                                                                                           04/03/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              September 20, 2017 Session

                STATE OF TENNESSEE v. SAMUEL HUFFINE

                 Appeal from the Criminal Court for Sullivan County
                     No. S64194 James F. Goodwin, Jr., Judge
                      ___________________________________

                           No. E2016-02267-CCA-R3-CD
                       ___________________________________

Pursuant to a plea agreement, the Defendant, Samuel Huffine, pleaded guilty to vehicular
homicide by intoxication, reckless aggravated assault, reckless endangerment, driving
under the influence of an intoxicant, driving under the influence of an intoxicant per se,
driving left of center, and speeding, for an effective sentence of nine years, with the trial
court to determine the manner of service of the sentence. Following a sentencing
hearing, the trial court ordered the Defendant to serve his sentence in the Tennessee
Department of Correction. On appeal, the Defendant asserts that the trial court erred
when it denied an alternative sentence. We affirm the trial court’s judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and TIMOTHY L. EASTER, JJ., joined.

Troy L. Bowlin II, Morristown, Tennessee, for the appellant, Samuel Huffine.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Barry P. Staubus, District Attorney General; and Lesley A. Tiller, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts



       The State summarized the proof against the Defendant as follows:

       [O]n July 19th, 2014 at approximately 5 a.m. Bobby Jarrett was driving a
       2007 Kia Spectra eastbound on Stone Drive in Kingsport, Tennessee,
      Sullivan County, on his way to work at Food City. Meanwhile the
      defendant was driving west in the eastbound lanes on Stone Drive in a 2006
      Honda Accord and he hit Mr. Jarrett’s Kia head on. Mr. Jarrett died as a
      result of the crash and at trial the State would have presented testimony
      from a forensic pathologist that Mr. Jarrett died of blunt force trauma
      consistent with a car crash. At the time of the crash the defendant had a
      passenger in his vehicle, his wife, Summer Huffine, and she was injured in
      the crash. She suffered a concussion, broken bones in her foot and ribs and
      contusions on her face and elbow.

              The State’s proof would have been that in the hours leading up to the
      crash the defendant and his wife had been in downtown Bristol, Tennessee
      and at the time of the crash were on their way home. The State’s proof
      would have been that in the area of Stone Drive where the crash occurred
      there were three eastbound lanes, three westbound lanes and a center
      turning lane and that the area of impact was in the middle eastbound lane.
      There was a tractor/trailer driven by Brian Hobbs traveling behind Mr.
      Jarrett’s vehicle and the crash was captured on video by the tractor/trailer’s
      in cab video recording system. Due to the close proximity of Mr. Hobbs’
      truck to the crash location Mr. Hobbs was placed in imminent danger of
      death or serious bodily injury by the defendant’s conduct.

             The State would have presented testimony from Brian Gouge who
      saw the defendant’s vehicle start traveling in the oncoming lanes of traffic
      near the Eastman Credit Union ATM located just west of IHOP on Stone
      Drive. The State’s proof would have been that that location of the ATM
      was 1.1 miles west of the location of the crash.

            The defendant consented to a blood draw which was drawn at 6 a.m.,
      approximately one hour after the crash occurred and testing of his blood by
      the Tennessee Bureau of Investigation Laboratory revealed that his blood
      alcohol concentration was .152%. In addition Kingsport Police Officer
      Matt McGuire, who the State would tender as a crash reconstructionist,
      would put Mr. Huffine’s speed at the time of the crash at, at least, 60 miles
      per hour and the posted speed limit was 45.

The trial court reviewed the Defendant’s rights and the attendant waivers to entering a
guilty plea with the Defendant, who expressed his understanding and desire to enter
guilty pleas to all offenses.



                                          -2-
        The Defendant pleaded guilty to: (1) vehicular homicide by intoxication, a Class B
felony, to serve nine years as a Range I standard offender, with a 30% release eligibility
date, and a $350.00 fine; (2) reckless aggravated assault, a Class D felony, to serve four
years as a Range I standard offender, with a 30% release eligibility date, and a $50.00
fine; (3) reckless endangerment, a Class E felony, to serve two years as a Range I
standard offender, with a 30% release eligibility date, and a $50.00 fine; (4) DUI, which
the trial court merged with the vehicular homicide by intoxication conviction; (5) DUI
with a BAC greater than or equal to .08, which the trial court merged with the vehicular
homicide by intoxication conviction; (6) driving left of center, which the trial court
merged with the vehicular homicide by intoxication conviction; and (7) speeding, which
the trial court merged with the vehicular homicide by intoxication conviction. By
agreement of the parties, the sentences were to run concurrently with each other for a
total effective sentence of nine years, with the trial court to determine the manner of
service of the sentences.

        At a subsequent sentencing hearing, the parties presented the following proof:
Summer Huffine, the Defendant’s wife, testified that she and the Defendant had two
children. She stated that the Defendant was very involved in their children’s lives. Due
to his extensive involvement with their children, Ms. Huffine expressed concern over the
effect of his absence on the children should the trial court order incarceration. Ms.
Huffine said that the Defendant was currently employed in construction and was the
major provider in the home. Ms. Huffine explained that she had Type I Diabetes and that
the Defendant helped manage her medication and blood sugar levels and helped her to
“insert [her] pump and glucose monitor.” She described the Defendant as “a good,
hardworking, honest man who live[d] to work and care for other people.” Ms. Huffine
said that the Defendant had expressed remorse and regret over the accident and the pain
he had caused the Jarrett family.

       About the night of the accident, Ms. Huffine testified that she and the Defendant
were celebrating their wedding anniversary and arranged for the Defendant’s mother to
watch their children. The two planned to stay the night in Bristol and were asleep when
the Defendant’s mother called saying the “baby” would not go to sleep. The Defendant
woke up Ms. Huffine and told her they needed to go get their children. It was on the
drive to pick up the children that the car accident occurred. Ms. Huffine agreed that she
was injured in the accident. She could not recall the details of the statement she provided
to the police on the day of the accident, but she agreed that the signed statement did not
include the information about the phone call from the Defendant’s mother. She explained
that she did not remember “the crash at all” due to a concussion sustained during the
incident. Ms. Huffine testified that the Defendant was not “the partying type” and that
his main focus was their family. She described the Defendant’s behavior as “isolated.”

                                           -3-
Ms. Huffine stated that the Defendant had not had anything alcoholic to drink since the
accident.

       Pamela Huffine, the Defendant’s mother, testified that she was caring for the
Defendant’s children on the night of July 18, 2014. She said that she called the
Defendant “a few times” to let him know the children would not go to sleep. Pamela
Huffine said that she asked the Defendant to “come home.” Pamela Huffine said that the
Defendant did not indicate to her that he had been drinking and that it would be unsafe
for him to drive. She stated that if the Defendant had told her he had been drinking, she
would not have requested that he drive.

       Felicia Flannery, the Defendant’s mother-in-law, testified about the Defendant’s
involvement in his children’s lives. She stated that if the Defendant was not at work, he
was at home with his family. Ms. Flannery stated that it was her understanding that the
Defendant and Ms. Huffine had made arrangements to stay in Bristol the night of the
accident.

        The State called Dustin Jackson, a Kingsport Police officer, who testified that he
had been a traffic specialist assigned to the traffic unit. In this capacity, he compiled
statistics on traffic accidents. He testified that in 2014, the Kingsport Police Department
investigated approximately 3,000 crashes. Of those 3,000 crashes, approximately 500
were “serious injury crashes” and ten crashes were fatal. The ten fatal crashes resulted in
twelve deaths in Kingsport, Tennessee. Officer Jackson testified that there were
approximately 200 DUI arrests in 2014. He said the city of Kingsport was approximately
fifty-two square miles and had a population of “about 52,000.” Officer Jackson testified
that the 2015 statistics were similar except for a “record low” of four fatal crashes
resulting in five fatalities.

       Officer Jackson described Stone Drive as a six-lane divided highway that runs the
length of Kingsport and as “one of our major thoroughfares for the area.” He said that
approximately 30,000 vehicles a day travel on Stone Drive.

       The State submitted as evidence two video recordings from the early morning
hours of July 19, 2014. The first was from a police camera located at an intersection
before the location of the accident. The video footage depicts a Honda Accord driving
through a red light. The second video footage came from a video camera installed in a
Golden State food truck. The truck was driving behind the victim’s car and recorded the
crash. Both recordings show other vehicles on the road at the time of the crash.

      After hearing this evidence, the trial court stated that it had considered: the
evidence presented at the plea submission hearing, the sentencing hearing, the
                                           -4-
presentence report, the principals of sentencing and arguments made as to sentencing
alternatives, the nature and characteristics of the criminal conduct involved, the
arguments as to mitigating and enhancement factors, statistical information provided by
the Administrative Office of the Courts for similar offenses, and the Defendant’s
potential for rehabilitation or treatment. The trial court found applicable: enhancement
factor (1), that the Defendant had a history of criminal behavior; enhancement factor (2),
that more than one victim was involved; enhancement factor (10), that the Defendant had
no hesitation about committing a crime when the risk to human life was high; and
enhancement factor (14), that there was a violation of trust, which was applicable only to
Count 2 in which the victim was the Defendant’s wife. T.C.A. § 40-25-114(1), (2), (10),
and (14) (2014). The trial court also found mitigating factors applicable: that the
Defendant had expressed remorse for his conduct; that the Defendant had a strong work
history of providing for his family; that the Defendant took responsibility for his crimes;
and that the Defendant was involved in community activities. T.C.A. § 40-25-113(13)
(2014). After considering factors related to probation, the trial court concluded that the
Defendant should serve his sentences in the Tennessee Department of Correction. It is
from this judgment that the Defendant appeals.

                                       II. Analysis

       The Defendant asserts that the trial court erred in denying an alternative sentence.
Specifically, he argues that he is eligible for probation pursuant to Tennessee Code
Annotated section 40-35-303, that there is insufficient evidence to support a finding that
incarceration will serve as a deterrence to others, and that the nature of the offenses do
not outweigh factors weighing in favor of an alternative sentence. The State responds
that the trial court properly acted within its discretion when it denied alternative
sentencing.

       The standard of review for questions related to probation or any other form of
alternative sentencing is “‘an abuse of discretion standard of review, granting a
presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.’” State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012) (citing State v. Bise, 380 S.W.3d 682, 707 (Tenn.
2012). With regard to alternative sentencing, Tennessee Code Annotated section 40-35-
102(5) provides as follows:

              In recognition that state prison capacities and the funds to build and
       maintain them are limited, convicted felons committing the most severe
       offenses, possessing criminal histories evincing a clear disregard for the
       laws and morals of society, and evincing failure of past efforts at

                                           -5-
      rehabilitation shall be given first priority regarding sentencing involving
      incarceration.

A defendant shall be eligible for probation, subject to certain exceptions, if the sentence
imposed on the defendant is ten years or less. T.C.A. § 40-35-303(a). A defendant is
not, however, automatically entitled to probation as a matter of law. The burden is upon
the defendant to show that he or she is a suitable candidate for probation. T.C.A. § 40-3-
303(b); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs,
932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet this burden, the
defendant “must demonstrate that probation will ‘subserve the ends of justice and the best
interest of both the public and the defendant.’” State v. Bingham, 910 S.W.2d 448, 456
(Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim.
App. 1990)).

       There is no bright line rule for determining when a defendant should be granted
probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires
a case-by-case analysis considering “the nature of the offense and the totality of the
circumstances . . . including a defendant’s background.” State v. Ashby, 823 S.W.2d
166, 168 (Tenn. 1991) (quoting State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986)). In
determining if incarceration is appropriate in a given case, a trial court should consider
whether:

             (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.

T.C.A. § 40-35-103(1)(A)-(C). In addition, the sentence imposed should be (1) “no
greater than that deserved for the offense committed,” and (2) “the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” T.C.A. § 40-35-
103(2), -103(4). The party appealing a sentence bears the burden of establishing that the
sentence was improper. T.C.A. § 40-35-401, Sentencing Comm’n Cmts.

       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. T.C.A. § 40-35-103 (2014). A trial court should also
                                           -6-
“consider the circumstances of the offense, the defendant’s criminal record, the
defendant’s social history and present condition, the need for deterrence, and the best
interest of both the defendant and the public” in determining whether to grant or deny
probation.” State v. Ring, 56 S.W.3d 577, 586 (Tenn. Crim. App. 2001) (citations
omitted).

                                 A. Probation Eligibility

       A defendant who does not fall within the class of offenders contemplated by
Tennessee Code Annotated section 40-35-102(5), “and who is an especially mitigated
offender or standard offender convicted of a Class C, D or E felony, should be considered
as a favorable candidate for alternative sentencing options in the absence of evidence to
the contrary.” T.C.A. § 40-35-102(6). Even if a defendant is a favorable candidate for
alternative sentencing under Tennessee Code Annotated section 40-35-102(6), a trial
court may deny an alternative sentence pursuant to Tennessee Code Annotated section
40-35-103.

       Applying the relevant statutes, we find that the Defendant is not presumptively a
favorable candidate for alternative sentencing because he was convicted of a Class B
felony. Even so, probation shall automatically be considered because the length of the
Defendant’s sentence is nine years. See T.C.A. § 40-35-303(a). The trial court
considered probation, found that it was not appropriate in this case, and stated its reasons
on the record: to avoid depreciating the seriousness of the offense, deterrence, and the
Defendant’s lack of potential for rehabilitation. See T.C.A. § 40-35-103. Thus, the issue
is whether the trial court’s reasons for denying alternative sentencing comport with the
Criminal Sentencing Reform Act of 1989.

                                B. Enhancement Factors

        In considering an alternative sentence, the trial court considered enhancement
factors and found applicable: enhancement factor (1), that the Defendant had a history of
criminal behavior; enhancement factor (2), that more than one victim was involved;
enhancement factor (10) that the Defendant had no hesitation about committing a crime
when the risk to human life was high; and enhancement factor (14), that there was a
violation of trust in which the Defendant’s wife was the victim. T.C.A. § 40-35-114 (1),
(2), (10), and (14).

                            1. History of Criminal Behavior

       The trial court found applicable enhancement factor (1), that the Defendant had a
history of criminal convictions and criminal behavior. T.C.A. § 40-35-114. The trial
                                           -7-
court first considered a 2006 traffic conviction and then two 2006 “bad check” warrants.
As to the 2006 warrants, the trial court stated as follows:

      [T]he State has introduced as evidence, two prior bad check warrants out of
      the General Sessions Court for Washington County, Tennessee from 2006
      as well. It looks like those were criminal summons that were issued and
      they were returned, according to the presentence report . . . they were both
      returned to the clerk of the court un-served although we only have a
      certified copy of the front of the affidavit which doesn’t show any service.

The trial court correctly concluded that it could not consider these warrants as criminal
convictions. The trial court then went on to state that it would, however, consider the
warrants “as evidence of a prior criminal behavior.”

       In State v. Marshall, this court held that, “an arrest or charge is not considered
evidence of the commission of a crime.” See State v. Miller, 674 S.W.2d 279, 284
(Tenn.1984). There must be more than an unserved arrest warrant to support a finding
that the Defendant engaged in criminal behavior. Thus, we conclude that the trial court
erroneously applied this factor.

                              2. More Than One Victim

      Next, the trial court considered enhancement factor (3), that more than one victim
was involved. T.C.A. § 40-35-114(3). This factor may only be applied to persons not
named as a victim in an indictment and who were “injured, killed, had property stolen, or
had property destroyed by the perpetrator of the crime.” See State v. Williamson, 919
S.W.2d 69, 82 (Tenn. Crim. App. 1995); State v. Raines, 882 S.W.2d 376 (Tenn. Crim.
App. 1994).

       In this case, there were three victims: (1) Bobby Jarrett, named in the indictment
as the victim of vehicular homicide by intoxication; (2) Summer Huffine, named in the
indictment as the victim of reckless aggravated assault; and (3) Bryan Hobbs, named in
the indictment as the victim of reckless endangerment. This court has held that the “more
than one victim” factor may not be applied to enhance a sentence when the defendant is
separately convicted of the offenses committed against each victim. State v. Makoka, 885
S.W.2d 366, 373 (Tenn. Crim. App.); State v. Lambert, 741 S.W.2d 127, 134 (Tenn.
Crim. App. 1987). Thus, the trial court erroneously applied this factor.

  3. No Hesitation About Committing a Crime When the Risk to Human Life was
                                     High

                                          -8-
        The trial court applied enhancement factor (10), that the Defendant had no
hesitation about committing a crime when the risk to human life was high. T.C.A. § 40-
35-114(3). The offense of driving while intoxicated creates a high risk to human life and
potential for great bodily harm. As we have already noted, there were three specific
victims named in the indictment. As applied to those victims, the factor is encompassed
by the proof necessary to establish the offenses. See State v. Bingham, 910 S.W.2d 448.
The trial court did not state who it was considering as victims in applying this factor. In
viewing the video recordings of the crash, however, we note the headlights of other
vehicles on the roadway nearby at the time of the crash. Therefore, the record supports
the trial court’s finding that the Defendant created a risk to lives other than the victims
named in the indictment. Therefore, we conclude that the trial court correctly applied this
enhancement factor.

                                  4. Violation of Trust

       Finally, the trial court found applicable enhancement factor (14), that there was a
violation of trust, and applied this factor only to Count 2. T.C.A. § 40-35-114(14).
Count 2 of the indictment is the reckless aggravated assault of the Defendant’s wife,
Summer Huffine.

       This enhancement factor is often found applicable in cases involving adult
perpetrators and minor victims; however, our Supreme Court, in State v. Gutierrez,
addressed the application of this factor in the context of two adults.

              As stated in State v. Kissinger, to determine the application of the
      private trust factor, the court must look to “the nature of the relationship,”
      and whether that relationship “promoted confidence, reliability, or faith.”
      State v. Kissinger, 922 S.W.2d at 488. A relationship which promotes
      confidence, reliability, or faith, usually includes a degree of vulnerability. It
      is the exploitation of this vulnerability to achieve criminal purposes which
      is deemed more blameworthy and thus justifies application of the
      enhancement factor. Accordingly, factor [14] is construed to apply only
      where there is evidence that the nature of the relationship between the
      perpetrator and the adult victim caused the victim to be particularly
      vulnerable. If such a relationship or “private trust” is shown, the State must
      then prove that the perpetrator abused that relationship in committing the
      crime. As with all determinations regarding the application of an
      enhancement factor, the utilization of this analysis “is a task that must be
      undertaken on a case-by-case basis.” [State v.] Poole, 945 S.W.2d [93,] 96
      [(Tenn. 1991)].

                                            -9-
5 S.W. 3d 641, 646 (Tenn. 1999). Thus, this enhancement factor has been construed to
apply only when there is evidence that the nature of the relationship between the
perpetrator and an adult victim caused the victim to be particularly vulnerable. Id.

       In the present case, the record shows that the Defendant and Ms. Huffine were
married and had two children. Beyond that, there is little in the way of facts concerning
the existence of a relationship which promoted a reliance, confidence, and faith that
created a vulnerability on the part of Ms. Huffine. Because nothing in the record
supports a finding that the Defendant, for purposes of enhancement, occupied a position
of private trust with respect to Ms. Huffine, this enhancement factor should not have been
applied. Therefore, the trial court erroneously applied enhancement factor (14).
However, we note that the trial court gave this factor “minimal weight,” and then stated
“I don’t think I’m giving it probably any consideration at all.”

                                  C. Probation Factors

       As earlier stated, Tennessee Code Annotated section 40-35-103 provides factors
for consideration when a trial court is determining whether to order incarceration.

             (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.

T.C.A. § 40-35-103(1). 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. T.C.A. § 40-35-103 (2014). A trial court
should also “consider the circumstances of the offense, the defendant’s criminal record,
the defendant’s social history and present condition, the need for deterrence, and the best
interest of both the defendant and the public” in determining whether to grant or deny
probation.” State v. Ring, 56 S.W.3d 577, 586 (Tenn. Crim. App. 2001) (citations
omitted).

       The trial court found that the Defendant did not have a long history of criminal
conduct nor had measures less restrictive than confinement been unsuccessfully applied.
The trial court found applicable that confinement was necessary to avoid depreciating the
                                          - 10 -
seriousness of the offense, that confinement would serve as an effective deterrence, and
that the Defendant had a low potential for rehabilitation.

        1. Confinement To Avoid Depreciating the Seriousness of the Offense

       The trial court gave “great weight” to this factor. The trial court stated that it did
not believe the Defendant’s version of the events that he was “pressured into leaving
Bristol to come back to Kingsport” due to his mother’s phone call regarding the children.
The trial court found:

       Mr. and Ms. Huffine got back in the car and drove to Kingsport after a
       night of drinking and they made the decision to do that and Bobby Jarrett
       died as a result and based on all the facts that I’ve heard . . . full probation
       would unduly depreciate the seriousness of this offense.

This Court has previously held that in vehicular assault cases involving drunken driving
where the victim sustains severe injuries, some confinement may be warranted in order to
avoid depreciating the seriousness of the offense. State v. Kyte, 874 S.W.2d 631, 633
(Tenn. Crim. App. 1993). Further, exposing passengers and other motorists to the
dangers of drunken driving has been held to be a sufficiently reprehensible circumstance
of the offense of vehicular homicide to justify a denial of full probation and an imposition
of a period of confinement. Bingham, 910 S.W.2d at 456; State v. Butler, 880 S.W.2d
395, 401 (Tenn. Crim. App. 1994). Therefore, the record supports the application of this
factor.

                                       2. Deterrence

        Next, the trial court considered whether confinement is particularly suited to
provide an effective deterrent. The trial court relied on Officer Jackson’s testimony
regarding the 3,000 automobile crashes, 200 DUI arrests, and twelve accident-related
fatalities in Kingsport in 2014. These statistics were roughly consistent with the 2015
statistics for Kingsport, a city of 52,000 people with 500 miles of roadway. The trial
court found that confinement was particularly suited to provide a deterrent and gave “a
small degree of weight” to this factor. The record supports the trial court’s application of
this factor.

                                     3. Rehabilitation

       In considering the Defendant’s potential for rehabilitation, the trial court made the
following findings:

                                            - 11 -
       [The Defendant] self-reports that he does not have a drinking problem, that
       he drinks occasionally at dinner, denies any past use of illegal or non-
       prescribed drugs. The court is of the opinion the fact that hours after he
       says he stopped drinking he is still a .152 which is very near double the
       legal limit. The court is of the opinion based on the proof that I’ve heard
       and this presentence report that he is in denial about an alcohol problem.
       Now binge drinking, which is what this was, the testimony of his wife was,
       Summer Huffine was that they hadn’t had, and his statement, too, that they
       hadn’t had a date night and they allowed friends to let loose basically and
       given the degree of blood alcohol still in his system at 6 a.m. the next day,
       the next morning, the court is concerned that he does have a problem, that
       he’s not faced that problem and that that could become a potential issue for
       rehabilitation based on the proof that’s in the record. In his statement on
       page 6 he doesn’t, other than saying that he drank, had a few drinks, that’s
       all he says about it. I find that that’s a negative factor.

      In considering the issue of a defendant’s potential for rehabilitation, this court has
previously found that the failure to accept responsibility for one’s actions is a proper
consideration for determining potential for rehabilitation. See State v. Dowdy, 894
S.W.2d 301, 306 (Tenn. Crim. App. 1994).

       According to the testimony at the sentencing hearing and the Defendant’s own
statement in the presentence report, he has stopped drinking alcohol since the accident.
The Defendant graduated from high school with a 3.2 grade point average and received a
track scholarship from East Tennessee State University, where he enrolled in the pre-med
program. The Defendant has a strong work history and has not shown a pattern of
repeated criminal behavior or repeatedly violated the terms of sentences involving release
into the community. The Defendant is married with two children, ages nine and three at
the time of the presentence report. By all accounts, he is very involved in the parenting
of both children. The Defendant has no history of drug or alcohol abuse. He reports that
he is an occasional drinker, and this statement is supported by the testimony of his wife
and mother-in-law. In our view, the Defendant has a high potential for not re-offending
and remaining a productive member of society. The Defendant’s potential for
rehabilitation is an important factor for the trial court to consider and should be a broader
consideration than the issue of whether the Defendant might have an alcohol problem.

       In sum, however, the record contains substantial evidence supporting the trial
court’s decision to deny probation. Notwithstanding the trial court’s errors as discussed
herein, the Defendant has failed to rebut the presumption of reasonableness this court
must afford to all in-range sentencing decisions. See Caudle, 388 S.W.3d at 278-79. The

                                           - 12 -
defendant’s claim that the trial court abused its discretion by denying an alternative
sentencing is not supported by the record.

                                  III. CONCLUSION

      For the foregoing reasons, the judgments of the trial court are affirmed.



                                             ____________________________________
                                                  ROBERT W. WEDEMEYER, JUDGE




                                          - 13 -
