                                                                                      01/30/2017




       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                        Assigned on Briefs January 10, 2017

        STATE OF TENNESSEE v. STEPHANIE LYNN FERGUSON

               Appeal from the Criminal Court for Davidson County
                    No. 2015-B-930    Monte Watkins, Judge
                    ___________________________________

                          No. M2016-01123-CCA-R3-CD
                      ___________________________________


The Defendant, Stephanie Lynn Ferguson, pleaded guilty to two counts of aggravated
vehicular homicide and one count of vehicular assault in the Criminal Court for Davidson
County. Following a sentencing hearing, the trial court imposed an effective sentence of
twenty-six years in the Department of Correction. On appeal, the Defendant contends
that her effective sentence does not comport with the fundamental purposes and
principles of sentencing. Specifically, she contends that the sentence imposed was not
the “least severe measure necessary,” that the trial court ignored applicable mitigating
factors, and that the court improperly determined she was a dangerous offender. Upon
review, we affirm the judgments of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Elaine Heard, Nashville, Tennessee, for the appellant, Stephanie Lynn Ferguson.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Kyle Anderson,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                      OPINION

                       I. Factual and Procedural Background

      This case arises from a multi-vehicle crash in which a truck driven by the
Defendant crashed into the back of a car occupied by Willie Nichols and Aaron Hall,
forcing their car into the back of another vehicle and resulting in Mr. Nichols’ and Mr.
Hall’s deaths. Based on the incident, the Davidson County Grand Jury indicted the
Defendant for the following offenses:


   Count                         Offense                              Victim
     1                    Vehicular Homicide                      Willie Nichols
     2              Aggravated Vehicular Homicide                 Willie Nichols
     3               Reckless Vehicular Homicide                  Willie Nichols
     4                    Vehicular Homicide                        Aaron Hall
     5              Aggravated Vehicular Homicide                   Aaron Hall
     6              Reckless Aggravated Homicide                    Aaron Hall
     7               Reckless Aggravated Assault                  Mistie Roberts
     8               Reckless Aggravated Assault                  Terrio Williams
     9               Reckless Aggravated Assault                  Coty Lavender
    10               Reckless Aggravated Assault                 Nichole Lavender
    11                     Vehicular Assault                     Ashley Morrison
    12               Driving on a Revoked License                       N/A
    13            Possession of a Controlled Substance                  N/A
    14             Possession of Drug Paraphernalia                     N/A
    15                    Filing a False Report                         N/A


       On March 24, 2016, the Defendant pleaded guilty to aggravated vehicular
homicide in Counts 2 and 5 and vehicular assault in Count 11, and the remaining counts
were dismissed. At the guilty plea submission hearing, the State offered the following
factual basis for the Defendant’s plea:

      [T]he facts are that on Thursday, the 22nd of January, 2015 at
      approximately 18 minutes after 11 a.m., Central and North Precinct officers
      responded to a motor vehicle crash, which occurred on Jefferson Street at
      3rd Avenue North here in Davidson County.

      This crash involved four vehicles. The first vehicle was a 2006 Toyota
      Tundra, which was driven by [the Defendant]; the second was a 2001
      Cadillac Deville, which was driven by Mr. Willie Nichols; the third was a
      2008 Ford Focus, which was driven by Coty Lavender, the fourth was a
      2008 Pontiac Grand Prix, which was driven by Mistie Roberts.



                                         -2-
The investigation revealed that the Toyota collided with the Cadillac, which
started a chain reaction, pushing the Cadillac into the Ford and the Ford
into the Pontiac. The driver of the Pontiac and her passenger, Mr. Terrio
Williams, were transported to Centennial Hospital with non[-]life
threatening injur[i]es. The driver of the Ford and her passenger, Ms.
Nichole Lavender, were transported to St. Thomas Midtown with non[-]life
threatening injuries. However, Mr. Nichols and his passenger, Mr. Aaron
Hall, were transported to Vanderbilt Medical Center with life threatening
injuries. [The Defendant] and her passenger, Ms. Ashley Morrison, were
transported to Vanderbilt Medical Center where they were in critical and
stable [condition]. Mr. Nichols and Mr. Hall were pronounced deceased
upon arrival at the hospital.

The Fatal Team Unit was dispatched to conduct an investigation. They
discovered a syringe at the accident. Officer Steele conducted interviews of
[the Defendant] and Ms. Morrison. Officer Steele observed track marks on
the left arm near the hand of [the Defendant].

[The Defendant] stated that she was not the driver of the vehicle but a . . .
“dude named John” was driving. Officer Steele interviewed Ms. Morrison,
and she advised that only she and [the Defendant] were in the vehicle, and
Ms. Morrison said that she had not been driving. . . . She verified who the
driver was.

Officers removed the air bags from the vehicle. They obtained a sample of
[the Defendant’s] DNA and compared that against the air bags. They also
obtained a search warrant for her DNA to compare against what was found
on the syringe. The . . . evidence obtained during the search warrants was
taken to the TBI and reported that the DNA profile obtained from the
driver’s side air bag was consistent with a mixture of three individuals, with
the major contributor being [the Defendant]. They reported that the DNA
profile obtained from the needle on the syringe was consistent with a
mixture of at least two individuals, and the major contributor matched [the
Defendant]. The TBI advised that the fluid inside the syringe showed that
it contained cocaine.

TBI also analyzed the blood drawn from [the Defendant] and . . . it revealed
the presence of Xanax, Ecgonice, Methyl Ester and Benzoylecgonine,
which are cocaine metabolites, and Levamisole, which is an additive in
cocaine.

                                    -3-
      [The Defendant’s] driver’s license was revoked at the time in that just prior
      to this crash, she had ple[]d guilty in General Sessions Court in this county .
      . . on January 22nd, [20]15, to DUI. She previously had ple[]d guilty . . . in
      this county on March 25th, 2014[,] to DUI and was [s]till on that probation
      at the time of this crash.

       At the Defendant’s subsequent sentencing hearing, Officer Kevin Coleman with
the Metro Nashville Police Department testified that he worked as a crash
reconstructionist with the police department’s fatal crash team. Officer Coleman stated
that around 11:18 a.m. on January 22, 2015, police dispatch received a call regarding a
crash involving four vehicles at the intersection of Third and Jefferson Street. All of the
vehicles’ occupants were transported to area hospitals following the crash. However,
Officer Coleman was notified that the two victims from the Cadillac Deville—Willie
Nichols and Aaron Hall—had been pronounced deceased at the hospital and that the
occupants of the Toyota Tundra were in critical condition. Another officer informed
Officer Coleman that the suspected driver of the Toyota Tundra—the Defendant—
reported that a man named “John” had been driving the truck at the time of the crash.
However, Ashley Morrison—the other occupant of the Toyota Tundra—told officers that
only she and the Defendant had been inside the truck. Officer Coleman testified that a
driver and a passenger in both of the remaining two vehicles were also injured in the
wreck.

       Officer Coleman testified that, during his investigation of the scene of the crash,
he removed the driver’s side air bag from the truck and had DNA samples taken from the
Defendant, and he sent this evidence to the Tennessee Bureau of Investigation (“TBI”)
crime lab. Officer Coleman testified that testing of the evidence indicated that the
Defendant had been driving the Toyota Tundra at the time of the crash when the air bags
were deployed. Officer Coleman stated that, at the scene of the crash, he found a syringe
on the ground outside of the truck and that another officer observed “fresh track marks”
on the Defendant’s left arm while she was in the hospital. Officer Coleman collected the
syringe as evidence, and subsequent TBI testing found that the syringe contained cocaine
and the Defendant’s DNA. Additionally, Officer Coleman testified that investigators
seized blood drawn from the Defendant at the hospital and that an analysis showed that
the Defendant had Xanax and cocaine metabolites in her blood stream at the time of the
blood draw.

       Jeneshia Harris testified that she was Mr. Hall’s daughter. She read a prepared
statement, in which she explained that the morning of the crash she had car trouble and
had called Mr. Hall, who “stopped what he was doing and . . . drove [her] to work.” She
described how she and other family members had suffered following the loss of her father
and stated that adjusting to life without him had been “a real struggle.”
                                           -4-
       Sherica Nichols and Rico Nichols, the children of Mr. Nichols, read prepared
statements to the court. Sherica1 explained that Mr. Nichols had been married to her
mother for thirty-two years at the time of his death. She described the pain caused to her
family by the loss of her father and stated that Mr. Nichols had been her “motivator and
[her] friend.” Rico explained that he was Mr. Nichols’s youngest son and Mr. Hall’s
godson. He described the devastating impact his father’s death had on him and his family
and stated that the Defendant’s “freedom may need to be taken away.”

       Tamara Weeks, the Defendant’s mother, testified that the wreck had convinced the
Defendant to “turn her life around.” Ms. Weeks stated that the Defendant had taken
responsibility for her actions and had acknowledged making “bad choices in her life[.]”
Ms. Weeks testified that, while incarcerated, the Defendant had taken part in every class
available to her in the jail and that the Defendant had plans to get her cosmetology license
upon release. Ms. Weeks believed that the Defendant needed outpatient rehabilitation for
her addictions and stated that, if the Defendant was released, Ms. Weeks would allow the
Defendant to live at her home where the Defendant’s children, ages five and ten, were
currently living. On cross-examination, Ms. Weeks acknowledged that the Defendant
had pled guilty to second offense DUI on the morning of the wreck. Additionally, she
agreed that the Defendant had several misdemeanor convictions in previous years and
that the Defendant had lived with her for part of that time. She stated that she had
encouraged the Defendant to attend rehab earlier, but the Defendant had never entered a
program.

       The Defendant testified that she had struggled with substance abuse for many
years leading up to the crash. She stated that she had been assessed for inpatient
treatment at one facility, but she had not qualified for the program. The Defendant
admitted that she had a “bad record,” consisting of numerous prior misdemeanor
convictions but no felonies. The Defendant testified that she had “partied” the night
before the crash, using cocaine until about 2:00 a.m. or 3:00 a.m. the morning of the
wreck. She stated that she also had Xanax in her system, which she had been prescribed.
The Defendant testified that she appeared in court on the morning of the wreck and that,
after court, she drove to a store in Madison. She explained that the wreck occurred as she
was driving to Melton Bonding Company.

       The Defendant stated that she took full responsibility for the series of decisions
that she made leading up to the crash, and she apologized to the victims’ family
members. The Defendant said that she had no memory of the wreck and did not recall

       1
       Because several witnesses share a common surname, we refer to these witnesses by their first
name. We intend no disrespect.
                                               -5-
telling officers that the driver of the truck had been an individual named “John.” The
Defendant testified that she had participated in several programs during her incarceration
and prior to sentencing, including substance abuse, anger management, and parenting
classes. She stated that she intended to obtain a cosmetology license upon her release
from jail. The Defendant asked that the trial court give her a “second chance” to lead a
better life.

       On cross-examination, the Defendant admitted that she began abusing heroin in
2013, using three to four doses of heroin a day. Additionally, she admitted that she began
taking cocaine in 2014 but that the amounts she took varied. The Defendant stated that
she did not tell the doctor who prescribed her Xanax that she used cocaine and heroin.
The Defendant testified that she never sought outpatient treatment for her drug abuse and
that she went for an assessment at an inpatient treatment center because it was a condition
of probation. The Defendant acknowledged that she had driven previously with her
children in the car after having taken heroin “hours before.” However, she claimed that
she had been careful to make sure that the heroin was out of her system before driving.
The Defendant agreed that she had five prior probation violations and that she had been
sentenced to probation for multiple prior convictions.

       At the conclusion of the hearing, the trial court stated that it had considered the
presentence report, evidence from the sentencing hearing, the principles of sentencing,
the arguments of counsel, and the nature of the Defendant’s conduct. The trial court
found that the Defendant had a total of twenty-three prior misdemeanor convictions for
offenses that she committed between the ages of eighteen and twenty-nine and that
“nothing seemed to change her from continuing to do the kinds of things that she did to
get arrested[.]” The trial court noted that, prior to the instant offenses, the Defendant
took heroin several times a day and drove with her young children in the car. Moreover,
the Defendant used cocaine mere hours before appearing in court on the day of the crash,
and the Defendant drove that day even though she knew it was illegal for her to do so.
Regarding enhancement factors, the trial court found that the Defendant had a previous
history of criminal convictions and criminal behavior; the offense involved more than one
victim; the Defendant had previously failed to comply with the conditions of a sentence
involving release into the community; the Defendant had no hesitation in committing a
crime when the risk to human life was high; and the Defendant was on probation at the
time of the offense. As a mitigating factor, the trial court considered that the Defendant
had participated in various classes while in jail; however, the court noted that the
Defendant had never actively sought treatment before being arrested on the instant
charges.

      Next, the trial court found that several factors supported the imposition of
consecutive sentencing. Specifically, the trial court found that the Defendant had an
                                           -6-
extensive record of criminal activity and that the Defendant had committed the instant
offenses while on probation. The trial court also determined that the Defendant was a
dangerous offender, that her behavior indicated little to no regard for human life, and that
she had no hesitation about committing a crime in which the risk to human life was high.
In concluding that the Defendant was a dangerous offender, the trial court stated:

       I don’t often find individuals to be dangerous offenders for single acts. But
       when a person continuously commits violations of the law and continue[s]
       to go about and disregard any restraints they have on them because of their
       violations of the law, I think that that makes an individual a dangerous
       offender. And, in this case, her behavior indicated little or no regard for
       human life and she had no hesitation about committing a crime in which the
       risk to human life was high.

The trial court then made additional findings, as required by State v. Wilkerson, 905
S.W.2d 933 (Tenn. 1995), that confinement for an extended period of time was necessary
to protect society against further criminal conduct of the Defendant and that the aggregate
sentence length was reasonably related to the offenses for which the Defendant was
convicted. Based on these findings, the trial court sentenced the Defendant to twenty-two
years each for Counts 2 and 5 and four years for Count 11. The trial court ordered that
the Defendant serve the sentences in Counts 2 and 5 concurrently and the sentence in
Count 11 consecutively, for a total effective sentence of twenty-six years’ incarceration.
This timely appeal follows.

                                       II. Analysis

        On appeal, the Defendant contends that the trial court abused its discretion in
sentencing her to an effective sentence of twenty-six years in the Department of
Correction. The Defendant asserts that the sentence imposed was not the “least severe
measure necessary,” that the trial court ignored applicable mitigating factors, and that the
trial court improperly determined that she was a dangerous offender. The State responds
that the trial court properly sentenced the Defendant. We agree with the State.

       When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). A finding of abuse of discretion “‘reflects that the trial court’s logic
and reasoning was improper when viewed in light of the factual circumstances and
relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553,
555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). “[A] trial
                                           -7-
court’s misapplication of an enhancement or mitigating factor does not remove the
presumption of reasonableness from its sentencing determination.” Bise, 380 S.W.3d at
709. Moreover, under those circumstances, this court may not disturb the sentence even
if it had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn.
2008).

        In determining the proper sentence, the trial court must consider: (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 mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made in the defendant’s own behalf
about sentencing. See Tenn. Code Ann. § 40-35-210; State v. Taylor, 63 S.W.3d 400,
411 (Tenn. Crim. App. 2001). The trial court must also consider the potential or lack of
potential for rehabilitation or treatment of the defendant in determining the sentence
alternative or length of a term to be imposed. Tenn. Code Ann. § 40-35-103 (2010).

        To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code
Ann. § 40-35-210(e) (2010); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in
the articulation of the reasons for imposing a particular sentence . . . should not negate the
presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging
the sentence on appeal bears the burden of establishing that the sentence was improper.
Tenn. Code Ann. § 40-35-401 (2010), Sentencing Comm’n Cmts.

        In this case, the Defendant pleaded guilty to two counts of aggravated vehicular
homicide, a Class A felony, and vehicular assault, a Class D felony. See Tenn. Code
Ann. §§ 39-13-218(d) (2014), 39-13-106(b)(1) (Supp. 2013). The trial court determined
that the Defendant was a standard Range I offender, and a Range I sentence for a Class A
felony is “not less than fifteen nor more than twenty-five years[.]” Tenn. Code Ann. §
40-35-112(a)(1). A Range I sentence for a Class D felony is “not less than two nor more
than four years[.]” Tenn. Code Ann. § 40-35-112(a)(4). Because the trial court ordered
the Defendant to serve a sentence within Range I, a presumption of reasonableness
applies to the trial court’s decision, and we will not reverse absent an abuse of discretion.

       In setting the length of sentence within the range, the trial court found that one
mitigating factor and multiple enhancement factors applied. Specifically, the trial court
considered the Defendant’s participation in classes at the jail as a mitigating factor. See
Tenn. Code Ann. § 40-35-113(13). As to enhancement factors, the trial court considered
                                            -8-
that the Defendant had a previous history of criminal convictions or criminal behavior, in
addition to those necessary to establish the appropriate range; the offense involved more
than one victim; the Defendant had previously failed to comply with the conditions of a
sentence involving release into the community; the Defendant had no hesitation in
committing a crime when the risk to human life was high; and, at the time the felonies
were committed, the Defendant was on probation. See Tenn. Code Ann. § 40-35-114(1),
(3), (8), (10), and (13)(C). On appeal, the Defendant does not dispute the trial court’s
reliance on these factors, and our review of the record supports the trial court’s
application of the factors. The record shows that the Defendant was previously convicted
of twenty-three misdemeanors, including multiple convictions for DUI, driving on a
revoked license, and possession of drugs. Additionally, the Defendant admitted to a
history of illegal drug use, that she used cocaine the night before the offenses, and that
she sometimes drove after using drugs. The Defendant admitted that she had five prior
probation violations, and the record shows that the Defendant was serving a probationary
sentence at the time she committed the instant offenses as she had been placed on
probation for second offense DUI mere hours before the wreck.

       The Defendant asserts that the trial court should have considered, as additional
mitigating evidence, that she had shown remorse and that she had been motivated by a
desire to provide for her family and herself because she was “in the act of retrieving her
paycheck to support her two minor children” when she committed the offenses. We note,
however, that the record establishes that the Defendant was driving to Melton Bonding
Company when the wreck occurred, and the Defendant offered no proof that she
committed the instant offenses in order to support her children or herself. Moreover,
mitigating and enhancement factors are advisory only, and the weight given to those
factors is entirely within the trial court’s discretion. Bise, 380 S.W.3d at 701; Carter, 254
S.W.3d at 345. The trial court did not abuse its discretion when it sentenced the
Defendant to within-range sentences of twenty-two years each for aggravated vehicular
homicide and four years for vehicular assault.

       The Tennessee Supreme Court has expanded the standard of review in Bise to trial
courts’ decisions regarding consecutive sentencing. State v. Pollard, 432 S.W.3d 851,
859 (Tenn. 2013). “So long as a trial court properly articulates reasons for ordering
consecutive sentences, thereby providing a basis for meaningful appellate review, the
sentences will be presumed reasonable and, absent an abuse of discretion, upheld on
appeal.” Id. at 862 (citing Tenn. R. Crim. P. 32(c)(1); Bise, 380 S.W.3d at 705).

       Tennessee Code Annotated section 40-35-115 sets forth seven different situations
in which a trial court may impose consecutive sentencing. Specifically, a trial court may
order sentences to run consecutively if the court finds by a preponderance of the evidence
that:
                                            -9-
            (1) The defendant is a professional criminal who has knowingly
      devoted the defendant’s life to criminal acts as a major source of livelihood;

             (2) The defendant is an offender whose record of criminal activity is
      extensive;

             (3) The defendant is a dangerous mentally abnormal person so
      declared by a competent psychiatrist who concludes as a result of an
      investigation prior to sentencing that the defendant’s criminal conduct has
      been characterized by a pattern of repetitive or compulsive behavior with
      heedless indifference to consequences;

              (4) The defendant is a dangerous offender whose behavior indicates
      little or no regard for human life and no hesitation about committing a
      crime in which the risk to human life is high;

             (5) The defendant is convicted of two (2) or more statutory offenses
      involving sexual abuse of a minor with consideration of the aggravating
      circumstances arising from the relationship between the defendant and
      victim or victims, the time span of defendant’s undetected sexual activity,
      the nature and scope of the sexual acts and the extent of the residual,
      physical and mental damage to the victim or victims;

             (6) The defendant is sentenced for an offense committed while on
      probation; or

             (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b). Before a trial court may impose consecutive sentences
on the basis that a defendant is a dangerous offender, the trial court must also find “that
an extended sentence is necessary to protect the public against further criminal conduct
by the defendant and that the consecutive sentences must reasonably relate to the severity
of the offenses committed.” Wilkerson, 905 S.W.2d at 939.

        In this case, the trial court concluded that several factors supported consecutive
sentencing. The trial court found that the Defendant had an extensive record of criminal
activity and that the Defendant committed the offenses while on probation. See Tenn.
Code Ann. § 40-35-115(b)(2), (6). The record clearly supports the trial court’s reliance
on these factors. The trial court also found that the Defendant was a dangerous offender
whose behavior indicates little or no regard for human life and no hesitation about
                                          - 10 -
committing a crime in which the risk to human life is high. See id. § 40-35-115(b)(4).
The court then made the additional findings under Wilkerson when addressing the
dangerous offender factor. The Defendant contends that the trial court improperly
determined that she was a dangerous offender based on the Defendant’s “unwillingness to
lead a productive life.”2 However, even if we agreed with the Defendant’s contention,
only one statutory factor is necessary to support consecutive sentencing, State v.
Mickens, 123 S.W.3d 355, 394 (Tenn. Crim. App. 2003), and the Defendant does not
contest the trial court’s findings that the Defendant’s record of criminal activity was
extensive and that the Defendant committed the offenses while on probation. Here, the
trial court properly articulated its reasons for ordering consecutive sentences, and we
presume that the sentences are reasonable absent an abuse of discretion. Pollard, 432
S.W.3d at 862. The Defendant has not shown an abuse of discretion in the imposition of
consecutive sentences, and therefore, she is not entitled to relief on this ground.

                                           III. Conclusion

        For the aforementioned reasons, we affirm the judgments of the trial court.



                                                        __________________________________
                                                        ROBERT L. HOLLOWAY, JR., JUDGE




        2
          While addressing the Wilkerson factors, the trial court initially commented that “[c]onfinement
for an extended period of time is necessary to protect society from the [D]efendant’s unwillingness to lead
a productive life.” The trial court then stated that the aggregate sentence was “necessary to protect the
public against further criminal conduct by the [D]efendant,” which is a proper finding under Wilkerson.
                                                  - 11 -
