            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                 FILED
                              AT KNOXVILLE

                           JANUARY 1998 SESSION
                                                                 March 22, 2000




STATE OF TENNESSEE,           *    C.C.A. NO. 03C01-9704-CR-00144
                                                           Cecil Crowson, Jr.

                                                              Appellate Court Clerk
      APPELLEE,               *    HAMILTON COUNTY

VS.                           *    Hon. Stephen M. Bevil, Judge

HARVEY PHILLIP HESTER,        *    (Second Degree Murder--Two Counts;
                                   Attempted Second Degree Murder)
      APPELLANT.              *




For Appellant:                     For Appellee:

Leonard M. Caputo                  Paul G. Summers
312 Vine Street                    Attorney General and Reporter
Chattanooga, TN 37403
(on appeal and at trial)           Michael J. Fahey II
                                   Assistant Attorney General
Leroy Phillips, Jr.                425 Fifth Avenue, North
312 Vine Street                    Second Floor, Cordell Hull Building
Chattanooga, TN 37403              Nashville, TN 37243-0488
(at trial)
                                   Bates Bryan
                                   Assistant District Attorney General
                                   600 Market Street
                                   Courts Building
                                   Chattanooga, TN 37402




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, PRESIDING JUDGE
                                        OPINION

              The defendant, Harvey Phillip Hester, was convicted of two counts of

second degree murder and one count of attempted second degree murder. The trial

court imposed twenty-five-year terms for each murder conviction and a twelve-year

term for the attempted second degree murder conviction. Because the three

sentences are to be served consecutively, the effective sentence is sixty-two years.



              In the appeal of right to this court, the defendant challenged the

sufficiency of the evidence, alleged prosecutorial misconduct, questioned the

admission of certain evidence, alleged error by the failure to charge lesser included

offenses, and challenged the propriety of the sentences. On June 4, 1998, this

court filed an opinion, concluding that the trial court had committed error by failing to

instruct the jury on the lesser offense of vehicular homicide. In consequence, the

two second degree murder convictions were reversed and new trials ordered. The

conviction for attempted second degree murder was affirmed. State v. Harvey

Phillip Hester, No. 03C01-9704-CR-00144 (Tenn. Crim. App., at Knoxville, Jun. 4,

1998).



              On August 5, 1998, the state applied for permission to appeal. On

February 7, 2000, our supreme court remanded the case for reconsideration in light

of its opinion in State v. Dominy, 6 S.W.3d 472 (Tenn. 1999), which was released

over a year after the entry of our original opinion. Because Dominy involved the

issue of lesser included offenses only, the remand does not affect the attempted

second degree murder conviction in this case and does not alter the analyses in our

original opinion as to other issues. So as to avoid confusion, sections I, III, IV, and

V from our original opinion will be restated in their entirety. Only Section II, that

portion dealing with the issue of lesser included offenses, has been changed.


                                            2
              On August 8, 1994, Richard Serna (Richard), his daughter, Angela,

and his brother, Paul Serna (Paul), drove to the "blue hole" on Suck Creek Road at

Signal Mountain to swim. Upon their arrival, the defendant was in the parking lot.

Richard Serna briefly engaged in friendly conversation with the defendant after

which the Sernas walked to the swimming area. Sometime later, the defendant

approached them and asked if they had seen his wallet. The defendant searched

unsuccessfully for his wallet and then left. Angela described this exchange as

"pleasant."



              About five minutes later, the defendant returned and again inquired

about his wallet. He pointed out that the Sernas were the only others in the area

and explained that his wallet contained around $2,200. The defendant left but soon

returned and insisted his wallet had to "be here somewhere." When he mentioned

that he had a gun in his car, the Sernas were surprised. Paul placed a knife in his

pocket but made no threats to the defendant.



              After the defendant left, the Sernas gathered their belongings and

returned to their car. When they reached the parking lot, the defendant asked

permission to search. While the Sernas allowed a search, the defendant did not

find his wallet. The Sernas then drove away. After driving on a short distance, the

Sernas noted the defendant was following them. He rammed the back of their car

several times and, at one point, the Sernas' car "fishtailed" around a bigger truck.



              At trial, Angela testified that the defendant struck their vehicle in the

rear "over and over again ... continuously the whole way down the mountain." She

estimated that their vehicle was struck more than twenty times. As their car passed

by the Suck Creek Boat Ramp, Angela yelled out the window asking for someone to


                                            3
call the police.



              She recalled that at the bottom of the mountain, Suck Creek Road

terminates at its intersection with Signal Mountain Boulevard, a four-lane road. She

remembered that the defendant rammed their car into the four-lane road. At

another intersection, only a short distance away, Richard and Paul Serna stopped

their vehicle and confronted the defendant. Paul drew his knife from his pocket but

held it to his side. Angela testified that an argument ensued about the wallet but

that her next memory was waking up in the hospital. Initially unable to recognize her

mother, Angela Serna had suffered a broken pelvic bone and a broken leg. All of

her facial bones were broken. She required bone graft surgery on her nose.



              James Pilkington, who observed the confrontation at the intersection of

Mountain Creek Road and Signal Mountain Boulevard, testified that the Sernas

appeared to be frightened. When Pilkington stopped at a nearby Conoco to call the

police, he noticed the Sernas' vehicle drive by and thought the altercation might

have ended. When he drove around a curve, however, he saw that the Sernas had

been involved in a wreck.



               Mark Payne, who also saw the confrontation between the Sernas and

the defendant at the intersection of Signal Mountain Boulevard and Mountain Creek

Road, testified that either Richard or Paul was standing on the side of the road with

a terrified look on his face. He saw that individual run and then observed the driver

of the Serna vehicle stop to allow him to enter. The defendant's vehicle "shot right

through the light and started chasing [the Sernas'] Nissan." Payne described the

defendant as "chasing [the victims] down." Michael Eugene Hood, who also

witnessed the confrontation at the intersection, corroborated Payne's version of the


                                          4
events.



              James DeSha, who was traveling on Signal Mountain Boulevard on

the day of the wreck, testified that he saw a white Cutlass ram a red Nissan Pulsar

on two occasions. He also saw the Cutlass move to the outside lane to the right

side of the Nissan and "turned in on him," ramming into the back bumper of the

Nissan, spinning it sideways. He recalled that the Sernas' Nissan slid sideways,

became airborne, flew across a red Thunderbird, and onto the hood of a green

Dodge. DeSha claimed that the defendant, who was driving the Cutlass, grinned as

he drove away at a high rate of speed. DeSha was able to get the license plate

number of the Cutlass.



              Officer Charles Russell of the Chattanooga Police Department

investigated the accident. He found three cars with "a considerable amount of

damage." The victims' car contained several beer cans. At approximately 1:00 A.M.

the day after the wreck, he located the Cutlass driven by the defendant. The license

tags had been removed. While there were no dents to the front of the defendant's

car, the front right fender did have a presence of red paint, the color of the Serna

vehicle. The defendant, who had suffered a black eye, voluntarily turned himself in

to police.



              Dr. Charles Harlan performed an autopsy on Paul Serna. Death

resulted from a ring fracture of C-1 and C-2 cervical vertebrae, which is the area

where the skull fits on to the vertebral column. His blood alcohol content was .03

percent, which indicated he had consumed less than two units of alcohol.



              Richard Serna, who had a blood alcohol content of .032 percent, was


                                           5
a quadriplegic due to the brain injuries suffered in the accident. He died on January

20, 1995, several months after the car wreck. According to Dr. Frank King, the

Hamilton County Medical Examiner, the cause of death was "acute bronchial

pneumonia due to chronic medical debilitation due to head injury."



              Attorney Joe McBrien, who represented the defendant in a civil case,

appeared as a defense witness. He testified that the defendant had received a

settlement award of $3518.75 six days before this incident. He recalled that the

defendant received cash in that amount.



              John Hackney, who lived at the foot of Suck Creek Mountain, was

traveling to his residence on the day of the wreck, when he passed a car and then

saw a billfold "blow up in the air." He stopped his vehicle and found the billfold and

large denominations of cash lying on the ground. He testified that he picked

everything up and left. The identification in the billfold was that of the defendant.

Hackney admitted that he kept the money. He burned the wallet. He conceded that

he had bragged to his co-workers about finding the cash, which is how the defense

attorneys eventually located him. He acknowledged that he never notified the police

about finding the wallet.



              Terry Thurman, who testified through an interpreter, recalled that she

saw the defendant and the victims in a confrontation at an intersection on Signal

Mountain Boulevard. She observed one of the Serna men holding a knife up in the

air.



              David Blackburn testified that he was with the defendant at the time of

the wreck. An individual named John and a girl whose name he could not recall


                                           6
were also present. Blackburn recalled that the defendant had a large amount of

money in his possession before they went to the swimming hole. Blackburn testified

that he separated from the defendant and then saw him in the parking lot. His eye

was swelling shut and his nose or mouth was "busted." The defendant claimed that

the people pulling away in another car had just robbed him.



              Blackburn testified that the defendant followed the Sernas down the

mountain and bumped their car several times. W hen they reached Signal Mountain

Boulevard, the defendant and John got out of their vehicle. He saw one of the

Sernas approach waving a knife; when the Sernas returned to their vehicle, the

defendant continued to follow them. Blackburn testified that he suggested that the

defendant continue to follow so they could eventually call the police. Blackburn

claimed that the driver of the Nissan kept swerving in and out in an attempt to keep

the defendant from driving alongside. He testified that after the accident, the

defendant drove him to his car. Blackburn was charged with "accessory after the

fact" but the charges were dismissed. He acknowledged prior convictions for theft,

robbery, and drug-related offenses.



                                            I

              The defendant first argues the evidence is insufficient to support the

verdict. He argues the proof would at most establish vehicular homicide or vehicular

assault.



              On appeal, the state is entitled to the strongest legitimate view of the

trial testimony and all reasonable inferences which might be drawn therefrom. State

v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses,

the weight to be given their testimony, and the reconciliation of conflicts in the proof


                                            7
are matters entrusted to the jury as trier of fact. Byrge v. State, 575 S.W.2d 292,

295 (Tenn. Crim. App. 1978). The relevant question is whether, after reviewing the

evidence in the light most favorable to the state, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).



              Second degree murder is defined as a "knowing killing of another."

Tenn. Code Ann. § 39-13-210(a)(1). Our code defines "knowing" conduct as

follows:

              "Knowing" refers to a person who acts knowingly with
              respect to the conduct or to circumstances surrounding
              the conduct when the person is aware of the nature of
              the conduct or that the circumstances exist. A person
              acts knowingly with respect to the result of the person's
              conduct when the person is aware that the conduct is
              reasonably certain to cause the result.

Tenn. Code Ann. § 39-11-302(b).



               A person engages in criminal attempt when he acts with the degree of

culpability otherwise required and "[a]cts with intent to complete a course of action

or cause a result that would constitute the offense, under the circumstances

surrounding the conduct as the person believes them to be, and the conduct

constitutes a substantial step toward the commission of the offense." Tenn. Code

Ann. § 39-12-101(a)(3).



              In our view, there is sufficient evidence to support both of the second

degree murder convictions as well as the attempted second degree murder

conviction. Angela Serna testified the defendant rammed their vehicle more than

twenty times. At one point, the defendant rammed the Serna vehicle, causing it to

fishtail around an on-coming truck. DeSha testified that the defendant forced the


                                            8
Serna vehicle to slide into the path of a Thunderbird, thereby causing the injuries to

its occupants. There was evidence that the defendant then fled the scene traveling

at a high rate of speed. Obviously, the jury accredited the testimony of the state

witnesses.



              Second degree murder does not require an intentional killing. All that

is required is that the defendant "is aware that the conduct is reasonably certain to

cause the result." Tenn. Code Ann. § 39-11-302(b). Here, the defendant was able

to appreciate the dangers caused by his conduct. Even though the Sernas' vehicle

had almost collided with a truck just before the fatal wreck, the defendant continued

to ram the victims' vehicle from the rear and the side.



                                           II

              Next, the defendant argues that the trial court erred by failing to

instruct on a lesser included offense, vehicular homicide. Tenn. Code Ann. § 39-13-

213. The defendant argues that the trial judge had a duty under Tenn. Code Ann. §

40-18-110(a) to include in the instructions to the jury all lesser included offenses.



              First degree murder, second degree murder, voluntary manslaughter,

reckless homicide, and criminally negligent homicide were all charged to the jury.

When the defendant requested an instruction on vehicular homicide, the trial court

ruled as follows:

              [A]lthough I think the facts in this case could possibly
              support a charge to the jury on vehicular homicide, there
              is nothing, no language in the indictment which charges
              the offense of vehicular homicide, and it is a separate
              offense. This court is not going to charge vehicular
              homicide.



              The state argues that any error by refusing to charge vehicular

                                           9
homicide qualified as harmless error.



                   There is a statutory duty on the part of trial courts to charge not only

the offense listed in the indictment,1 but also all lesser included offenses. Tenn.

Code Ann. § 40-18-110. It has traditionally been held that the failure to charge a

lesser included offense denies a defendant his constitutional right to a trial by jury if

there are any facts "susceptible of inferring guilt on any lesser included offense or

offenses." State v. Wright, 618 S.W.2d 310, 315 (Tenn. Crim. App. 1981); see also

McGowan v. State, 17 Tenn. 184 (1836). If, however, the record is devoid of

evidence to support an inference of guilt as to the lesser offense, the trial court is

not required to instruct the jury on the lesser offense. State v. Vann, 976 S.W.2d 93

(Tenn. 1998); State v. Stephenson, 878 S.W.2d 530 (Tenn. 1994). In State v.

Bolden, our supreme court acknowledged that a "purpose of the statute is to protect

the right to trial by jury by instructing the jury on the elements of all offenses

embraced by the indictment [and to] facilitate . . . the overall truth-seeking function

of the process." 979 S.W.2d 587, 593 (Tenn. 1998).



                   In Beck v. Alabama, 447 U.S. 625 (1980), the United States Supreme

Court commented upon the basis of the duty to charge lesser included offenses:

                   At common law, the jury was permitted to find the
                   defendant guilty of any lesser offense necessarily
                   included in the offense charged. This rule originally


       1
           The indictments charge d as follows:

                   That Harvey Phillip Hester alias Harvey Clevenger heretofore on August 8,
                   1994, in the County aforesaid, did unlawfully, intentionally, deliberately and
                   with premeditation kill Paul Edward Serna, in violation of Tennessee Code
                   Annotated 39-13-2 02, against the peace an d dignity of the S tate.

                   That Harvey Phillip Hester alias Harvey Clevenger heretofore on August 8,
                   1994, in the County aforesaid, did unlawfully, intentionally, deliberately and
                   with premeditation inflict mortal injuries on Richard Anthony Serna which
                   resulted in the d eath of Rich ard Antho ny Serna on January 20 , 1995, in
                   violation of Tennessee Code Annotated 39-13-202, against the peace and
                   dignity of the State.

                                                        10
                 developed as an aid to the prosecution in cases in which
                 the proof failed to establish some element of the crime
                 charged. But it has long been recognized that it can also
                 be beneficial to the defendant because it affords the jury
                 a less drastic alternative than the choice between
                 conviction of the offense charged and acquittal.
                 [P]roviding the jury with the "third option" of convicting on
                 a lesser included offense ensures that the jury will accord
                 the defendant the full benefit of the reasonable-doubt
                 standard.

Id. at 633-34. In State v. Williams, 977 S.W.2d 101 (Tenn. 1998), a majority of our

supreme court indicated that there was merely a statutory right, rather than a

constitutional right, to a charge on lesser included offenses. 2 In State v. Langford,

994 S.W.2d 126 (Tenn. 1999), our supreme court again touched on the subject,

holding that "a trial court must instruct the jury on all lesser included offenses if the

evidence introduced at trial is legally sufficient to support a conviction for the lesser

offense." Id. at 128.



                 Recently, in State v. Burns, 6 S.W.3d 453 (Tenn. 1999), our supreme


        2
           See State v. Staggs, 554 S.W.2d 620 (Tenn. 1977) (a part of the constitutional right to trial by
jury is to have every issue mad e by the evide nce de termin ed by the jur y under a c orrect an d com plete
charge of the law); Strader v. State , 362 S.W.2d 224 (Tenn. 1962). Recent cases stating the rule that
failure to charge a lesser offense is a constitutional deprivation rely on State v. Wright, 618 S.W.2d
310 (T enn. Cr im. Ap p. 1981) (Joe D . Dunca n, Judg e), and inc lude the fo llowing: State v. Belser, 945
S.W .2d 776 ( Tenn . Crim. A pp. 1996 ); State v. Howard, 926 S.W .2d 579 (Tenn. Crim . App. 1996);
State v. Sum me rall, 926 S.W .2d 272 ( Tenn . Crim. A pp. 1995 ); State v. Ruane, 912 S.W.2d 766
(Tenn . Crim. A pp. 1995 ); State v. Lew is, 919 S.W .2d 62 (T enn. Cr im. Ap p. 1995) ; State v. Boyce, 920
S.W .2d 224 ( Tenn . Crim. A pp. 1995 ); State v. King, 905 S.W .2d 207 ( Tenn . Crim. A pp. 1995 ); State
v. McKnight, 900 S.W .2d 36 (T enn. Cr im. Ap p. 1994) ; State v. Vance, 888 S.W .2d 7 76 (T enn . Crim .
App. 19 94); State v. Banes, 874 S.W .2d 73 (T enn. Cr im. Ap p. 1993) ; State v. Richard Darrell Miller
and Johnny Wayne Garner, C.C.A. N o. 01C0 1-9703 -CC-0 0087 (T enn. Cr im. Ap p., at Nas hville, Sept.
11, 1998 ); State v. George Rose, C.C.A. No. 02C01-9710-CR-00405 (Tenn. Crim. App., at Jackson,
July 2, 1998 ); State v. Bec ky Da vis, C.C.A. No. 03C01-9701-CR-00027 (Tenn. Crim. App., at
Knoxv ille, May 1, 199 8); State v. Willie D. Graham, C.C .A. N o. 03 C01 -970 7-C C-0 031 4 (T enn . Crim .
App., at K noxville, Ma y 7, 1998); State v. Warren Tyrone Fowler, C.C.A. No. 03C01-9709-CC-00391
(Tenn . Crim. A pp., at Kno xville, Apr. 29 , 1998); State v. Harvey D'Hati Moore, C.C.A. No. 03C01-
9704-C R-001 31 (Te nn. Crim . App., at Kn oxville, Mar . 18, 1998 ); State v. Daniel Joe Brown, C.C.A.
No. 02C 01-961 1-CC -00385 (Tenn . Crim. A pp., at Jac kson , Dec. 3, 1 997); State v. Michael Tyrone
Gordon, C.C.A. N o. 01C0 1-9605 -CR-0 0213 (T enn. Cr im. Ap p., at Nas hville, Sept. 18 , 1997); State v.
George Brooks, C.C.A. N o. 02C0 1-9602 -CR-0 0050 (T enn. Cr im. Ap p., at Jack son, M ay 15, 199 7);
State v. Janice Hansbrough-Eason, C.C.A. No. 02C01-9504-CR-00098 (Tenn. Crim. App., at
Jack son, De c. 19, 199 6); State v. Hollis Ray Williams, C.C.A. No. 03C01-9406-CR-00209 (Tenn.
Crim . App., at Kn oxville, July 23, 1 996); State v. R andall Sc ott, C.C.A. No. 01C01-9307-CR-00240
(Tenn . Crim. A pp., at Na shville, Jan. 5 , 1996); State v. Deborah Gladish, C.C.A. No. 02C01-9404-CC-
00070 (Tenn . Crim. A pp., at Jac kson , Nov. 21 , 1995); State v. Eric J. Fa ir, C.C.A. No. 02C01-9403-
CR-00055 (T enn. Crim. App., at Jacks on, Nov. 15, 1995).



                                                    11
court revised the standards for the determination of lesser included offenses. Our

high court confirmed that in a companion case, State v. Dominy, 6 S.W.3d 472

(Tenn. 1999), it had overruled portions of the holding in State v. Trusty, 919 S.W.2d

305 (Tenn. 1996), in which the court had established a distinction between lesser

grades or classes of offenses and lesser included offenses. In Burns, the court

adopted a modified version of the model penal code in order to determine what

constitutes a lesser included offense:

              An offense is a lesser included offense if:

              (a)    all of its statutory elements are included within the
                     statutory elements of the offense charged; or

              (b)    it fails to meet the definition in part (a) only in the
                     respect that it contains a statutory element or
                     elements establishing

                     (1)     a different mental state indicating a lesser
                             kind of culpability; and/or

                     (2)     a less serious harm or risk of harm
                             to the same person, property or
                             public interest; or

              (c)    it consists of

                     (1)     facilitation of the offense charged or
                             of an offense that otherwise meets
                             the definition of lesser-included
                             offense in part (a) or (b); or

                     (2)     an attempt to commit the offense
                             charged or an offense that otherwise
                             meets the definition of lesser
                             included offense in part (a) or (b); or

                     (3)     solicitation to commit the offense
                             charged or an offense that otherwise
                             meets the definition of lesser-
                             included offense in part (a) or (b).

Burns, 6 S.W.3d at 466-67.



              There is a two-step process in determining whether the evidence

justifies a jury instruction on a lesser included offense:

                                            12
              First, the trial court must determine whether any
              evidence exists that reasonable minds could accept as to
              the lesser included offense. In making this
              determination, the trial court must view the evidence
              liberally in the light most favorable to the existence of the
              lesser-included offense without making any judgments on
              the credibility of such evidence. Second, the trial court
              must determine if the evidence, viewed in this light, is
              legally sufficient to support a conviction for the lesser-
              included offense.

Id. at 469.



              In Dominy, our supreme court set aside a conviction of spousal rape

on the basis that it was not a lesser included offense of aggravated rape. By

utilizing the Burns test, the court concluded that a marriage between the defendant

and the victim was an essential element to spousal rape, but not an element of

aggravated rape. Thus, section (a) of the Burns test did not apply. Moreover,

section (b) of the Burns test did not apply because the marriage element did not

relate to "a different mental state" of the defendant or "a less serious harm or risk of

harm" to the victim. Finally, because section (c) dealt only with facilitation, attempt,

and solicitation offenses, spousal rape obviously did not fit within any of the

classifications.



              In this case, the defendant was indicted for first degree murder. Under

our statutory scheme, the term "criminal homicide" means "the unlawful killing of

another person which may be first degree murder, second degree murder, voluntary

manslaughter, criminally negligent homicide, or vehicular homicide." Tenn. Code

Ann. § 39-13-201. First degree murder is defined as follows:

              (a)    (1)    a premeditated and intentional killing of
                            another;

                     (2)    a killing of another committed in the
                            perpetration of or attempt to
                            perpetrate any first degree murder,
                            arson, rape, robbery, burglary, theft,

                                           13
                              kidnapping, aggravated child abuse
                              or aircraft piracy; or

                     (3)      a killing of another committed as the
                              result of the unlawful throwing,
                              placing or discharging of a
                              destructive device or bomb.

              (b)    No culpable mental state is required for a
                     conviction under subdivision (a) (2) or (a) (3)
                     except the intent to commit the enumerated
                     offenses or acts in such subdivisions.



              By comparison, the statute prohibiting vehicular homicide provides, in

pertinent part, as follows:

              (a)    Vehicular homicide is the reckless killing of
                     another by the operation of an automobile,
                     airplane, motorboat or other motor vehicle:

                     (1)      As the proximate result of conduct
                              creating a substantial risk of death or
                              serious bodily injury to a person; or

                     (2)      As the proximate result of the
                              driver's intoxication as set forth in
                              § 55-10-401. For the purposes of
                              this section, "intoxication" includes
                              alcohol intoxication as defined by
                              § 55-10-408, drug intoxication, or
                              both.

Tenn. Code Ann. § 39-13-213. Vehicular homicide, of course, requires the

"operation of an automobile, airplane, motorboat, or other motor vehicle. . . ." That

element is not necessary for the conviction of either first degree murder or second

degree murder. In Dominy, our supreme court placed emphasis upon the

defendant's constitutional right to be given notice of the offense or offenses

charged. 6 S.W.3d at 476; see also State v. Hill, 954 S.W.2d 725, 727 (Tenn.

1997). It observed that Tenn. Code Ann. § 40-13-202 required indictments to "state

the facts constituting the offense in ordinary and concise language . . . in such a

manner as to enable a person of common understanding to know what is intended,

and with that degree of certainty which will enable the court, on conviction, to

                                             14
pronounce the proper judgment . . . ." Dominy, 6 S.W.3d at 476, n.6; see also

Tenn. R. Crim. P. 31(c) ("The defendant may be found guilty of an offense

necessarily included in the offense charged or of an attempt to commit either the

offense charged or an offense necessarily included therein if the attempt is an

offense."). Our supreme court cited with approval Howard v. State, 578 S.W.2d 83,

85 (Tenn. 1979), and its holding that "an offense is necessarily included in another if

the elements of the greater offense, as those elements are set forth in the

indictment, include, but not are not congruent with, all the elements of the lesser."

Dominy, 6 S.W.3d at 476. In other words, the offense is lesser included if "all its

elements are contained within the elements of the offense charged in the

indictment." Id.



              Because vehicular homicide contains a statutory element not

contained in first degree murder, that is, "the operation of an automobile, airplane,

motorboat or other motor vehicle," vehicular homicide is not a lesser included

offense. That additional element has nothing to do, of course, with the mental state

of the defendant or the harm or risks to the victim. An indictment charging first

degree murder would not be sufficient to support a conviction of vehicular homicide.

Thus, the trial court here was not in error by refusing to charge to the jury the

offense of vehicular homicide. The test established in Burns and utilized in Dominy

requires a different result than the test adopted in State v. Trusty, 919 S.W.2d 305

(1996). Because Trusty has been overruled, there was no entitlement to a jury

instruction on vehicular homicide.



                                           III

              Tennessee courts have long recognized the business records

exception. Bolden v. State, 203 S.W. 755 (Tenn. 1918). In Bolden, our supreme


                                           15
court explained the rationale for the "business records" exception: "They are

receivable as original evidence, because they import trustworthiness, in that a

motive to make the entries falsely is excluded." In Lillard, this court ruled the

"business records exception as set forth in T.R.E. 803(6) is a firmly rooted exception

to the hearsay rule." Slip op. at 5.



              Had a proper foundation been laid, the results could have been

admissible as business records without violating the defendant's right of

confrontation. As long as the records are "properly admitted," there is no violation.

Norton, 867 F.2d at 1363.



              The failure on the part of the state to establish a proper foundation for

the evidence would not require reversal. There was substantial evidence of the

defendant's guilt. The blood alcohol content of the victims was not a significant

point. There was no indication that that contributed to the car wreck. The error, in

our view, qualified as harmless.



                                            V

              As his final issue, the defendant complains that twenty-five (25) year

sentences, the maximum possible, for each second degree murder, and the

sentence of twelve years, the maximum, for the attempted second degree murder,

were excessive. He also complains that the trial court erred by ordering all three

sentences to be served consecutively.



              When a challenge is made to the length, range, or manner of service

of a sentence, it is the duty of this court to conduct a "de novo review ... with a

presumption that the determinations made by the court from which the appeal is


                                           16
taken are correct." Tenn. Code Ann. § 40-35-401(d). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210.



              At the time of this offense, the presumptive sentence was the

minimum in the range if there were no enhancement and mitigating factors. Tenn.

Code Ann. § 40-35-210 (amended in 1995 changing the presumptive sentence for a

Class A felony to the midpoint in the range). Should the trial court find mitigating

and enhancement factors, it must start at the minimum sentence in the range and

enhance the sentence based upon any applicable enhancement factors, then

reduce the sentence based upon any appropriate mitigating factors. Tenn. Code

Ann. § 40-35-210(e). The weight given to each factor is within the trial court's

discretion provided that the record supports its findings and it complies with the

Sentencing Act. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The trial

court, however, should make specific findings on the record which indicate its

application of the sentencing principles. Tenn. Code Ann. §§ 40-35-209 and -210.



              At the sentencing hearing, Michael Scott Serna, the brother of Richard

and Paul Serna, testified that anything less than the "maximum sentence ran


                                          17
consecutive would be less than justice." He recalled that Richard weighed about

one-hundred seventy pounds prior to the wreck and had dropped to eighty or ninety

pounds as a result. He described his brother's pain as excruciating. He had to file

bankruptcy because the medical bills amounted to "hundreds of thousands of

dollars." He also asked the court to consider that Angela Serna would never be able

to have children because of her injuries.



              The presentence report established that the defendant, age twenty-

four at the time of sentencing, completed eighth grade and acquired his G.E.D. A

laborer, he has three children, ages four, three, and one. His prior criminal history

included several thefts, simple assault, reckless driving, and failure to appear. He

was on probation for theft at the time of these offenses.



              The trial court found the following enhancement factors applicable to

each offense:

              (1) The defendant has a previous history of criminal
              convictions or criminal behavior in addition to those
              necessary to establish the appropriate range. Tenn.
              Code Ann. § 40-35-114(1).

              (2) The personal injuries inflicted upon the victim were
              great. Tenn. Code Ann. § 40-35-114(6).

              (3) The defendant possessed or employed a deadly
              weapon during the commission of the offense. Tenn.
              Code Ann. § 40-35-119(9).

              (4) The defendant had no hesitation about committing a
              crime when the risk to human life was high. Tenn. Code
              Ann. § 40-35-114(10).

              (5) The felony was committed while the defendant was
              on a form of release from a prior conviction. Tenn. Code
              Ann. § 40-35-114(13).



              The defendant argues enhancement factor (10), no hesitation about


                                            18
committing a crime when the risk to human life was high, is an essential element of

the offenses. The trial judge commented that he was applying this factor because

the defendant endangered the lives of persons other than the victims. For that

reason, we agree that this factor is applicable.



              The Tennessee Criminal Sentencing Reform Act of 1989 provides that

an enhancement factor may be applied if it is not an "essential element" of the

offense. Tenn. Code Ann. § 40-35-114. The test for determining if an enhancement

factor is an essential element of an offense is whether the same proof necessary to

establish the enhancement factor would also establish an element of the offense.

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



              In State v. Bingham, 910 S.W.2d 448 (Tenn. 1995), our supreme court

ruled that factor (10) may be used "where the defendant creates a high risk to the

life of a person other than the victim." In Bingham, our supreme court upheld use of

the factor in a vehicular homicide case, where the trial court found the defendant

had driven recklessly on a busy four-lane road. Because the defendant's conduct

created a substantial risk of death to other drivers, the factor was appropriately

applied.



              In this case, the proof established that when the victims' vehicle

wrecked, two other vehicles were involved and those drivers were placed directly in

danger. Prior to the wreck, the defendant caused the victims' vehicle to "fishtail"

around an oncoming truck. Clearly, others besides the victims were in danger due

to the defendant's driving. This factor was appropriately applied.



              The defendant also argues that enhancement factor (6), the personal


                                          19
injuries suffered by the victim, is inapplicable because it is an essential element of

the offenses charged. Because this factor was an essential element of the crime, it

should not have been applied to the murder convictions. State v. Lambert, 741

S.W.2d 127, 134 (Tenn. Crim. App. 1987). It was, however, appropriately applied to

the attempted second degree murder conviction. State v. Nix, 922 S.W.2d 894, 903

(Tenn. Crim. App. 1995). "Particularly great injuries are not essential to the

commission of this offense, but prove greater culpability." Id.



              The defendant also contends that the trial court erred by refusing to

apply the mitigating factor that "[s]ubstantial grounds exist tending to excuse or

justify the defendant’s criminal conduct, though failing to establish a defense."

Tenn. Code Ann. § 40-35-113(3). At the sentencing hearing, the trial court made no

findings on any mitigating circumstances. In our view, this mitigating factor is

entitled to little or no weight. Even if the Sernas assaulted the defendant and stole

his wallet, that would not excuse the defendant's extended criminal conduct in

chasing the victims for several miles and repeatedly ramming their vehicle.



              Even if some evidence of mitigation did exist, enhancement factors

present so strongly outweigh the mitigating factors that the maximum sentence on

each offense would have been warranted.



              We now turn to the appropriateness of consecutive sentencing. Prior

to the enactment of the Criminal Sentencing Reform Act of 1989, the limited

classifications for the imposition of consecutive sentences were set out in Gray v.

State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case our supreme court ruled that

aggravating circumstances must be present before placement in any one of the

classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the court


                                           20
established an additional category for those defendants convicted of two or more

statutory offenses involving sexual abuse of minors. There were, however,

additional words of caution: "[C]onsecutive sentences should not routinely be

imposed . . . and . . . the aggregate maximum of consecutive terms must be

reasonably related to the severity of the offenses involved." Taylor, 739 S.W.2d at

230. The Sentencing Commission Comments adopted the cautionary language.

Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence, the codification of the

holdings in Gray and Taylor; consecutive sentences may be imposed in the

discretion of the trial court only upon a determination that one or more of the

following criteria3 exist:

                 (1) The defendant is a professional criminal who has
                 knowingly devoted himself 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;



        3
           The first four criteria are found in Gray. A fifth category in Gray, based on a specific number
of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion . See
Tenn. Code Ann. § 40-35-115, Sentencing Comm ission Comments.

                                                     21
              (6) The defendant is sentenced for an offense
              committed while on probation;

              (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).



              In Gray, our supreme court ruled that before consecutive sentencing

could be imposed upon the dangerous offender, as now defined by subsection

(b)(4) in the statute, other conditions must be present: (a) that the crimes involved

aggravating circumstances; (b) that consecutive sentences are a necessary means

to protect the public from the defendant; and (c) that the term reasonably relates to

the severity of the offenses.



              In State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), our high

court reaffirmed those principles, holding that consecutive sentences cannot be

required of the dangerous offender "unless the terms reasonably relate[] to the

severity of the offenses committed and are necessary in order to protect the public

(society) from further criminal acts by those persons who resort to aggravated

criminal conduct." The Wilkerson decision, which modified somewhat the strict

factual guidelines for consecutive sentencing adopted in State v. Woods, 814

S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human

process that neither can nor should be reduced to a set of fixed and mechanical

rules." Wilkerson, 905 S.W.2d at 938. The record must show that the sentencing

principles and all relevant facts and circumstances were considered before the

presumption of correctness applies.



              The trial court found consecutive sentences were appropriate because

the defendant was a dangerous offender. We agree. A reasonable inference from

the proof is that the defendant purposefully followed the victims and rammed their

                                          22
vehicle repeatedly, fully aware that the conduct endangered not only the victims but

the occupants of the other vehicles on the road. Moreover, the defendant's prior

criminal record indicates an escalating pattern of criminal behavior. The defendant

was on probation at the time he committed the present offenses. See Tenn. Code

Ann. § 40-35-115(b)(6). Consecutive sentences are necessary to protect society

from further misdeeds by the defendant.



             The judgment is affirmed.



                                          ________________________________
                                          Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
William M. Barker, Special Judge



_____________________________
James Curwood Witt, Jr., Judge




                                          23
