State of Tennessee v. Clifford James Engum

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 5, 2003

STATE OF TENNESSEE v. CLIFFORD JAMES ENGUM

Direct Appeal from the Criminal Court for Madison County
No. 00-586 Donald H. Allen, Judge

No. W2002-01124-CCA-R3-CD - Filed February 4, 2004

The appellant, Clifford James Engum, pled guilty in the Madison County Criminal Court to
vehicular homicide by recklessness and aggravated assault with a deadly weapon, to-wit: a motor
vehicle. Pursuant to the plea agreement, the appellant received a total effective sentence of eight
years incarceration in the Tennessee Department of Correction. The trial court ordered the appellant
to serve one year of his sentence in confinement and the remainder of his sentence on probation. On
appeal, the appellant contests the trial court’s denial of full probation and the eight-year suspension
of his driver’s license. Upon review of the record and the parties’ briefs, we remand to the trial court
for correction of the judgment of conviction for vehicular homicide to reflect that the appellant’s
driving privileges in the state of Tennessee are revoked for a period of eight years. The judgments
of the trial court are affirmed in all other respects.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which THOMAS T. WOODA LL and
ROBERT W. WEDEMEYER , JJ., joined.

Helen M. Donnelly, Knoxville, Tennessee (at trial and on appeal) and Patrick B. Moore, Atlanta,
Georgia (at trial), for the appellant, Clifford James Engum.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James
G. (Jerry) Woodall, District Attorney General; and Alfred L. Earls, Assistant District Attorney
General, for the appellee, State of Tennessee.

OPINION

I. Factual Background
 On February 27, 2002, the appellant pled guilty in the Madison County Criminal Court to the
vehicular homicide of Tennessee State Trooper Lynn M. Ross and the aggravated assault of Margaret
Jordan. At the guilty plea hearing, the State recited the following factual basis for the pleas:

[O]n or about the 26th day of July of the year 2000 the [appellant] did
unlawfully and recklessly kill Trooper Lynn M. Ross by operation of
a motor vehicle, that being a tractor trailer by the proximate result of
[the appellant’s] conduct creating a substantial risk of death or serious
bodily injury here in Madison County.

Also, pursuant to that reckless conduct . . . a lady by the name of
Margaret Jordan suffered serious bodily injury as a result of that
conduct when her vehicle was struck. She had several broken bones
and a screwdriver was embedded in her leg. She suffered serious
bodily injury as a result of that conduct.

Specifically, . . . the State would show through witnesses that the
[appellant’s] speed in a construction zone was in excess of the speed
limit which was posted at 55. His speed was determined to be
between 64 and 65 based upon the Accident Reconstructionist for the
State and the [appellant’s] statement. That during the passage of this
construction zone . . . he went through at least 29 signs indicating the
speed, that workers were in a lane ahead, and that lane was closed.
He remained in that lane when he struck Trooper Ross’s vehicle from
behind, causing Trooper Ross’s vehicle to enter the median. It
erupted in flames. Trooper Ross was killed by the flames in that
vehicle.

The plea agreement provided that the appellant would receive a sentence of six years for the
vehicular homicide conviction and two years for the aggravated assault conviction. The agreement
also provided that the sentences would be served consecutively for a total effective sentence of eight
years. Finally, the agreement stated, “Sentencing will be determined at a later date by The Court.
However, the State agrees not to request more than one year of this time will be served. But the
[appellant] obviously will be seeking a suspension of sentence and will be seeking probation.”

Thereafter, the trial court held a sentencing hearing. Trooper Sam McCoy with the
Tennessee Highway Patrol (THP) testified that on the morning of July 26, 2000, he witnessed an
accident “[o]n I-40 in the eastbound lane near the 86-mile marker.” That morning, he and Trooper
Ross were performing traffic control for a construction crew that was cutting a “rumble strip” into
the emergency lane of the interstate. Trooper McCoy noted that the westbound lanes of traffic were
“flowing normally,” while the eastbound lanes were slower due to the construction and the closure
of the right lane of traffic. Trooper McCoy was stationed in the right lane behind the construction
crew; specifically, he was parked behind an “arrow board” which was mounted on a pickup truck.

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Trooper Ross was stationed in the right lane approximately one hundred yards behind Trooper
McCoy.

Trooper McCoy stated that there were “numerous” signs indicating a lane closure and that
the area was a construction zone. However, Trooper McCoy did not know the specific wording of
the signs because the signs were placed behind him and he was not responsible for their placement.

Trooper McCoy stated that the construction crew had made progress for two miles that
morning and “several thousand cars” had passed through the area without any trouble. Furthermore,
Trooper McCoy opined that Trooper Ross’ patrol car was visible from approximately one-half of a
mile away. Shortly before 9:00 a.m., Trooper McCoy looked into his rear view mirror and observed
the appellant’s tractor-trailer collide with Trooper Ross’ patrol car. Trooper McCoy noted that there
was no tractor-trailer driving in front of the appellant. Specifically, Trooper McCoy explained that
upon seeing the crash he immediately turned his patrol car around to go and help Trooper Ross;
accordingly, his vehicle would have been “broadsided” if there had been another tractor-trailer in the
left lane. Trooper McCoy was unaware of anyone narrowly missing Trooper Ross’ patrol car that
morning.

The next witness to testify was the second victim, Margaret Firn Jordan. Jordan testified that
she was retired after twenty-eight years in law enforcement. On the morning of July 26, 2000,
Jordan was driving in the left westbound lane of I-40. She stated that there were signs cautioning
drivers to reduce their speed. Jordan began watching the construction and traffic in the eastbound
lanes as well as the traffic in the westbound lanes. Jordan described the accident as follows:

And then just all of a sudden, I saw this truck hit the rear end of the
Trooper’s car, and it exploded, and how it veered off into the median.
And I just . . . didn’t know what to think. You know, I –and at that
time, it seemed like all traffic seemed to have slowed down
considerably to probably 20 miles per hour.

And I just kept watching this truck. And I thought, “My goodness.
He’s not even stopping. He’s just” – the truck just seemed like it was
just struggling to go forward, and then I saw it veering to the left – his
left. And I was constantly calculating, you know, would he come
across the median and hit me, or would he jackknife or whatever? So
I just kept watching him. And it just seemed like all of a sudden my
calculations were saying, “Hey, he’s coming right at me.” And I
looked to the right. And of course, traffic was really congested. And
so, I thought my only alternative was to jerk my truck to the left. And
I did, and my right fender caught his back tandems. And that’s . . .
about it.

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Jordan stated that during her years in law enforcement she had been trained to be observant;
however, prior to the impact she did not see any vehicle narrowly miss striking Trooper Ross’ patrol
car.

Jordan testified that a screwdriver went through her left leg and one of her teeth was broken
during the collision. Additionally, the top of Jordan’s left leg was severely bruised and her right
wrist was crushed. At the time of the sentencing hearing, Jordan continued to suffer from disability
in her right arm and still bore “signs of a hematoma that was on [her] left leg.” Jordan continued to
have dental problems as a result of the accident. She stated that her medical problems caused a
“tremendous financial strain.” Additionally, Jordan noted that she had seen a counselor because the
accident “had a very traumatic effect on me as far as driving on the interstate. I have to depend on
my friends to take me places.”

Jordan acknowledged that she had filed a civil lawsuit against the appellant and his employer.
She further acknowledged that in her lawsuit she alleged that Dement Construction Company had
inadequately marked the construction zone.

Trooper Ross’ sister, Vernell Thomas, testified on behalf of Trooper Ross’ family. She stated
that the collision had a “devastating emotional effect on my family.” In particular, Thomas noted
that Trooper Ross’ four children were suffering emotionally because they had been very close to their
father.

Next, Trooper Barry Waldrop testified. Trooper Waldrop stated that he worked for the THP
as the Team Leader for the Critical Incident Response Team. Trooper Waldrop stated that he was
the “crash reconstructionist” for the collisions of July 26, 2000. Without objection, Trooper
Waldrop was designated as an expert in accident reconstruction.

Trooper Waldrop noted that “there were probably in excess of twenty-nine signs” in the area
surrounding the collision site. The signs consisted of “everything from speed limit signs to shoulder
work signs to actual message boards.” Additionally, some signs warned of a lane closure. In
particular, Trooper Waldrop stated that there were eight speed limit signs, five message boards, and
sixteen other construction zone signs. The message boards rotated the messages, “Use Caution,”
“One Lane Traffic Ahead,” and “Workers in Road Ahead.” Trooper Waldrop acknowledged that
there were no signs specifically noting that the right lane would close. The signs began at the 74
mile marker and construction began between the 85 and 86 mile markers. Trooper Ross’ patrol car
was stationed near the 86 mile marker. Trooper Waldrop also noted that there were orange and white
barrels placed in the median, indicating a construction zone. Trooper Waldrop opined that Trooper
Ross’ patrol car could have been seen from a distance of one-half of a mile away.

Trooper Waldrop stated that the speed limit in the construction zone was 55 miles per hour
(mph). From his consideration of the appellant’s statement to police shortly after the collisions and
his examination of the scene, Trooper Waldrop determined that the appellant was driving no less
than 64 mph at the time of the collision with Trooper Ross’ patrol car. Trooper Waldrop stated that

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the appellant had veered into the emergency lane and was attempting correction when he collided
with Trooper Ross’ patrol car. Specifically, Trooper Waldrop noted that the appellant’s “path of
travel would have put him off the highway onto the emergency strip approximately 100 feet.
Anywhere from 50 to 100 feet prior to the collision, he was off the highway onto the shoulder of the
highway.” Trooper Waldrop explained that it was not unusual for drivers to stray into the emergency
lane.

Trooper Waldrop explained that the appellant’s tractor-trailer struck Trooper Ross’ patrol
car twice.

The first time would be the initial impact where the – Trooper Ross’s
vehicle was stationary in the highway and the truck hit him. And the
second time was after Trooper Ross was overrun and came out from
underneath the tractor-trailer truck, and the truck entered the median
with the patrol car. Then it was – he ran over him again, this time
from the front because Trooper Ross’s patrol car had rotated 180
degrees around. And this time, he was run over by the trailer of the
tractor-trailer, specifically the left side of the Number 4 axle.

Trooper Waldrop explained that the second impact sealed Trooper Ross’ vehicle and prevented his
escape. The collision ruptured the trooper’s gas tank and the fumes ignited, creating a fire. There
was evidence that Trooper Ross applied his brakes after the flames erupted, indicating that Trooper
Ross was alive at the time his vehicle caught fire.

Trooper Waldrop concluded that the evidence did not demonstrate another vehicle had
swerved to avoid Trooper Ross’ patrol car just before the appellant’s collision with Trooper Ross.
Regardless, Trooper Waldrop explained that a vehicle driving in front of the appellant would not
have obstructed the appellant’s view of Trooper Ross because the appellant “wasn’t even on the
roadway. He was off on the shoulder. He should have been able to see him.” Trooper Waldrop
maintained that the appellant did not apply his brakes until 1.8 seconds after impact. Trooper
Waldrop explained that, considering a person’s normal reaction time, this evidence indicated that
the appellant did not see Trooper Ross until impact and at that point applied his brakes.

Without objection from the State, the defense submitted the affidavit of John C. Glennon.
Glennon was a “Safety Consultant with John C. Glennon, Chartered – Automotive Technology and
Traffic Engineering.” Glennon “helped author the previous Manual on Uniform Traffic Control
Devices.” Glennon reviewed photographs of the scene of the collisions and the depositions of
witnesses. Glennon stated, “Based on my experience and expertise, it is my opinion that the
construction zone where the accident occurred in this case was made extremely dangerous to those
working in the work zone as well as travelers on the highway by the completely improper markings
set up to mark the construction zone.”

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 Specifically, Glennon noted that there should have been signs indicating a closure of the right
lane and a “lane closure taper” to gradually close the right lane. Additionally, Glennon stated that
the arrow board was positioned too far away to help motorists notice Trooper Ross, and the message
boards did not comply with federal regulations in that they flashed too many messages for a motorist
to read.

The defense next submitted the affidavit of Scott Green. Green stated that he was driving
a tractor-trailer in the right lane on I-40 east on the morning of July 26, 2000. He was driving
directly in front of the appellant and there were two more tractor-trailers in front of Green. He
estimated that all traffic was moving at 60 or 65 mph. As Green neared the 86 mile marker at
approximately 8:45 a.m. that morning, he noticed the two tractor-trailers in front of him quickly
swerve into the left lane. After the tractor-trailer directly in front of him swerved into the left lane,
Green finally noticed Trooper Ross’ patrol car parked in the right lane with its blue lights activated.
Green quickly changed lanes and missed hitting Trooper Ross’ patrol car by approximately one and
one-half feet.

The defense also submitted the affidavit of Craig Treanor. At 8:30 or 9:00 a.m. on July 26,
2000, Treanor was traveling eastbound on I-40. Treanor stated that he was driving in the left lane
at 70 or 75 mph. He claimed that he did not remember seeing any construction signs. Upon nearing
exit 85, Treanor noticed Trooper Ross’ patrol car in the right lane with its emergency lights
activated. Treanor applied his brakes to ensure that he was no longer speeding. At first, Treanor
believed that Trooper Ross was pursuing another vehicle; however, Treanor quickly “closed the gap”
between himself and the trooper and realized that Trooper Ross’ patrol car was parked in the right
lane. The white car that had been driving in the right lane beside Treanor quickly swerved into the
left lane in front of Treanor in order to avoid a collision with the trooper. Approximately 100 yards
down the road, Treanor saw the construction crew and some arrow boards. Treanor asserted that
there had been no prior indication that the right lane would be closed.

Next, the defense called Sharon Jones. Jones, a nurse, was driving home from work at 7:30
or 7:35 a.m. on I-40 east on the morning of July 26, 2000. She stated that she was driving the speed
limit in deference to the construction zone. Jones saw two troopers stationed near the construction.
At first, she thought the troopers were on the side of the highway; however, as she got closer she was
“shocked” to discover that the troopers were parked in the right lane of the interstate. She
acknowledged that she had ample time to get out of the way because she had a clear view of the
troopers. Jones stated that she had planned to call the THP and report the dangerous conditions of
the construction zone, but she became distracted upon arriving at home. Jones maintained that after
she heard about the accident she made numerous telephone calls in order to contact defense counsel
because she believed that “the roadblock was terrible. There was no warning.”

The appellant testified on his own behalf at the sentencing hearing. The appellant explained
that his home was in Caldwell, Idaho. The appellant stated that his three brothers, three sisters, and
his mother also resided in Idaho. Since his graduation from high school, the appellant had held a
variety of jobs. He served five years in the Army and received an honorable discharge. Following

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his discharge, he spent four years in law enforcement before beginning his truck driving career in
1980.

The appellant stated that he had not driven a tractor-trailer since these offenses and would
not drive a tractor-trailer again. The appellant explained that it was traumatic for him to look at a
tractor-trailer. The appellant maintained,“I never wanted to hurt anybody.”

The appellant acknowledged that after the collisions he had difficulty finding employment.
Most employers were wary of his impending charges. Accordingly, he was unemployed at the time
of the sentencing hearing. However, the appellant stated that he had two potential jobs in Idaho.
The appellant testified that if he were granted probation, he had a job as a short-order cook, or he
could work for Ron Sell trucking. The appellant explained that the job with the trucking company
would not be as a driver.

The appellant stated that the July 26, 2000, collisions occurred on a Tuesday or Wednesday.
On the preceding Thursday afternoon, the appellant had picked up a load in Long Beach, California,
and was scheduled to deliver it to La Vergne, Tennessee. In the week prior to the offenses, the
appellant never exceeded the number of hours he was supposed to drive, and he always took his
mandated breaks. Additionally, the appellant kept his log books in accordance with regulations. He
felt that he was getting an adequate amount of sleep, noting that he slept well the night before the
collisions.

On July 25, 2000, the appellant spent the night at a truck stop in West Memphis, Arkansas.
When the appellant woke at 6:30 or 6:45 a.m. on the morning of July 26, 2000, he went to the truck
stop and bought a chocolate chip muffin, a hot dog, a twenty-ounce cup of coffee, and a bottle of
water. The appellant left the truck stop and ate while driving. He stated that he did not feel tired,
but he was still hungry after finishing the muffin, the hot dog, and the coffee.

The appellant testified that the day of the collisions was “the same old thing” as every other
day. He stated:

I still don’t really remember much of the trip from there [the truck
stop] other than I remember – I didn’t know it was Exit 85, but I
remember going past that exit and how the road turns to the right and
goes up a little hill and – and then my next recollection was the
Trooper was right in front of me.

The appellant maintained, “I think I tried to swerve . . . it’s just really basically a blur.” However,
the appellant freely admitted that he struck Trooper Ross and Jordan.

The appellant testified that he cried when he discovered that Trooper Ross did not survive
the collision. He explained that he did not get out of his tractor-trailer and attempt to help because
“I couldn’t just watch that car burn.” The appellant stated that he saw a counselor after the collisions

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because he “used to wake up screaming.” Regardless, the appellant maintained, “it’s the last thing
I think about before I go to bed. It’s the first thing that enters my mind when I wake up.”

The appellant recalled that he was taken to the hospital after the collisions, accompanied by
a trooper. He was treated for “bumps and bruises” and released. Upon his release, he went with the
trooper to “a police headquarters.” The trooper read the appellant his rights and asked the appellant
to give a statement. The appellant did not request an attorney and voluntarily gave a statement to
the trooper. During the statement, the appellant was repeatedly asked if he had fallen asleep prior
to the accident. Initially, the appellant replied, “I don’t know.” However, he subsequently
responded, “I can’t discount the possibility that I fell asleep because I don’t know.” The appellant
also did not remember if another vehicle was driving behind, beside, or in front of him.

On the day of trial, the appellant pled guilty to vehicular homicide by recklessness and
aggravated assault with deadly weapon. The appellant stated that he pled guilty because “I just
thought it was time for it to be over.” He waited to plead because he was warring with his pride,
explaining that he did not want to be a “convicted felon.” However, he finally concluded that both
he and Trooper Ross’ family had been through enough.

The appellant stated that, including the instant offenses, he had been involved in only two
accidents “in a truck” during his many years of commercial driving. The appellant acknowledged
that he had received approximately five speeding tickets since he was seventeen years old. He had
no prior criminal infractions. The appellant admitted that he was driving approximately 64 mph at
the time of the collision with Trooper Ross, but he maintained that he was not aware that the speed
limit in the construction zone was 55 mph until he was so informed after the collisions. The
appellant conceded that the cruise control on his tractor-trailer was set at 65 mph, and he did not
reduce his speed even though he knew he was in a construction zone.

The appellant admitted that the other wreck in which he was involved had occurred three
years before the instant collisions. In the earlier collision, the appellant “hit two Utah State police
officers that were parked in the middle of the road on a freeway in one of the suburbs of Salt Lake
City.” The appellant stated that because he did not know the cause of the wreck, he went to see a
doctor. Ultimately, the appellant was diagnosed with severe sleep apnea which required surgery.
The appellant stated that he felt better immediately after surgery. The appellant testified that he
attended a follow-up appointment with his doctor two weeks after surgery. He maintained that he
was never told that he could not drive a tractor-trailer.

The appellant stated that in August 1999 he had “a physical to drive a truck.” The appellant
saw Dr. Shockley in Ownesboro, Kentucky. The appellant did not tell Dr. Shockley that he had been
previously diagnosed with sleep apnea because he believed that the condition had been corrected by
surgery.

The appellant admitted that in the Fall of 1999, he told his dispatcher, Brian Haynes, that he
was feeling “fatigued and tired.” The appellant stated that Haynes asked the appellant if he should

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see a doctor. The appellant stated that he saw a doctor and was told “I had the flu or something.”
The appellant maintained that he was not fatigued on the morning of the collisions because he had
rested well the previous night.

The next witness to testify was Brian Haynes, the appellant’s dispatcher at the time of the
offenses. Haynes asserted that the appellant was a very good employee and never made late
deliveries or committed safety violations. Haynes stated that the appellant could have been
considered a “slow driver” because he drove his allotted hours and took his mandatory breaks, then
he would quit for the day.

Haynes spoke with the appellant shortly after the collisions and described the appellant as
“very distraught, very upset, crying.” The appellant told Haynes that he did not remember how the
collisions occurred.

Haynes acknowledged that the appellant had previously complained of fatigue. Haynes
suggested to the appellant that he seek medical attention. The appellant never mentioned the
problem again and Haynes did not question the appellant about it. Haynes stated that he did not
report the appellant’s complaints of fatigue to a supervisor because “[i]t comes with the job.”

Tom Doherty, pastor of Cloverdale Church of God in Boise, Idaho, testified that he had
known the appellant for thirty-eight years. He stated that the collisions were “devastating” to the
appellant because he’s “a very sensitive fellow.” The appellant became depressed after the collisions
and felt particularly remorseful towards Trooper Ross’ children. Doherty opined that the appellant
had good potential for rehabilitation.

James A. Vish, another long-time friend of the appellant, also testified on the appellant’s
behalf. Vish resided in Homedale, Idaho, and is the Deputy Sheriff in Owyhee County, Idaho. Vish
stated that he had previously ridden in a tractor-trailer with the appellant and would “drive with him
anywhere.” Vish opined that the appellant was not a lawbreaker or a risktaker. Vish stated that
“alcohol and drugs were never a factor in [the appellant’s] life.” Vish feared that the appellant would
commit suicide after the collisions because he was unable to handle the guilt.

Finally, the defense presented the appellant’s younger brother, Scott Engum. Engum stated
that the appellant’s family was very close. He indicated that the appellant was proud of his service
in law enforcement. Engum related that the appellant was devastated by the collisions and was
depressed by “the loss he has caused for the Ross family.” Engum opined that the appellant never
wished to hurt anyone and had always desired to “do right by the law.”

In rebuttal, the State called Charles Ruby. Ruby stated that he entered I-40 east at exit 85 on
the morning of the collisions. Ruby stated that he had difficulty merging with traffic because two
approaching tractor-trailers were driving in the right lane. The lead tractor-trailer, which was driven
by the appellant, did not change lanes to allow Ruby to enter the highway. However, the second
tractor-trailer allowed Ruby to enter the flow of traffic. After Ruby merged onto the interstate, the

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second tractor-trailer swerved back into the right lane in front of Ruby. Once on the interstate, Ruby
set his cruise control for 57 mph because he knew police frequently ticketed speeders in the
construction zone. The tractor-trailer following the appellant appeared to be proceeding at the same
speed as Ruby, but the appellant “pull[ed] away from us.”

Ruby, who was traveling behind the second tractor-trailer, saw the appellant swerving into
the emergency lane. Ruby saw two separate “cloud[s] of dust” near the emergency lane where the
appellant was driving. Ruby opined that the dust clouds were caused by the appellant repeatedly
veering into the emergency lane. Ruby thought that the appellant must have dropped a cigarette or
fallen asleep. Immediately after the appellant swerved a second time, Ruby and the second tractor-
trailer reduced their speed. Ruby recalled, “Then there was a fireball, and Trooper Ross was killed.”

Ruby stated that he would have seen another vehicle traveling in front of the appellant and
there was no such vehicle. Additionally, Ruby maintained that he never saw any other vehicle take
“evasive action” around the area where Trooper Ross was stationed.

Next, the State called Allan Wainscott. Wainscott testified that he had been involved in the
trucking industry for over twenty years. He entered I-40 westbound at exit 87 on the morning of July
26, 2000. Wainscott stated that traffic was moving “fairly slow” and that he was driving 55 mph
because his wife had been recently ticketed for driving 60 mph in the construction zone.

Wainscott’s attention was drawn to the eastbound lanes of I-40 by a flash of light. He saw
Trooper Ross’ vehicle parked in the right lane with its blue lights activated. Recalling the collisions,
Wainscott testified:

Upon impact at that time, the truck hit the car. I saw a ball of fire go
underneath the truck. I noticed that the front wheel – the left front
steer tire of the truck stopped turning. It was up on top of the car.
And as it moved forward, I noticed the tire started turning again and
the vehicle came towards the median strip towards where I was
passing by.

Wainscott stated that he did not see any other tractor-trailer come by Trooper Ross and have to take
evasive action.

After the conclusion of the testimony, the trial court noted that the length of the sentences
had been agreed upon. Therefore, the trial court noted that “[i]t’s really a question of whether or not
any jail time should be imposed in this case.” The trial court observed that the State had only
requested one year of confinement. The trial court ultimately determined that the appellant should
receive a period of incarceration due to the seriousness of the offenses and the effect of deterrence
on the appellant and the community. Accordingly, the trial court ordered the appellant to serve eight
months of his six-year sentence for the vehicular homicide conviction in confinement and four
months of his two-year sentence for the aggravated assault conviction in confinement. In accordance

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with the plea agreement, the sentences were to be served consecutively. Thus, the court imposed a
total effective sentence of eight years, with one year to be served in confinement. Additionally, the
trial court determined that the appellant’s driving privileges should be suspended for eight years.
The appellant timely appealed the trial court’s rulings and raised the following issues for our review:

(1) “[w]hether the Trial Court failed to apply the Sentencing
Guidelines properly when it did not begin its sentencing consideration
with the presumption that a sentence other than incarceration would
result in the [appellant’s] successful rehabilitation”;

(2) whether the trial court improperly denied the appellant full
probation;

(3) whether the trial court improperly applied and weighed various
enhancement and mitigating factors; and

(4) whether the trial court erred in suspending the appellant’s driving
privileges in all states for eight years.

II. Analysis

A. Denial of Full Probation

Appellate review of the length, range or manner of service of a sentence is de novo.
See Tenn. Code Ann. § 40-35-401(d) (1997). In conducting its de novo review, this court considers
the following factors: (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) evidence and information
offered by the parties on enhancement and mitigating factors; (6) any statement by the appellant in
his own behalf; and (7) the potential for rehabilitation or treatment. See Tenn. Code Ann. § 40-35-
102, -103, -210 (1997 and 2003); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The
burden is on the appellant to demonstrate the impropriety of his sentence(s). See Tenn. Code Ann.
§ 40-35-401, Sentencing Commission Comments. Moreover, if the record reveals that the trial court
adequately considered sentencing principles and all relevant facts and circumstances, this court will
accord the trial court’s determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d
at 169. We conclude that the trial court’s determinations are eligible for the presumption of
correctness.

1. Presumption in Favor of Alternative Sentencing

Initially, we recognize that an appellant is eligible for alternative sentencing if the sentence
actually imposed is eight years or less. See Tenn. Code Ann. § 40-35-303(a) (1997). Moreover, an
appellant who is an especially mitigated or standard offender convicted of a Class C, D, or E felony

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is presumed to be a favorable candidate for alternative sentencing. See Tenn. Code Ann. § 40-35-
102(6). In the instant case, the appellant is a standard Range I offender convicted of a Class C felony
(vehicular homicide by recklessness) and a Class D felony (aggravated assault with a deadly
weapon); therefore, he is presumed to be a favorable candidate for alternative sentencing. See Tenn.
Code Ann. §§ 39-13-102(a)(2) and (d)(1), -213(a)(1) and (b) (1997 and 2003). However, this
presumption may be rebutted by “evidence to the contrary.” State v. Zeolia, 928 S.W.2d 457, 461
(Tenn. Crim. App. 1996). The following sentencing considerations, set forth in Tennessee Code
Annotated section 40-35-103(1), may constitute “evidence to the contrary”:

(A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of
the offense or confinement is particularly suited to provide an
effective deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant.

Zeolia, 928 S.W.2d at 461.

The trial court began its sentencing of the appellant by noting that as part of the plea
agreement that the State recommended that the appellant receive only one year of his eight year
sentence in confinement. The trial court approved this sentencing recommendation and stated that
“the only issue really left for discussion . . . is whether any period of confinement up to one year
should or should not be imposed.” In other words, the trial court was to determine whether the
appellant should receive the alternative sentence of split confinement, namely one year of
confinement followed by seven years of probation, or full probation. See Tenn. Code Ann. §§ 40-
35-104(c)(5) and 40-35-306(a) (1997 and 2003). Therefore, while the trial court never specifically
stated that the appellant was presumed to be a favorable candidate for alternative sentencing, the
appellant nevertheless implicitly received the benefit of the presumption by the trial court
determining at the outset that the appellant would receive either partial or full probation.

The trial court noted that “the burden is really upon the [appellant] to show that [he] is, in
fact, a proper candidate . . . for full probation.” The appellant vehemently argues that “the Trial
Court was required to begin its sentence consideration with the presumption that [the appellant] was
a favorable candidate for full probation.” We disagree.

The law is clear that a qualified offender is entitled to a presumption in favor of alternative
sentencing. However, it is well-settled that an appellant seeking full probation bears the burden of
establishing his suitability for full probation, regardless of whether he is entitled to the statutory
presumption favoring alternative sentencing. See State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim.
App. 1996);see also Tenn. Code Ann. § 40-35-303(b) (1997). To prove his suitability, the appellant

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must establish that granting full probation will “‘subserve the ends of justice and the best interest of
both the public and the [appellant].’” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App.
1990), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 8 (Tenn. 2000). Moreover,

[i]n determining one’s suitability for full probation, the court may
consider the circumstances of the offense, the defendant’s potential
or lack of potential for rehabilitation, whether full probation will
unduly depreciate the seriousness of the offense, and whether a
sentence other than full probation would provide an effective
deterrent to others likely to commit similar crimes.

Boggs, 932 S.W.2d at 477. Thus, the trial court correctly determined that although the appellant
would receive the alternative sentence of split confinement, he would nonetheless bear the burden
of establishing his suitability for the largess of full probation.

Finding that the appellant should serve one year of his sentence in confinement, the trial court
stated that to grant the appellant full probation would depreciate the seriousness of the offenses and
that a period of incarceration would have a deterrent effect upon the appellant and others likely to
commit similar offenses. We will first address the trial court’s findings regarding the seriousness
of the offenses.

2. Depreciating the Seriousness of the Offenses

In denying full probation to avoid depreciating the seriousness of an offense, this court should
determine if the criminal act is especially violent, horrifying, shocking, reprehensible, offensive, or
otherwise of an excessive or exaggerated degree. See Zeolia, 928 S.W.2d at 462. The appellant
argues that he “could not have fallen asleep or been inattentive to the road for more than a matter of
seconds.” Thus, he contends that such inattention could not have merited a denial of full probation
based upon the seriousness of the offenses.

The trial court, as the finder of fact, stated:

I do want to point out based upon the testimony that’s been presented
that this incident was a very violent, very horrible incident that
occurred. . . . I say that because of the fact that it was testified that it
was almost two seconds after the impact before [the appellant] ever
applied his brakes. . . .

Now, what that tells me is this. You’ve got a State Trooper. You’ve
got an individual seated there in a parked car. You’ve got a tractor-
trailer rig that’s coming down the interstate at 65 miles per hour that
runs right smack into the back of this stationary vehicle. Now,
you’ve got to think about that for a minute. The ramifications are just

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 – are terrific. They’re horrible. The testimony was that after this
vehicle was struck that it was drug several hundred feet, that this
tractor-trailer rig that [the appellant] was driving ran or turned off into
the median strip, that the vehicle – that the patrol car was underneath
the vehicle. At some point, the vehicle flipped over and the tractor-
trailer rig – the trailer part itself went directly over the top of this
vehicle, that this vehicle lay upside down in the median area with this
Officer trapped, not able to get out, and it burst into flames. The
Officer died a very violent death out there that day – all as a result of
[the appellant’s] carelessness and his recklessness, speeding, failing
to maintain control, failing to maintain a proper lookout. This
incident could have very easily been avoided had [the appellant] been
following the rules of the road, but he chose not to.

Also, you look at the danger that Ms. Jordan – the damage that she
received. She’s on the complete opposite side of the interstate going
a totally opposite direction. And all of a sudden, here she’s faced
with this eighteen-wheeler barreling down upon her. She tried to take
some evasive action, and it may have, in fact, saved her life. I don’t
know. But her vehicle was certainly struck. She was severely
injured. She had a tooth knocked out and broken. She had an arm
permanently injured. A wrist that was damaged – a right wrist and
right arm. She also testified about a screwdriver being lodged in her
leg. These are all very serious injuries that could have very easily
been avoided under the circumstances. This is not as some have
referred to it as an accident. This was, in fact, an avoidable accident.

Based upon the trial court’s factual findings we conclude that the instant offenses were
especially violent, shocking, and horrifying and merited a denial of full probation based upon the
seriousness of the offenses. Regardless of the application of this consideration, the trial court also
denied the appellant full probation based upon the deterrent effect of incarceration.

3. Deterrence

In State v. Hooper, 29 S.W.3d 1, 10-12 (Tenn. 2000), our supreme court specifically noted
five factors for consideration when denying probation solely upon the basis of deterrence:

(1) Whether other incidents of the charged offense are increasingly
present in the community, jurisdiction, or in the state as a whole.
....
(2) Whether the defendant’s crime was the result of intentional,
knowing, or reckless conduct or was otherwise motivated by a desire
to profit or gain from the criminal behavior.

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 ....
(3) Whether the defendant’s crime and conviction have received
substantial publicity beyond that normally expected in the typical
case.
....
(4) Whether the defendant was a member of a criminal enterprise, or
substantially encouraged or assisted others in achieving the criminal
objective.
....
(5) Whether the defendant has previously engaged in criminal
conduct of the same type as the offense in question, irrespective of
whether such conduct resulted in previous arrests or convictions.

Of course, this list of factors is not exhaustive; “[a]dditional factors may be considered by the
sentencing court, provided that (1) the sentencing court states these additional factors on the record
with some specificity, and (2) the presence of these additional factors is supported by at least some
proof.” Hooper, 29 S.W.3d at 12.

According to the facts upon which the appellant’s pleas were based, the instant offenses were
the result of reckless behavior. Our supreme court has explained that “[a]ctions that are the result
of . . . reckless behavior . . . are probably more deterrable than those which are not the result of a
conscious effort to break the law.” Id. at 11. In the instant case, the trial court was particularly
concerned about deterring the reckless conduct of those persons who speed through construction
zones, thereby endangering the lives of others.

Additionally, the trial court noted that the appellant’s case “has received a lot of news
coverage.” The record reflects that the appellant’s case was highly publicized. Notably, prior to trial
the defense moved for a change of venue because of the publicity involving the case and submitted
numerous newspaper articles as evidence of the publicity. Moreover, at least two witnesses at the
sentencing hearing mentioned hearing news reports of the collisions.

Finally, we note that the appellant “has previously engaged in criminal conduct of the same
type as the offense in question, irrespective of whether such conduct resulted in previous arrests or
convictions.” The Hooper court observed:

Repeated occurrences of the same type of criminal conduct by a
defendant generally warrant a more emphatic reminder that criminal
actions carry consequences. Although the statute speaks in terms of
general deterrence, it has been recognized that general deterrence is
possible only after specific deterrence has first been achieved.

Id. at 12.

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 At the sentencing hearing, the appellant admitted that three years prior to the instant offenses,
he was involved in a similar collision with two Utah officers who were stationed on a roadway. Like
the instant offenses, the appellant could not explain how the collision happened or recall the events
leading up to the collision. In his statement to THP troopers following the instant offenses, the
appellant acknowledged that he was “charged with careless driving” after the prior incident.
Accordingly, we conclude that the record demonstrates a need for specific deterrence. Furthermore,
the existence of the three foregoing factors support the trial court’s denial of full probation based
upon deterrence.

4. Enhancement and Mitigating Factors

The appellant also complains about the trial court’s determination regarding the application
of enhancement and mitigating factors.1 Tennessee Code Annotated section 40-35-210(b)(5) (1997
and 2003) provides that the trial court should consider enhancement and mitigating factors, among
other factors, in determining “the specific sentence and the appropriate combination of sentencing
alternatives that shall be imposed on the [appellant].” Moreover, in connection with alternative
sentencing, “[a] court may also apply the mitigating and enhancing factors set forth in Tennessee
Code Annotated sections 40-35-113 and -114 as they are relevant to the section 40-35-103
considerations.” State v. Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997).

The trial court found the existence of the following enhancement factors:2

(1) The appellant has a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the
appropriate range;

(6) The amount of damage to property sustained by or taken from the
victim was particularly great; and

(10) The appellant had no hesitation about committing a crime when
the risk to human life was high.

See Tenn. Code Ann. § 40-35-114(1), (6), and (10) (1997). The appellant disputes the application
of each of these enhancement factors. We will address each of these in turn.

1
We again note that the length of the appellant’s sentences was stipulated in the plea agreement, which
agreement was approved by the trial court. Accordingly, we now address the enhancement and mitigating factors in
relation to their relevanc e to the trial court’s denial of full probation.

2
As of July 4, 2002, the statutory enhancem ent facto rs have been renum bered. See Tenn. Code Ann. § 40-35-
114 (2003). However, in the instant case, we will use the numbering of the 1997 version of Tennessee Code Annotated
section 40-35-114.

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 The trial court applied enhancement factor (1) because of the appellant’s history of “five
separate speeding tickets which he admitted to that he had received since the time he was seventeen
years of age.” The court noted that “[a]lthough they’re not necessarily the normal type of criminal
convictions that we normally see, they are criminal in nature. They are certainly criminal behavior.
Exceeding the speed limit is a criminal act in this state as in all states. So that’s something The
Court can consider.” The trial court further noted that enhancement factor (1) should be afforded
moderate weight because the instant offenses “involve speeding.”

This court has recently observed:

[W]e are reluctant to find that a single speeding ticket constitutes
criminal behavior so as to permit enhancement of [a] sentence. The
goal of individualized sentencing and fashioning a sentence to fit the
offender would be lost if the speeding defendant, which would be
virtually every defendant, would be placed on equal status with the
convicted felon upon application of enhancement factor [(1)].

State v. Brenda F. Jones, No. W2002-00751-CCA-R3-CD, 2003 WL 21756681, at *4 (Tenn. Crim.
App. at Jackson, July 29, 2003). In the instant case, the fifty-two-year old appellant had received
five speeding tickets since the age of seventeen, three of which he had received since 1980 when he
began his career as a commercial truck driver. Even if enhancement factor (1) were applicable to
the appellant, we conclude that the factor was entitled to little, if any, weight. See State v. Marsha
L. McClellan, No. E2000-02373-CCA-R3-CD, 2001 WL 394849, at *6 (Tenn. Crim. App. at
Knoxville, Apr. 19, 2001).

The trial court next found the existence of enhancement factor (6), “[t]he personal injuries
inflicted upon or the amount of damage to property sustained by or taken from the victim was
particularly great.” Tenn. Code Ann. § 40-35-114(6) (1997). The trial court correctly observed that
it could not apply the factor based upon Trooper Ross’ death or Jordan’s injuries as such injuries
were elements of the offenses for which the appellant was convicted. See Tenn. Code Ann. § 40-35-
114 (1997) (stating that enhancement factors may be applied “if not themselves essential elements
of the offense as charged in the indictment”). However, the trial court applied this factor to both
offenses because both Trooper Ross’ patrol car and Jordan’s vehicle were totally destroyed. The
appellant claims that Trooper Ross suffered no property damage because he did not personally own
the patrol car he was driving; instead, the patrol car was owned by the THP. Additionally, the
appellant complains that the record contains no evidence as to the amount of damage suffered by
Jordan.

Upon our review of the record, we conclude that the trial court properly applied this
enhancement factor to both offenses. First, we observe that while the appellant is correct that
Trooper Ross did not personally own the patrol car in which he was killed, we believe that the spirit
of this enhancement factor is satisfied because Trooper Ross was acting in his professional capacity
as an agent of the State, the owner of the patrol car, at the time of the collision. Moreover, while the

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appellant is correct in stating that Jordan never testified regarding the specific monetary damage to
her vehicle, the presentence report reflects that her vehicle was “totally destroyed.” Additionally, we
conclude that the photographs of her demolished vehicle and of the decimated patrol car provide
sufficient proof that the damage sustained by the victims was particularly great.

Additionally, the appellant complains that “[v]ehicles are totaled in accidents all of the time.
There is nothing particularly great about this type of property damage.” However, this court has
previously noted that “vehicular homicide does not require that the victim be driving a vehicle or that
a victim be a passenger in a vehicle.” State v. Russell E. Mills, No. M1999-02505-CCA-R3-CD,
2000 WL 1336685, at *5 (Tenn. Crim. App. at Nashville, Sept. 15, 2000). Likewise, aggravated
assault does not necessarily entail damage to a vehicle. Moreover, this court has repeatedly approved
the application of this enhancement factor in cases where there was proof that the vehicle involved
in a collision was destroyed. See id.; see also State v. Robbie R. Bailey, No. E2001-00210-CCA-R3-
CD, 2001 WL 1516956, at *5 (Tenn. Crim. App. at Knoxville, Nov. 29, 2001); State v. George
Blake Kelly, No. 01C01-9610-CC-0048, 1998 WL 712268, at *12 (Tenn. Crim. App. at Nashville,
Oct. 13, 1998).

Finally, the trial court applied enhancement factor (10), finding that the appellant “had no
hesitation about committing a crime when the risk to human life was high.” Tenn. Code Ann. § 40-
35-114(10) (1997). As charged in the indictments, this enhancement factor would be considered an
element of both vehicular homicide and aggravated assault. See State v. Nix, 922 S.W.2d 894, 903
(Tenn. Crim. App. 1995) (observing that “there is necessarily a high risk to human life and the great
potential for bodily injury whenever a deadly weapon is used” as it is in aggravated assault with a
deadly weapon); State v. Bingham, 910 S.W.2d 448, 453 (Tenn. Crim. App. 1995) (explaining that
“if there is no risk to the life of a person other than the victim, clearly the proof necessary to establish
enhancement factor (10) will be encompassed by the proof necessary to establish an essential
element of vehicular homicide”), overruled on other grounds by State v. Hooper, 29 S.W.3d 1 (Tenn.
2000).

However, our law is clear that enhancement factor (10) may be applicable to vehicular
homicide or aggravated assault if “there is a risk of harm to a person other than the victim.” State
v. Zonge, 973 S.W.2d 250, 259 (Tenn. Crim. App. 1997). In the instant case, the trial court
specifically found that Trooper McCoy, the construction crew, and westbound motorists were
endangered by the appellant’s actions. The appellant argues that “Trooper McCoy’s life was never
in danger as a result of [his] conduct.” Additionally, the appellant disputes that the construction
crew was endangered and contends that “[t]here is no evidence in the Record that any car other than
[Jordan] was actually in harm’s way in the westbound lanes.”

Trooper McCoy testified that at the time of the appellant’s collision with Trooper Ross, he
was stationed a scant 100 yards away from Trooper Ross. The construction crew was working
nearby, although the exact distance is not reflected in the record. Additionally, Ruby testified that
he was driving only a short distance behind the appellant and saw Trooper Ross’ patrol car burst into
flames. Also, Jordan testified that she had to swerve left to attempt to evade the appellant because

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“traffic was really congested.” Finally, Wainscott, who was traveling in the westbound lanes of I-40,
testified that before the appellant’s collision with Jordan, he observed that the appellant’s “vehicle
came towards the median strip towards where I was passing by.” We conclude that the trial court
did not err in applying the enhancement factor (10) to both of the appellant’s convictions. See
Bingham, 910 S.W.2d at 453; State v. Robert S. Neal, No. M2001-00441-CCA-R3-CD, 2002 WL
31852854, at *24 (Tenn. Crim. App. at Nashville, Dec. 19, 2002), perm. to appeal denied, (Tenn.
2003).

The appellant next complains that the trial court erred in failing to consider the following
mitigating factors under Tennessee Code Annotated section 40-35-113(13) (1997 and 2003), the
“catch-all” provision of the statute:

(1) the appellant’s lack of criminal history;

(2) the appellant was not under the influence of drugs or alcohol;

(3) the appellant “did not believe he suffered an illness that would
impair his ability to drive”;

(4) the appellant’s “log books for the five day trip were in complete
compliance with federal regulations”;

(5) the appellant “never drove beyond the number of hours allowed
by law”;

(6) the appellant “had seven hours sleep the night before the
accident”; and

(7) “the construction zone was improperly marked and actually
created a hazard for motorists.”

As for the appellant’s lack of criminal history, this court has previously explained that
“[a]lthough absence of a prior criminal record may be considered under the catch-all provision of
Tennessee Code Annotated section 40-35-113(13) . . . this court is not required to consider this as
a mitigating factor.” State v. Williams, 920 S.W.2d 247, 261 (Tenn. Crim. App. 1995). This is
because “every citizen is expected to refrain from committing any type of crime.” State v. Clayton
Eugene Turner, II, No. 03C01-9805-CR-00176, 1999 WL 817690, at *16 (Tenn. Crim. App. at
Knoxville, Oct. 6, 1999). Correspondingly, we conclude that each citizen has a duty to follow the
law; therefore, the trial court was under no obligation to consider the appellant’s proposed mitigating
factors 2, 4, and 5. Therefore, we decline to hold that the trial court’s failure to apply these
mitigating factors was error.

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 Furthermore, as to the appellant’s proposed mitigating factor 6, that he slept seven hours the
night before the collision, the trial court stated that “I’m still not sure how it really is mitigating
under the circumstances.” While much of the sentencing hearing was devoted to the appellant’s
sleeping habits, the trial court focused primarily on the appellant’s speed and his inattention to his
driving, especially while driving in a construction zone. There is no indication in the record that the
amount of sleep the appellant received the night before the collisions positively or negatively
affected events. Accordingly, we conclude that the trial court correctly found that the appellant’s
sleeping habits should not be considered as a mitigating factor.

Moreover, the trial court refused to consider as a mitigating factor that the appellant “did not
believe he suffered an illness that would impair his ability to drive”, observing that

although he did have surgery [to correct his sleep apnea], . . . he never
followed through with it after that. He never went back for any
additional treatment or surgeries although it was being recommended
by his physician that he should.

Based upon this reasoning, we conclude that the trial court did not err in refusing to mitigate the
appellant’s sentence on this basis.

As to the appellant’s complaints regarding the construction zone, the trial court stated, “Nor
do I find that this construction zone was not properly marked. As a matter of fact, I find to the
contrary concerning this construction zone. The Court is convinced by at least a preponderance of
the evidence that this construction zone was clearly marked as a construction zone.” Generally, this
court does not set aside the factual findings made by the trial court after a sentencing hearing unless
the evidence preponderates against such findings. See Zeolia, 928 S.W.2d at 462; State v. Raines,
882 S.W.2d 376, 383 (Tenn. Crim. App. 1994). We conclude that the evidence does not
preponderate against the trial court’s findings in relation to this issue. Accordingly, the trial court
did not err in refusing to apply this mitigating factor.

The appellant also complains regarding the weight afforded certain enhancement and
mitigating factors. However, “[t]he 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.” State v.
Carter, 908 S.W.2d 410, 412 (Tenn. Crim. App. 1995); see also State v. Boggs, 932 S.W.2d 467,
475-76 (Tenn. Crim. App. 1996). As we noted, the trial court erred in attributing moderate weight
to enhancement factor (1). However, we conclude that the trial court did not abuse its discretion in
the weight attributed to the remaining enhancement or mitigating factors. See State v. Winfield, 23
S.W.3d 279, 284 (Tenn. 2000) (finding that the misapplication of an enhancement factor does not
necessarily result in the reduction of a defendant’s sentence).

B. Suspension of Driving Privileges

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 Finally, the appellant complains that the trial court erred when it suspended his driving
privileges in all states for eight years. Specifically, the appellant argues that “according to the
[applicable] statute the Trial Court must prohibit [the appellant] from driving a vehicle in the state
of Tennessee for a minimum of three years, not the state of Idaho. The Trial Court’s order
prohibiting [the appellant] from driving in any state for the next eight years is not supported by law.”

Tennessee Code Annotated section 39-13-213(c) (1997 and 2003) provides that the trial court
“shall prohibit a defendant convicted of vehicular homicide from driving a vehicle in this state for
a period of time not less than three (3) years nor more than ten (10) years.” The trial court noted that
“the law does require a mandatory period of revocation of three years, and he could receive a
maximum period of revocation of ten years.” While the trial court did not specifically cite this
statute in revoking the appellant’s driver’s license, the trial court’s language clearly reveals that the
court was referencing this statute and was not revoking the appellant’s license as part of his
probation.

The trial court stated:

Mr. Engum, I do want to advise you, you are prohibited from driving
any motor vehicle for at least the next eight years or until you’ve
received – your driving privileges are reinstated by this Court. But
that’s going to be at least eight years from today. Okay?

You cannot be driving a motor vehicle. All right. Your license will
be sent to the Department of Safety. And, of course, that revocation
applies to all states. You cannot be driving or receiving any driver’s
license in any state. Okay?

Generally, our courts glean “a statute’s purpose from the plain and ordinary meaning of its
language ‘without forced or subtle construction that would limit or extend the meaning of the
language.’” State v. Owens, 20 S.W.3d 634, 640 (Tenn. 2000) (quoting Carson Creek Vacation
Resorts, Inc. v. State Dep’t of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993)) (footnote omitted). In other
words,“[w]hen statutory language is plain and unambiguous, [courts] must not apply a construction
apart from the words of the statute.” State v. Nelson, 23 S.W.3d 270, 271 (Tenn. 2000). The clear
language of Tennessee Code Annotated section 39-13-213(c) provides that the trial court has the
authority to revoke the appellant’s driving privileges in this state. Ergo, the trial court exceeded the
boundaries of the statute by revoking the appellant’s driving privileges in all states.3 However, we

3
Notably, Tennessee Cod e Anno tated section 55 -50-203 (e)(3) (Sup p. 200 2) provides:

The department [of safety] is further au thorize d, upon receiving a record of the
conviction in this state of a nonresident driver of a motor vehicle of any offense
under the motor vehicle laws of this state, to forward a certified copy of such record
to the motor vehicle administrator in the state wherein the person so convicted is a
(continued...)

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conclude that the trial court did not abuse its discretion in revoking the appellant’s driving privileges
in Tennessee for a period of eight years. Therefore, we remand to the trial court for correction of the
judgment on vehicular homicide conviction. The corrected judgment shall reflect that the appellant’s
driving privileges are revoked in this state for a period of eight years.

III. Conclusion

Accordingly, the judgments of the trial court trial court are affirmed except as set forth
herein.

___________________________________
NORMA McGEE OGLE, JUDGE

3
(...continued)
resident.

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