        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT NASHVILLE             FILED
                      FEBRUARY 1999 SESSION
                                                     May 12, 1999

                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
STATE OF TENNESSEE,         )
                            ) C.C.A. No. 01C01-9806-CC-00246
     Appellee,              )
                            ) Perry County
V.                          )
                            ) Honorable Cornelia A. Clark, Judge
                            )
CHARLES JUSTIN OSBORNE,     ) (Criminally Negligent Homicide,
                            ) Reckless Endangerment)
                            )
     Appellant.             )




FOR THE APPELLANT:             FOR THE APPELLEE:

JERRY C. COLLEY                JOHN KNOX WALKUP
P.O. Box 1476                  Attorney General & Reporter
Columbia, TN 38402-1476
                               ELIZABETH B. MARNEY
                               Assistant Attorney General
                               425 Fifth Avenue North
                               Nashville, TN 37243

                               RONALD L. DAVIS
                               District Attorney General

                               DONALD W. SCHWENDIMANN
                               Assistant District Attorney General
                               P.O. Box 937
                               Franklin, TN 37065-0937




OPINION FILED: ___________________

AFFIRMED IN PART, REVERSED IN PART, MODIFIED


JOHN EVERETT WILLIAMS,
Judge
                                     OPINION

       The defendant, Charles Justin Osborne, was convicted of two counts of

criminally negligent homicide and one count of reckless endangerment. The trial

court sentenced him to two years on each count of criminally negligent homicide

and to eleven months, twenty-nine days on the reckless endangerment, with all

sentences to run consecutively. Of these sentences, the trial court ordered the

defendant to serve one year’s confinement, day-for-day, on count one and

suspended the remaining balance of all sentences with supervised probation.

The defendant argues (1) that these sentences are excessive; (2) that the trial

court erred in ordering consecutive service; and (3) that the trial court erred in

denying an alternative sentence, specifically full probation. Upon review, we

REVERSE the imposition of consecutive sentencing and MODIFY the

defendant’s sentence to reduce his day-for-day confinement from one year to

two hundred and nineteen days. In all other respects, we AFFIRM the judgment

of the trail court.



                                  BACKGROUND

       While driving at grossly excessive speed though Linden, Tennessee, the

defendant ran a red light and swerved to avoid a vehicle entering the

intersection. When he swerved, the defendant lost control of his vehicle and

collided head-on with an automobile driven by Charles Carroll. Mr. Carroll’s two

passengers, Eleanor and Alice Carroll, were killed, and Mr. Carroll was injured.

Witnesses estimated that the defendant was driving as fast as ninety miles-per-

hour immediately before the collision, and the defendant himself estimated that

he was going sixty to sixty-five. The posted speed limit was thirty miles-per-hour.



       The defendant was indicted on two counts of vehicular homicide and one

count of felony reckless endangerment. A jury found the defendant guilty of

criminally negligent homicide on counts one and two and guilty of misdemeanor




                                         -2-
reckless endangerment on count three. The defendant does not contest these

convictions; he appeals his sentences only.



                             STANDARD OF REVIEW

       Appellate review of a challenge to the length or manner of service of a

sentence is de novo on the record, “with a presumption that the determinations

made by the court from which the appeal is taken are correct.” Tenn. Code Ann.

§ 40-35-401(d). This presumption “is conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all

relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). If our review reflects that the trial court properly considered all relevant

factors and its findings of fact are adequately supported in the record, then this

Court may not disturb the sentence even if we would have preferred a different

result. See State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The appellant carries the burden of showing that his sentence is improper. See

Tenn. Code Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan,

929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).



       In conducting our review, this Court we 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) any statutory

mitigating or enhancement factors; (6) any statement made by the accused in his

own behalf; and (7) the potential or lack or potential for rehabilitation or

treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith, 735

S.W.2d 859, 863 (Tenn. Crim. App. 1987).




                                          -3-
                             SENTENCING FACTORS

       The defendant first asserts that the trial court misapplied, or erroneously

failed to apply, certain enhancement and mitigating factors and that his

sentences are, therefore, excessive. The trial court found the defendant to be a

range I offender. Criminally negligent homicide is a Class E felony, carrying a

range I sentence of one to two years. See Tenn. Code Ann. §§ 39-13-212; 40-

35-112(a)(5). Reckless endangerment committed without a deadly weapon is

Class A misdemeanor, see Tenn. Code Ann. § 39-13-103(b), and is punishable

by up to eleven months, twenty-nine days. The presumptive sentence for a

Class E felony is the minimum sentence in the range, absent enhancement or

mitigating factors. See Tenn. Code Ann. § 40-35-210(c). Misdemeanor

sentences do not command a presumptive minimum.



       The trial court recognized no mitigating factors but did find two

enhancement factors applicable to each of the defendant’s convictions: “The

defendant had no hesitation about committing a crime when the risk to human

life was high” and “[t]he crime was committed under circumstances under which

the potential for bodily injury to a victim was great.” Tenn. Code Ann. § 40-35-

114(10), (16). In accordance with these findings, the trial court sentenced the

defendant to the range I maximum of two years on each felony conviction and to

eleven months, twenty-nine days on the misdemeanor.



       Citing State v. Bingham, 910 S.W.2d 448 (Tenn. Crim. App. 1995), the

defendant first argues that enhancement factor (16) is inapplicable to a

conviction for criminally negligent homicide as a matter of law because the

potential for bodily injury is an essential element of that offense. In Bingham, a

panel of this Court held that potential bodily injury is inherent in the offense of

vehicular homicide and is therefore inapplicable to enhance a conviction for that

offense. See id. at 452. In the present case, the trial court expressly noted the

Bingham opinion and correctly concluded that, as with vehicular homicide, the



                                          -4-
proof necessary to establish the defendant’s offenses would comprise proof of

potential bodily injury to any of the Carrolls. Nevertheless, the trial court found

factor (16) applicable based on the potential for bodily injury to persons other

that than the Carrolls, including, specifically, a passenger of the defendant.



       A panel of this Court specifically approved such an application in State v.

Sims, 909 S.W.2d 46 (Tenn. Crim. App. 1995), stating “[factor (16)] may be

applied in situations where individuals other than the victim are in the area and

are subject to injury.” Id. at 50. Nevertheless, the subsequent opinion in

Bingham appears to conflict with this holding.



       While Bingham does not expressly reject Sims, a careful reading allows

no other conclusion. In Bingham, the defendant appealed application of both

enhancement factors (10) and (16). Although the panel found that both factors

are inherent in the offense of vehicular homicide when considering only the

homicide victim, the panel noted that persons other than the victim were present

and subject to risk. Based on this risk, the Bingham panel found factor (10)

applicable. Importantly, however, the panel did not similarly apply factor (16).

Thus, Bingham implicitly, but inescapably, distinguishes between enhancement

factors (10) and (16) in that factor (10) may be supported by risk to persons other

than a victim of the convicted offense while factor (16) may not.



       In contrast, the Sims opinion holds, “Both factors [(10) and (16)] may be

applied in situations where individuals other than the victim are in the area and

are subject to injury.” Sims, 909 S.W.2d at 50 (citing State v. Makoka, 885

S.W.2d 366, 373 (Tenn. Crim. App. 1994)). Thus, it appears that these

authorities cannot be satisfactorily reconciled as to whether factor (16) may be

applied on the basis of potential injury to persons other than the victim of the

convicted offense. In resolving this conflict, we first note that the authority cited

by Sims supports only application of factor (10) on the basis of risk to others.



                                          -5-
See Makoka, 885 S.W.2d at 373. More importantly, we find the language of the

statute instructive.



       Unlike enhancement factor (10), factor (16) specifically requires that the

risk or potential injury be “to a victim.” Tenn. Code Ann. § 40-35-114(16)

(emphasis added). We read “victim” here to mean a victim of the charged

offense, not a “potential victim,”1 a victim of some collateral injury, or a victim of

some uncharged offense.2 This reading of the statute directly refutes the Sims

holding that factor (16) is applicable when persons “other than the victim” are

subject to injury. Sims, 909 S.W.2d at 50 (emphasis added). Thus, we conclude

that the enhancement statute does not contemplate application of factor (16)

based on risk to others. For these reasons, we hold that the trial court erred in

applying enhancement factor (16) in the present case. Although the defendant

does not challenge application of factor (10), we affirm its applicability.



       The defendant next argues that the trial court erred in rejecting mitigating

factor (6), regarding his alleged lack of substantial judgment due to youth. See

Tenn. Code Ann. § 40-35-113(6). In considering whether a defendant lacked

substantial judgment because of his youth, chronological age is not

determinative. See State v. Antonio D. Mason, No. 01C01-9607-CC-00315

(Tenn. Crim. App. filed Oct. 24, 1997, at Nashville). Rather, we are directed to

“consider the concept of youth in context, i.e., the defendant’s age, education,

maturity, experience, mental capacity or development, and any other pertinent

circumstance tending to demonstrate the defendant’s ability or inability to

appreciate the nature of his conduct.” State v. Adams, 864 S.W.2d 31, 33

(Tenn. 1993).




                1
                 The Sim s opinion, for example, speaks of “other potential victims.”
       Sim s, 909 S.W.2d at 50.

                2
                   In the pres ent c ase , for e xam ple, th e evid enc e sug ges ts tha t mu ltiple
       additional c ounts o f reckles s enda ngerm ent m ight have b een ch arged re lating to
       the defendant’s passenger and other drivers who were in the immediate area and
       subjec t to imm inent dan ger.

                                                   -6-
       The defendant was eighteen years of age at the time of his offenses, and

he relies entirely on this chronological age to support applicability of this factor.

He offers absolutely no other evidence or argument, and we find nothing in the

record from which we might infer a lack of substantial judgment. To the contrary,

in the only evidence on point, the defendant expressly disavowed any lack of

judgment due to his youth:


               STATE: You know that we’re obligated to drive the
       posted speed limits?
               DEFENDANT: Yes, sir.
               STATE: Do you think that because you were
       eighteen at the time this happened that you didn’t realize
       that you weren’t supposed to speed?
               DEFENDANT: I knew you was not supposed to
       speed.
               ....
               STATE: You knew that speeding can result in fatal
       injuries, for example?
               DEFENDANT: Yes, sir.
               ....
               STATE: So your youth does not explain your
       disregard for the law?
               DEFENDANT: No, sir.


       Although this testimony is not determinative, it does tend “to demonstrate

the defendant’s ability or inability to appreciate the nature of his conduct.” Id.

Moreover, the activity of driving is so common to everyday life, and the dangers

inherent in abusing that activity are so evident and so often observable, that,

absent some specific evidence, we will not simply presume that an eighteen-

year-old lacked “substantial judgment.” The record indicates that the trial court

carefully considered this proposed mitigating factor and concluded, “[the

defendant] has convinced me that it is not a question of youth here.” The

evidence does not preponderate against the trial court’s decision. The

defendant has failed to carry his burden of showing that the decision of the trial

court is improper.



       Next, the defendant asserts that the trial court erred in rejecting mitigating

factor (11)–that the defendant “committed the offense[s] under such unusual

circumstances that it is unlikely that a sustained intent to violate the law

                                          -7-
motivated the criminal conduct.” Tenn. Code Ann. § 40-35-113(11). The

defendant argues that because one cannot “intend” to commit criminally

negligent homicide, he could not have had a sustained intent to violate the law.

This argument is not well taken. It ignores the defendant’s sustained intent to

violate traffic laws, which is overwhelmingly supported by the evidence. This

issue is without merit.



       In summary, we have concluded that the trial court’s application of

enhancement factor (16) cannot be sustained and that factor (10) properly

applies. We do not disturb the trial court’s finding that no mitigating factors

apply. Despite the trial court’s misapplication of factor (16), we do not hesitate to

find the sentences below appropriate. The trial court found applicable

enhancement factors (10) and (16), but did not indicate the weight it accorded

each. If both factors were applicable, we would accord great weight to either on

the facts of this case. However, because the factors are similar and were based

on the same facts, we would accord the other only slight additional weight.

Thus, our elimination of factor (16) does not significantly lessen the overall

weight of warranted sentence enhancement. Factor (10) alone sufficiently

justifies the defendant’s sentences. The sentences imposed below are

appropriate.



                             CONSECUTIVE SERVICE

       The defendant next challenges the trial court’s imposition of consecutive

sentencing. The trial court ordered consecutive sentencing based on its finding

that “[t]he defendant is a dangerous offender whose behavior indicated little or

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

risk to human life is high.” Tenn. Code Ann. § 40-35-115(b)(4). W hile this

finding, if supported by the evidence, satisfies the statutory criteria for

consecutive sentencing, the Tennessee Supreme Court has held that when

consecutive sentencing is predicated on a finding that the defendant is a



                                          -8-
dangerous offender, “[t]he proof must also establish that the terms imposed are

reasonably related to the severity of the offenses committed and are necessary

in order to protect the public from further criminal acts by the offender.” State v.

Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).



       The trial court made no findings relative to these latter two criteria, and we

are unable to conclude that both apply. We would find that consecutive

sentencing resulting in less than a five-year effective sentence is reasonably

related to the severity of the defendant’s offenses. Two persons were

needlessly killed and others injured by the defendant’s actions. Nevertheless,

the record contains insufficient evidence to warrant a finding that consecutive

service is necessary to protect the public from further criminal acts. The

defendant’s lack of remorse and apathetic, even despiteful, attitude toward his

victims might indicate a lesser amiability to rehabilitation and, thus, some degree

of danger to society. However, the defendant’s complete lack of prior criminal

history tends to supports the opposite inference. Thus, although the evidence

supports the trial court’s finding that the defendant is a dangerous offender

whose behavior indicated little or no regard for human life, we are constrained to

conclude that the trial court erred in imposing consecutive sentencing.



                          ALTERNATIVE SENTENCING

       The defendant next asserts that the trial court erred in “failing to order a

fair alternative sentence and failing to grant probation.” As the trial court

recognized, the defendant is presumed to be a favorable candidate for

alternative sentencing, absence evidence to the contrary. See Tenn. Code Ann.

§ 40-35-102(6). Finding this presumption partially, but not fully, rebutted, the trial

court granted supervised probation after one year’s confinement on count one

and granted full probation on counts two and three. The defendant complains

that “[t]his is not alternative sentencing as envisioned by the legislature.” We

disagree. This complaint is without merit.



                                         -9-
       Nevertheless, we examine the trial court’s imposition of a period of

confinement. The trial court justified confinement as “necessary to avoid

depreciating the seriousness of the offense.” Tenn. Code Ann. § 40-35-

103(1)(B). To warrant confinement on this basis, “‘the circumstances of the

offense as committed must be especially violent, horrifying, shocking,

reprehensible, offensive or otherwise of an excessive or exaggerated degree,’

and the nature of the offense must outweigh all factors favoring a sentence other

that confinement.” State v. Bingham, 910 S.W.2d at 454 (quoting State v.

Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)). That deaths

occurred is not itself sufficient to warrant such a finding. However, the evidence

showed that the defendant’s speed was grossly excessive in a usually congested

area, that he did not even attempt to brake, and that he cursed the surviving

victim at the accident scene and continued to demonstrate indifference, if not

detest, for the victims and their families throughout. The trial court duly noted

the defendant’s youth; lack of criminal record; and current, though unstable,

employment status but found that the circumstance of the defendant’s offenses

outweighed these considerations. The evidence does not preponderate against

the trial court’s finding.



       As to the denial of full probation, these same considerations apply. In

addition, a defendant’s lack of truthfulness or candor reflects negatively on the

defendant’s potential for rehabilitation and is thus, an appropriate consideration.

State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994). The trial court

found that the defendant demonstrated lack of candor in that he often

conveniently forgot or contradicted himself when testifying to matters that might

be negative to him. We find that the evidence supports the trial court's findings.

This issue is without merit.



       Finally, although we affirm the trial court’s imposition of a period of

confinement, we observe that the imposed one-year term would exceed the term



                                         -10-
that the defendant would serve prior to release eligibility on a full-confinement

two-year sentence. As this Court recently explained in State v. John W. Hill, No.

01C01-9802-CC-00072 (Tenn. Crim. App. filed Feb. 25, 1999, at Nashville), a

felony offender who is sentenced to one or more nonconsecutive terms of two

years or less may not be sentenced to a period of confinement in excess of the

release eligibility on a sentence of full confinement. Id. (citing Tenn. Code Ann.

§§ 40-35-501(a)(3); -306(a); -102(5)-(6)). Therefore, we modify the defendant’s

sentence to reduce his period of confinement to two hundred and nineteen days,

day-for-day, and to begin supervised probation at the expiration of that time.



                                   CONCLUSION

       The sentence below is modified to reduce the defendant’s period of

confinement to two hundred and nineteen days, day-for-day. We further order

that all sentences shall run concurrently. The judgment of the trial court is in all

other respects affirmed.




                                                _____________________________
                                                JOHN EVERETT W ILLIAMS, Judge




CONCUR:




_____________________________
DAVID G. HAYES, Judge




_____________________________
JAMES CURWOOD WITT, JR., Judge




                                         -11-
