             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE             FILED
                          OCTOBER 1997 SESSION
                                                              May 14, 1998

                                                         Cecil W. Crowson
STATE OF TENNESSEE                  )                   Appellate Court Clerk
                                    )     NO. 01C01-9609-CC-00391
             Appellee,              )
                                    )     WILLIAMSON COUNTY
v.                                  )
                                    )     Hon. Donald P. Harris
JARROD C. ADREON                    )
                                    )     (Crim. Neg. Homicide)
             Appellant              )
                                    )



For the Appellant:                        For the Appellee:

Thomas L. Whiteside                       John Knox Walkup
Fowlkes & Whiteside                       Attorney General & Reporter
172 Second Avenue N., Ste. 214
Nashville, TN. 37201-1908                 Lisa A. Naylor
                                          Assistant Attorney General
                                          2nd Floor Cordell Hull Building
                                          425 Fifth Avenue North
                                          Nashville, TN. 37243-0493

                                          Joseph D. Baugh, Jr.
                                          District Attorney General

                                          Derek K. Smith
                                          Assistant District Attorney
                                          Williamson Co. Cthse. Ste. G-6
                                          Franklin, TN. 37065

                                          John W. Barringer, Jr.
                                          Assistant District Attorney
                                          Williamson Co. Cthse. Ste. G-6
                                          Franklin, TN. 37065




OPINION FILED:______________________

AFFIRMED

WILLIAM M. BARKER
                                         OPINION

         The appellant, Jarrod C. Adreon, appeals as of right the conviction and

sentence he received in the Circuit Court of Williamson County. The appellant was

indicted for vehicular homicide resulting from alleged conduct creating a substantial

risk of death or serious bodily injury to a person. Tenn. Code Ann. § 39-13-213(a)(1)

(Supp. 1994). After a jury trial, appellant was convicted of criminally negligent

homicide and was sentenced as a Range I offender to one (1) year in the Department

of Correction.

         He contends on appeal that he was improperly convicted and sentenced for an

unindicted offense that is not a lesser included or lesser grade or class offense of

vehicular homicide. After a review of the record, we affirm the judgment of the trial

court.

         On November 11, 1994, the appellant, at the age of eighteen, attended a party

with some friends near Franklin, Tennessee. While socializing and playing drinking

games, the appellant consumed two shots of vodka and a drink mixed with vodka and

orange juice. He stayed at the party for approximately three hours before leaving to

drive the victim, Danielle Fawcett, home in her black Chevrolet Camaro.

         Around 12:20 a.m. that morning, Officer Steven Sullivan of the Franklin Police

Department observed a black Camaro exit Interstate 65 and turn onto Highway 96.

He began following the Camaro after he clocked it accelerating above 46 miles per

hour. When the Camaro reached a speed of 79 miles per hour, Officer Sullivan

turned on his blue lights to pull the vehicle over. The driver of the car, later identified

as the appellant, ignored the Officer’s lights and accelerated to get away. Officer

Sullivan continued to follow the Camaro and a high-speed chase ensued.

         Officer Sullivan stayed behind the Camaro for approximately two hundred yards

before sounding his sirens. The appellant admitted that he observed the flashing

lights and sirens; however, he continued to accelerate hoping to out run the police

officer. The appellant swerved to and from the right-hand lane of Highway 96 and

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eventually turned onto Mack Hatcher Bypass. Officer Sullivan testified that he stayed

behind the Camaro for approximately two miles at speeds above ninety miles per

hour.

        The chase came to an abrupt end after the appellant drove across the second

bridge on Mack Hatcher Bypass. While crossing the bridge, appellant hit a dip in the

road and lost control of the car. Officer Sullivan observed the car swerve into the left-

hand lane, spin back across the road, and launch off an embankment into a grassy

field. The car flipped several times across the field before coming to rest upon its

wheels. The passenger, Danielle Fawcett, was thrown from the car and killed almost

instantly.

        On appeal, the appellant contends that he was improperly convicted of an

unindicted offense that is not a lesser included or lesser grade or class offense of

vehicular homicide.

        We find that by neglecting to raise the issue during the jury charge and at the

motion for a new trial, the appellant has waived this challenge to his conviction.

        Nevertheless, assuming arguendo that the issue is properly before this Court,

we conclude that it is without merit. Criminally negligent homicide is a lesser grade or

class offense of vehicular homicide. See State v. Hollis Ray Williams, No. 03C01-

9406-CR-00209 (Tenn. Crim. App. at Knoxville, July 23, 1996). Therefore, in light of

the evidence supporting appellant’s conviction, the trial court properly instructed the

jury on criminally negligent homicide. See Tenn. Code Ann. § 40-18-110(a) (Supp.

1994); State v. Trusty, 919 S.W.2d 305, 310-11 (Tenn. 1996).

        The appellant next contends that the trial court erred in considering two

enhancement factors: (10) the defendant had no hesitation about committing a crime

when the risk to human life was high; and (16) the crime was committed under

circumstances in which the potential for bodily injury to a victim was great. Tenn.




                                            3
Code Ann. § 40-35-114 (10),(16) (Supp. 1994). He argues that both enhancers are

essential elements of vehicular homicide and criminally negligent homicide.

      Although we find that enhancer (16) does not apply to the convicted offense,

we nevertheless conclude that the appellant’s one (1) year sentence is appropriate.

       When an appellant complains of his sentence, we must conduct a de novo

review of the record. See Tenn. Code Ann. § 40-35-401(d) (Supp. 1994). The

sentence imposed by the trial court is accompanied by a presumption of correctness

and the appealing party has the burden of showing that the sentence is improper.

See id (Sentencing Commission Comments). However, the presumption of

correctness is conditioned upon an affirmative showing in the record that the trial court

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

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

      In this case, the appellant’s sentence is entitled to a presumption of

correctness. The trial court started at the one (1) year presumptive sentence for

Range I offenders convicted of criminally negligent homicide. From evidence adduced

at trial and the sentencing hearing, the trial court found that the sentence should be

enhanced by two aggravating factors: (10) no hesitation about committing a crime

when the risk to human life was high; and (16) the crime was committed under

circumstances in which the potential for bodily injury to a victim was great. Tenn.

Code Ann. § 40-35-114 (10), (16).

       The trial court next balanced those enhancers against a finding of two

mitigating factors: (6) the defendant, because of his youth, lacked substantial

judgment in committing the offense; and (11) the defendant committed the offense

under such unusual circumstances that it is unlikely that a sustained intent to violate

the law motivated his conduct. Tenn. Code Ann. § 40-35-113 (6), (11). From those

findings, the trial court ordered appellant to serve the minimum one (1) year sentence.




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       The appellant argues that enhancers (10) and (16) are not applicable because

they are essential elements of vehicular homicide and criminally negligent homicide.

Initially, we note that the appellant was not convicted or sentenced for the offense of

vehicular homicide. We, therefore, limit our analysis to the application of enhancers

(10) and (16) to the conviction of criminally negligent homicide.

       The Tennessee Criminal Sentencing Reform Act of 1989 provides that a

sentence may not be enhanced by factors constituting “essential elements” of the

convicted offense. See Tenn. Code Ann. § 40-35-114 (Supp. 1994). The test for

determining if an enhancer is an essential element of an offense is whether the same

facts necessary to establish the enhancer would also prove an element of the offense.

See State v. Jones, 883 S.W.2d 597, 601 (Tenn. 1994).

       Criminally negligent homicide is defined as criminally negligent conduct which

results in death to a person. See Tenn. Code Ann. § 39-13-212. This Court has

previously held that an essential element of criminally negligent homicide is that the

defendant’s conduct created a substantial and unjustifiable risk resulting in death.

See State v. Derek Denton, No. 02C01-9409-CR-00186 (Tenn. Crim. App. at Jackson,

Aug. 2, 1996). The same facts necessary to establish that element are also required

to show that “the potential for bodily injury to a victim was great.” See Tenn. Code

Ann. § 40-35-114(16). Therefore, enhancer (16) was not applicable to the appellant’s

sentence.

       Nevertheless, we find that the one (1) year sentence was justified in this case.

First, the evidence supports a finding that the appellant had no hesitation about

committing a crime when the risk to human life was high. Tenn. Code Ann. § 40-35-

114 (10) (Supp. 1994). While the risk of death to the victim, Danielle Fawcett, was an

essential element of criminally negligent homicide, there was proof that the appellant

also jeopardized his own life, the lives of other drivers, and the life of the pursuing

officer. That evidence was not necessary to establish appellant’s guilt and was



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properly considered under enhancer (10). See State v. Bingham, 910 S.W.2d 448,

452 (Tenn. Crim. App. 1995), per. app. denied (Tenn. 1995).

        Moreover, we agree with the trial court that a sentence of confinement was

warranted. The trial court acknowledged that although the appellant was a

presumable candidate for alternative sentencing,1 a sentence of confinement was

necessary to avoid depreciating the seriousness of the offense and to deter others

likely to commit similar offenses involving police chases. Tenn. Code Ann. § 40-35-

103 (1)(B) (Supp. 1994). We find no evidence to disturb that finding and accordingly

affirm the appellant’s sentence.

        Based upon the foregoing, the judgment of the trial court is affirmed.



                                                              _____________________________
                                                              WILLIAM M. BARKER, JUDGE



CONCUR:


___________________________
JOE B. JONES, Presiding Judge


___________________________
JOE G. RILEY, JUDGE




        1
          Ten nes see Cod e An nota ted s ectio n 40- 35-1 02(5 ) prov ides that c onvic ted fe lons who com mit
the most severe offenses, possess criminal histories, or demonstrate an inability to reform under past
efforts at rehabilitation shall be given first priority for sentences involving incarceration. Under section
40-35-102(6), “[a] defendant who does not fall within the parameters of subdivision (5) and is an
especially mitigated or standard offender convicted of a Class C, D, or E felony is presumed to be a
favorable candidate for alternative sentencing options in the absence of evidence to the contrary.” The
appellan t was co nvicted o f a Class of E felon y at Rang e I.

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