            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                       DECEMBER SESSION, 1998        FILED
                                                      March 12, 1999

                                                  Cecil Crowson, Jr.
STATE OF TENNESSEE,         )                        Appellate C ourt Clerk
                            )    No. 03C01-9801-CR-00024
      Appellee              )
                            )    SULLIVAN COUNTY
vs.                         )
                            )    Hon. R. Jerry Beck, Judge
KEVIN S. PHILLIPS,          )
                            )    (Reckless Aggravated Assault)
      Appellant             )



For the Appellant:               For the Appellee:

Nat H. Thomas                    John Knox Walkup
317 Shelby Street                Attorney General and Reporter
Suite 304
Kingsport, TN 37660              R. Stephen Jobe
                                 Assistant Attorney General
and                              Criminal Justice Division
                                 425 Fifth Avenue North
Daniel B. Minor                  2d Floor, Cordell Hull Building
247 Broad Street                 Nashville, TN 37243-0493
Suite 102
Kingsport, TN 37660
                                 H. Greeley Wells, Jr.
                                 District Attorney General

                                 Lewis Combs
                                 Asst. District Attorney General
                                 Blountville, TN 37617




OPINION FILED:

CONVICTION AFFIRMED; SENTENCE MODIFIED



David G. Hayes
Judge
                                            OPINION



        The defendant, Kevin S. Phillips, entered a nolo contendere plea to one

count of reckless aggravated assault, a class D felony. 1 Pursuant to the plea

agreement, he received a sentence of two years. Following a sentencing hearing,

the trial court ordered that the sentence be served in the Department of Correction.

The defendant appeals, contending that the trial court erred in failing to grant

probation or another sentencing alternative.



        After review, we modify the sentence to reflect a sentence of split-

confinement.



                                        BACKGROUND



        The trial court's summarization of the nature and circumstances of the

offense as contained in its Order Denying Alternative Sentencing is recited as

follows:

        The defendants, Phillips and Clark, on the evening of November 9,
        1995, had been drinking and while traveling in an automobile on East
        Stone Drive in Kingsport, Sullivan County, Tennessee struck an
        automobile driven by Ms. Etta Luster.

        A violent collision occurred and Etta Luster was seriously injured. . . .

        When Kingsport Police Officer, Dion Spriggs, arrived at the scene of
        the accident, he talked with both defendants. Both subjects advised
        the police officer that the ". . . other subject was driving the vehicle. . .
        ." . . . Originally, the owner of the vehicle, Brian Clark, was charged. .
        . . Kevin Phillips was not charged.

        Police Officer Spriggs did obtain hair samples embedded in the broken
        windshield of Clark's vehicle. The sample was removed from the
        portion of the windshield located directly in front of the steering wheel
        on the driver's side. Both defendants had frontal head injuries. . . .




        1
         The record provides no explanation as to why the defendant, who was indicted for
vehicular assault, Tenn. Code Ann. § 39-13-106 (1991), was permitted to plead to the non lesser
offense of aggravated as sault. Tenn. Code Ann. § 39-1 3-102(a)(2) (1995 Supp.).

                                               2
        The [co-]defendant Clark consistently stated he was not the driver of
        the car.[2]

        At the preliminary hearing, Clark agreed to furnish saliva for DNA
        testing, but Phillips refused. . . .

        The DNA test, to a high statistical probability, eliminated the [co-]
        defendant, Brian Clark, as source of the hair found imbedded in the
        driver's side windshield.

        The Court was of the opinion that the DNA test eliminated Clark as the
        driver and would be strongly indicative that the defendant, Phillips, was
        the driver.[3]

        It was revealed further at the sentencing hearing that Phillips had sued
        Clark on the theory that Clark was the driver in a civil tort action.

        Clark testified that after the accident he had talked to Phillips and
        Phillips made admission to him stating that it was Phillips' family that
        was pushing the theory that Clark was driving. Phillips denied, in his
        testimony, that he made such admissions.



        At the sentencing hearing, the proof further established that the defendant,

Phillips, was twenty-five years old, single and lived with his parents. He was

employed although his "employment record shows a lack of discipline." He has no

criminal history other than a conviction for fishing without a license.



        At the conclusion of the hearing, the trial court granted co-defendant Clark

total probation and ordered penitentiary confinement for the defendant, Phillips. In

denying an alternative sentence, the trial court noted the defendant's eligibility for

alternative sentencing finding, however, that:

        The defendant [Phillips] has been untruthful upon the issue of who
        was driving the vehicle and was untruthful concerning that issue before
        the Court on January 15, 1998. This Court is of the strong opinion that
        this negative factor outweighs all the positive factors combined.




        2
          At the hospital, the defendant, Phillips, advised personnel that he "didn't know if [he] was
driving or not." Approximately four or five months later, it became clear to Phillips that he was not
the driver.

        3
          As it became apparent that Clark and Phillips were at opposite poles, the court allowed
Phillips' attorney to fully cross-examine Clark's witnesses and clearly advised Phillips' attorney of
his rights in the action.

                                                  3
                                      ANALYSIS


       Again, the appellant contests the trial court’s denial of any alternative

sentence. In the present case, the trial court essentially imposed a sentence of

confinement based upon the appellant’s “lack of candor” at the sentencing hearing.



       It is apparent that our Sentencing Act has framed the basis of individual

alternative sentencing determinations on the defendant’s potential for rehabilitation.

In this context, the truthfulness of the defendant becomes an important

consideration for the trial court. State v. Dowdy, 894 S.W.2d 301, 305-306 (Tenn.

Crim. App. 1994). Indeed, Tenn. Code Ann. § 40-35-103(5) (1990) provides that the

potential or lack of potential for the rehabilitation or treatment of the defendant

should be considered in determining the sentence alternative or length of a term to

be imposed. Consequently, this court has routinely held that "untruthfulness" or

“lack of candor” can be the basis for a denial of total probation. See Dowdy, 894

S.W.2d at 305; State v. Chrisman, 885 S.W.2d 834, 940 (Tenn. Crim. App.), perm.

to appeal denied, (Tenn. 1994); State v. Gennoe, 851 S.W.2d 833, 837 (Tenn. Crim.

App. 1992). Additionally, this court has upheld the denial of judicial diversion on the

basis of untruthfulness. See State v. Anderson, 857 S.W.2d 571, 574 (Tenn. Crim.

App. 1992). The question before us in this case, however, is whether a defendant's

"untruthfulness" may per se warrant a denial of all alternative sentencing options,

thus, resulting in a sentence of total confinement. We hold that it will not.



       When imposing a sentence of total confinement, the trial court should base

its decision on the considerations listed in Tenn. Code Ann. § 40-35-103(1):

       (A) Confinement is necessary to protect society by restraining a
       defendant who has a long history of criminal conduct;

       (B) Confinement 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

       (C) Measures less restrictive than confinement have frequently or
       recently been applied unsuccessfully to the defendant.

                                          4
       In the present case, the defendant has, in effect, no criminal record. Thus,

we only need to consider evidence showing that confinement is necessary to avoid

depreciating the seriousness of the offense or necessary to provide a deterrent to

others. See Tenn. Code Ann. § 40-35-103(1)(B). There was no evidence

presented at the sentencing hearing supporting the need to deter others likely to

commit a similar offense, thus deterrence is not applicable to this case. See State

v. Bonestel, 871 S.W.2d 163, 169 (Tenn.Crim.App.1993) (holding that there must be

evidence in the record that the sentence imposed will have a deterrent effect within

the jurisdiction).



       Additionally, to deny alternative sentencing based upon the seriousness of

the offense, the "'circumstances of the offense must be especially violent, horrifying,

shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated

degree,'" and the nature of the offense must outweigh all factors favoring a sentence

other than confinement. State v. Bingham, 910 S.W.2d 448, 454

(Tenn.Crim.App.1995) (citing State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim.

App. 1991)). Although the circumstances of the present case demonstrate the

appellant's callous indifference to the safety of motorists and pedestrians alike on

the night of November 9, 1995, we are unable to conclude that the circumstances

of this offense are especially violent, horrifying, shocking or reprehensible. Indeed,

again, we note that the trial court's only finding of reprehensible conduct related to

the defendant's untruthfulness at sentencing and not to the "circumstances" of the

aggravated assault. Having so concluded, we find no facts to support total

confinement pursuant to the sentencing considerations of section 103.



       In conclusion, we agree with the trial court's finding that the defendant's

untruthfulness to the police and to the court is reprehensible. The defendant's

unwillingness to accept responsibility for his involvement in the offense is a


                                         5
circumstance which is relevant in determining his rehabilitative potential. As such,

we also agree with the trial court that the sentencing alternatives of judicial diversion

and total probation are not warranted under these facts. However, it is clear from

the plain language of Tenn. Code Ann. § 40-35-103 that the untruthfulness of the

defendant is relevant "in determining the sentence alternative" and not as authority

to deny all forms of alternatives to incarceration.4 Thus, we conclude, upon de novo

review of the record before us, that a sentence of split confinement would both

serve the ends of justice and fulfill the rehabilitative needs of the appellant.

Accordingly, the appellant's sentence of two years is modified to reflect that he will

be required to serve sixty days in jail followed by two years of supervised probation.



         This case is remanded for entry of a judgment of conviction consistent with

this opinion and for imposition of other conditions and terms of supervision the trial

court deems appropriate as defined by Tenn. Code Ann. § 40-35-303.




                                               ____________________________________
                                               DAVID G. HAYES, Judge



CONCUR:




__________________________________
JERRY L. SMITH, Judge



__________________________________
JAMES CURWOOD WITT, JR., Judge



         4
          “In co nsid ering false testim ony of a def end ant in the s ente ncin g pro ces s, the trial co urt is
therefore exercising its traditional discretion by evaluating the defendant's personality and
prospe cts for reh abilitation. See Williams, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337
(1949). It is through this evaluation that the trial court, pursuant to Tenn. Code Ann. § 40-35-
103(5), can determ ine the appropriate alternative sentence for each defendant.” Dowdy, 894
S.W.2d at 306.

                                                       6
