IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
AUGUST 1998 SESSION
October 19, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9710-CR-00470
Appellee, )
) MACON COUNTY
VS. )
) HON. J. O. BOND,
TROY L. NOLES, ) JUDGE
)
Appellee. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
B. F. “JACK” LOWERY JOHN KNOX WALKUP
Public Square, Lowery Bldg. Attorney General & Reporter
Lebanon, TN 37087
KAREN M. YACUZZO
Asst. Attorney General
425 Fifth Ave., North
2nd Floor, Cordell Hull Bldg.
Nashville, TN 37243-0493
TOM P. THOMPSON
District Attorney General
JOHN WOOTTEN
Asst. District Attorney General
203 Greentop St., P.O. Box 178
Hartsville, TN 37074-0178
OPINION FILED:
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant, Troy Noles, was convicted by a Macon County jury of five
counts of assault, one count of possession of drug paraphernalia, and possession of
alcohol while under the age of twenty-one. The trial court sentenced him to five
consecutive sentences of eleven months twenty-nine days as a Range I offender for
assaults, eleven months twenty-nine days for possession of drug paraphernalia, and five
days for possession of alcohol. The trial court ordered the sentences for possession of
drug paraphernalia and alcohol to be served concurrently with the sentences for assault.
In this appeal as of right, the defendant argues that the sentence imposed
is excessive and that the trial court erred when it imposed consecutive sentences. After
a review of the record and applicable law, we find no error and affirm the judgment of the
court below.
The defendant’s convictions stemmed from an automobile crash in Macon
County. On the evening of November 25, 1995, the defendant was driving south on
Carthage Road with two passengers after purchasing two six packs of beer. As the
defendant drove around a curve in the road, he lost control of the car and skidded across
the double yellow line into the lane of oncoming traffic. 1 The defendant’s car then
collided head on with an oncoming jeep.
As a result of the collision, the driver of the jeep and its passengers suffered
severe injuries. The driver of the jeep, Wanda West, was forced to have part of each leg
amputated. Mrs. West also suffered head and face injuries, a punctured bladder and
1
At trial, an expert accident reconstructionist estimated the defendant to be traveling at about
ninety-three miles per hour before applying the brakes and ending up in the opposite lane of traffic.
2
broken wrists. Mrs. West’s daughter, who was a passenger in the jeep at the time of the
accident, was thrown from the jeep and, as a result, broke her nose and ankle and had
to undergo facial surgery. Another of the passengers, Angie Watkins, broke her jaw,
dislocated her hip and will suffer from arthritis for the rest of her life as a result of the
accident. A third passenger, Scott Jenkins, was unconscious for three weeks after the
accident and suffered from a concussion. The final passenger in the car, Barry
Matthews, broke his jaw in several places and had to have his eye socket rebuilt with wire
mesh.
As his first issue, the defendant argues that the sentence imposed is
excessive because the trial court erroneously applied enhancement factors when
determining his sentence. When a defendant complains of his or her sentence, we must
conduct a de novo review with a presumption of correctness. T.C.A. § 40-35-401(d).
The burden of showing that the sentence is improper is upon the appealing party. T.C.A.
§ 40-35-401(d) Sentencing Commission Comments. This presumption, however, “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).
A portion of the Sentencing Reform Act of 1989, codified at T.C.A. § 40-35-
210, established a number of specific procedures to be followed in sentencing. This
section mandates the court’s consideration of the following:
(1) The evidence, if any, received at the trial and the
sentencing hearing; (2) [t]he presentence report; (3)
[t]he principles of sentencing and arguments as to sentencing
alternatives; (4) [t]he nature and characteristics of the criminal
conduct involved; (5) [e]vidence and information offered by the
parties on the enhancement and mitigating factors in §§ 40-35-
3
113 and 40-35-114; and (6) [a]ny statement the defendant wishes
to make in his own behalf about sentencing.
T.C.A. § 40-35-210.
Although this section also provides that in the case of a felon the minimum
sentence within the range is the presumptive sentence, the misdemeanant is not entitled
to the presumption of a minimum sentence. State v. Creasy, 885 S.W.2d 829, 832
(Tenn. Crim. App. 1994). However, in determining the percentage of the sentence to be
served in actual confinement, the court must consider enhancement and mitigating
factors as well as the purposes and principles of the Criminal Sentencing Reform Act of
1989, and the court should not impose such percentages arbitrarily. T.C.A. § 40-35-
302(d).
The Act further provides that “[w]henever the court imposes a sentence, it
shall place on the record either orally or in writing, what enhancement or mitigating
factors it found, if any, as well as findings of fact as required by § 40-35-209.” T.C.A. §
40-35-210(f) (emphasis added). Because of the importance of enhancing and mitigating
factors under the sentencing guidelines, even the absence of these factors must be
recorded if none are found. T.C.A. § 40-35-210 comment. These findings by the trial
judge must be recorded in order to allow an adequate review on appeal.
At the sentencing hearing the trial court set out the applicable enhancement
factors as follows:
Your prior history of criminal conduct. You were involved in an
offense that involved more than one victim. There was [sic] four
other victims that you were charged in each case, one victim had
a charge against you, five all together. So that would apply as an
enhancement. Personal injuries inflicted, assault is normally not
even serious bodily injury, it’s just bodily injury, but here you’ve
inflicted serious bodily injury, no question about it.
4
The Court believes that the automobile was a deadly
weapon . . . .
And you were trusted, had a public trust. When you get a
driver’s license in your hands the State of Tennessee says we trust
you with the public, the lives of the public on the road. And you
abused that public trust by doing that and driving the vehicle intent-
ionally like you drove it that night. And you did it on the road you
say you weren’t even familiar with. Such high speeds and under
those circumstances you should have - - the potential for bodily
injury was very great to any one on that road.
In light of the foregoing remarks, it is apparent the trial court applied the
following enhancement factors from T.C.A. § 40-35-114: that the defendant has a
previous history of criminal convictions or criminal behavior in addition to those necessary
to establish the appropriate range (1); the offense involved more than one victim (3); the
personal injuries inflicted upon the victims were particularly great (6); the defendant
employed a deadly weapon during the commission of the offense (9); the defendant
abused a position of public trust (15); and the crime was committed under circumstances
under which the potential for bodily injury to a victim was great (16). The defendant now
argues that the trial court erred by applying any of these factors.
As to factor one, the presentence report showed that the defendant has
been convicted of speeding, two counts of reckless driving and public drunkenness. 2 As
this is a history of criminal behavior and convictions, we can find no error in the trial
court’s application of this factor.
The defendant next argues that the trial court erred in applying factor three,
that the offense involved more than one victim. The trial court applied this factor based
on the fact that there were several victims in the jeep the defendant’s car hit. The State
2
Altho ugh one c oun t of re ckle ss d riving was a juve nile co nvictio n, ou r Sup rem e Co urt ha s held
that a defendant’s “juvenile record is a sufficient basis for sentence enhancement under T.C.A. § 40-35-
114(1).” State v. Adams , 864 S.W .2d 31, 34 (Tenn . 1993).
5
concedes that this was an improper basis upon which to apply this factor.3 However,
there is another basis upon which to apply this factor in the defendant’s case. The
defendant was only indicted for the injuries inflicted on the people in the jeep. He was
not indicted for the injuries inflicted on the passengers of his own car.4 As the
passengers of the defendant’s vehicle were also victims in this accident and the
defendant was not convicted of the offenses committed against them, it was proper for
the trial court to apply this enhancement factor.
The defendant also challenges the application of factor six, that the
personal injuries inflicted upon the victims were particularly great. The defendant argues
that this factor is an essential element of the charged offense of vehicular assault and
therefore cannot be used to enhance his sentence. However, this Court has held that a
factor cannot be used to enhance a sentence if it is an essential element of the offense
for which a conviction is obtained, not the offense for which a defendant is indicted. See
Sills v. State, 884 S.W.2d 139,145 (Tenn. Crim. App. 1994). The defendant was
convicted of assault, which only requires “bodily injury” of another. T.C.A. § 39-13-
101(a)(1). Since “particularly great” injuries are not an essential element of assault, it
was proper for the trial court to use this factor as a basis for enhancement.
The defendant also contends that it was improper for the trial court to
consider factor nine, that the defendant possessed or employed a deadly weapon during
the commission of the offense.5 The defendant’s argument is that this factor is an
3
This factor cannot be applied for enhancement purposes where the defendant has been
separa tely convicted of the offe nses c omm itted agains t each victim . See State v. Williamson, 919
S.W .2d 69, 82 (Tenn. Crim . App. 1995).
4
The record indicates that the passengers in the defendant’s car also suffered from injuries
attributable to the wreck.
5
The trial court justified its application of this factor on the reasoning that the defendant’s car
was a deadly weapon.
6
essential element of vehicular assault with which he was charged. However, as the
defendant was convicted of assault which does not require use of a deadly weapon,
application of this factor was proper.
The defendant next argues that the trial court’s application of factor fifteen,
abuse of a position of public trust, was also improper. The trial judge applied this factor
based on the reasoning that a driver’s license is a form of public trust which was abused
when the defendant did not drive responsibly. We find that it was error for the trial court
to consider factor fifteen, as a driver’s license is not a form of public trust.
The last enhancement factor applied by the trial court was factor sixteen,
that the crime was committed under circumstances under which the potential for bodily
injury to a victim was great. Although the defendant’s appellate brief does not address
this factor specifically, the brief does contend that no enhancement factors exist. This
Court has previously held that this factor is applicable where there are people other than
the victim in the area and subject to injury. State v. Sims, 909 S.W.2d 46, 50 (Tenn.
Crim. App. 1995). In the defendant’s case there were two passengers in his car that
were in the area and subject to injury; therefore, this factor was properly applied by the
trial court.
The defendant next contends that the trial court erred in failing to apply any
mitigating factors. The defendant argues that his youth should have been considered by
the trial court. See T.C.A. § 40-35-113. This Court has held that
In determining whether the sentence should have been mitigated
because the defendant lacked substantial judgment because of
his youth, ‘courts should consider the concept of youth in context,
i.e., the defendant’s age, education, maturity, experience, mental
capacity or development, and any other pertinent circumstance
tending to demonstrate the defendant’s ability or inability to apprec-
7
iate the nature of his conduct.’
State v. Carter, 908 S.W.2d 410, 413 (Tenn. Crim. App. 1995) (citing State v. Adams,
864 S.W.2d 31, 34 (Tenn. 1993)). At the time of the wreck, the defendant was nineteen
years old. He is also a high school graduate who, as the defendant himself points out,
has worked full time since he graduated from high school. The defendant has also had
previous experiences with the criminal justice system with regard to his driving. In light
of the foregoing, we think the trial court did not err in refusing to apply youth as a
mitigating factor.
The defendant further contends that the trial court should have considered
his remorse as a mitigating factor. There is no requirement that a judge must consider
remorse as a mitigating factor. In addition, at trial the defendant never admitted fault but
claimed the jeep was in his lane of traffic. Under these circumstances, we believe it was
proper for the trial court to refuse to consider remorse as a mitigating factor.
The defendant also contends that his cooperation with his insurance
company in its payment of the victims’ medical bills should be considered a mitigating
factor. As this payment was the responsibility of the insurance company, we find no error
in the trial court’s failure to consider this as a mitigating factor.
Finally, the defendant contends that the trial court should have considered
his gainful employment since high school graduation as a mitigating factor. This Court
has previously held that the fact that a defendant has a stable employment history does
not entitle him or her to a reduction in his or her sentence. State v. Keel, 882 S.W.2d
410, 423 (Tenn. Crim. App. 1994). As such, the trial court did not err by refusing to
consider the defendant’s work history as a mitigating factor.
8
In light of the foregoing applicable enhancement factors, we find that the
trial court did not err in sentencing the defendant to the maximum sentence in the range.6
As his final issue, the defendant argues that the trial court erred when it
ordered him to serve his sentences consecutively and failed to place upon the record
specific findings of fact as required by the Criminal Sentencing Reform Act. Although
no specific finding was made, it appears that the trial court based its decision on the
determination that the defendant is a dangerous offender. As the trial court did not
specifically make this finding, review of this issue is without a presumption of correctness.
It is clear, after a review of the record, that the defendant is a dangerous
offender whose behavior indicates little or no regard for human life, and no hesitation
about committing a crime in which the risk to human life was high. See T.C.A. § 40-35-
115(b)(4). The fact that the defendant was driving down an unfamiliar curvy road at
speeds of ninety-three miles per hour clearly indicates that he had little regard for anyone
else driving on that same road. The defendant’s speed created a high risk that he would
cause a serious, if not deadly, accident. See State v. Wilkerson, 905 S.W.2d 933, 937
(Tenn. 1995). All these factors lead us to conclude that the defendant is a dangerous
offender.
Since the defendant meets the statutory criteria set out at T.C.A. § 40-35-
115, he may be sentenced to consecutive sentences as long as the terms of the
sentence “reasonably relate to the severity of the offenses committed and are necessary
in order to protect the public from further serious criminal conduct by the defendant.”
6
The defendant also contends that he is eligible for a community corrections sentence rather
than incarceration. We disagree. As the defendant was convicted for a violent crime against a person
and there was no showing of special needs, he is not eligible for a community corrections sentence.
9
Wilkerson, 905 S.W.2d at 938. In light of the defendant’s history of criminal convictions
for similar offenses and the disastrous effects of this offense, it is clear that such a
sentence is necessary to protect the public from further criminal behavior by the
defendant and that the sentences imposed reasonably relate to the severity of the
offenses.
Thus, for the foregoing reasons, we affirm the judgment of the court below.
______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
THOMAS T. W OODALL, Judge
______________________________
L. TERRY LAFFERTY, Special Judge
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