             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                            OCTOBER 1997 SESSION
                                                         February 23, 1998

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
STATE OF TENNESSEE,                )
                                   )
                    APPELLEE,      )
                                   )           No. 01-C-01-9609-CC-00393
                                   )
                                   )           Lincoln County
v.                                 )
                                   )           W. Charles Lee, Judge
                                   )
                                   )           (Vehicular Homicide and
                                   )            Aggravated Assault)
TIMOTHY DEAN MARTIN,               )
                                   )
                   APPELLANT.      )



FOR THE APPELLANT:                      FOR THE APPELLEE:

Andrew J. Dearing, III                  John Knox Walkup
Attorney at Law                         Attorney General & Reporter
117 South Main Street                   425 Fifth Avenue, North
Shelbyville, TN 37160                   Nashville, TN 37243

                                        Clinton J. Morgan
                                        Counsel for the State
                                        425 Fifth Avenue, North
                                        Nashville, TN 37243

                                        W. Michael McCown
                                        District Attorney General
                                        215 East College Street
                                        Fayetteville, TN 37334

                                        Weakley E. Barnard
                                        Assistant District Attorney General
                                        Marshall County Courthouse, Room 407
                                        Lewisburg, TN 37091




OPINION FILED:__________________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                    OPINION


       The appellant, Timothy Dean Martin (defendant), was convicted of vehicular

homicide, a Class C felony, and aggravated assault, also a Class C felony, by a jury of his

peers. The trial court found the defendant was a standard offender and imposed the

following Range I sentences: (a) for vehicular homicide, a $5,000 fine and confinement for

four (4) years and eight (8) months in the Department of Correction, and (b) for aggravated

assault, a $5,000 fine and confinement for three (3) years and four (4) months in the

Department of Correction. The sentences are to be served concurrently for an effective

sentence of confinement for four (4) years and eight (8) months in the Department of

Correction and fines totaling $10,000.       Five issues are presented for review.        The

defendant contends (a) the evidence is insufficient, as a matter of law, to support his

convictions; (b) the State of Tennessee (state) acted in bad faith thereby denying him a fair

trial; (c) the trial court erred in allowing an expert to offer an opinion based upon data

gathered by another individual; (d) the trial court erred by refusing to charge the jury on the

failure of one of the victims to wear a seat belt; and (e) the sentences imposed by the trial

court are excessive. After a thorough review of the record, the briefs submitted by the

parties, and the law governing the issues presented for review, it is the opinion of this court

that the judgment of the trial court should be affirmed.

       On the morning of November 6, 1994, the defendant entertained four friends at his

Flintville residence. The five men shot pool and drank beer. At approximately 1:00 p.m.

the five men left the defendant’s residence en route to the residence of the defendant’s

father. They drove south on Brighton Road. Tony Rogers rode with the defendant in the

defendant’s pickup truck. The remaining three men followed the defendant in a maroon

pickup truck.

       Rogers testified “[a]s soon as I shut the door he [the defendant] dropped the clutch

and we slid out in the grass and slid sideways in the driveway and slid out into the gravel

road. He never let off, just kept going.” The defendant was driving at a high rate of speed.

Rogers became alarmed and asked the defendant to reduce his speed on more than one

occasion. Rogers held onto the door. He did not think the maroon pickup truck could


                                              2
keep pace with the defendant’s truck because it was traveling at such a high rate of speed.

       When the defendant reached Halcomb Curve, a short distance from the defendant’s

residence, the defendant’s pickup truck “slid from [the] right side [of the road] to [the] left

side [of the road].” Rogers looked into the passenger side mirror to determine the location

of the maroon truck. When he looked ahead, the defendant’s truck collided with an

automobile traveling north on Brighton Road on Bynum Curve.

       Daniel Vaughn and his mother, Glenda Vaughn, were traveling northbound on

Brighton Road. Daniel Vaughn, who was driving, had traveled the road on numerous

occasions. When he approached Bynum Curve, Vaughn slowed the speed of the vehicle

to 15 to 20 miles per hour as he entered the curve. He heard tires squealing on the other

side of the curve. When he looked toward the sound, he saw the defendant’s pickup truck

sliding around the curve. The defendant’s truck was sliding into the northbound lane.

Vaughn pulled the automobile he was driving to the far right side of the northbound lane

in an effort to avoid the defendant’s truck. The pickup truck struck Vaughn’s automobile

on the far right-hand side of the northbound lane.

       A witness visiting a residence located on Brighton Road close to the Halcomb and

Bynum curves heard the “screeching” of tires. He also heard the revving of an engine. He

then saw a white pickup truck followed by a maroon pickup truck. Both vehicles were

traveling at an “excessive” rate of speed. While the witness could not estimate the speed

of the trucks, he knew the trucks would “never make the Halcomb curve” at the speed they

were traveling.

       Those attending the injured at the situs of the collision smelled an odor of an

intoxicant emitting from the defendant’s breath. The defendant stated he drank two beers.

A beer can was found in the defendant’s truck, and several opened and unopened beer

cans were found in a creek approximately forty yards from the situs of the collision. The

defendant told the investigating officer: “I looked down. When I looked up I was on the

wrong side of the roadway. It was my fault.” He also told a Tennessee Highway Patrol

officer he had just purchased the beer. A test to determine the alcohol content of the

defendant’s blood revealed an alcohol level of .04%. Other tests revealed a trace of

cocaine as well as metabolite of cocaine, the compound which forms when cocaine is



                                              3
broken down in the body. Also found was the compound of cocaethylene which is a

compound created when cocaine and alcohol are present in the body at the same time.

The amounts of these compounds were not quantified because of the small amount found

-- less than .1 microgram per milliliter of blood. There was no indication as to how long the

cocaine had been in the defendant’s system prior to the accident.

       Tennessee Highway Patrol Trooper Karen Russell investigated the accident.

Trooper Russell stated the speed limit was 55 miles per hour on Brighton Road. It was a

clear day and the pavement was dry. The trooper took photographs of the situs of the

collision and also took measurements. This information was forwarded to THP Sergeant

Harry Smith, an accident reconstructionist with the Department of Safety.

       Sergeant Smith reviewed Trooper Russell’s measurements and the photographs.

He visited the scene of the collision with Trooper Russell. Sergeant Smith testified the

physical facts revealed the defendant was across the center of the road prior to the time

he began sliding. In other words, the defendant was on the wrong side of the road. The

impact occurred near the shoulder of the road on the northbound side, the direction the

Vaughns were traveling.

        Rogers was rendered unconscious due to the collision. He sustained a fractured

pelvis, a broken nose, broken teeth, and injuries to his chin and arm. He spent several

days in a hospital.

       Glenda Vaughn suffered massive head injuries caused by her head striking the

windshield. She died at the situs of the collision. Daniel Vaughn sustained two broken

jaws as a result of striking the steering wheel. Daniel Vaughn said he was not wearing a

seat belt. He did not know if his mother was wearing a seat belt.

       Dr. Tom Norman, the Lincoln County Medical Examiner, testified alcohol acts as a

sedative and diminishes cognitive function. Cocaine acts as a stimulant, but it also causes

a reduction in cognitive functioning. Using the two substances together would diminish

one’s ability to make judgments.

       The defendant did not testify in support of his defense. However, he presented

several witnesses. One witness testified the muffler on the defendant’s truck had been

modified to make it sound louder and make it “echo.” As a result, the truck sounded as if



                                             4
it was traveling faster than it was. This witness, who was riding in the maroon truck, said

they had to travel fast to catch the defendant’s truck. According to the witness, the

defendant was driving fast in the curves.

       The defendant’s sister-in-law testified Trooper Russell told her both vehicles were

hogging the center lane. The defendant’s wife testified Trooper Russell told her: “Like I

told Daniel [Vaughn] things are going to be said. There is going to be rumors, but this was

an accident.    Accidents happen.” Another witness testified in rebuttal to Rogers’s

testimony. The witness stated the defendant’s tires were not spinning when he left his

residence. According to this witness, the defendant was driving at a safe speed and was

driving normally.

                                              I.



       The defendant contends the evidence contained in the record is insufficient, as a

matter of law, to support a finding by a rational trier of fact that he was guilty of vehicular

homicide and aggravated assault beyond a reasonable doubt. He argues the record is

devoid of evidence he was driving recklessly when the collision occurred.



                                              A.



       When an accused challenges the sufficiency of the convicting evidence, this court

must review the record to determine if the evidence adduced at trial is sufficient "to support

the finding by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e).

This rule is applicable to findings of guilt based upon direct evidence, circumstantial

evidence, or a combination of direct and circumstantial evidence. State v. Dykes, 803

S.W.2d 250, 253 (Tenn. Crim. App.), per. app. denied (Tenn. 1990).

       In determining the sufficiency of the convicting evidence, this court does not reweigh

or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.),

per. app. denied (Tenn. 1990). Nor may this court substitute its inferences for those drawn

by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286

S.W.2d 856, 859, cert. denied, 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956). To the



                                              5
contrary, this court is required to afford the State of Tennessee the strongest legitimate

view of the evidence contained in the record as well as all reasonable and legitimate

inferences which may be drawn from the evidence. State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978).

       Questions concerning the credibility of the witnesses, the weight and value to be

given the evidence, as well as all factual issues raised by the evidence are resolved by the

trier of fact, not this court. Cabbage, 571 S.W.2d at 835. In State v. Grace, 493 S.W.2d

474, 476 (Tenn. 1973), our supreme court said: "A guilty verdict by the jury, approved by

the trial judge, accredits the testimony of the witnesses for the State and resolves all

conflicts in favor of the theory of the State."

       Since a verdict of guilt removes the presumption of innocence and replaces it with

a presumption of guilt, the accused, as the appellant, has the burden in this court of

illustrating why the evidence is insufficient to support the verdicts returned by the trier of

fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court will not disturb a

verdict of guilt due to the sufficiency of the evidence unless the facts contained in the

record are insufficient, as a matter of law, for a rational trier of fact to find that the accused

is guilty beyond a reasonable doubt. Tuggle, 639 S.W.2d at 914.



                                               B.



       Before an accused can be convicted of vehicular homicide, the state is required to

prove beyond a reasonable doubt that:

               (a) the accused was operating an automobile, airplane,
                   motorboat, or other motor vehicle;
               (b) the accused was operating the motor vehicle
                   recklessly under circumstances that manifested
                   extreme indifference to the value of human life; and
               (c) a person was killed as a result of the manner in which
                   the accused operated the motor vehicle.

Tenn. Code Ann. § 39-13-213 (1991).

       Before an accused can be convicted of aggravated assault as a result of the

operation of a motor vehicle, the state is required to prove beyond a reasonable doubt:

               (a) the accused was operating a motor vehicle;
               (b) the accused operated the motor vehicle recklessly

                                                  6
                  under circumstances manifesting extreme indifference
                  to the value of human life; and
              (c) a person sustained serious bodily injury as a result of
                  the manner in which the accused operated the motor
                  vehicle.

Tenn. Code Ann. §§ 39-13-101(a)(1), 39-13-102(a)(2) (Supp.).

      The evidence contained in the record, and the reasonable inferences which may be

drawn from the evidence, establishes the elements of both offenses. The record reflects

the defendant had been drinking at his home with friends. He left his home in his truck,

spinning his tires in the grass and driving fast. His passenger was so unnerved by the

speed he asked the defendant to slow down on more than one occasion.

      The maroon truck, which was following the defendant, could not keep up with the

defendant’s truck. A passenger in the second truck estimated the second truck was

traveling about 45 to 50 miles per hour; a reasonable inference could be drawn that the

defendant was traveling much faster. A man visiting a home on Brighton Road heard a

truck speeding. He was familiar with the curve. He commented to another person that the

truck would “not make the Halcomb curve.”

      The defendant admitted to the trooper he was on the wrong side of the road when

the accident occurred. The THP accident reconstructionist made a consistent finding.

Alcohol and drugs were found in the defendant’s body.

       As a result of the collision, Glenda Vaughn was killed instantly. Daniel Vaughn

suffered broken jaws. Both victims suffered serious bodily injury. Tenn. Code Ann. § 39-

11-106(33).

       The evidence contained in the record is more than sufficient to support a finding by

a rational trier of fact that the defendant was guilty of vehicular homicide and aggravated

assault beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).



                                            II.



      Originally, the defendant was charged with vehicular homicide and vehicular assault,

both requiring proof of intoxication. Those charges were dropped by the state at the close



                                             7
of the state’s proof.    The defendant contends that the state acted in bad faith by

“ambushing” him with expert testimony regarding the presence of alcohol and cocaine in

his system and then dropping the charges requiring proof of intoxicants.

       At the close of the state’s case, the trial court advised the state it had not proven

beyond a reasonable doubt the offenses which were predicated upon the defendant driving

while under the influence. The court stated if the defendant was convicted of any such

count, the court would likely set aside the conviction post-trial. The state dismissed the

counts of the indictment predicated upon the defendant driving while under the influence

and proceeded with the counts of the indictment alleging the defendant committed these

offenses as a result of operating his motor vehicle recklessly. However, the state advised

the trial court it desired to argue the alcohol and cocaine found in the defendant’s blood

were factors which could be considered in determining whether the defendant was driving

recklessly.

       The defendant contends the trial court should have granted a mistrial when the state

dismissed the alcohol-based counts of the indictment. He also challenges the admissibility

of evidence of alcohol and cocaine in his blood to establish the reckless prong of the

offenses. He refers to what occurred as an “ambush,” and he states the admission of this

evidence was akin to “explod[ing] an everlasting bombshell in the jury’s mind.” He argues

this evidence should have been excluded pursuant to Rule 404, Tennessee Rules of

Evidence.

       In State v. Braden, 867 S.W.2d 750 (Tenn. Crim. App.), per. app. denied (Tenn.

1993), Braden was charged with vehicular homicide and aggravated assault. The trial

court granted motions for judgment of acquittal on the alcohol-based counts, but, as here,

held there was sufficient evidence to present the counts based on recklessness to the jury.

Id. at 757. The court further held evidence establishing Braden had consumed alcohol

before and at the time of the collision was admissible to establish Braden exhibited

manifest extreme indifference to the value of human life in the counts predicated upon

recklessness. Id. The defense moved for a mistrial based upon the prior admission of the

evidence. The trial court denied the motion due to the admissibility of the evidence on the

issue of recklessness. This court affirmed the trial court in this regard. In ruling, this court



                                               8
said:


               The trial court properly denied the appellant’s motion for a
               mistrial. The appellant’s consumption of intoxicating beverages
               before the collision and the percentage of alcohol in the
               appellant’s blood was a factor that the jury could consider in
               determining whether the appellant was operating his motor
               vehicle “under circumstances manifesting extreme indifference
               to the value of human life.” In other words, this evidence was
               both relevant and probative of this element of the offenses.

Id.

        As in Braden, the evidence pertaining to the alcohol and cocaine content in the

defendant’s blood shortly after the collision was both relevant and probative of the element

of recklessness.

        This issue is without merit.



                                              III.



        The defendant contends the trial court committed error of prejudicial dimensions by

permitting Sergeant Smith to testify as an accident reconstructionist. During the course of

the trial, the defendant failed to challenge Sergeant Smith’s qualifications to testify as an

expert.    He only objected to the admission of Trooper Russell’s notes regarding

measurements. This memorandum was not admitted into evidence. The defendant did

not object to the conclusions reached by Sergeant Smith, namely, the defendant’s truck

was on the wrong side of the road and the impact was on the victims’ side of the road.

        In this court, the defendant argues Sergeant Smith should not have been permitted

to offer an opinion based on Trooper Russell’s measurements when Trooper Russell did

not interpret her own findings.

        The qualifications of an expert witness, the admissibility of the witness’s testimony,

the relevancy of the witness’s testimony, and the competency of the expert testimony are

matters which are addressed to the sound discretion of the trial court. State v. Ballard, 855

S.W.2d 557, 562 (Tenn. 1993). An appellate court will not interfere with the exercise of this

discretion unless clear abuse appears on the face of the record. State v. Brimmer, 876

S.W.2d 75, 79 (Tenn. 1994). In this case, the trial court did not abuse its discretion by



                                               9
permitting Sergeant Smith to testify and express his opinions. He possessed the requisite

qualifications, education, training, experience, and knowledge of the facts surrounding the

collision to reconstruct what occurred and relate his opinions to the jury.

       Sergeant Smith was entitled to rely upon the measurements made by Trooper

Russell on the date of the collision. The defendant did not present any evidence to

establish these measurements were skewed. Nor did the defendant establish the

measurements were untrustworthy.

       This issue is without merit.



                                             IV.



       The defendant contends the trial court committed error of prejudicial dimensions by

failing to instruct the jury that Glenda Vaughn’s failure to wear a seat belt contributed to

her fatal injuries. He argues there is no statutory prohibition against instructing the jury a

victim contributed to her own injuries. The defendant states in his brief, “[i]n fact, certain

circumstances one can establish contributory negligence in civil actions for a failure to

comply with the state law, not wearing seat belts.” This court notes the Tennessee

Supreme Court adopted comparative fault several years ago. See McIntyre v. Balentine,

833 S.W.2d 52 (Tenn. 1992).

       This issue has been waived. The defendant has failed to cite any authority to

support his argument on this issue. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R.

10(b); State v. Brothers, 828 S.W.2d 414, 416 (Tenn. Crim. App. 1991), per. app. denied

(Tenn. 1992). The reason for this default is obvious. None of the decisions addressing the

question of applying contributory negligence or comparative negligence in a criminal case

support the defendant’s contention. See Fuston v. State, 215 Tenn. 401, 405, 386 S.W.2d

523, 525 (1965); Hurt v. State, 184 Tenn. 608, 613, 201 S.W.2d 988, 990 (1947); Hiller v.

State, 164 Tenn. 388, 392, 50 S.W.2d 225, 226-27 (1932); Copeland v. State, 154 Tenn.

7, 10, 285 S.W. 565, 566 (1926); Lauterbach v. State, 132 Tenn. 603, 606, 179 S.W. 130,

131 (1915).

       In this case, Glenda Vaughn did not commit any act which caused or contributed to



                                             10
the violent collision between her automobile and the defendant’s truck. She was a

passenger in the automobile being driven by her son, Daniel Vaughn. Her death was the

proximate result of the defendant operating his truck in a manner which he knew, or should

have known, created a substantial risk of death or serious bodily injury to another person.

       This issue is without merit.



                                             V.



       The defendant next raises three issues concerning the sentences imposed by the

trial court. He contends (a) the trial court should have applied certain mitigating factors in

determining his sentences, (b) the sentences are excessive, and (c) he should have been

given an alternative sentence to incarceration.



                                             A.



       When an accused challenges the length and manner of service of a sentence, it is

the duty of this court to conduct a de novo review 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). The presumption

does not apply to the legal conclusions reached by the trial court in sentencing the accused

or to the determinations made by the trial court which are predicated upon uncontroverted

facts. State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App.), per. app. denied (Tenn.

1994). However, this court is required to give great weight to the trial court's determination

of controverted facts as the trial court's determination of these facts is predicated upon the

witnesses' demeanor and appearance when testifying.

       In conducting a de novo review of a sentence, this court must consider (a) any

evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the

principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives,



                                             11
(e) the nature and characteristics of the offense, (f) any mitigating or enhancing factors, (g)

any statements made by the accused in his own behalf, and (h) the accused's potential or

lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103 and -210;

State v. Scott, 735 S.W.2d 825, 829 (Tenn. Crim. App.), per. app. denied (Tenn. 1987).

          The party challenging the sentences imposed by the trial court has the burden of

establishing the sentences are erroneous. Sentencing Commission Comments to Tenn.

Code Ann. § 40-35-401; Ashby, 823 S.W.2d at 169. In this case, the defendant has the

burden of illustrating the sentences imposed by the trial court are erroneous.



                                                B.



          The trial court found the following enhancement factors for vehicular homicide:

                 (1) The defendant has a previous history of criminal
                     convictions or criminal behavior in addition to those
                     necessary to establish the appropriate range;
                 (3) The offense involved more than one victim;
                 (7) The offense involved a victim and was committed to
                     gratify the defendant’s desire for pleasure or
                     excitement;

Tenn. Code Ann. § 40-35-114.

          As for the charge of aggravated assault, the court found the above enhancement

factors applied plus the following:

                 (9) the defendant possessed or employed a firearm,
                     explosive device or other deadly weapon during the
                     commission of the offense.

Tenn. Code Ann. § 40-35-114.

          The trial court found no mitigating factors. The defendant had asked the court to find

his conduct occurred under such unusual circumstances there was no sustained intent to

violate the law. The trial court said the evidence showed “quite to the contrary.” “[T]he

defendant’s behavior with an automobile over a span of 13 years [has] resulted in seven

convictions for speeding; one for reckless driving; three other driving related offenses and

one other offense involving an automobile yet not driving related. That is a total conviction

of 11.”

          Additionally, the court found there had not been sufficient change in the defendant’s



                                                12
behavior since the collision to consider application of factor (13), which allows

consideration of any other factor supported by the evidence. The trial court said the

defendant’s level of remorse did not demonstrate there had been a sufficient change in the

defendant.

                                              1.



       The defendant first challenges the trial court’s refusal to apply mitigating factor (13)

in determining his sentence. In refusing to apply this mitigating factor, the court said it had

considered the defendant’s wife’s testimony. Sue Martin testified the defendant had a

history of not providing financially for his family. When he did earn money, he failed to pay

taxes on what he earned. She told the court unless the situation changed, she could not

continue in the marriage. Based upon her testimony and the arguments of defense

counsel regarding the defendant’s remorse,1 the court said he had not seen a “sufficient

change in the defendant’s behavior since this accident to justify the court considering 40-

35-113(13).”

       The court’s refusal to apply factor (13) was not error.



                                              2.



       The defendant next challenges the trial court’s use of enhancement factor (3). The

court’s use of factor (3) was appropriate. The victims listed in the indictments were Glenda

Vaughn (vehicular homicide) and Daniel Vaughn (aggravated assault). Also injured in the

collision was Tony Rogers, a passenger in the defendant’s truck. His injuries were not the

basis for a criminal action against the defendant. Enhancement based upon his injuries

was proper. State v. Norris, 874 S.W.2d 590, 601 (Tenn. Crim. App.), per. app. denied

(Tenn. 1993).

       The defendant does not challenge any of the other enhancement factors that were



       1
         In an interview prior to his trial, the defendant told a presentence investigating
officer that although he was in the center of the road, the Vaughns’s car was also in the
center of the road and headed into his lane. He did not testify at the trial or at his
sentencing hearing.

                                              13
applied.

                                            3.



       The state contends the trial court should have applied factor (10) regarding the

defendant’s lack of hesitation about committing a crime when the risk to human life was

high. Tenn. Code Ann. § 40-35-114(10). The trial court considered factor (10) and opined

he could not apply both factor (10) and factor (7) regarding gratification. The court

reasoned the commission of a crime for excitement and gratification would be synonymous

with having no hesitation to commit the crime.

       Factors (7) and (10) have been applied together. See State v. James Lloyd Julian,

Loudon County No. 03-C-01-9511-CV-00371, 1997 WL 412539 (Tenn. Crim. App.,

Knoxville, July 24, 1997); State v. Robert Kevin Moore, Putnam County No. 01-C-01-9606-

CC-00255, 1997 WL 409481 (Tenn. Crim. App., Nashville, July 23, 1997); State v. Richard

J. Crossman, Wilson County No. 01-C-01-9311-CR-00394, 1994 WL 548712 (Tenn. Crim.

App., Nashville, October 6, 1994), per. app. denied (Tenn. January 3, 1995); State v.

Thoma Shawn Noles and Michael Stanley, Rutherford County No. 01-C-01-9301-CC-

00003 and No. 01-C-01-9301-CC-00005, 1993 WL 483318 (Tenn. Crim. App., Nashville,

November 18, 1993), per. app. denied (Tenn. April 14, 1994).

       This court will now consider whether application of factor (10) is appropriate. This

court has held that factor (10) is inherent in the offense of aggravated assault. State v.

David Cliff, Dyer County No. 02-C-01-9509-CC-00262, 1996 WL 551760 (Tenn. Crim.

App., Jackson, September 30, 1996), per. app. denied (Tenn. March 10, 1997). Therefore,

application of factor (10) is not appropriate for aggravated assault.

       As for using factor (10) to enhance a sentence involving vehicular homicide, this

court has held this enhancement factor should not be applied if the risk to life only

endangered the victim. State v. Norris, 874 S.W.2d 590, 601 (Tenn. Crim. App.), per. app.

denied (Tenn. 1993). See State v. Makoka, 885 S.W.2d 366, 373 (Tenn. Crim. App.), per.

app. denied (Tenn. 1994). However, when the lives of other people are at risk due to the

offense committed by the accused, this factor is applicable. State v. Dockery, 917 S.W.2d

258, 263 (Tenn. Crim. App. 1995) (this factor applied in DUI case due to the fact there was


                                            14
a passenger in the accused's vehicle); Makoka, 885 S.W.2d at 373. More particularly, this

enhancement factor has been applied in vehicular homicide cases when the accused

places the life of a third party at risk. State v. Williamson, 919 S.W.2d 69, 83 (Tenn. Crim.

App. 1995) (other citizens using the same highway as the accused); State v. Bingham, 910

S.W.2d 448, 453 (Tenn. Crim. App.), per. app. denied (Tenn. 1995) (other citizens using

the same roadway as the accused); State v. Lambert, 741 S.W.2d 127, 134 (Tenn. Crim.

App.), per. app. denied (Tenn. 1987) (other citizens using the same roadway as the

accused); State v. Shane Wendall Yankee, Hawkins County No. 03-C-01-9507-CC-00200,

1996 WL 438792 (Tenn. Crim. App., Knoxville, August 6, 1996), per. app. denied (Tenn.

February 3, 1997) (passenger in defendant’s car and other driver using the same roadway

as the accused).

       There are two reasons which justify the trial court’s use of factor (10) to enhance the

defendant’s sentence. First, the defendant had a passenger in his vehicle. The life of the

passenger, Tony Rogers, was at risk due to the manner in which the accused drove his

motor vehicle. Second, the defendant was being pursued by his friends in another pickup

truck. That truck, carrying three other men, was also on the roadway in close proximity to

the defendant’s truck and traveling at a high rate of speed. The lives of those three men

were at risk because of the defendant’s behavior.

       Thus, for the conviction of vehicular homicide, factors (1), (3), (7), and (10) were

appropriate. For the conviction of aggravated assault, factors (1), (3), (7), and (9) were

appropriate.

                                             C.



       The defendant next contends the court erred in the weight it assigned to

enhancement factor (1) regarding the defendant’s criminal behavior and criminal record.

The defendant argues he has no felony record and has only been convicted of

misdemeanors. The court said it took into account the defendant’s traffic offenses and a

reckless driving offense. The court noted the evidence indicated the defendant was using

cocaine close to the time of the accident.

       The presentence report indicates that over a 10-year period the defendant had been



                                             15
cited for speeding five times, reckless driving, operating a motorcycle without a helmet,

driving the wrong way on a one-way street, failing to have safety equipment on a

motorcycle, and failing to stop where a stop was required. Additionally, another charge of

reckless driving was reduced to a charge of speeding.

        The defendant admitted he had used marijuana in the past. According to the

defendant’s presentence report, he admitted to using marijuana on a weekly basis up until

the time of the wreck. He also admitted to using cocaine on “rare occasions.”

       The range for a Class C felony is three (3) to six (6) years. This court finds that the

sentences imposed are both proper and reasonable based upon the circumstances of the

offense and the enhancement factors.



                                              D.



       The defendant finally contends the court erred by failing to impose an alternative

sentence.

                                               1.



       If an accused is convicted of a Class C, D, or E felony and is sentenced as either

an especially mitigated offender or a standard offender, there is a presumption, rebuttable

in nature, that the accused is a favorable candidate for alternative sentencing unless

disqualified by some provision of the Tennessee Criminal Sentencing Reform Act of 1989.

Tenn. Code Ann. § 40-35-102(6).

       The sentencing process must necessarily commence with a determination of

whether the accused is entitled to the benefit of the presumption. Ashby, 823 S.W.2d at

169; State v. Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993). As the supreme

court said in Ashby: "If [the] determination is favorable to the defendant, the trial court must

presume that he is subject to alternative sentencing. If the court is presented with evidence

sufficient to overcome the presumption, then it may sentence the defendant to confinement

according to the statutory provision[s]." 823 S.W.2d at 169. The presumption can be

successfully rebutted by facts contained in the presentence report, evidence presented by


                                              16
the state, the testimony of the accused or a defense witness, or any other source provided

it is made a part of the record. Bonestel, 871 S.W.2d at 167.



                                            2.



       In this case, the appellant was entitled to the presumption that he was a favorable

candidate for alternative sentencing. However, as the trial court found, the state

successfully rebutted the presumption.

       The court stressed the defendant’s traffic offenses involving the use of an

automobile. Some of these offenses could have led to the maiming or killing of another

person as well. The defendant, the court said, was an “accident waiting to happen.”

       The defendant’s history indicates he did not support his family properly. The

defendant’s wife testified the defendant did not provide adequate financial support. When

he did support his family financially, he failed to pay taxes on the money he earned. Thus,

his obligations to society suffered.

       The defendant dropped out of high school for no reason. His employment record

was sporadic; he held jobs for only a few months at a time. He admitted to the regular use

of marijuana and more occasional use of cocaine.

       The court noted confinement via a concurrent sentence would adequately protect

society as opposed to imposing a consecutive sentence. Confinement was also necessary

to deter the defendant and others from committing such offenses. Tenn. Code Ann. § 40-

35-103(1)(B). Confinement was also warranted to protect society by restraining the

defendant who has a long history of criminal conduct, Tenn. Code Ann. § 40-35-103(1)(A),

and to avoid depreciating the seriousness of the offenses, Tenn. Code Ann. § 40-35-

103(1)(B). It further appears the defendant’s potential for rehabilitation is slight, Tenn.

Code Ann. § 40-35-103(5). The court noted the defendant had presented no evidence that

he had changed his behavior since the accident.

       The defendant has failed to carry his burden of illustrating the sentences imposed

by the trial court were erroneous. The defendant was not entitled to an alternative

sentence.



                                            17
     The issue is without merit.




                                   ________________________________________
                                       JOE B. JONES, PRESIDING JUDGE


CONCUR:



___________________________________
    WILLIAM M. BARKER, JUDGE



___________________________________
     JOE G. RILEY, JUDGE




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