                                                                                        10/08/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs July 18, 2018

                  STATE OF TENNESSEE v. RUBIN P. PENA

                Appeal from the Circuit Court for Rutherford County
                        No. F-74450     Royce Taylor, Judge


                            No. M2017-01663-CCA-R3-CD


The Defendant, Rubin P. Pena, was convicted by a Rutherford County Circuit Court jury
of vehicular homicide by reckless conduct, a Class C felony, three counts of reckless
aggravated assault, a Class D felony, and leaving the scene of an accident resulting in a
death, a Class E felony. See T.C.A. §§ 39-13-213 (2014) (amended 2015) (vehicular
homicide by reckless conduct), 39-13-102 (reckless aggravated assault) (2014) (amended
2015), 55-10-101 (leaving the scene of an accident resulting in a death) (2014). The
Defendant was sentenced as a Range I, standard offender and received a six-year
sentence for vehicular homicide by reckless conduct and concurrent four-year sentences
for each reckless aggravated assault conviction. The Defendant also received a two-year
consecutive sentence for leaving the scene of an accident resulting in a death, for an
effective sentence of eight years’ incarceration. On appeal, the Defendant contends that
(1) the evidence is insufficient to support his vehicular homicide by reckless conduct and
reckless aggravated assault convictions and (2) the trial court erred during sentencing by
applying certain enhancement factors. We affirm the judgments of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., J., AND JOHN EVERETT WILLIAMS, P.J., joined.

Kris M. Oliver, Murfreesboro, Tennessee, for the appellant, Rubin P. Pena.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Jennings H. Jones, District Attorney General; and Andrew Hazley, Jr.,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                        OPINION


        This case arises from a July 20, 2013 car crash, in which Cynthia Joyner was
killed and three others were injured. At the August 8, 2016 jury trial, Shanna Phillips
testified that she drove Ms. Joyner in Ms. Phillips’s Ford Fiesta from Chattanooga to
Nashville to see a concert on July 19, 2013. Ms. Phillips stated that she met Ms. Joyner
and Jack Gaillard at about 6:00 p.m. at a Chattanooga restaurant. Ms. Phillips stated that
she drove Ms. Joyner and Mr. Gaillard to Nashville, that they arrived in Nashville at
about 7:30 p.m., and that they “walked around downtown for a while” before going to the
concert venue. Ms. Phillips stated that she had two drinks and that she and Ms. Joyner
each had two shots of vodka. Ms. Phillips said that she was prescribed diazepam for a
medical condition and that she took one-half of a five-milligram diazepam on July 19.

        Ms. Phillips testified that Joey Harvey, Ms. Joyner’s friend, “worked sound” for a
band at the concert. Ms. Phillips stated that the concert ended about 1:00 or 1:30 a.m.
and that she agreed to drive Mr. Harvey to Chattanooga. Ms. Phillips testified that she
sat in the driver’s seat, that Ms. Joyner sat in the front passenger seat, that Mr. Gaillard
sat in the backseat behind the driver’s seat, and that Mr. Harvey sat in the backseat
behind the front passenger seat. Ms. Phillips stated that she began driving on the
interstate toward Chattanooga in the high occupancy vehicle (HOV) lane. Ms. Phillips
stated that Ms. Joyner and Mr. Harvey were awake, that Mr. Gaillard fell asleep, and that
she was driving about seventy-five miles per hour.

       Ms. Phillips testified that after driving about twenty minutes toward Chattanooga,
she saw headlights coming toward her, that she “pulled [her] car to the left,” that she
“slammed on the brakes,” and that she hit an oncoming vehicle. Ms. Phillips stated that
the oncoming vehicle struck the front, passenger side of the Ford Fiesta, that her car
“spun around,” that the air bags deployed, and that “dust” filled the car. Ms. Phillips said
that she got out of the car to check on Ms. Joyner, that Ms. Joyner’s head was “laid
back,” that her breathing was “gurgley,” that she had a pulse, and that she was
unresponsive.

       Ms. Phillips testified that all of the Ford Fiesta’s windows were broken and that
the car was “smashed up.” Ms. Phillips said that she was unable to identify the other car
involved in the crash because so many other cars stopped at the crash site. Ms. Phillips
stated that she tried to wake Ms. Joyner for about five or ten minutes, that Mr. Harvey
was still in the backseat, and that the front, right side of the car received most of the
impact. Ms. Phillips said that Mr. Gaillard got out of the car, that he was intoxicated, and
that she did not think Mr. Gaillard understood what had happened. Ms. Phillips stated
that someone called 9-1-1, that she waited for an ambulance to arrive, and that she never
spoke with the driver of the oncoming car.


                                            -2-
        Ms. Phillips testified that a paramedic reported Ms. Joyner had died and that she
could not determine the extent of Mr. Harvey’s injuries because he was still inside of the
Ford Fiesta. Ms. Phillips said that she and Mr. Gaillard were taken to a nearby hospital,
that she suffered a burn on her right hand from the air bag, and that she was in shock.
Ms. Phillips stated that she was treated for her injuries, that the hospital collected a
sample of her blood, and that police officers questioned her about the crash. Ms. Phillips
stated that she saw Mr. Gaillard at the hospital and that he had a concussion, scrapes, and
cuts.

       LaVergne Police Department Officer Travis Wilson testified that he was
transporting a juvenile in the early morning hours of July 20, 2013, that he was driving
east on Interstate 24, and that he was driving in the lane to the right of the HOV lane.
Officer Wilson said that at about 2:30 a.m., he saw an oncoming vehicle driving west in
the eastbound lanes, that the vehicle drove toward him, and that the vehicle was in the
HOV lane. Officer Wilson stated that the oncoming vehicle nearly struck his patrol car
and that he reported the incident to dispatch.

        Officer Wilson testified that that the crash occurred on a “downhill grade” about
one-half mile from where he passed the oncoming vehicle. Officer Wilson said that he
heard about the crash on his radio, that he went to an entrance ramp near the crash to
direct traffic, that he later went to the crash site, and that one of the two vehicles involved
in the crash was the same vehicle he had seen driving in the wrong direction.

        Joey Harvey testified that he worked as a sound engineer at the time of the crash
and that he and Ms. Joyner had been friends for a few years. Mr. Harvey said that he
lived in Chattanooga and that he worked as a sound engineer for a band in Nashville. Mr.
Harvey stated that he took a “shuttle” from Chattanooga to Nashville on July 19 to work
at the concert and that Ms. Phillips agreed to drive him to Chattanooga after the concert.

        Mr. Harvey testified that at the time of the crash, he saw a light, that he was
“thrown forward,” and that he did not recall seeing another vehicle. Mr. Harvey stated
that since the crash, he saw a light a few times a day and that certain things triggered his
memories of the crash. Mr. Harvey said that when he awoke after the crash, two
paramedics were helping Ms. Joyner, who was in the front passenger seat, and that one of
the paramedics said, “[W]e are losing her.” Mr. Harvey stated that he was very confused,
that his left leg was “going the wrong way,” and that he broke his leg “just above the
knee.” Mr. Harvey stated that emergency responders cut the top of the car to remove him
because the car was “crushed,” that he realized he was injured significantly, and that it
felt as though his body “collapsed.”

       Mr. Harvey testified that he was transported to Vanderbilt University Hospital and
that he underwent emergency surgery, during which surgeons placed a “rod,” several
pins, and screws in his left leg. Mr. Harvey said that he had “day dreams” of the crash

                                             -3-
every five or ten minutes each day and that he did not drive because of the day dreams.
Mr. Harvey stated that he was no longer physically able to work as a sound engineer.

       Kyle Dunn testified that he was driving eastbound on Interstate 24 on July 20
between 2:00 and 2:15 a.m. Mr. Dunn stated that he saw a black SUV strike a white car,
that the SUV began spinning, and that the SUV and the car “hit so hard that [he] could
feel the vibration of the impact.” Mr. Dunn said that when the SUV stopped spinning, a
man got out of the SUV, dropped his hat, ran across the interstate, “hopped” a concrete
barrier, and continued running. Mr. Dunn stated that the man was about six feet tall, was
of “slim build,” and looked like the Defendant. Mr. Dunn said that he stopped his car
about fifty yards from the crash and that he did not see any one else get out of the SUV.
Mr. Dunn stated that he did not believe “anybody could have survived that wreck” and
that he was distraught. Mr. Dunn testified that he approached a car that stopped behind
him and that he used the driver’s cell phone to call 9-1-1.

       On cross-examination, Mr. Dunn testified that he gave the police a written
statement and that he initially told the police he thought the black SUV was traveling in
the same direction as the Ford Fiesta. Mr. Dunn stated that after the crash, an eighteen-
wheeler drove by his car, drove between the SUV and the Ford Fiesta, and struck a
concrete barrier. Mr. Dunn said that he told police officers that the driver of the SUV
was wearing a burgundy or red-colored shirt and blue jeans.

        Tennessee Highway Patrol Trooper Michael Cummins testified that at the time of
the crash, he received a call from dispatch describing a vehicle traveling westbound in the
eastbound lane and that he began driving westbound to “track” the vehicle. Trooper
Cummins stated that he received a second call about a crash in the eastbound lanes and
that he drove to the scene. Trooper Cummins said that paramedics were treating a person
in the front passenger seat of a Ford Fiesta and that firefighters were extracting a
passenger by cutting the top of the car. Trooper Cummins stated that he spoke with Ms.
Phillips, that Ms. Phillips said she was the driver of the car, and that she appeared to be in
shock. Trooper Cummins said that he believed the crash was a result of a head-on
collision and that Ms. Phillips told him the driver of the black SUV was at fault.

        Trooper Cummins testified that he approached the black SUV, that the driver’s
door was open, that a white cell phone lay on the ground, and that he found documents
with the Defendant’s name inside of the SUV. Trooper Cummins stated that only the
driver’s door was open and that he did not recall seeing a hat on the ground near the
SUV. Trooper Cummins said that the driver’s airbag had deployed, that it did not appear
a passenger had been in the SUV because the passenger’s airbag had not deployed, and
that the front, right side of the SUV was damaged.

      Trooper Cummins testified that he called his supervisor, the Critical Incident
Response Team (CIRT), and the Criminal Investigation Division. Trooper Cummins

                                             -4-
stated that he later went to the hospital where Ms. Phillips and Mr. Gaillard were
transported and that a blood sample was collected from Ms. Phillips. Trooper Cummins
said that he did not obtain a statement from Mr. Gaillard because he appeared intoxicated
and that he did obtain a statement from Ms. Phillips.

       On cross-examination, Trooper Cummins testified that on July 20 an arrest
warrant was issued for the Defendant for leaving the scene of an accident involving
personal injury or death. Trooper Cummins stated that he concluded the Defendant was
the driver of the SUV because of the documents inside the SUV, which included
employment payroll information, “wire transactions that [the Defendant] sent to Mexico,”
and a cell phone containing a photograph of the Defendant standing in front of the SUV.

       Tennessee Highway Patrol Sergeant Adam Grinder testified that he went to the
scene at about 2:30 a.m. Sergeant Grinder stated that he spoke with Trooper Cummins
and “called troopers in from throughout the district to help in a search” for the Defendant.
Sergeant Grinder said that a Tennessee Highway Patrol helicopter was used in the search,
which lasted about four or five hours.

       Sergeant Grinder testified that a contact in the white cell phone contained the
name “mi vida,” which translated to “my life,” and that he called the number listed for
the contact. Sergeant Grinder stated that a woman answered, that the woman identified
herself as the Defendant’s wife, and that she said she was looking for the Defendant.
Sergeant Grinder stated that the search for the Defendant ended at about noon on July 20,
that the Defendant was not found, and that an arrest warrant was issued. Sergeant
Grinder said that he and other officers went to the Defendant’s home to search for the
Defendant and that he was not home.

       Sergeant Grinder testified that the Defendant’s employer called him the following
day, that the Defendant’s employer said the Defendant did not come to work, and that the
Defendant’s employer told him about a conversation he heard between his other
employees. Sergeant Grinder stated that the Defendant’s employer said he thought the
Defendant was going to Mexico and that the Defendant was in Houston, Texas,
attempting to cross the border. Sergeant Grinder said that he told the Defendant’s
employer to contact the United States Marshals Task Force.

       Tennessee Highway Patrol Trooper Ricky Lane Alexander, Jr., an expert crash
reconstructionist, testified that he was a member of CIRT and that he went to the crash
site. Trooper Alexander stated that another officer took photographs of the crash and that
he located and marked the evidence on the roadway. Trooper Alexander said that he
marked the final resting spot of the black SUV and the Ford Fiesta, tire marks, “gouge
marks,” scrape marks, fluid trails, and debris and that he completed a CIRT
Reconstruction Report. Trooper Alexander stated that after he completed marking the
scene, he created a “map of the scene” and took “daytime” photographs.

                                            -5-
        Trooper Alexander testified that he inspected the black SUV, that the SUV was
equipped with airbags, and that only the driver’s airbag had deployed. Trooper
Alexander stated that the windshield on the right side of the SUV was damaged, that he
did not discover blood on the passenger seat, and that he did not find any indication a
passenger had occupied the vehicle. Trooper Alexander said that it was not raining at the
time of the crash, that he determined the Ford Fiesta was driving east in the eastbound
lane, and that the SUV was driving west in the eastbound lane. Trooper Alexander stated
that the two cars struck each other head-on and that the “primary direction of force” was
on the passenger side of both cars. Trooper Alexander said that Ms. Phillips suffered
minor injuries, that he expected the driver of the SUV to have received minor injuries,
and that if a passenger had been in the SUV, the passenger would have received serious
injuries. Trooper Alexander stated that the SUV had traveled on a “downhill grade,” that
the passenger seatbelt material did not indicate a passenger had been in the SUV, and that
if a passenger had been in the SUV without wearing a seatbelt, the passenger would have
been ejected.

       Trooper Alexander testified that he obtained a search warrant to remove the crash
data recorder system in the black SUV and that his supervisor analyzed the data. Trooper
Alexander stated that the SUV was almost twice the size of the Ford Fiesta and that the
driver’s seatbelt in the SUV was damaged, indicating the driver had worn a seatbelt.

       On cross-examination, Trooper Alexander testified that the SUV and the Ford
Fiesta stopped about 180 feet apart after the crash and that he did not have the
opportunity to view “scrapes and gouges on the roadway” before the crash. Trooper
Alexander stated that he inspected the SUV at an impound lot and that he marked “yes”
on the report relative to the question of whether the electrical system was damaged
because firefighters cut the electrical wires to prevent a fire.

        Tennessee Highway Patrol Sergeant Allan Brenneis, an expert crash
reconstructionist, testified that he was a CIRT member, that he analyzed the crash data
recorder systems from the SUV and the Ford Fiesta, that the data reflected the crash was
a head-on collision, and that he filed an analysis report for each vehicle. Sergeant
Brenneis stated that the data for the Ford Fiesta reflected that the engine was operating
properly and that the airbags deployed. Sergeant Brenneis said that the Ford Fiesta had a
total change in velocity of almost thirty-one miles per hour as a result of the crash and
that a change of velocity of twenty-five miles per hour or greater was potentially fatal.
Sergeant Brenneis stated that the majority of the impact to the Ford Fiesta was to the
front passenger side and that the front passenger would have received most of the impact
and injuries. Sergeant Brenneis said that the Ford Fiesta was traveling at about seventy-
seven miles per hour before the crash and about seventy miles per hour when the airbags
deployed and that the car was not accelerating at the time of the crash. Sergeant Brenneis
stated that after the Ford Fiesta was hit, it rotated clockwise, that the rear of the car struck
a concrete barrier, and that both the driver and front passenger seatbelts were fastened.

                                              -6-
       Sergeant Brenneis testified that the data recorder for the SUV reflected that the
driver’s seatbelt was fastened, that the SUV was traveling forty-three miles per hour five
seconds before the crash, and that it was traveling forty-five miles per hour one second
before the crash. Sergeant Brenneis said that the Defendant “drove directly into the crash
without ever touching the brakes.” Sergeant Brenneis stated that the passenger airbag
was functioning properly and that it did not deploy.

       Dr. Erin Carney, an expert in anatomical, clinical, and forensic pathology, testified
that she worked at the Center for Forensic Medicine and that she performed Ms. Joyner’s
autopsy. Dr. Carney stated that Ms. Joyner died on July 20 at 2:51 a.m. and that Ms.
Joyner had multiple injuries. Dr. Carney stated that Ms. Joyner suffered most of her
injuries to the head and that she suffered a subdural hemorrhage, or bleeding of the brain.
Dr. Carney said Ms. Joyner suffered a “tear” on her brain stem and on the “deep nuclei”
of the brain. Dr. Carney said that the cause of death was multiple blunt force injuries and
that her manner of death was an “accident.”

       Gloria Aguilera testified that she worked at the Nashville 3-1-1 information call
center and that she received a telephone call from the Defendant on November 14, 2013.
Ms. Aguilera stated that the Defendant spoke in Spanish. Ms. Aguilera said that she
called the police to report the telephone call after speaking with the Defendant. An
English translation transcript and a recording of the telephone call were received, without
objection, as exhibits.

        The transcript reflected that the Defendant told Ms. Aguilera that he was involved
in a car crash about three months previously, that he “fled the scene,” that “someone
died,” and that he wanted to “turn [him]self in.” The Defendant said that the crash
occurred on Interstate 24 in Nashville and that he was calling from Mexico. When Ms.
Aguilera asked, “You hit someone and you just left, is that what happened,” the
Defendant responded, “No, I didn’t hit him, he crashed against my car and died, and I
[ran] away.” The Defendant stated that “in [his] heart, [he] can’t deal with this situation”
and that he could not “run all the time.” The Defendant said that his family lived in
Nashville, that he had not spoken with his family, and that his family was scared. The
Defendant stated that he drove a 2003 black Chevrolet Tahoe, that he was not intoxicated
at the time of the crash, that he had fallen asleep, and that it would take him about two
days to travel to the Mexico-United States border.

       United States Marshals Criminal Investigator Adrian Romaniuk testified that he
began investigating the case on July 22, 2013. Investigator Romaniuk stated that he
interviewed the Defendant’s wife, Janet Sanchez, the Defendant’s employer, and the
Defendant’s co-worker, that he obtained a search warrant for the Defendant’s cell phone,
and that he concluded the Defendant fled to Mexico. Investigator Romaniuk said that a
few months later, the Defendant called Nashville “Public Works” and that Investigator
Romaniuk learned the Defendant was trying to contact him.

                                            -7-
        Investigator Romaniuk testified that the Defendant called him by telephone on
December 13, 2013, that the Defendant said he was living in a barn in Mexico, and that
the Defendant said he would call Investigator Romaniuk again later. Investigator
Romaniuk stated that the Defendant called him later the same day, that the Defendant
was very emotional, that the Defendant wanted to know the name of the woman who
died, and that the Defendant said he missed his wife and children. Investigator Romaniuk
said the Defendant said that he suffered from nightmares related to the crash, that he was
suicidal, and that he was having difficulty sleeping. Investigator Romaniuk stated that
the Defendant said he did not want to go to jail, that he told the Defendant he would go to
jail, and that the Defendant offered to give him “his oldest son[,] a gold chain[,] and a
pendant.” Investigator Romaniuk stated that the Defendant said he would consider
surrendering and that the telephone call ended.

        Investigator Romaniuk testified that the Defendant called him again the following
Monday, that the Defendant said he would surrender, and that the Defendant wanted to
speak with Ms. Sanchez. Investigator Romaniuk stated that he called Ms. Sanchez, that
Ms. Sanchez said she would speak with the Defendant about surrendering, and that he,
Ms. Sanchez, and the Defendant participated in a group telephone call. Investigator
Romaniuk stated that following the telephone call, the Defendant surrendered at the
border between Mexico and Texas. On cross-examination, Investigator Romaniuk
testified that he and the Defendant never spoke about whether the Defendant had driven
the black SUV at the time of the crash.

       Janet Sanchez testified that she was the Defendant’s girlfriend at the time of the
incident and that they had since ended their romantic relationship. Ms. Sanchez stated
she and the Defendant were from Mexico, that they had known each other since
childhood, that they were together twenty-two years, and that they had five children
together. Ms. Sanchez said that in July 2013, she drove a gold Chevrolet Tahoe SUV,
that the Defendant drove a black Chevrolet Tahoe SUV, and that the Defendant did not
allow anyone to drive his SUV. Ms. Sanchez stated that she worked until 3:00 or 4:00
p.m. on July 19 and that she met the Defendant at a family friend’s home after work. Ms.
Sanchez said that she saw the Defendant drinking beer outside of the home with a man
she did not know and that the Defendant appeared “a little” intoxicated. Ms. Sanchez
stated that she went inside for about ten or fifteen minutes, that the Defendant was
holding a beer when she walked outside, and that about three empty beer bottles were on
the ground. Ms. Sanchez said that she told the Defendant that they needed to go home to
feed their children, that the Defendant asked to “go some place . . . and that means to
drink or like a bar,” and that the Defendant said he would follow her home in his SUV.

      Ms. Sanchez testified that the Defendant was alone, that she believed the
Defendant was following her, and that she realized the Defendant was no longer driving
behind her. Ms. Sanchez said that she called the Defendant six or seven times, that she
spoke with him by telephone more than once, and that the Defendant told her “don’t

                                            -8-
worry.” Ms. Sanchez stated that the Defendant sounded intoxicated when she spoke with
him, that he did not come home, and that the trial was the first time she had seen the
Defendant since that night.

        Ms. Sanchez testified that she used a “tracking” application on her cell phone to
determine the Defendant’s cell phone location, that the Defendant’s cell phone indicated
he was at a bar, and that she went to bed. Ms. Sanchez stated that she awoke at about
5:00 or 5:15 a.m. on the morning of July 20, that she used the “tracking” application, and
that the Defendant’s cell phone signal indicated he was near a gas station located on
Interstate 24. Ms. Sanchez stated that she left her home to look for the Defendant at
about 6:00 a.m., that she searched for him at multiple hotels, and that she did not find the
Defendant. Ms. Sanchez said that when she returned home, her children told her a police
officer came to speak with her about the Defendant and that the police were looking for
the Defendant. Ms. Sanchez stated that she saw on television that the Defendant had
been involved in a crash, that she called the Defendant’s cell phone, and that a police
officer answered. Ms. Sanchez said that she went to the crash scene to see if the police
had found the Defendant and that she was worried for the Defendant’s well-being.

       Ms. Sanchez testified that she stayed at the scene for several hours while the
police searched for the Defendant, that the police never found him, and that she went
home. Ms. Sanchez stated that the police came to her home later that night and that she
told the police she had not spoken with the Defendant. Ms. Sanchez said that the police
came to her home again the next morning to search for the Defendant, that she did not
know his whereabouts, and that he was not in her home. Ms. Sanchez stated that the
police later came to her place of employment and that she told the police she had not
spoken with the Defendant. Ms. Sanchez said that she was contacted by a United States
Marshal in November 2013 and that she spoke with the Defendant by telephone.

        Ms. Sanchez was shown two photographs of the black SUV after the crash and
Ms. Sanchez testified that speakers, a hat, sunglasses, Marlboro cigarettes, and a “work
badge” reflected in the photographs belonged to the Defendant. Ms. Sanchez was shown
a set of keys and stated that they were the Defendant’s SUV keys.

        On cross-examination, Ms. Sanchez testified that she worked until about 4:00 p.m.
on July 19, that she went to a family friend’s home after work, and that the Defendant
had worn yellow shirt. Ms. Sanchez stated that the Defendant’s breath smelled of
alcohol, that she saw the Defendant drinking a beer, and that the Defendant “was not
drunk in the sense that I understand being drunk . . . but he was in a sense not completely
there.”

       Upon this evidence, the Defendant was convicted of vehicular homicide by
reckless conduct, three counts of reckless aggravated assault, and leaving the scene of an


                                            -9-
accident resulting in a death. The Defendant was found not guilty of vehicular homicide
by intoxication. This appeal followed.

                              I. Sufficiency of the Evidence

        The Defendant contends that the evidence is insufficient to support his vehicular
homicide by reckless conduct and reckless aggravated assault convictions. He argues
that the evidence is insufficient to prove that he was aware of any substantial and
justifiable risk or that he consciously disregarded such risk. The Defendant asserts his
accelerating at the time of crash proves he was unaware of a risk. The State responds that
the evidence is sufficient. We agree with the State.

        In determining the sufficiency of the evidence, the standard of review 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 (1979); see State v. Vasques, 221 S.W.3d 514,
521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence
and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The
appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding
“the credibility of witnesses [and] the weight and value to be given the evidence . . . are
resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

        “A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)). A conviction may be based upon circumstantial evidence alone. See Dorantes,
331 S.W.3d at 380-381.

        Vehicular homicide is defined, in relevant part as, “the reckless killing of another
by the operation of an automobile . . . as the proximate result of . . . [c]onduct creating a
substantial risk of death or serious bodily injury to a person[.] T.C.A. § 39-13-213(a)(1).
A person commits reckless assault when a person “recklessly causes bodily injury to
another[.]” Id. § 39-13-101(a)(1) (Supp. 2012) (amended 2013). “‘Bodily injury’
includes a cut, abrasion, bruise, burn, or disfigurement, and physical pain or temporary
illness or impairment of the function of a bodily member, organ, or mental faculty[.]” Id.
§ 39-11-106(a)(2) (2014).

         A person commits aggravated assault by reckless conduct when the reckless
assault “involved the use or display of a deadly weapon.” Id. § 39-13-102(a)(1)(B). A
“deadly weapon” is defined as “a firearm or anything manifestly designed, made or

                                            -10-
adapted for the purpose of inflicting death or serious bodily injury; or anything that in the
manner of its use or intended use is capable of causing death or serious bodily injury.”
Id. § 39-11-106(a)(5)(A), (B). This court has held that a vehicle may be used as a deadly
weapon. See State v. Tate, 912 S.W.2d 785 (Tenn. Crim. App. 1995).

        Both vehicular assault by reckless conduct and reckless aggravated assault require
that the Defendant acted “recklessly” beyond a reasonable doubt.

       ‘Reckless’ means that a person acts recklessly with respect to
       circumstances surrounding the conduct or the result of the conduct when
       the person is aware of, but consciously disregards a substantial and
       unjustifiable risk that the circumstances exist or the result will occur. 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 all the circumstances as viewed from the accused person’s
       standpoint[.]

T.C.A. § 39-11-106(a)(31).

        In the light most favorable to the State, we conclude the evidence is sufficient to
support the Defendant’s convictions for vehicular homicide and reckless aggravated
assault. Officer Wilson testified that he saw an oncoming vehicle driving west in the
eastbound lanes on Interstate 24 in the early morning hours on July 20, 2013. Officer
Wilson stated that he saw the vehicle about one-half mile from where the crash occurred
and that the vehicle almost struck his patrol car. Officer Wilson said that he responded to
the crash at a later time and that the vehicle he saw earlier was involved. Mr. Dunn
testified that he was in the eastbound lane, that he saw a black SUV hit the Ford Fiesta,
and that the SUV drove in the wrong direction.

       Trooper Alexander, an crash reconstructionist, testified that the black SUV was
driving east in the westbound lane when it struck the Ford Fiesta, that the two cars struck
each other head-on, and that the passenger side of each car received most of the impact.
Trooper Alexander stated that the SUV had traveled on a “downhill grade.” Sergeant
Brenneis, also a crash reconstructionist, testified that the SUV’s crash data recording
system reflected that the SUV was traveling at forty-three miles per hour five seconds
before the crash and forty-five miles per hour one second before impact. We conclude
that the evidence is sufficient to support the jury’s findings that the Defendant acted
recklessly by disregarding a substantial and unjustifiable risk and that the Defendant was
aware of such risk. See id. § 39-11-106(A)(31). We note that the Defendant does not
dispute that the crash resulted in a death and the injuries to three other victims. The
Defendant also does not raise the issue of identity on appeal and does not challenge
whether he was the driver of the SUV. The Defendant is not entitled to relief on this
basis.

                                            -11-
                                      II. Sentencing

        The Defendant contends that he received an excessive sentence because the trial
court erred in applying two enhancement factors. He argues that the court erred by
applying enhancement factor (10) because no proof showed whether the Defendant
hesitated prior to the occurrence of the offenses and that the record is unclear whether
this factor was applied to the Defendant for causing harm to the victims or to others on
the roadway. See id. § 40-35-114(10) (2014) (“The defendant had no hesitation about
committing a crime when the risk to human life was high[.]”). He argues that the court
erred by applying enhancement factor (9) because using a deadly weapon is an essential
element of vehicular homicide and of leaving the scene of an accident resulting in a
death. See id. § 40-35-114(9) (“The defendant possessed or employed a firearm,
explosive device or other deadly weapon during the commission of the offense[.]”). The
State argues that the court properly applied enhancement factor (10) because the
Defendant’s conduct created a high risk to other drivers. The State concedes that the
court erred by applying enhancement factor (9) but that the misapplication of an
enhancement factor does not entitle the Defendant to relief because he received a within-
range sentence.

       At the sentencing hearing, Mr. Harvey testified that as a result of the crash, he
suffered a broken femur and a broken pelvis. Mr. Harvey stated that he underwent
emergency surgery for his broken femur, that he had four subsequent surgeries, and that
the surgeries were painful. Mr. Harvey said that he suffered from “psychological
difficulties and . . . cognitive problems” and that he received physical rehabilitation for
his injuries. Mr. Harvey stated that the surgeries, physical therapy, and medical
treatments were expensive, that he lost “a good amount of money over this.”

       Mr. Harvey testified that he did not have health insurance at the time of the crash,
that he was not capable physically of working as a sound engineer, and that he was
looking for employment. Mr. Harvey stated that he still owed about $300,000 for
medical treatment, that he was having knee replacement surgery within one year, and that
the surgery would cost about $30,000 to $50,000. Mr. Harvey stated that “they had to cut
me out of the car” and that the crash was “very traumatic.”

       The Defendant made an allocution to the trial court and stated that “people” were
hurt in the crash and that “I feel for [Ms. Joyner] also.” The Defendant said that the crash
changed his life and that he wanted the victims to “know the truth.” The Defendant
stated that a man named “Fabian” was driving the black Chevrolet Tahoe SUV, that he
and another man were passengers, and that he sat in the front passenger seat. The
Defendant said that after the SUV struck the Ford Fiesta, the SUV spun multiple times
before stopping beside a concrete barrier.



                                           -12-
       The Defendant stated that he asked Fabian “who he hit” and that the Defendant
began to record a video on his cell phone. The Defendant stated that the backseat
passenger left the SUV, that Fabian could not get out because the driver’s door was
against the barrier, that the SUV was still “running,” and that “it went forward to where
the car was.” The Defendant said that the SUV stopped, that Fabian placed the SUV in
park, and that he and Fabian got out of the SUV. The Defendant stated that he realized
he wore only one shoe, that he went back to the SUV to retrieve his other shoe, and that
Fabian stood near the back of the SUV. The Defendant said that Fabian wore a red shirt,
that he wore a yellow shirt, and that he saved the video recording on his cell phone. The
Defendant stated that he started a second video recording on his cell phone, that he told
Fabian not to run, that he felt nervous, that it was an accident, and that he did not know
what happened. The Defendant said that he saved the second recording and placed his
cell phone in the front passenger seat of the SUV.

       The Defendant stated that he walked to the Ford Fiesta after he heard a woman
scream, that he saw Fabian run, and that he tried to “calm [the woman] down.” The
Defendant said that “something came in front of me . . . it hit my truck,” that he saw the
black SUV “in the air,” and that he ran. The Defendant stated that he believed Ms.
Joyner died “at that impact,” that the damage to the SUV was caused by the “big truck,”
and that the truck dragged the SUV more than eighty feet. The Defendant said that the
truck drove in the wrong direction on the interstate and that he wanted the “government”
to “find out the truth.” The Defendant stated he was innocent.

        The trial court considered the victim impact statements submitted during the
sentencing hearing and determined that Mr. Joyner’s impact statement was the most
compelling because it stated that he and Ms. Joyner’s son, who suffered from autism, had
“breakdown after breakdown.”1 The court noted that it had to consider the purposes and
principles of sentencing, found that the Defendant committed a Class C felony, three
Class D felonies, and one Class E felony, and determined that the Defendant was eligible
for alternative sentencing. The court considered the Defendant’s criminal history, stated
that “the ones that I looked at were misdemeanors,” and noted that the offenses involved
multiple victims.2 The court found that no mitigating factors applied in this case and
stated that although the Defendant “turned himself in, that is not considered a separate
mitigating factor.”

       The trial court found that probation was not appropriate in this case. The court
determined that the Defendant’s offenses were serious and that the offenses involved
serious injuries and a death. The court determined that confinement was suited to
provide an effective deterrent and that probation would depreciate the seriousness of the
offenses. The court found that the Defendant could not comply with the terms of

1
    The victim impact statements were not included in the record.
2
    The presentence report was not included in the record.
                                                    -13-
probation because he had previously shown a disregard for the law. The court noted that
the Defendant was deported from the country twice, that he illegally entered the country,
and that such actions reflected on the Defendant’s “character.” The court found that the
Defendant had a criminal history and that the seriousness of the offenses precluded the
court from sentencing the Defendant to probation.

        The trial court noted that the Defendant’s behavior indicated “little or no regard
for human life” and that the Defendant did not hesitate in committing a crime in which
the risk for human life is high. The court found that until the offenses, the Defendant led
a productive life, that he provided for his family, and that he had steady employment.
The court determined that this case did not meet the applicable requirements for
consecutive sentencing.

       The trial court sentenced the Defendant as a Range I, standard offender and
imposed concurrent sentences of six years for vehicular homicide by reckless conduct
and four years for each reckless aggravated assault conviction. The Defendant received a
consecutive two-year sentence for leaving the scene of an accident resulting in a death,
for an effective sentence of eight years’ incarceration.

       This court reviews challenges to the length of a sentence within the appropriate
sentence range “under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report,
the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature
and characteristics of the criminal conduct, any mitigating or statutory enhancement
factors, statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee, any statement that the defendant
made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby,
823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103 (2014), -210 (2014);
State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919
(Tenn. Crim. App. 1987)); see T.C.A. § 40-35-102 (2014).

        Likewise, a trial court’s application of enhancement and mitigating factors is
reviewed for an abuse of discretion with “a presumption of reasonableness to within-
range sentencing decisions that reflect a proper application of the purposes and principles
of our Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of
an enhancement or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long
as there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed . . . within the appropriate range” will be upheld
on appeal. Id.



                                           -14-
        The record reflects that the trial court’s determination relative to enhancement
factor (10) is supported by the record. The court determined that the Defendant’s
behavior indicated “little or no regard for human life” and that the Defendant did not
hesitate in committing a crime in which the risk for human life was high. The record
reflects that the Defendant drove west in the eastbound lanes on Interstate 24 and that his
conduct placed other drivers on the interstate, such as Officer Wilson, Officer’s Wilson’s
juvenile passenger, and Mr. Dunn, in danger. The court did not abuse its discretion in
applying enhancement factor (10).

        The State concedes, and we agree, that the trial court erred by applying
enhancement factor (9) because the use of a motor vehicle is an essential element of
vehicular homicide by reckless conduct. See T.C.A. § 40-35-114, Advisory Comm’n
Cmts.; see also State v. Arroyo, E2002-00639-CCA-R3-CD, 2003 WL 1563209, at *4
(Tenn. Crim. App. Mar. 27, 2003). However, we conclude that such error did not render
the Defendant’s sentence excessive. Vehicular homicide by reckless conduct is a Class C
felony and warrants a sentence of between three and six years for Range I offenders. See
T.C.A. § 40-35-112(a)(3) (2014). The Defendant was sentenced as a Range I offender to
a within-range sentence of six years’ incarceration for vehicular homicide by reckless
conduct. The record reflects that the court applied other enhancement factors, which the
Defendant does not challenge. The court considered the purposes and principles of
sentencing, the victims’ impact statements, and the Defendant’s criminal history. The
sentence complies with the purposes and principles of the Sentencing Reform Act. “A
sentence should be upheld so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and
principles” of sentencing. Bise, 380 S.W.3d at 709-10. The Defendant is not entitled to
relief on this basis.

     In consideration of the foregoing and the record as a whole, we affirm the
judgments of the trial court.




                                          ____________________________________
                                          ROBERT H. MONTGOMERY, JR., JUDGE




                                           -15-
