident, had expressed remorse to the victims and their families, and suffers
from a “true medical condition.” In denying alternative sentencing, the trial court found that the
defendant’s potential for rehabilitation was “just absolutely nil” based on his being charged with DUI
while the present case was pending. The court also found that confinement was necessary to avoid
depreciating the seriousness of the offenses.

                                            ANALYSIS

        The defendant argues that he should have been granted an alternative sentence because the
trial court found he had been candid which weighed in favor of his potential for rehabilitation. He
also asserts that he is eligible for probation because his mental condition supports a finding under
the special needs subsection of Tennessee Code Annotated section 40-36-106(c), which provides:

                       Felony offenders not otherwise eligible under subsection (a),
               and who would be usually considered unfit for probation due to
               histories of chronic alcohol, drug abuse, or mental health problems,
               but whose special needs are treatable and could be served best in the
               community rather than in a correctional institution, may be
               considered eligible for punishment in the community under the
               provisions of this chapter.

         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) (1997). If an offender meets the criteria under Tennessee
Code Annotated section 40-35-102(6), the trial court “must presume that he is subject to alternative
sentencing.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). However, if the court is presented
with “evidence sufficient to overcome the presumption, then it may sentence the defendant to
confinement according to the statutory provision.” Id. The presumption in favor of alternative
sentencing may be overcome by facts contained in the presentence report, evidence presented by the
State, the testimony of the accused or a defense witness, or any other source, provided it is made part
of the record. State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996).

        Evidence sufficient to overcome the presumption in favor of alternative sentencing includes
evidence showing that “[c]onfinement is necessary to protect society by restraining a defendant who
has a long history of criminal conduct,” “[c]onfinement is necessary to avoid depreciating the
seriousness of the offense or confinement is particularly suited to provide an effective deterrence to
others likely to commit similar offenses,” or “[m]easures less restrictive than confinement have
frequently or recently been applied unsuccessfully to the defendant.” Tenn. Code Ann. § 40-35-
103(1)(A)-(C) (1997); see Ashby, 823 S.W.2d at 169.


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        Tennessee Code Annotated section 40-35-303(a) provides that a defendant shall be eligible
for probation, subject to certain exceptions, if the sentence imposed upon the defendant is eight years
or less. Tenn. Code Ann. § 40-35-303(a) (1997). Even if eligible, however, the defendant is not
automatically entitled to probation as a matter of law. See id. § 40-35-303(b) (1997). The burden
is upon the defendant to show that he is a suitable candidate for probation. Id.; State v. Goode, 956
S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App.
1996). In order to meet this burden, the defendant “must demonstrate that probation will ‘subserve
the ends of justice and the best interest of both the public and the defendant.’” State v. Bingham,
910 S.W.2d 448, 456 (Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn.
Crim. App. 1990)).

        There is no bright line rule for determining when a defendant should be granted probation.
Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires a case-by-case
analysis. Id. Factors to be considered include the circumstances surrounding the offense, 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. Goode, 956 S.W.2d at 527.
Another appropriate factor for a trial court to consider in determining whether to grant probation is
a defendant's credibility or lack thereof, as this reflects on the defendant's potential for rehabilitation.
Id.

        Much of the defendant’s proof at the probation hearing and on appeal is based on his
professed remorse for the death and injuries resulting from the convictions which comprise the
present appeal and his vow that he would not again drive while intoxicated. At the probation hearing
on the charges in the present appeal, after the defendant asserted his right against self-incrimination
as to the pending DUI charge, defense counsel, who was not representing the defendant on that
charge, acknowledged the need of the court to know the details of the new charge. The court
responded:

                        It’s a problem, [defense counsel]. I mean, . . . you know as
                well as I do, every one of you know as well as I do that . . . whether
                or not what I’m going to do in this case hinges upon, as much as
                anything, the fact that he caught that DUI under the influence of
                drugs. And he chooses not to tell me something about it, and I can
                understand why. He’s entitled to take the Fifth Amendment. But
                he’s here on a sentencing hearing today. Why that case has drug out
                in Unicoi County, I have no idea, and it’s not your responsibility.
                Your responsibility is to him today, and you’re exercising that
                responsibility . . . the way you should. But he chooses to take that
                Fifth and that’s his prerogative in that case. But, you know, here’s a
                young man that’s eighteen (18) when the [accident] happens, that
                turns twenty (20), and then two (2) years older and pulls down a new
                DUI. This court [doesn’t] need him to say anything. This court
                viewed the film of that case, and I didn’t even have to view all of it.


                                                    -5-
               I cut it off, what, less than probably two (2) or three (3), five (5)
               minutes into viewing it, if that much. So that’s his prerogative.

       In denying alternative sentencing, the trial court reasoned:

               [T]he potential or lack of potential for rehabilitation or treatment is
               a big issue with this court, a big issue. This court has no alternative
               except to find that his potential for rehabilitation is just absolutely nil.
               I don’t do that, he did that. He showed me that when he chose to pop
               some pills and get a young lady in the car. And it’s beyond my . . .
               comprehension that if I had a charge in which I had the potential to
               go to the penitentiary for killing someone, that for one minute I would
               put myself right back in that position again, and it’s beyond anything
               that I can comprehend. I’ve considered his prior criminal history. He
               has none that has no significance to this case whatsoever. The
               character of him . . . what I know about him through this hearing and
               what I’ve read about him, I’ve considered. Whether the defendant
               might reasonably be expected to successfully rehabilitate, and I have
               to say no. The reason, again, that I’ve already said is how can I
               expect him to rehabilitate when he catches a new charge while the
               death case is pending. And I have to also interject in there that the
               interest of society is being protected from possible future criminal
               conduct from this defendant for those reasons. Confinement is also
               necessary in this case to avoid depreciating the seriousness of the
               offense.

         In attempting to assess the defendant’s potential for rehabilitation, the trial court obviously
was concerned that he had been arrested on similar facts, driving after using drugs, while awaiting
disposition of the charges which are the basis for the present appeal. In State v. Souder, 105 S.W.3d
602, 604-05 (Tenn. Crim. App. 2002), perm. to appeal denied (Tenn. 2003), this court was presented
a similar situation, when the trial court had concluded that a defendant, convicted of attempted
aggravated sexual battery, had not put “his best foot forward and allow[ed] the Court to make a
rational decision” after apparently asserting at his sentencing hearing that he had not done “that
stuff” since “years ago,” but refused to answer whether he had “molested other children in the past.”
The defendant argued on appeal that, in denying probation, the trial court had “relied on his assertion
of his rights against self-incrimination.” Id. at 607. This court disagreed, concluding that the trial
court, instead, had “included the Defendant’s silence in its overall calculus for determining whether
the Defendant was a suitable candidate for probation.” Id. at 608. Thus, as this court explained, a
defendant’s candor could be considered in assessing his rehabilitative potential:

               [A] criminal defendant's rehabilitative potential is a factor to be
               considered in the grant or denial of probation. Candor is a relevant
               factor in assessing a defendant's potential for rehabilitation, see State


                                                   -6-
                v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994), and the
                lack of candor militates against the grant of probation. See, e.g.,
                State v. Kendrick, 10 S.W.3d at 656. The burden of proving
                suitability for probation rests with the defendant. Tenn. Code Ann.
                § 40-35-303(b). Accordingly, we conclude that the trial court did not
                infringe upon the Defendant's rights under the Fifth Amendment to
                the United States Constitution, or Article I, Section 9 of the
                Tennessee Constitution, when it relied, in part, on the Defendant's
                assertion of those rights at sentencing, in order to deny probation.

Id.

         As had been the situation in Souder, the trial court in the present appeal was required to
determine the rehabilitative prospects of a defendant whose other conduct, similar to the crimes
charged, was highly relevant to sentencing determinations. In fact, in the present appeal, the
conduct consisted of a DUI arrest occurring after the charges which were the basis for the probation
hearing. We conclude, as we did in Souder, that the trial court was proper in considering the silence
of the defendant as to this new charge, especially in view of its similarity to the convictions for
which he was being sentenced. Further, we conclude that the record supports the determination of
the trial court that the defendant was not an appropriate candidate for alternative sentencing.

                                         CONCLUSION

         Based upon the foregoing authorities and reasoning, we affirm the judgments of the trial
court.


                                                      ___________________________________
                                                      ALAN E. GLENN, JUDGE




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