State of Tennessee v. Tharcisse John Nkurunziza ( 2021 )

04/30/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
December 16, 2020 Session
STATE OF TENNESSEE v. THARCISSE JOHN NKURUNZIZA
Appeal from the Criminal Court for Knox County
No. 114309 Kyle A. Hixson, Judge
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No. E2020-00326-CCA-R3-CD
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The Appellant, Tharcisse John Nkurunziza, pled guilty in the Knox County Criminal Court
to vehicular assault, a Class D felony, with the trial court to determine the length and
manner of service of the sentence. After a sentencing hearing, the trial court sentenced him
as a Range I, standard offender to four years to be served as ten months in jail followed by
supervised probation. On appeal, the Appellant claims that his sentence is excessive
because the trial court misapplied enhancement factors and that the trial court erred by
denying his request for full probation. The State acknowledges that the trial court
misapplied two of the three enhancement factors but contends that the record justifies the
sentence. Based upon the oral arguments, the record, and the parties’ briefs, we agree with
the State and affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY THOMAS,
JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Jonathan P. Harwell (on appeal) and Carter Pack (at guilty plea and sentencing hearings),
Knoxville, Tennessee, for the appellant, Tharcisse John Nkurunziza.
Herbert H. Slatery III, Attorney General and Reporter; Cody N. Brandon, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Gregory Eshbaugh,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In November 2018, the Knox County Grand Jury indicted the Appellant for
vehicular assault, reckless endangerment, driving under the influence (DUI) per se, DUI,
and failing to provide proof of financial responsibility. In October 2019, he pled guilty to
vehicular assault, and the State dismissed the remaining charges. Pursuant to the plea
agreement, the trial court was to determine the length and manner of service of the
sentence.
At the Appellant’s guilty plea hearing, the State gave the following factual account
of the crime:
Your Honor, had this case gone to trial, the State would expect to show
through the testimony of the witnesses listed in the indictment that on the 5th
day of April 2017, officers received reports at approximately 11:37 in the
evening, reports of a gray Chevrolet Impala driving the wrong direction on
I-40 eastbound near Asheville Highway. At 11:40 p.m., officers received a
second call of a head-on collision at I-40 eastbound near I-640.
Upon arrival, officers found the defendant behind the wheel of a gray
Chevrolet Malibu bearing tag V5604D. They found that that had struck a
Ford SUV head-on. That Ford was driven by Mr. Tedder. Officers observed
the defendant had a strong odor of an alcoholic beverage about his person,
was disoriented. He was asked about a blood draw, Your Honor. Did refuse
to provide a blood draw at that time. Officer Dorwart was able to obtain a
search warrant for Mr. Nkurunziza’s blood. That was executed
approximately three hours after the crash, sent to the TBI where it was tested.
It came back as a .207.
Mr. Tedder was transported to the University of Tennessee Medical
Center for his injuries, which did include an open displaced calcinosis
fracture of his right calcinosis as well as a distal femoral parasitic fracture,
again, on the right leg, which required extensive treatment and recovery,
Your Honor. It also involved debridement of the tissue as well as the bone
on parts of Mr. Tedder’s right leg.
Furthermore, Mr. Nkurunziza’s medical records revealed that there
was a blood alcohol test performed by the hospital approximately two hours
after the crash, so an hour before the TBI draw was accomplished, which
showed that his BAC at that time was .237. That was the serum so it would
be a little higher. Mr. Nkurunziza also made a statement to medical
personnel, as reflected in the medical records, that said, “I drink for a living.”
All of these events did occur in Knox County, Tennessee.
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After the State completed its recitation of the facts, the trial court asked defense counsel if
there were any “[a]dditions or corrections,” and defense counsel said no.
The trial court held a sentencing hearing on January 30, 2020. At the outset of the
hearing, the State introduced the Appellant’s presentence report into evidence. According
to the report, the then twenty-five-year-old Appellant was single but had a girlfriend with
whom he had two young daughters. The report stated that the Appellant was born in
Burundi, Africa; was one of eight children; and was raised in refugee camps until he came
to Tennessee in 2015. The Appellant stated in the report that he currently lived with his
parents and younger siblings but that he saw his children regularly and paid $530 per month
in child support. The Appellant stated in the report that he attended high school in Tanzania
but that he dropped out in the ninth grade. He described his mental and physical health as
“good,” stated that he last consumed alcohol in 2019, and denied the use of illegal or
nonprescribed drugs. The report showed that the Appellant worked as a sales associate for
Leisure Pools and Spas from January 2017 to December 2019 and that he began working
as a laborer for Express Personnel in January 2020. A risk assessment was included in the
presentence report. The assessment showed the Appellant to be high risk in the areas of
residential and education needs and to be low risk for friends, attitudes and behaviors,
aggression, mental health, alcohol and drug use, family, and employment.
Roney Tedder gave an oral victim impact statement. Mr. Tedder said that the crash
broke his femur bone, that he had metal in his leg, and that he was “stopped all the time”
when passing through metal detectors. After the crash, Mr. Tedder had to keep his foot
elevated for seven months, lost his job as a commission sales representative because he
could not meet with his customers or obtain new customers, and lost over one million
dollars in sales. At the time of the sentencing hearing, Mr. Tedder still could not “function
in [his] job duties” because the crash damaged his lymph system, causing his foot to swell.
Mr. Tedder’s daughter, who was a student at the University of Tennessee at Chattanooga
in April 2017, also was impacted and left school while studying for exams to be with him
in the hospital. Mr. Tedder’s brother gave up three weeks of vacation time to stay with
him and help him at home. At the time of the crash, Mr. Tedder had a new girlfriend. After
the crash, though, he was unable to “go out” or take her to dinner, so the crash “cost [him]
a relationship.” He said that he had to take Advil every morning “just to help me get
started” and that he no longer could go on hikes or play sports. He stated that his mobility
was permanently affected, that he had difficulty going up and down stairs, and that the
nerves in his foot were damaged. Mr. Tedder stated that he had undergone three surgeries
at UT Medical Center and four surgeries at Vanderbilt and that additional surgeries may
be required due to “a multitude of injuries” and complications. Mr. Tedder requested that
the trial court sentence the Appellant to “the maximum of whatever penalty he can get.”
The Appellant made a brief allocution in which he stated,
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From the bottom of my heart, I want to apologize to that guy from the bottom
of my heart. I’m so sorry. And that I’m really sorry for the State. I just have
to say sorry. I never -- my wish is tell our kids like how I tell other people -
- that’s where I live -- drink and driver is danger. It can lose somebody’s life
and it can lose your life too and your future. I would never drink and drive
in my life again. And I apologize. I’m so sorry to him. That’s all I can say.
The State argued that three enhancement factors were applicable to the Appellant’s
sentence. First, the State contended that enhancement factor (1) regarding the Appellant’s
prior criminal history was applicable because the Appellant “had several run-ins with law
enforcement in Knox County” after he committed the offense in this case. Specifically,
the Appellant was charged with domestic assault and patronizing prostitution. The State
claimed that although both of the charges were dismissed, enhancement factor (1) was
applicable because the Appellant “certainly [had] some criminal history.”
Next, the State argued that enhancement factor (6) regarding the victim’s injuries
being particularly great was applicable. The State noted that serious bodily injury was an
element of vehicular homicide but claimed that the factor still applied because “there are
degrees of serious bodily injury, and the State would submit that this was a relatively
aggravated case as far as that’s concerned.” Finally, the State argued that enhancement
factor (10) regarding the defendant’s having no hesitation about committing a crime when
the risk to human life was high was applicable because the Appellant was driving the wrong
way on Interstate 640, which was “obviously extraordinarily dangerous,” while having a
blood alcohol content of “two and a half times over the .08.” The State requested that the
trial court give “some weight” to enhancement factors (1) and (6) but give “great weight”
to enhancement factor (10) and sentence the Appellant to four years.
Regarding the manner of service of the sentence, the State described the victim’s
injuries as “horrific” and asserted that this case easily could have ended up being a
vehicular homicide case. The State again contended that driving the wrong way on the
interstate was “extraordinarily dangerous” and stated that the Appellant “placed Lord only
knows how many people in danger of being hit and injured.” The State argued that the
facts of the case were “particularly egregious” and, therefore, that some confinement was
necessary to avoid depreciating the seriousness of the offense. The State requested that the
Appellant serve one year in confinement with the remainder to be served on probation.
Defense counsel responded that enhancement factor (1) was inapplicable because
the Appellant did not have a criminal history and that enhancement factors (6) and (10)
were inapplicable because they were inherent in the offense of vehicular assault. Defense
counsel contended that the trial court should mitigate the Appellant’s sentence because he
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lacked a criminal history, was only twenty-two years old at the time of the crime,
voluntarily completed DUI school, voluntarily submitted to an alcohol and drug
assessment, and accepted responsibility for the crime “by pleading guilty blind.” Defense
counsel requested that the trial court sentence the Appellant to two or three years and that
he serve the entire sentence on probation.
The trial court noted that the range of punishment for a Range I, standard offender
convicted of a Class D felony was two to four years. See Tenn. Code Ann. § 40-35-
112(a)(4). The trial court found that enhancement factor (1), that “[t]he defendant has a
previous history of criminal convictions or criminal behavior, in addition to those necessary
to establish the appropriate range,” was applicable to the Appellant’s sentence. Tenn. Code
Ann. § 40-35-114(1). The trial court noted that while the Appellant’s criminal history was
“not as extensive as what we are used to seeing,” the Appellant “doesn’t come before the
court with entirely clean hands, particularly with picking up another charge while this case
was pending.” The trial court found that enhancement factor (6), that “[t]he personal
injuries inflicted upon . . . the victim was particularly great,” also was applicable. Tenn.
Code Ann. § 40-35-114(6). The trial court found, though, that the court was “limited in
the amount of weight” it could place on enhancement factor (6) because serious bodily
injury was an element of the offense. Finally, the trial court found that enhancement factor
(10), that “[t]he defendant had no hesitation about committing a crime when the risk to
human life was high,” was applicable, stating,
I don’t think the defendant intentionally got on the interstate going the wrong
way, but he did intentionally ingest alcohol that night and he ingested more
than two drinks to get to a .207. That is a high level of intoxication, and to
get behind the wheel of a car in that shape and in that condition was certainly
a decision that he made that had very, very, very dire consequences for an
innocent citizen, and the defendant now is facing the consequences that he
has incurred by that decision.
Tenn. Code Ann. § 40-35-114(10). The trial court found that no mitigating factors were
applicable and imposed a four-year sentence.
As to the manner of service of the sentence, the trial court noted that the Appellant
“seem[ed] to have a lot of things going for him personally in terms of his family,” was
employed and trying to contribute to society, and was trying to build a life in this country.
However, the trial court found that confinement was necessary to avoid depreciating the
seriousness of the offense and that confinement was particularly suited to provide an
effective deterrence to others likely to commit similar offenses. See Tenn. Code Ann. §
40-35-103(1). Accordingly, the trial court ordered that the Appellant serve ten months of
his four-year sentence in jail followed by supervised probation.
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II. Analysis
The Appellant contends that his four-year sentence is excessive because the trial
court misapplied all three enhancement factors and that the trial court erred by denying his
request for full probation except for the statutory minimum jail sentence. The State
acknowledges that the trial court misapplied enhancement factors (1) and (6) but argues
that the trial court properly applied enhancement factor (10), which justified the
Appellant’s four-year sentence. The State also argues that the record supports the trial
court’s denial of full probation. We agree with the State.
This court reviews the length, range, and manner of service of a sentence imposed
by the trial court under an abuse of discretion standard with a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); State v. Caudle, 388
S.W.3d 273, 79 (Tenn. 2012) (applying the standard to alternative sentencing). In
determining a defendant’s sentence, the trial 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 statistical information
provided by the administrative office of the courts as to sentencing practices for similar
offenses in Tennessee; (7) any statement by the defendant in his own behalf; and (8) the
potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210;
see also Bise, 380 S.W.3d at 697-98. The burden is on the Appellant to demonstrate the
impropriety of his sentence. See Tenn. Code Ann. § 40-35-401, Sent’g Comm’n Cmts.
In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:
(1) The minimum sentence within the range of punishment is the
sentence that should be imposed, because the general assembly set the
minimum length of sentence for each felony class to reflect the relative
seriousness of each criminal offense in the felony classifications; and
(2) The sentence length within the range should be adjusted, as
appropriate, by the presence or absence of mitigating and enhancement
factors set out in §§ 40-35-113 and 40-35-114.
Tenn. Code Ann. § 40-35-210(c).
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Although the trial court should consider enhancement and mitigating factors, the
statutory factors are advisory only. See Tenn. Code Ann. § 40-35-114; see also Bise, 380
S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our supreme court has
stated that “a trial court’s weighing of various mitigating and enhancement factors [is] left
to the trial court’s sound discretion.” Carter, 254 S.W.3d at 345. In other words, “the trial
court is free to select any sentence within the applicable range so long as the length of the
sentence is ‘consistent with the purposes and principles of [the Sentencing Act].’” Id. at
343 (quoting Tenn. Code Ann. § 40-35-210(d)). Appellate courts are “bound by a trial
court’s decision as to the length of the sentence imposed so long as it is imposed in a
manner consistent with the purposes and principles set out in sections -102 and -103 of the
Sentencing Act.” Id. at 346.
Regarding alternative sentencing, a defendant is eligible for alternative sentencing
if the sentence actually imposed is ten years or less. See Tenn. Code Ann. § 40-35-303(a).
The Appellant’s sentence meets this requirement. Moreover, a defendant who is an
especially mitigated or standard offender convicted of a Class C, D, or E felony should be
considered a favorable candidate for alternative sentencing absent evidence to the contrary.
See Tenn. Code Ann. § 40-35-102(6). In the instant case, the Appellant is considered to
be a favorable candidate for alternative sentencing because he is a standard offender.
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.
State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, a court
should consider a defendant’s potential or lack of potential for rehabilitation when
determining if an alternative sentence would be appropriate. See Tenn. Code Ann. § 40-
35-103(5). A defendant with a long history of criminal conduct and “evincing failure of
past efforts at rehabilitation” is presumed unsuitable for alternative sentencing. Tenn. Code
Ann. § 40-35-102(5).
During the sentencing hearing, the trial court stated as follows:
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Of course, this Court was not present for the plea hearing, and therefore, did
not hear the stipulation of facts in this case. So the Court at this point is
relying upon the official version that’s set forth in the PSI, but the Court will
note that does not contain any information concerning the results of the blood
draw.
At that point, the State read the recitation of facts from the guilty plea hearing transcript to
the trial court. Thereafter, the trial court asked defense counsel, “Does that fairly state the
stipulated facts that were set forth in the original plea hearing? Defense counsel responded
that he did not recall stipulating to the results of the hospital blood draw, which found that
the Appellant’s blood alcohol content was .23, or to the Appellant’s stating to hospital
personnel, “I drink for a living.” The State agreed to “waive consideration of the hospital
blood” but stated that the Appellant’s comment to hospital personnel was “definitely”
included in the recitation of facts at the guilty plea hearing. The trial court ruled that it
would not consider “the .23 level in the blood serum.” We note, however, that the State’s
recitation of facts at the guilty plea hearing included that the Appellant’s serum blood
alcohol content was .23 two hours after the crash. After the State’s recitation, the trial court
asked defense counsel if there were any corrections, and defense counsel said no.
Therefore, the Appellant’s having a blood alcohol content of .23 was properly before the
trial court at sentencing.
Turning to the Appellant’s claim that his sentence is excessive, the Appellant’s
presentence report does not reflect any criminal history that would justify applying
enhancement factor (1) to his sentence. Although the presentence report shows that the
Appellant was charged with committing two traffic offenses on April 21, 2018, and
patronizing prostitution on July 21, 2017, the report also shows that the charges were
dismissed. A trial court should not use evidence showing mere arrests, without more, to
enhance a sentence. State v. Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993)
(citing State v. Newsome, 798 S.W.2d 542, 543 (Tenn. Crim. App. 1990)). A trial court
may consider past criminal behavior which was the basis of an arrest if it is established by
a preponderance of the evidence. State v. Carico, 968 S.W.2d 280, 287 (Tenn. 1998).
Here, the charges against the Appellant were dismissed, and as the trial court noted, the
State did not present any evidence to establish the criminal behavior by a preponderance
of the evidence. Moreover, enhancement factor (6) cannot be used to enhance a sentence
for vehicular assault because “particularly great” injury is inherent in the offense, which
requires that the victim suffer serious bodily injury.1 State v. William Jeffery Sweet, No.
1
Tennessee Code Annotated section 39-13-106(a) provides, “A person commits vehicular assault
who, as the proximate result of the person’s intoxication as set forth in § 55-10-401, recklessly causes
serious bodily injury to another person by the operation of a motor vehicle.”
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E2008-00100-CCA-R3-CD, 2009 WL 2167785, at *15 (Tenn. Crim. App. at Knoxville,
July 21, 2009) (relying on State v. Jones, 883 S.W.2d 597,602 (Tenn. 1994)). Thus, the
trial court erred by applying enhancement factors (1) and (6).
The Appellant contends that the trial court also misapplied enhancement factor (10)
because the record fails to show that a person other than the victim was put at risk. We
disagree. As noted by the Appellant, this court held in State v. Rhodes, 917 S.W.2d 708,
714 (Tenn. Crim. App. 1995), that enhancement factor (10) does not apply to vehicular
assault where the record does not indicate that any other person was actually threatened by
defendant’s driving because “vehicular assault [unquestionably] reflects the legislature’s
appreciation of the substantial risk of and actual degree of harm that results from [the]
caused injury.” However, this court has held that a trial court did not err by applying
enhancement factor (10) to a sentence for vehicular assault when the record showed that
the defendant, who had a blood alcohol content of .281, crossed into the opposite lanes on
an interstate that was within the city limits of an urban area and struck the victim’s vehicle
head-on. State v. Davis Oliver Brown, No. 03C01-9608-CR-00313, 1997 WL 785671, at
*3 (Tenn. Crim. App. at Knoxville, Dec. 16, 1997).
Similarly, the Appellant, who had a serum blood alcohol content of .23 two hours
after the crash, traveled westbound in the eastbound lanes of Interstate 40 near Asheville
Highway and struck Mr. Tedder’s vehicle head-on near Interstate 640. The proof presented
at the guilty plea hearing was that the police received reports, in the plural, of the
Appellant’s driving the wrong way on the interstate before he collided with Mr. Tedder.
Therefore, the record sufficiently corroborates the trial court’s application of enhancement
factor (10).
Although the trial court misapplied enhancement factors (1) and (6), the trial court
gave the factors slight weight. Additionally, our supreme court has explained that a trial
court's “misapplication of an enhancement or mitigating factor does not invalidate the
sentence imposed. . . . So long as there are other reasons consistent with the purposes and
principles of sentencing, as provided by statute, a sentence imposed by the trial court within
the appropriate range should be upheld.” Bise, 380 S.W.3d at 706. In this case,
enhancement factor (10) was applicable to the Appellant’s sentence, and the trial court
gave it greater weight than enhancement factors (1) and (6). Thus, we conclude that the
trial court did not abuse its discretion by imposing a four-year sentence.
As to the manner of service of the Appellant’s sentence, the Appellant claims that
the trial court “did not point to anything in the offense committed here that established it
was a particularly egregious vehicular assault under the Trent standard” and that the trial
court’s finding of the need for deterrence “was unsupported by anything in the record.”
The trial court stated that this was “a very difficult case” but found that some period of
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confinement was necessary in order to avoid depreciating the seriousness of the offense
and to deter the Appellant and others. Generally, when denying alternative sentencing
based on the seriousness of the offense alone, “‘the circumstances of the offense as
committed must be especially violent, horrifying, shocking, reprehensible, offensive or
otherwise of an excessive or exaggerated degree,’ and the nature of the offense must
outweigh all factors favoring a sentence other than confinement.” State v. Trotter, 201
S.W.3d 651, 654 (Tenn. 2006) (quoting State v. Grissom, 956 S.W.2d 514, 520 (Tenn.
Crim. App. 1997)). In order for a a trial court to deny probation solely on the basis of the
offense itself, “the circumstances of the offense as particularly committed in the case under
consideration must demonstrate that the defendant committed the offense in some manner
more egregious than is contemplated simply by the elements of the offense. State v. Trent,
533 S.W.3d 282, 292-93 (Tenn. 2017) (emphasis in the original).
Likewise, in State v. Hooper, 29 S.W.3d 1, 10-12 (Tenn. 2000), our supreme court
specifically noted the following non-exclusive 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;
(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; and
(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.
Our supreme court noted in State v. Sihapanya, 516 S.W.3d 473, 476 (Tenn. 2014),
that “the heightened standard of review [from Hooper and Trotter] that applies to cases in
which the trial court denies probation based on only one of these factors is inapplicable”
when the trial court “combined the need to avoid depreciating the seriousness of the offense
with the need for deterrence and the nature and circumstances of the offense.” This court
has explained that according to Sihapanya,
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[I]f only one factor found in Tennessee Code Annotated section 40-35-
103(1) is utilized by the trial court, the trial court must make additional
findings. If, however, the trial court bases the denial of alternative sentencing
on more than one factor, we review the denial to determine if the trial court
abused its discretion.
State v. Robert Allen Lester, Jr., No. M2014-00225-CCA-R3-CD, 2014 WL 5501236, at
*5 (Tenn. Crim. App. at Nashville, Oct. 31, 2014).
In the instant case, the trial court found that alternative sentencing should be denied
because of the seriousness of the offense and also because of the need for deterrence.
Therefore, based upon Sihapanya, the trial court was not required to make further specific
findings. See State v. Joseph D. Sexton, No. M2017-00735-CCA-R3-CD, 2018 WL
300532, at *4 (Tenn. Crim. App. at Nashville, Jan. 5, 2018). Nevertheless, the Appellant
is correct in that the State did not present any proof at the suppression hearing to support
the need for deterrence. See State v. Ashby, 823 S.W.2d 166, 170 (Tenn. 1991) (stating
that the finding of deterrence must be supported by proof); State v. Demoss, No. M2019-
01583-CCA-R3-CD, 2020 WL 4199987, at *9 (Tenn. Crim. App. at Nashville, July 22,
2020) (relying on Ashby, 823 S.W.2d at 170), perm. app. denied, (Tenn. Nov. 12, 2020).
Therefore, the trial court erred by denying the Appellant’s request for full probation based
on the need for deterrence.
In any event, the trial court found that the victim suffered “grave” injuries, that the
Appellant had “an extremely high level of intoxication,” and that it would be inappropriate
to allow the Appellant to “walk out on paper.” This court has held that in vehicular assault
cases involving intoxicated drivers where the victim suffers severe injuries, some
confinement may be warranted in order to avoid depreciating the seriousness of the offense.
State v. Kyte, 874 S.W.2d 631, 633 (Tenn. Crim. App. 1993). Furthermore, this case
involved more than an intoxicated motorist causing serious bodily injury to another
motorist. It involved the Appellant, with a blood alcohol content almost three times the
legal limit, driving in the wrong lanes of an interstate late at night, crashing head-on into
the victim’s vehicle, and causing injuries so serious that the victim underwent seven
surgeries and had his mobility permanently affected. As the trial court noted, “[I]t is an
absolute miracle in this case that we have two human beings that survived this crash.”
Thus, we conclude that the trial court did not err by concluding that some confinement was
necessary to avoid depreciating the seriousness of the offense and by ordering that the
Appellant serve ten months in confinement.
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III. Conclusion
Based upon the oral arguments, the record, and the parties’ briefs, we conclude that
the trial court misapplied two enhancement factors but that the record justifies the
Appellant’s four-year sentence and his ten months in confinement. Therefore, we affirm
the judgment of the trial court.
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NORMA MCGEE OGLE, JUDGE
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