Gregg v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED
OCTOBER SESSION, 1997 December 12, 1997

Cecil Crowson, Jr.
Appellate C ourt Clerk
CLAUDE KENT GREGG, ) C.C.A. NO. 03C01-9705-CC-00188
)
Appe llant, )
)
) HAMBLEN COUNTY
VS. )
) HON. JAMES E. BECKNER
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Vehicular Homicide)

ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF HAMBLEN COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

HEISKELL WINSTEAD JOHN KNOX WALKUP
4325 Highway 66 South, Attorney General and Reporter
Suite 101
Rogersville, TN 37857 PETER M. COUGHLAN
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243-0493

C. BERKLEY BELL
District Attorney General
510 Allison Street
Morristown, TN 37814

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
 OPINION

The Defendant, Claude Kent Greg g, app eals as of rig ht purs uant to Rule

3 of the Tenn essee R ules of Appe llate Procedure . He was co nvicted by a

Hamblen County jury of vehicular homicide by intoxication1 , a Class C felony at

the time the offense was committed.2 He was sentenced as a standard offender

to the m inimum of the range of three years incarceration to be served in the

Hamblen County Jail. The Defendant raises two iss ues in this ap peal: (1) That

the evidence was insufficient to support a verdict of guilt for vehicular homicide,

and (2) that the trial judge abused his discretion by denying pro bation. W e affirm

the judgm ent of the tria l court.

At approximately 2:40 a.m., Terry Sexton, an officer with the Morristown

Police Department was at the intersection of Liberty Hill and East Mo rris

Boulevard in Morristown. He observed a blue Chevrolet C ama ro pas s him

heading eastbo und at a pproxim ately 48 to 50 miles per hour. Officer Sexton

followed the Camaro, which increased its speed to approximately 61 miles per

hour. The officer stopped the vehicle. The driver of the Camaro was the

Defen dant, with whom Officer Sexton was acquainted. A som ewhat h eavy-se t,

blonde woman was seated on the front passenger side of the vehicle. The

Defendant got out of h is vehicle. Officer Sexton detected no odor of alcohol and

observed that the Defe ndan t was s teady on his feet. Ba ckup officer C hris

Lawson arrived in his cruiser and watched from inside the car. The Defendant

1
Tenn. Code A nn. § 39-13-213(a)(2)(1991).

2
The legislature has subsequently amended the vehicular homicide statute, providing that a
conviction involving intoxication constitutes a Class B felony. Tenn. Code Ann. § 39-13-213(b).

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waved to him. As Officer Lawson was leaving, he saw a heavy-set blonde

woman, later identifie d as A man da Fu ell, in the passenger seat of the Camaro.

After talking with the Defendant for approximately five minute s, Officer Sexton

warned him about his speed and let the Defendant proceed. The Defendant was

driving the C amaro when h e left.

About twenty (20) minutes later, Paul Carr and h is ex-w ife were talking in

his home when they heard a loud noise. They ran to the window and saw that

it was a car accident and that the electrical wires were down. Paul Carr called

911, got his flashlight and went outside. He saw that a car had hit a power pole.

He maneuvered his way through the downed power lines and saw a woman in

the car. She did not appear to be breathing. He heard a noise and saw the

Defendant lying on the driveway. The Defendant was breathing, but it sounded

choked. The female was lying on her back across the driver’s side seat. The

passeng er side was cru shed into the m iddle of the car.

Sher iff’s Captain Otto Purkey was the first to arrive at the scene of the

accident on Highway 11-E in Whitesburg. He arrived at 3:13 a.m. He observed

the Defendant lying in the driveway. He also saw the fem ale pa ssen ger lying in

the car, and she appeared to be dead. She was lying partially on her back

across the console. Her feet were under the passenger dashboard. The

hatchback and “T-tops” from the roof were gone. Captain Purkey notified the

Tenn essee Highw ay Patro l to investigate the accid ent.

Tracy Sebastian, a paramedic with the Mo rristown-H amble n E.M.S .,

arrived on the scene. He examined the Defendant, then examined Ms. Fuell and

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determined that she was dead due to the apparent injuries and the absence of

life signs. He ca lled for a n extrica tion un it beca use it w as ap paren t that it wo uld

be nece ssary to remo ve the fe male victim. He called for a n amb ulance to

transport the Defendant to the h ospita l. The D efend ant wa s com bative w hile

Sebastian attemp ted to intub ate and immo bilize him. S ebastian noticed th e smell

of alcohol emanating from the Defendant’s mouth. The Defendant was bleeding

and his b lood also smelled like alcoho l.

Ms. Fuell, the female victim, appeared pulseless and apneic, and her color

was pale, indica ting subs tantial blee ding. There was bleeding from the head and

arms, as well as multiple lacerations over her body. Sebastian also noted that

the car wa s pus hed in on the right sid e. The victim’s arms and head were

hanging out at the edge of the driver’s side door and her body was in front of or

unde rneath the ste ering w heel.

Rob McFarlane was the paramedic in charge of the accident scene. He

arranged for a Lifestar helicopter to transport the Defendant to Knoxville for

treatme nt. McFarlane was informed by another paramedic that M s. Fuell was

dead. McFarlane looked in the car only briefly for some equipment and glanced

at the victim . He assumed she was the driver and listed the Defendant as a

passenger in the wreck. McFarlane treated the Defendant. He testified that the

Defendant was unconscious, but became combative during the ambulance ride.

Bryan Robinson was one of the extrication personnel with the Morristown

Rescue Squa d whic h was called to the scene. The squad was dispatched at

approx imate ly 3:11 a.m. and arrived on the scene at 3:23 a.m. They used an

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“omni tool” to pry the driver’s side door off. The steering wheel appeared to be

on the victim ’s chest. The victim appeared to be of stocky build. Mr. Robinson

observed that her torso was lying across the console and the lower part of her

legs were under the passenger side dashboard. The team pushed up the

dashboard to remove the victim.

Dr. John T heodo re Han cock trea ted the Defendant at Morristown-Hamblen

Hospital before he was transported to Knoxville. A test revealed that the

Defendant had a 0.125% blood alcohol level, over the legal limit of 0.10%.3 The

Defendant appeared to have a closed-head injury. No pain medication was

administered. Another blood alcohol test conducted at approximately 5:25 a.m.

at the Un iversity o f Ten ness ee Ho spital in Knox ville sho wed a blood leve l of

0.11% alcoh ol. Dr. H anco ck also exam ined th e victim , Ama nda F uell. She

appeared to have crepitus, or air pockets, under her skin, indicative of some type

of trauma. Her front tooth was broken and the ring finger on her left hand was

displace d. She a lso had m ultiple lacera tions on th e left thigh an d calf.

Trooper David Micha el Brown conducted an investigation regarding the

acciden t. He arrived at the scene at approxim ately 3:46 a.m. Emergency

personnel and Captain Purkey were already at the scene. He determined that

it was a one -vehicle acciden t. The blue C amaro w as traveling east on 11-E

towards Bulls Gap. The vehicle left the roadway and slid 172 feet through a yard

until it struck a utility po le broadside at the passenger door. The Defendant had

been ejected. The other occupant, Ms. Fuell, was lying acros s the driver ’s seat,

partially on her back. Her head was down toward s the ro cker p anel o f the driv er’s

3
Tenn. Code A nn. § 55-10-401(a)(2).

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door, her hips were lying across the co nsole, and he r feet were in what w as left

of the passenger compartment under the dashboard. The car was a 1985 blue

Cama ro registered to the Defendant. The passenger door was co mpres sed into

the dashboard. The glass in the hatchb ack was g one and th e “T-tops” we re

found some distance away. Slide marks were evident in the grass the night of

the accident, but were gone the next day after the grass was mowed. He

inventoried the vehicle and fo und photo graphs an d a pool cue . On cross-

examination, Trooper Brown admitted that he made no reference to the location

of the victim ’s feet in the report he had filed. No fiber tests were conducted on

the car. Trooper Brown denied that anyone pointed out the presence of hair on

the passenger door or the windshield. He did not find any jewelry in the vehicle.

No fingerprints tests were conducted.

The Defenda nt’s mother, Billie Ree dy, testified on his beha lf. She stated

that she pointed out to Trooper Brown the presence of hair on the passenger

door that looked like her son’s. She also testified that she showed him long

blonde hair by th e drive r’s door. She also drove from the intersection of Hale and

East Morris B oulevard , where th e Defe ndant w as initially stopp ed, and the

location of the wreck. She estimated the distance at 7.7 miles and that it took ten

minutes to ge t there when trave ling 40 to 45 m iles per hour.

Trena Jefferson, the Defendant’s sister, testified that she examined the

vehicle after the accident. She found part of a clip-on earring on the driver’s side

dashboard. She also found blonde hair on the driver’s door and the steering

whee l. She stated that Ms. Fuell did not have pierced ears and that they worked

together as hair stylists.

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 The Defendant testified at trial. He stated that he had no memory of the

acciden t. He did remem ber that he was in the Army in 1994, and that he went

to the “Rod Run” in Pigeon Forge, Tenn essee , in April, 1995. He did not

remember the victim, Amanda Fuell. He recalled that he was in rehabilitation for

his arm. On cross-examination, the Defendant stated that he started to regain

his memory three days before he was scheduled to be releas ed from the ho spital.

He did not recall drinking before the accident. The State introduced a hospital

record containing statements made by the Defendant about his life: “Satisfactory

sex life, no children, live in a ranch-type home, four people live in the home.” The

Defendant did not recall making any statements.

The State offered Trooper Brown in rebuttal, who again denied that anyone

showed him hair on the wrecked vehicle. Lisa Harris also testified that Ms . Fuell

had pierced ears because she had pierced the victim’s ears approximately two

months before the accident. She admitted that som eone could wear another type

of earring even if one’s ears were pierced. Steve Barnard testified that he left a

leather jacket at the Defendant’s house in January or February of 1995. He

talked to the Defendant about the jacket after the wreck and the Defendant

remembered that it was at the house. Mitsy Crittendon testified for the Defendant

that she saw Billie Reedy show Trooper Brown the hair on the vehicle.

The jury found the De fendant guilty of vehicular homicide while intoxicated,

a Class C felony. He was sentenced to the minimum sentence of three years.

The trial court denied probatio n and o rdered th e Defe ndant to serve his sentence

in confinement. The Defendant appeals both his conviction and sentence.

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 I. Sufficiency of the Evidence

As his first issue, the Defendant argues that the evidence was insufficient

to support a verdict of guilt for vehicular homicide. When an accused challenges

the sufficiency of the convicting evidence, the standard is whether, after reviewing

the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elem ents o f the crim e beyo nd a re ason able

doubt. Jackson v. Virgin ia, 443 U.S. 307, 319 (1979). Questions concerning the

credibility of the witnesses, the weight and value to be given the evidence, as well

as all factual issues raised by the evidence , are resolved by the trier of fact, not

this court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor

may this court reweigh or reevaluate the evidence . State v. Cabbage, 571

S.W .2d 832 , 835 (T enn. 19 78).

A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474,

476 (Tenn. 197 3). On ap peal, the S tate is entitled to the stron gest legitim ate

view of the evide nce an d all inferen ces there from. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Grace, 493

S.W.2d at 476.

In the case at bar, the Defendant contends that the evidence was

insufficient to prove that he w as driving the automobile when the accident

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occurred. The elements necessary to prove vehicular homicide by means of

intoxication are that there was a “reckless killing of another by the operation of

an automobile . . . [a]s the proximate cause of the driver’s intoxication as set forth

in § 55-10-401.” Tenn. Code Ann. § 39-13-213 (a)(2). Tennessee Code

Annotated section 55-10-401 states:

(a) It is unlawful for any person to drive or to be in physical control of
any automobile or other motor driven vehicle on any of the public roads
and highways of the state, or on any stree ts or alleys, or while on the
premises of any shopping center, trailer park or any apartment house
complex, or any other premises which is generally frequented by the
public at large, while:

(1) Under the influence of any in toxican t, mariju ana, n arcotic
drug, or drug produ cing st imula ting effects on the central nervous
system; or

(2) The alcoh ol con centra tion in s uch p erson 's bloo d or bre ath is
ten-hundredths of one percent (.10%) or more.

The Defendant notes that the case against him was purely circumstantial. He

maintains that the he was convicted based on circumstantial evidence alone and

that the State did not rule out the reasonable possibility that Ms. Fuell was driving

the Camaro. A crime may be established by circumstantial evidence alone.

State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987). However, before an

accused may be convicted of a criminal offense based only upon circumstantial

evidence, the facts and circumstance s “mus t be so stro ng and cogen t as to

exclude every other rea sonab le hypoth esis save the guilt of the defend ant.”

State v. Crawford, 225 Tenn. 478, 482, 470 S.W.2d 610, 612 (1971). In other

words, a “web of guilt must be woven around the defendant from which he cannot

escape and from which facts and circumstances the jury could draw no other

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reaso nable inference save the guilt of the defendan t beyond a reaso nable d oubt.”

Id. at 484, 61 3.

The Defendant highlights the fact that the victim was trap ped in the car with

her chest pressed under the steering wheel and that he was found outside of the

vehicle. He also contends that when he was stopped for spe eding appro ximate ly

thirty minutes before th e accide nt, he did n ot appe ar intoxicate d. He argues that

Ms. Fuell’s position in the car, her broken tooth, her left finger out of joint and the

lacerations to the left side of her body suggest that she was driving. The

Defendant highlights the fact that more time passed than that needed to travel

the distance between where he was stopped and where the accident occurred

and tha t no alcoh olic bevera ge con tainers w ere foun d in or nea r the wrec k.

Yet, after a careful review of the evidence considered in the light most

favora ble to the State, we must conclude that the evidence was su fficient to

convict the Defendant of vehicular homicide. The Defendant focuses on the way

the victim was fo und in the veh icle. He sugg ests th at it indic ates th at she could

have been d riving the ve hicle. However, neither the State nor the Defendant

offered evidenc e that, in any way, demonstrated that the victim was more likely

to have been driving the vehicle than that sh e was a pa ssenger. T here has been

no explanation regarding the source of the victim’s injuries. Nor does the timing

of the accid ent lend its elf to any particular hypothesis regarding who was driving

or what occurred in the interim. Furthermore, the existence and lo cation of hair

and jewelry in the ve hicle w as co nteste d and clearly resolved by the jury in favor

of the State. Indee d, the State pres ented eviden ce that the vehicle invo lved in

the accident was registered to the Defendant and th at he w as drivin g sho rtly

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before the accid ent. Although he did not appear intoxicated at the traffic stop, the

Defe ndan t’s blood alcohol was 0.125% after the ac ciden t and a param edic

sme lled alcohol on his breath. Furthermore, the witnesses at the scene

described the victim as draped over the drive r’s side, but her feet were pinned or

located under the passenger’s side dashboard.

W e recog nize th at in ca ses inv olving c ircum stantia l eviden ce, the State’s

proof must e xclude a ll other reas onable hypothe ses. Yet, when considering the

evidence presen ted at trial, it is app arent tha t the jury did not consider the

Defe ndan t’s theory a reasonable one. The location of the victim’s body in the

vehicle, without more , is not probative of any the ory. Again , the State is entitled

to the strongest legitimate view of the evidence and all inferences therefrom.

Cabbage, 571 S.W .2d at 835 . In this light, there was su fficient eviden ce to

support the Defendant’s conviction. Therefore, we c onclu de tha t this issu e is

without m erit.

II. Denial of Probation

In his second issue in this appeal, the Defendant argues that the trial judge

abused his discre tion in failing to grant probation. When an accused challenges

the length, range, or the manner of service of a senten ce, this cou rt has a du ty

to conduct a de novo review of the sentence with a presumption that the

determinations mad e 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 princip les and all relevant

facts and circums tances ." State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).

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

the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of senten cing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the de fenda nt ma de on his ow n beh alf; and (g) the p otentia l or lack of

potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,

and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

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 principles set out under the sentencing law, and

that the trial c ourt's findings of fact are adequately 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 (Tenn. Crim . App. 1991 ).

Although probation "must be automatically considered as a sentencing

option for eligible defendants, the d efenda nt is not au tomatica lly entitled to

probation as a matter of law." Tenn. Code Ann. § 40-35-303(b) (1990)

(Sentencing Commission Comments ). This Court must begin its sentencing

determination by reviewing the purposes of sentencing set forth in Tennessee

Code Annota ted sectio n 40-35 -102. State v. Davis, 940 S.W.2d 558,559 (Tenn.

1997).

If an accused has been convicted of a Class C, D or E felony and

sentenced as an es pecially m itigated or s tandard offender, there is a

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presumption, rebuttable in nature, that the accused is a favorable candidate for

alternative sentencing unless disqualified by some provision of the Tennessee

Criminal Sentencing Reform Act of 1989. Tennessee Code Annotated section

40-35-1 02 provid es in part:

(5) In recognition that state prison capacities and the funds to build and
main tain them are limited, convicted felons com mitting the mo st severe
offenses, posse ssing crim inal histories evincing a clear disre gard for
the laws and morals of society, and evincing failure of past efforts at
rehabilitation shall be given first priority regarding sentencing involving
incarceration; and

(6) A defendant who does not fall within the parameters of subdivision
(5) and is an especially mitigated or standard offender convic ted of a
Class C, D or E felony is presumed to be a favorable candidate for
alternative sente ncing option s in the abse nce o f evidence to the
contrary.

The sentencing proce ss m ust ne cess arily commence with a determination

of whether the accused is entitled to the benefit of the pres umptio n. Ashby, 823

S.W.2d at 169. As our supreme court said in Ashby: "If [the] determination is

favorable to the defendant, the trial court must presume that he is subject to

alternative senten cing. If the co urt is prese nted with e vidence sufficient to

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

accord ing to the statuto ry provision [s]." Id. "Evidence to the contrary" may be

found in applying the considerations that govern sentences involving

confinem ent, which are set forth in Tennessee Code Annotated section

40-35-103 (1):

(A) Confinement is necessary to protect society by restraining a
defend ant who has a lon g history of c riminal co nduct;

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 (B) Confinement is necessary to avoid depreciating the seriousness of
the offens e or co nfinem ent is particu larly suited to provide an effective
deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or
recently b een ap plied uns uccess fully to the de fendan t.

See Davis , 940 S.W .2d at 561 ; Ashby, 823 S.W.2d at 169. The presumption

can be succ essfully reb utted by fa cts conta ined in the presen tence re port,

evidence presented by the state, the testimony of the accused or a defense

witness, or any other source p rovided it is m ade a p art of the rec ord. State v.

Bonestel, 871 S.W .2d 163, 167 (Tenn. Crim . App. 1993 ).

Beyond this, a defendant has the burden of establishing his or her

suitability for total probation. Tenn. Code Ann. § 40-35-303(b). To be granted

full probatio n, a defen dant m ust demonstrate that probation will "subserve the

ends of justice and th e bes t interes t of both the pu blic and the defend ant." State

v. Boggs, 932 S.W.2d 467, 477 (Tenn . Crim. A pp. 199 6); State v. Bingham, 910

S.W.2d 448, 456 (Tenn. Crim. App. 1995)(citing Hoop er v. State , 201 Tenn. 156,

161, 297 S.W.2d 78, 81 (1956)). The trial court must consider a sentence which

is the “least severe measure necessary to achieve the purposes for which the

sentence is imposed” and “[t]he potential or lack of potential for the rehabilitation

or treatm ent for the d efenda nt.” Tenn . Code Ann. § 4 0-35-10 3(4), (5).

In the case sub judice, the State proposed no enhancement factors, nor

were any mitigating factors considered. The trial judge sentenced the Defendant

to the three (3) year minimum in the range for a standard offender for a Class C

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felony. 4 The trial jud ge prop erly cons idered th e Defe ndant a presum ed can didate

for alternative sentencing. The State offered no rebuttal evidence. The

Defendant offered witnesses who testified that he w ould be a suitable candida te

for full probation. The presentence report indicates that the Defendant was

twenty-five years old at the time of sentencing. He graduated from Cherokee

High School in 19 89, served in the A rmy until 1994, an d worked for M inco before

and after the accident. He had no criminal record, but reported a speeding ticket

in Knoxville in 1994.

The trial court considered several factors, but emphasized that deterrence

was an important reason for denying probation. The trial judge stated:

“Unfortunately, drinkin g and driving cases are now consuming most of the

docke ts in the four counties that I go to, including Hamblen County. I don’t know

why, but alread y this mo nth we’ve tr ied m ore D UI’s than a nything else, a nd tha t’s

true in Greene County and Hawkins County . . . .” The trial judge also

considered the circumstances of the offense in denying probation. Namely, he

mentioned the blood alcohol level and th at som eone w as killed in th e accide nt.

Howeve r, he added that probation would not serve the ends of justice because

of the need for general deterrence.

Probation may be denied based on the circumstances of the offense,

however "as committed, [they] must be 'especially violent, horrifying, shocking,

repre hens ible, offensive, or otherwis e of an ex cessive o r exagge rated de gree,'

4
In 1995, shortly after the offense in question was committed, the legislature raised the offense
of vehicular homicide as the proximate result of intoxication from a Class C felony to a Class B
felony, with a m inimum senten ce for a R ange I of fender of eight (8) ye ars. See Tenn. Code Ann.
§ 39-13-213(b); Tenn. Pub. Acts.1995, ch. 415, § 1.

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and the nature of the offen se mu st outwe igh all factors favoring p robation ."

State v. Trav is, 622 S.W.2d 529, 534 (Tenn. 1981); State v. Cleaver, 691

S.W.2d 541, 543 (Tenn. 1985). This principle has been codified in section 40-35-

103(1)(B) which cons iders confinement to avoid depreciating the seriousness of

the offense. State v. Hartley, 818 S.W .2d 370, 375 (Tenn. Crim . App. 1991 ); see

also State v. Fletcher, 805 S.W .2d 785 , 787 (Tenn. C rim. App. 199 1).

Sentencing decisions sho uld not, howeve r, turn on a generalization of the crime

committed, such as the fact that a death occurred. State v. Bingham, 910

S.W.2d 448, 456 (Tenn . Crim. A pp. 199 5); but see State v. Ramsey, 903 S.W.2d

709, 714 (T enn. Crim. A pp. 1995).

Probation may also be denied based on whether the sentence will deter

others. The S entenc ing Act p rovides th at "[p]unish ment s hall be im posed to

prevent crime and promote respect for the law by ... [p]roviding a general

deterrent to those likely to violate the criminal laws of this state." Tenn. Code

Ann. § 40-35 -102(3)( A). Also, o ur supre me co urt has re iterated tha t “because

there is a degree of deterrence uniformly present in every case, however, the

significance of this fa ctor ‘var ies wid ely with the cla ss of offen se and the facts of

each case’ . . . a ‘finding of deterrence cannot be conclusory only but must be

supp orted b y proo f.’ Davis, 940 S.W .2d at 560(citations o mitted).

The trial court considered the circumstances of the offense to deny

probation. He noted the blood alcohol level and the fact that someone was killed

as a result of the crime. Although the accident was obviously violent and

horrifying, the fact that the victim died is not a controlling consideration when

death is an element of an offen se othe rwise eligib le for alterna tive senten cing.

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State v. Bingham, 910 S.W.2d 448, 556 (Tenn. Crim. App. 1995). However, the

State correctly co unters th at the goal of specific deterrence of the Defendant

shou ld be considered. The Defendant was pulled over by an officer because of

his speed just minutes before the accident occurred. Clearly, the warning was

not effective, the State argues, because the speed he was traveling before the

accident was sufficient to carry the vehicle 172 feet off the roadway and into a

utility pole. W e agree that the fac t that the D efenda nt was w arned ju st prior to

the accid ent me rits consid eration to d eter him from su ch future condu ct.

The trial cou rt also fo und th e nee d for de terren ce of d runke n driving in

Hamblen County. The Defendant argues that there was not sufficient proof of the

need for deterrence a s required by Ashby. Howeve r, the trial co urt spe cifically

noted that the court dockets he worked on were consumed by DUI offenses . We

conclude that this, in conjunction with the circumstan ces of the offens e, were

sufficient grounds upon which to deny probation. We conclude that the trial judge

did not ab use his d iscretion in d enying p robation for the De fendan t.

Accord ingly, we affirm the judgm ent of the tria l court.

____________________________________
DAVID H. WELLES, JUDGE

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CONCUR:

___________________________________
GARY R. WADE, JUDGE

___________________________________
JERRY L. SMITH, JUDGE

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