        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs October 26, 2011

              STATE OF TENNESSEE v. CHRISTOPHER VIGIL

                 Appeal from the Criminal Court for Washington County
                          No. 33764 Lynn W. Brown, Judge



                 No. E2011-00259-CCA-R3-CD - Filed February 9, 2012


Appellant, Christopher Vigil, appeals from his conviction for criminally negligent homicide.
As a result of the conviction, Appellant was sentenced to two years in incarceration. On
appeal, Appellant challenges the sufficiency of the evidence and his sentence. We determine
that the evidence was sufficient to support the conviction for criminally negligent homicide
where the proof showed Appellant was engaged in conduct that he knew, or should have
known, created a substantial and unjustifiable risk to the victim and constituted a gross
deviation from the standard of care of an ordinary person under those circumstances and that
Appellant’s actions proximately caused the victim’s death. Further, the trial court properly
sentenced Appellant to two years where the record indicated Appellant had a “significant”
prior criminal history. Accordingly, the judgment of the trial court is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and
D. K ELLY T HOMAS, J R., JJ., joined.

Steve McEwen, Mountain City, Tennessee, (on appeal), and William L. Francisco, Johnson
City, Tennessee, (at trial), for the appellant, Christopher Vigil.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Anthony Clark, District Attorney General; and Janet Hardin, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                                    Factual Background

       Appellant was indicted by the Washington County Grand Jury in September of 2007
for especially aggravated kidnapping. In November of 2008, a superceding indictment was
issued, charging Appellant with reckless homicide and leaving the scene of an accident. The
charge for leaving the scene of an accident was later dismissed. The case proceeded to trial
where Appellant was convicted of the lesser included offense of criminally negligent
homicide. After a sentencing hearing, Appellant was sentenced as a Range One, Standard
Offender to two years in incarceration.

      At trial, the proof indicated that Appellant and Frannie Berry, the victim, were in an
“on and off” relationship that had been ongoing for several years. Occasionally, when the
two would get into an argument, the victim would stay with Michelle Marlor, a friend.

        In early April of 2007, the victim came to stay with Ms. Marlor. She brought a lot of
her personal items to the house. The victim stayed with Ms. Marlor for several days and told
her that she had stopped communicating with Appellant. Appellant continued to call and
send text messages to the victim. At one point, Appellant even left a voicemail for the victim
telling her that she would be sorry if she did not return his calls.

       On April 12, 2007, the victim talked to Appellant on the phone. After the
conversation, she was upset. The following morning, when Ms. Marlor left for work, the
victim was sitting on the front porch crying. Ms. Marlor later received a telephone call from
the victim. The victim told her that she was with Appellant at the time. When Ms. Marlor
returned home from work, all of the victim’s possessions were gone.

        On the afternoon or early evening of April 13, 2007, Thomas Ditto was working at
the Appco convenience store on Greenwood Drive in Washington County, Tennessee. Mr.
Ditto saw a short, stocky female with blond hair get out of a red Corvette and come into the
store. Appellant was driving the Corvette and remained in the car. The woman “hollered”
for Mr. Ditto to turn on the gas pump. Appellant put gas in the car and then came inside the
store to say something to the woman. According to Mr. Ditto, the woman “snapped” at
Appellant, who then left the store. The woman paid for the gas and walked back to the car.
Mr. Ditto saw the couple “exchange[] a few words.” He described the conversation between
Appellant and the woman as “loud and argumentative.”

      Mr. Ditto then saw the couple get into the Corvette. As the car was leaving the
parking lot, Mr. Ditto saw the passenger door open and one foot come out of the car. The

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passenger door then closed. Mr. Ditto then heard squealing tires, and saw the car reverse
quickly into a parking space where it remained for fifteen to twenty minutes. During that
time, the couple’s body language and the noise emanating from the vehicle indicated that
they were in a heated argument. During the argument, Appellant put his hand up and
“swiped” it toward the woman. The woman reacted to the motion, but Mr. Ditto could not
tell if Appellant actually struck the woman with his hand.

       Mr. Ditto observed the couple sit in the car for about five to ten more minutes before
Appellant backed the car out of the parking space and turned right onto Greenwood Drive.
Mr. Ditto saw the passenger door open again while the car was moving. The woman’s foot
came out of the car, as if she was trying to get out. Then, Mr. Ditto saw the woman’s body
make a “jerking motion backwards into the car.” Mr. Ditto thought that the door closed on
its own as the car sped off. He lost sight of the car. A short time later, he saw a lot of cars
on the street moving slowly and heard sirens.

        Jill Cantrell Moore was pulling out of the carwash on Greenwood Drive on April 13,
2007, when she saw a Corvette driving “very fast” down the street with the passenger door
open. She could see a woman inside the car screaming with her “arms and legs just flailing
about almost like outside the car where the car door was opened.” Ms. Moore saw the driver
of the car holding onto the woman’s hair. It was not clear whether the driver was pushing
or pulling the woman. Ms. Moore called 911 and followed the car. Just down the street, she
saw the woman who had been in the Corvette lying face down in the middle of the street.

        The driver of the Corvette approached the woman lying in the street and said
something awkward like, “what are you doing grandma.” Ms. Moore could not understand
if the man was saying grandma or “Frannie.” The man screamed and left the scene. The
woman was unconscious and had obvious head injuries. The man did not offer to help.

        Kim Phillips, a registered nurse, was driving to work when she saw the victim lying
in the road. She stopped to help. She recalled that the victim was breathing and had a pulse
but observed blown pupils and bleeding. The victim was unresponsive. Ms. Phillips spoke
to the 911 dispatcher on the phone, followed the woman to the hospital, and helped to treat
her in the intensive care unit. The woman remained unresponsive.

       Robert A. Montgomery, Jr., was also in the area when the victim was injured. He was
driving south on Greenwood Road when he saw a woman “rolling in the road” just ahead of
the car in front of him. He stopped and pulled over to check on the woman. Mr.
Montgomery saw the male driver of a Corvette parked about 100 feet from the woman. The
man did not offer assistance and told people to “stay away” from the woman and “leave her
alone.” The man got in his car and drove south at a high rate of speed.

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      Sterling L. Myers also stopped at the scene and saw Appellant get out of a Corvette
parked down the road. He thought Appellant’s behavior was strange. Appellant clapped his
hands and jumped up and down. Appellant left the scene without offering assistance.

       Another witness, Kristin Kaudewitz, also saw Appellant at the scene, jumping up and
down, pacing back and forth, and waving his hands over his head. She described Appellant
as “frantic” and “hysterical” but noticed that Appellant did not help before returning to his
car and leaving the scene.

       Investigator Brett Richardson of the Johnson City Police Department responded to the
scene. By the time he arrived, the victim had been transported to the hospital. He observed
drag marks and a large pool of blood in the street. Investigator Richardson did not notice
anything that would have prevented a car from pulling over to the shoulder of the road near
the victim.

        Based on witnesses at the scene, Appellant was developed as a suspect. Appellant left
the scene and went to his mother’s house on Lone Oak Drive. Appellant’s mother called the
police.

        Appellant spoke with police that afternoon, agreeing to a videotaped statement.
During the statement, Appellant claimed that it was “possible” he and the victim were
“fussing”with each other at the gas station. Appellant denied hitting the victim. He claimed
that the victim was upset with him because she “thought [he] had been with someone else.”
Appellant told the victim that if she was going to “run her mouth” she could “get out of the
car right now.” Appellant claimed that the victim acted like she was going to get out of the
car but did not. The victim then told Appellant to let her out of the car. The car was going
about thirty miles per hour at the time. Appellant slowed the car, and the victim tried to get
out. Appellant claimed that he pulled her back into the car part of the way, but the victim’s
feet and legs were hanging out of the car. Appellant then claimed that the victim “fell out
of the vehicle.” Appellant stopped the car and walked back to the victim. He “saw blood”
but “didn’t call 911.” Appellant informed police that he went to his mother’s house where
he called 911.

       The victim was admitted to the hospital where she was diagnosed with an acute
subdural hematoma on the right side of her head, a skull fracture, and bilateral pulmonary
contusion versus consolidation. The victim was discharged to another facility in May with
a traumatic brain injury. The victim later died as a direct result of complications from the
original trauma.




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       At the time of the injuries, the victim was twenty-nine years of age and married to
Curtis Berry. The victim had three children.

        After the incident, Appellant was seen by Christopher Hicks at a barber shop.
Appellant explained to Mr. Hicks that he and the victim were arguing in the car on the day
of the incident when the victim smacked at him. Appellant told Mr. Hicks that he pushed the
victim. Appellant also told Mr. Hicks that he had “maxed out” his credit cards and bought
a motorcycle because he knew that he “could not beat the charges [against him].” Mr. Hicks
stated that Appellant did not show any emotion when talking about the victim. Mr. Hicks
described Appellant as a person with a temper.

      At the conclusion of the proof, the jury found Appellant guilty of criminally negligent
homicide.

        The trial court held a separate sentencing hearing. At the conclusion of the hearing,
the trial court sentenced Appellant to two years as a Range I, standard offender.

       Appellant filed a timely notice of appeal.

                                Sufficiency of the Evidence

       Appellant challenges the sufficiency of the evidence on appeal. Specifically,
Appellant argues that the evidence does not show that Appellant’s actions “deviated from the
standard of duty of reasonable care and proximately caused [the victim’s] death.” Further,
Appellant argues that the victim’s own negligence caused her death. The State disagrees.

       When a defendant challenges the sufficiency of the evidence, this Court is obliged to
review that claim according to certain well-settled principles. A verdict of guilty, rendered
by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses
and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d
253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the
accused is originally cloaked with a presumption of innocence, the jury verdict of guilty
removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to
demonstrate the insufficiency of the convicting evidence. Id. The relevant question the
reviewing court must answer is whether any rational trier of fact could have found the
accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.
P. 13(e); Harris, 839 S .W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences
that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is

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precluded from re-weighing or reconsidering the evidence when evaluating the convicting
proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,
805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the
weight and value to be given to evidence, as well as all factual issues raised by such
evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788
S.W.2d 559, 561 (Tenn. 1990). “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)).

        Criminally negligent homicide is defined as “[c]riminally negligent conduct which
results in death.” T.C.A. § 39-13-212(a).

       “Criminal negligence” refers to a person who acts with criminal negligence
       with respect to the circumstances surrounding that person’s conduct or the
       result of that conduct when the person ought to be aware of 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 the failure to perceive it 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)(4).

        Viewing the evidence in a light most favorable to the State, the evidence shows that
“the victim’s death was the natural and probable result of the defendant’s unlawful conduct.”
State v. Farner, 66 S.W.3d 188, 202 (Tenn. 2001). Leading up to the incident, the proof
showed that Appellant and the victim had a rather torrid relationship. The victim was staying
with a friend because she had been arguing with Appellant. The two were seen arguing on
the day of the offense and at least one witness saw Appellant swipe his open hand toward the
victim, causing her to react. The victim was seen at least twice with her foot dangling out
of the passenger door of the car while Appellant was driving. The victim was screaming and
flailing about in the car as it was driving “very fast” down the road. Appellant did not stop
the car in order for the victim to exit safely. Appellant later admitted that he did not pull over
and assist the victim when she was injured. From these facts, a jury could have concluded
that Appellant engaged in conduct that he knew, or should have known, would have created
a substantial and unjustifiable risk to the victim and constituted a gross deviation from the
standard of care of an ordinary person under those circumstances. The evidence was
sufficient to support the conviction. Appellant is not entitled to relief.

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                                          Sentencing

       Appellant insists that the trial court improperly sentenced him to serve two years for
the conviction for criminally negligent homicide. Specifically, he argues that the trial court
based the decision to sentence him to two years “solely upon his prior criminal record,”
ignoring the fact that one of Appellant’s prior convictions had been vacated as “violative of
the double jeopardy clause.” The State contends that the trial court considered the
appropriate factors in sentencing Appellant.

“When reviewing sentencing issues . . . , the appellate court shall conduct a de novo review
on the record of the issues. The review shall be conducted with a presumption that the
determinations made by the court from which the appeal is taken are correct.” T.C.A. §
40–35–401(d). “[T]he presumption of correctness ‘is conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances.’” State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If . . . the trial court applies
inappropriate mitigating and/or enhancement factors or otherwise fails to follow the
Sentencing Act, the presumption of correctness fails.” Id. at 345 (citing State v. Shelton, 854
S.W.2d 116, 123 (Tenn. Crim. App. 1992)). We are to also recognize that the defendant
bears “the burden of demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at
169.

        In making its sentencing determination, a trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence and then determines the specific
sentence and the appropriate combination of sentencing alternatives by considering: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report;
(3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature
and characteristics of the criminal conduct involved; (5) evidence and information offered
by the parties on the enhancement and mitigating factors; (6) any statistical information
provided by the administrative office of the courts regarding sentences for similar offenses;
(7) any statements the defendant wishes to make in the defendant’s behalf about sentencing;
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5);
State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995). When imposing the
sentence within the appropriate sentencing range for the defendant:


       [T]he court shall consider, but is not bound by, the following advisory
       sentencing guidelines:




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       (1) The minimum sentence within the range of punishment is the sentence that
       should be imposed, because the general assembly set the minimum length of
       sentence for each felony class to reflect the relative seriousness of each
       criminal offense in the felony classifications; and

       (2) The sentence length within the range should be adjusted, as appropriate, by
       the presence or absence of mitigating and enhancement factors set out in §§
       40-35-113 and 40-35-114.


T.C.A. § 40-35-210(c) (2006).

        At the outset we note that Appellant committed the criminal offenses at issue in April
of 2007; therefore, the 2005 amendments to the Sentencing Act apply to our review of his
sentencing. The 2005 amendments to the Sentencing Act made the application of the
enhancement factors advisory in nature. See T.C.A. § 40-35-114; State v. Jackie Lynn Gray,
No. M2007-02360-CCA-R3-CD, 2008 WL 2579175, at *5 (Tenn. Crim. App., at Nashville,
June 28, 2008), perm. app. denied, (Tenn. Dec. 29, 2008); State v. Troy Sollis, No. W2007-
00688-CCA-R3-CD, 2008 WL 1931688, at *3 (Tenn. Crim. App., at Jackson, May, 2, 2008).
In fact, “[t]he 2005 amendments [to the sentencing act] deleted as grounds for appeal a claim
that the trial court did not weigh properly the enhancement and mitigating factors.” State v.
Carter, 254 S.W.3d 335, 344 (Tenn. 2008).

        After a review of the transcript from the sentencing hearing, it is clear that the trial
court considered the nature and characteristics of the criminal conduct involved, Appellant’s
history and background, the mitigating and enhancement factors, and the principles of
sentencing. See id. at 345-46. Therefore, there is a presumption that the trial court’s
determination is correct. The trial court applied one enhancement factor: that Appellant had
“a previous history of criminal convictions.” T.C.A. § 40-35-114(1). With regard to
Appellant’s previous history of criminal convictions, the trial court stated that Appellant’s
previous history was “significant,” specifically noting convictions for underage consumption
of alcohol, assault, domestic violence, driving under the influence, driving on a revoked
license, stalking, and others that were misdemeanors. The trial court and the State noted that
the stalking conviction was similar to the facts in the present case. The trial court determined
that Appellant was a Range I, standard offender and was subject to a sentencing range of one
to two years. After application of the enhancement factor, the trial court sentenced Appellant
to two years.

       Appellant argues that the trial court improperly enhanced his sentence in part due to
the fact that one of the convictions for stalking was vacated on appeal. See State v. Vigil, 65

                                              -8-
S.W.3d 26 (Tenn. Crim. App. 2001). To the contrary, the trial court recognized during the
hearing that one of the two prior stalking convictions was reversed on appeal. As stated
above, the trial court specifically relied on the number of Appellant’s prior convictions when
the court was applying that enhancement factor. Even if the trial court had erroneously
considered the stalking conviction that was reversed, the record amply supports the enhanced
sentence. Appellant certainly had several remaining prior criminal convictions that justified
enhancing the sentence one year. Therefore, this issue is without merit.

                                         Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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