                IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                                   AT JACKSON

                                           JUNE SESSION, 1999                         FILED
                                                                                     December 30, 1999

STATE OF TENNESSEE,                            *                          Cecil Crowson, Jr.
                                               *                         Appellate Court Clerk
                                                         No. W1998-00552-CCA-R3-CD
         Appellee,                             *
                                               *         MADISON COUNTY
vs.                                            *
                                               *         Hon. Whit Lafon, Judge
WILLIAM CURTIS WAGNER,                         *
                                               *         (Aggravated Assault, DUI,
         Appellant.                            *         Evading Arrest)


                        CONCURRING IN PART; DISSENTING IN PART



         I join in the results reached by the majority with the exception of the remand

of this case to the trial court "for further proceedings concerning whether

consecutive sentences are warranted." It is undisputed that this court, under its

power of de novo review, is authorized to impose consecutive sentences when a

consecutive sentencing issue is properly before the court and the trial court has

failed to enter factual findings on the record.1 Tenn. Code Ann. § 40-35-401(a).

Upon de novo review of the record, I find consecutive sentences appropriate in this

case.


         Before consecutive sentences can be imposed, the trial court must (1) first

determine that one or more of the statutorily enumerated criteria of Tenn. Code Ann.
§ 40-35-115 exists, see also Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976); and

(2) find that the aggregate sentence is reasonably related to the severity of the

offenses and is necessary to protect the public from further criminal activity of the
offender. State v. Wilkerson, 905 S.W.2d 933, 937 (Tenn. 1995).



         In this case, the proof established that, while towing a semi-tractor truck, the

defendant traveled for a distance of approximately forty miles along I-40 at night at a
high rate of speed, requiring at least fifty vehicles to take evasive action to avoid

collisions. During this period, the defendant was heard on his C.B. radio saying,


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     Additionally, I find de novo review appropriate in this case because the judge presiding at trial
has since retired, which will require reassignment upon rem and and review of the sam e record
that th is cou rt has alrea dy rev iewe d. In a dditio n, if an appe al is tak en fo llowin g rem and , this w ill
result in further protracted litigation of this case.
"Watch this shit, I'm going to slap this white car. W atch this, I'm going to hit this

truck." Although most of the vehicles were able to steer clear of the defendant's tow

truck, at least five vehicles were struck, resulting in serious and disabling injuries to
the occupants. Several of the victims required hospitalization and numerous

surgeries. Toward the end of this rampage, the defendant crossed the I-40 median

and proceeded to drive eastbound in the westbound lane, again causing motorists
to flee the interstate to avoid collisions. These facts support a finding that the

defendant is a dangerous offender. Tenn. Code Ann. § 40-35-115(b)(4).

Consecutive sentences are imposed upon dangerous offenders to protect society
against offenders who commit aggravated crimes that pose a high risk to human life.

Under Gray, a finding that a defendant is a "dangerous offender" is to be based

solely upon the circumstances surrounding the crimes for which the defendant is
being sentenced. The court stated in Gray: "A defendant may be classified as a

dangerous offender if the crimes for which he is convicted indicate that he has little

or no regard for human life, and no hesitation about committing a crime in which the

risk to human life is high." 538 S.W.2d at 393 (emphasis added); see also Tenn.

Code Ann. § 40-35-115(b)(4).



        Furthermore, upon review of the Wilkerson criteria, I find that an additional

sentence of twenty-four months, resulting in an aggregate sentence of six years, is
reasonably related to the severity of the offenses committed and is necessary to

protect the public from further criminal acts by the offender. Wilkerson, 905 S.W.2d

at 938. The defendant denies any culpability for the personal injuries or property
damage that he occasioned along I-40. At the sentencing hearing, the trial court

noted his lack of candor. I find the defendant's aggregate sentence of six years

relatively lenient when considering the severity of the offenses committed. Finally, I
find the six year sentence is necessary to protect the public in view of the

defendant's refusal to accept responsibility for his use of drugs and driving, his

indifference to motorists and the fact that his principal livelihood is the operation of a

commercial truck over the highways.


        For these reasons, I would affirm imposition of consecutive sentences in this

case.



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____________________________________
DAVID G. HAYES, Judge




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