IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY SESSION, 1997 December 16, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9608-CR-00313
)
Appellee, ) HAMILTON COUNTY
)
V. )
) HON. STEPHEN M. BEVIL, JUDGE
DAVIS OLIVER BROWN, )
) (VEHICULAR ASSAUL T;
Appe llant. ) VEHICULAR HOMICIDE)
FOR THE APPELLANT: FOR THE APPELLEE:
ARDENA J. GARTH JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
DONNA ROBINSON MILLER JANIS L. TURNER
Assistant Public Defender Assistant Attorney General
701 Cherry Street, Suite 300 2nd Floor, Cordell Hull Building
Chattanooga, TN 37402 425 Fifth Avenue North
Nashville, TN 37243-0943
WILLIAM COX
District Attorney General
JOH N A. BO BO, JR .
Assistant District Attorney General
600 Market Street, Suite 310
Chattanooga, TN 37402
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Davis Oliver Brown, appeals as of right from the sentences
imposed by the trial court upon his pleas of guilty to vehicular homicide and
vehicular assau lt in the Crim inal Cou rt of Ham ilton Cou nty. Defen dant pled guilty
without any agreement between himse lf and the S tate as to the length or manner
of service of th e sente nces. T he trial cou rt senten ced De fendan t, as a Ra nge I,
Standard Offend er, to the maximum sentence of twelve (12) years for the
vehicular homicide conviction and the maximum sentence of four (4) years for the
vehicular assault conviction. The court further ordered the sentences to be
served conse cutively. In this appeal, Defendant presents two issues for review:
(1) whether the trial court erred by imposing the maximum sentences in each
case and (2) whether the trial court erred by orderin g the sen tences to be served
conse cutively. W e affirm the judgm ent of the tria l court.
At appro ximate ly 11:18 p.m. on July 13, 1995, the Defendant was involved
in a two-vehicle wreck on Interstate 24 within the c ity limits of Chattanooga. The
record indicates that just prior to the wreck Defendant was traveling eastbound
on Interstate 2 4, and the victims, T imothy C levenge r and his b rother, Andy
Clevenge r, were traveling in a vehicle westbound on Interstate 24. The collision
occurred in the westbound lane. The vehicle was owned by T imothy Cleve nger,
who died as a resu lt of the wreck. Andy Clevenger suffered extensive injuries as
a result of th e collision. From the photographs of the wreck which are in the
record, and from the traffic accident report, it is indicated that the wreck was a
head-on collision. Although the traffic accident report indicates that it consists of
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six (6) pag es, on ly the first page was includ ed in the pre-se ntence repo rt as part
of the reco rd on ap peal.
Chattanooga Police Officer Robert Simpson testified during the sentencing
hearing. After the wreck, he searched the Defendant’s vehicle pursuant to a
search warrant. He found various papers which were introduced into evidence,
including documents showing that the Defendant had been ordered to attend a
DUI school in February of 1995, but that he had failed to attend as required.
Officer Simps on also te stified that he found num erous beer cans inside the
Defe ndan t’s vehicle. The victims’ father testified at the hearing as to the impact
of the crime upon his family and his surviving son.
At the time o f the sente ncing he aring, De fendan t was 32 -years-old . He
had been self-employed prior to the charges being placed against him in the
presen t case. H e testified tha t he takes full respon sibility for the ca r wreck.
Defendant admitted during his testimony that he had “been drinking all day
long” and that he “sh ouldn’t have been out there driving.” The pre-sentence
report shows an extensive prior record of Defendant. He testified, however, that
someone else had used his name in the past and therefore, several of the
offenses in the record had not been committed by him. The State offered no
evidence to contradict Defendant’s assertions that certain of the listed offenses
had not been committed by him. However, the Defendant did admit to at least
four (4) prior arrests for various misdemeanors, which led to three (3) prior
convictions and one disposition by diversion. These prior convictions included
one for DU I, one fo r reckle ss driving and one for public intoxication. Further
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evidence at the sentencing hearing revealed that both the conviction for DUI and
the convic tion for public intoxication had occurred in 1995, and that Defendant
was convic ted of p ublic int oxicatio n while on probatio n from th e DUI o ffense. In
fact, Defendant had been charged with public intoxication approximately one
month prior to the automobile wreck which resulted in the present charges of
vehicular homicide and vehic ular assault. Defendant admitted that he was an
alcoholic, but that he had never received treatment for his alcohol abuse except
for AA meetings while in jail for the present offenses. Defendant expre ssed his
sympathy to the victims’ family and explained that he wished he could trade
places with Timothy C levenger. He stated that he thoug ht the a ccide nt wou ld
prevent him from ever drinking alcoholic beverages again.
When an accused challenges the length, range, or the manner of service
of a sentence, this court has a duty to conduct a de novo review of the sentence
with a presumption that the determinations made by the trial court 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 circums tances ." State v. Ashby, 823 S.W.2d
166, 169 (T enn. 1991 ).
In conducting a de novo review of a sentence, this Court must consider the
evidence adduced at trial and the sentencin g hearing, the presentence report, the
principles of sentencing, the arguments of counsel relative to sentencing
alternatives, the nature of the offense, and the defendant’s potential for
rehabilitation. Tenn. Code Ann. § 40-35-2 10; State v. Parker, 932 S.W.2d 945,
955-56 (T enn. Crim. A pp. 1996).
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If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principals set out under the sentencing law, and
that the trial c ourt's fin dings of fact a re ade quate ly supported by the record, then
we may not modify the sentence even if we would have preferred a different
result. State v. Fletcher, 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991).
I. LENGTH OF SENTENCE
The Defendant argues that the trial court erred by imposing the maximum
sentences of twelve (12) years for the vehicular homicide conviction and four (4)
years for the vehicular assault conviction. The trial court found that five (5)
enhan ceme nt factors w ere app licable:
(A) The Defendant has a previous history of criminal convictions or
criminal behavio r in addition to those necessary to establish the
appropriate ran ge. Tenn . Code An n. § 40-35-11 4(1);
(B) As to the vehicular assault conviction only, the personal injuries
inflicted upon th e victim we re particula rly great. Tenn. Code Ann. §
40-35-114 (6);
(C) The Defendant has a previous history of unwillingness to com ply
with the conditions of a sentence involving release into the
comm unity. Tenn. C ode Ann . § 40-35-114 (8);
(D) As to the vehicu lar assault conviction only, the Defendant had no
hesitation about committing a crime when the risk to human life was
high. Tenn. Code Ann. § 40-35-114(10); and
(E) The felonies were committed while the Defendant was on a form of
release status, if such release is from a prior felony conviction.
Tenn. C ode Ann . § 40-35-114 (13)(C).
The trial court found that no mitigating factors applied.
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Therefore, the trial court found that three (3) enhancement factors under
Tennessee Code Annotated section 40-35-114 applied to the vehicular homicide
conviction, and five (5) of the enhancement factors in that statute applied to the
vehicular assau lt conviction.
W e find that the trial court properly applied enhancement factor number (1)
in this case. The Defendant has at least four (4) prior arrests and three (3) prior
convictions for offenses involving alcohol or drugs. Two of the offenses also
involve unlawful conduct while operating a motor vehicle. Even though all of
these prior offenses were misdemeanors, the statute does not require the prior
record to be comprised of felonies. Tenn. Code Ann. § 40-35-114(1). We also
find that enhancement factor number (8) was properly applied by the trial cour t.
Defendant was on probation for a DUI conviction when he was arrested and
convicted of public drunkenness only a few weeks before the commission of the
offenses under re view in this ca se. The refore, it is clear th at De fenda nt is
unwilling to comp ly with cond itions involving release in to the com munity.
W e find that the trial court erred by applying enhancement factor number
(6) to the vehicular assault conviction. In State v. Jones, 883 S.W.2d 597 (Tenn.
1994), our suprem e court held that “pro of of serious bodily injury will always
constitute proof o f particu larly gre at injury.” 883 S.W.2d at 602. In State v.
Rhodes, 917 S.W .2d 708 (Tenn . Crim. A pp. 199 5), our co urt held th at in a
vehicular assault case, the enhancement factor found at Tennessee Code
Annotated section 40-35-114(6) was an element of the offense requiring serious
bodily injury. 9 17 S.W .2d at 714 .
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In addition, we find that the trial court erroneously applied enhancement
factor (13)(C). That statute plainly states as follows:
(13) T he felo ny was com mitted while on any of the following forms
of release status if suc h release is from a prior felony conviction
...
(C) Probation
...
Tenn. C ode Ann . § 40-35-114 (13)(C) (em phasis add ed).
Since Defendant was not on probation from a prior felony conviction at the time
of the commission of the present offenses, this particular enhancement factor
cannot be applied.
The Defendant also argues that the trial court improperly applied
enhancement factor (10) to the v ehicu lar ass ault co nviction . It is true th at this
factor is inapplicable to a vehicular assault conviction where th e only risk to
human life is the risk to th e victim. See State v. Hicks, 868 S.W.2d 729, 732
(Tenn. Crim. App . 1993). How ever, the factor may be applied in circumstances
where individu als oth er than the victim are in the area of the defendant’s criminal
conduct and are subject to injury. State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
App. 19 95).
The trial cou rt did no t spec ifically elaborate upon what facts were involved
in this case which caused the court to believe that factor (10) was applicable.
Howeve r, we note from this record that the wre ck occu rred on a n interstate
highway within the city limits of an urban area. The proof indicates a head-on
collision wherein the Defendant crossed from the eastb ound la nes of Inte rstate
24 to the westbound lanes of Interstate 24. It was undisputed that his blood
alcoho l content fo llowing the wreck w as .281 .
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As stated above, this case proceeded to a sentencing hearing following
guilty pleas en tered by the Defendant. Rule 11(f) in the Tennessee Rules of
Criminal Procedure states that “Notwithstanding the acceptance of a plea of
guilty, the court should not enter a judgment upon such plea without making such
inquiry as shall satisfy it that there is a factual basis for the plea.” The transcript
of the guilty plea hearing was not includ ed in th e reco rd on a ppea l in this case.
It is the appe llant’s duty to have prepared an adequate record in order to allow
a meaningful review on appea l. Tenn. R . App. P. 2 4(b); State v. R oberts, 755
S.W.2d 833, 836 (Tenn. Crim. App. 1988); State v. Bunch, 646 S.W.2d 158, 160
(Tenn. 1983). It would h ave bee n muc h simp ler and e asier for this Court to
review this issue if the entire traffic accident report had been included within the
pre-sentence report, or if the State had elicited further proof as to the particular
circumstances of the offen se at the s entenc ing hea ring. How ever, we must
assume that the trial court did n ot allow a ju dgme nt to be ente red upo n the gu ilty
pleas without finding a factual basis for the pleas. This would normally include
the particular circumstances of this offense. In addition, we are able to glean
from this record , as stated above, th at the wre ck occu rred on a n interstate
highway within the city limits of an urban area after the Defendant had left the
eastbound lanes and entered the westbound portion of the highway. Without the
guilty plea hearing being m ade a p art of the tran script, we a re unab le to say that
the trial court erred in applying factor (10). We are able to reach this conclusion
even thoug h from this rec ord it is clear that enhancement factors (6) and (13)(C)
are not a pplicable by their very n ature.
The Defendant argues that the trial court erre d by failing to find that he was
remorseful under miscellaneous mitigating factor (13). Tenn. Code Ann. § 40-35-
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113(13). At the sentencing hearing, the Defendant expressed his sympathy to
the victims ’ family and said he would trade places with their son, Timothy, if he
could. Although the record does reflect some expressions of remorse, the trial
court heard the evid ence, saw the Defendant firsthand, and then ruled based
upon its observation. Wh en a fa ctual iss ue is involved, we must generally defer
to the asse ssme nt of the trial co urt. Even if some evidence of mitigation did exist,
where the mitigation factors are strongly outweighed by the enhancement factors,
the maximum sentence w ould still be w arranted . State v. Ruane, 912 S.W.2d
766, 785 (T enn. Crim. A pp. 1995).
We therefore find that there was no error in the trial court’s application of
enhancement factors (1) and (8) to both convictions, and in addition the
application of enhancement factor (10) to the vehicular assault conviction. Under
the circumstances of this case, great weight shou ld be placed upon enhancement
factors (1) and (8). As stated above, Defendant pled guilty to DUI in early 1995.
W hile on probation for this offense , he co mm itted the offens e of pu blic
intoxication . While on probation for both of these alcohol related offenses, one
of which also involve d operation of a motor vehicle, he committed the offenses
which led to the present conviction s on ap peal. W e also no te the reco rd reflects
that when a rrested fo r public intox ication in Ju ne of 19 95, he was passed out
inside his vehicle. We hold that the three (3) applicable enhancement factors,
along with a finding of no mitigating factors, justifies the sentences imposed by
the trial cou rt. This issu e is withou t merit.
II. CONSECUTIVE SENTENCING
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The trial court ordered consecutive sentencing after making a finding that
Defendant is a dangerous offender whose behavior indicates little or no regard
for human life, and no hesitation about co mm itting a crime in which th e risk to
human life is high. Tenn. Code Ann. § 4 0-35-11 5(4). The trial court also noted
on the consecutive sentencing issue that Defendant was on probation at the time
of the comm ission of the offenses of vehicula r homic ide and vehicular a ssault.
Defendant strongly argues that he is not a dangerous offender as defined
by the statute and case law, and as such, the trial court’s orde r of consecutive
sentencing should be re versed. How ever, there is no dispute that Defendant was
on proba tion at th e time of the c omm ission of the o ffense s. Unlik e the
enhancement factor found in Tennessee Code Annotated section 40-35-
114(13)(C) in whic h there is a requirement that the Defendant be on probation
from a felony conviction, Tennessee Code Annotated section 40-35-115(6)
mere ly requires that to justify co nsecu tive senten cing, the Defenda nt is
sentenced for “an offense committed while on probation.” We also find from the
record that consecutive sentencing is necessary to protect the public against
further criminal conduct by the Defendant and th at con secu tive sen tencin g is
reaso nably related to th e severity of the offens es com mitted. State v. Wilkerson,
905 S.W .2d 933 , 939 (T enn. 19 95).
This issu e is withou t merit.
We affirm the ju dgme nt of the trial co urt.
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____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
DAVID H. WELLES , Judge
___________________________________
JOHN K. BYERS, Senior Judge
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