State of Tennessee v. Bryan Herman Dowdy ( 2001 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER 5, 2000 Session
STATE OF TENNESSEE v. BRYAN HERMAN DOWDY
Direct Appeal from the Criminal Court for Lauderdale County
No. 6761 Joseph H. Walker III, Judge
No. W2000-01011-CCA-R3-CD - Filed January 26, 2001
Defendant, Bryan Herman Dowdy, appeals his jury convictions for vehicular homicide by
intoxication, two counts of vehicular assault, and felony evading arrest. He was sentenced to eight
years and six months for vehicular homicide, two years for each of the vehicular assaults, and two
years for felony evading arrest, with an effective sentence of ten years and six months. In this
appeal, he raises the following issues for our review: (1) whether the evidence was sufficient to
sustain his convictions; (2) whether items from his vehicle were improperly admitted; (3) whether
his blood alcohol test result was improperly admitted into evidence; (4) whether the underlying DUI
charge should have been severed; (5) whether he was improperly denied access to an officer's
personnel file during cross-examination; (6) whether the trial court erroneously instructed the jury
to use their “common sense;” and (7) whether his sentence was excessive. After our review of the
record, we find all issues to be without merit and affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOE G. RILEY, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ROBERT
W. WEDEMEYER , JJ., joined.
Robert M. Brannon, Jr., Memphis, Tennessee, for the appellant, Bryan Herman Dowdy.
Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; Tracey A. Brewer and Colin A. Campbell, Assistant
District Attorneys General, for the appellee, State of Tennessee.
OPINION
Defendant appeals his convictions by a Lauderdale County jury for vehicular homicide by
intoxication, two counts of vehicular assault and felony evading arrest, for which he received an
effective sentence of ten years and six months. In this court he challenges the sufficiency of the
evidence, the admission into evidence of items obtained from his vehicle, the admission of his blood
alcohol test result, the denial of his motion to sever the DUI offense, the denial of access to an
officer’s personnel file during cross-examination, a jury instruction on “common sense,” and his
sentence. We affirm the judgment of the trial court.
FACTS
Officer John Thompson of the Lauderdale County Sheriff’s Department was on patrol at
approximately 11:00 p.m. on May 8, 1999. He received a dispatch stating that a 1996 Chevrolet with
Tennessee tag DU 421 had evaded authorities in Tipton County and was traveling north on Highway
51. After receiving a subsequent dispatch indicating the subject vehicle was on Cooper’s Creek
Road, Officer Thompson eventually stopped his vehicle at the intersection of Cooper’s Creek Road
and Highway 371. He observed the subject vehicle traveling east on Highway 371 and identified DU
421 on the Tennessee tag. After following the vehicle approximately one-half mile, Officer
Thompson observed the vehicle cross the center line while negotiating a curve. Officer Thompson
activated his blue lights and siren intending to stop the vehicle.
Defendant, driver of the subject vehicle, appeared to be complying with the stop. However,
defendant then accelerated and fled at a high rate of speed. Defendant ran a stop sign and went
around two other police cruisers attempting to stop the vehicle. When it became apparent to Officer
Thompson that he could not catch the vehicle, he cut off the emergency equipment.
Shortly thereafter, defendant’s vehicle went over a hill at a high rate of speed. There was a
vehicle in front of the defendant; however, the defendant was unable to stop due to his speed. He
attempted to pass the vehicle on the left side. Defendant’s vehicle impacted the other vehicle as the
other vehicle attempted to turn to the left.
Wanda Epps was the driver of the other vehicle. Also traveling in the vehicle were her
twelve-year-old niece, her nine-year-old nephew, and Paul Webb. The niece was killed, and Wanda
Epps and Paul Webb suffered injuries requiring hospitalization.
Two emergency medical technicians, who responded to the scene of the accident, testified
that the defendant smelled of alcohol. One technician also testified that the defendant had slurred
speech, stated that he started drinking around 4:00 p.m., but stated he did not know how much
alcohol he consumed since 4:00 p.m. Furthermore, Lieutenant Thomas Smith of the Tennessee
Highway Patrol testified that he observed several opened and unopened bottles of beer in defendant’s
vehicle after the accident.
Defendant was transported to the hospital for treatment. Tennessee Highway Patrol
Investigator Paul Phillips asked the nurse at the hospital to draw a blood sample from the defendant.
Investigator Phillips also noticed an odor of alcohol on the defendant. The blood taken from the
defendant subsequently tested 0.18 gram percent ethyl alcohol.
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The defendant testified at trial. He testified that he stopped work at approximately 4:30 or
5:00 p.m. on May 8, 1999. He said he purchased a six-pack of beer and drank one beer at a friend’s
home. Subsequently, on his way to a local tavern, he drank another beer. Upon arrival at the tavern,
he said he then consumed another beer. Defendant testified he left the tavern at approximately 11:00
p.m. and began drinking another beer in his vehicle.
Defendant testified that when he was near Wal-Mart in Tipton County, a police vehicle with
its flashing blue lights came up behind him. He testified that he had just obtained custody of his
daughter in a “custody battle,” panicked when he saw the officer since he had been drinking, and
fled. He stated that subsequently, while driving in Lauderdale County, he observed the blue lights
of Officer Thompson’s vehicle. Defendant testified that he again panicked and fled.
Defendant testified that he was traveling approximately 70 miles per hour and never crossed
the center line. He observed the two other police cars in front of him on the shoulder of the road but
did not stop. He testified that when he came over a hill, he observed two vehicles in his lane of
travel and another patrol car with its lights on on the side of the road. Defendant testified that,
because he did not have time to stop, he tried to go around the two vehicles in the other lane. One
of the vehicles then turned in front of him leading to the collision.
Defendant was indicted and charged with vehicular homicide by intoxication, two counts of
vehicular assault, felony evading arrest, and DUI by alcohol concentration of .10% or more. The jury
convicted the defendant on all charges. The trial court subsequently merged the DUI conviction into
the vehicular homicide and vehicular assault convictions. He received an effective sentence of ten
and one-half years in the Department of Correction. This appeal followed.
WAIVER
Defendant’s motion for new trial challenges the sufficiency of the evidence and his sentences.
The remaining allegations are that the trial court erred in “failing to grant defendant’s pre-trial
motions, . . . in several rulings during the course of the trial, . . . [and] in failing to properly charge
the jury or did improperly charge the jury.” Other than sufficiency of the evidence and the sentences,
the issues presented in this appeal are not specified in the motion for new trial.
Tenn. R. App. P. 3(e) requires issues to be “specifically” stated in the motion for new trial.
Otherwise, this court cannot assume the issues were properly presented to the trial court; thus, they
will not be considered in this court. See State v. Dykes, 803 S.W.2d 250, 254 (Tenn. Crim. App.
1990); State v. Gauldin, 737 S.W.2d 795 (Tenn. Crim. App. 1987).
The allegations in the motion for new trial are too broad relating to all issues except the
sufficiency of the evidence and sentencing. In an effort to determine whether these issues were
considered by the trial court, we examined the transcript of the motion for new trial. It indicates that
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these issues were indeed argued before the trial court. In the interest of justice, we have elected to
suspend the requirements of Tenn. R. App. P. 3(e) and address all issues on their merits.
SUFFICIENCY OF THE EVIDENCE
Defendant attacks the sufficiency of the evidence to support his convictions. His attack is
threefold: (1) a witness was improperly qualified as custodian of medical records, thereby making
other evidence insufficient to establish that Wanda Epps suffered serious bodily injuries and
insufficient to establish the vehicular homicide victim’s cause of death; (2) intoxication was
established by the improper admission of the blood test result, thereby rendering the other evidence
insufficient to support vehicular homicide and the vehicular assaults; and (3) the absence of proper
cause to stop defendant’s vehicle renders the evidence insufficient to establish the offense of evading
arrest.
We do not view the first two allegations appropriate to an examination of sufficiency of the
evidence. In evaluating the sufficiency of the evidence, we view all evidence considered by the jury,
whether properly or improperly admitted. See State v. Longstreet, 619 S.W.2d 97, 100-01 (Tenn.
1981). The remedy for improperly admitted evidence is a new trial, not dismissal for insufficiency
of the evidence. Id. Thus, we will review these two arguments as attacks on the admissibility of
evidence.
A. Medical Records
Defendant contends the state failed to properly lay the foundation to qualify the custodian
of medical records. Specifically, defendant contends the state failed to establish that the records
were made at or near the time of the incident, and that there was a business duty to make such
records. Consequently, defendant contends the medical records relating to Wanda Epps’ injuries and
the death certificate of the deceased victim were improperly introduced.
Lee Evans testified that she was the manager of health information management at the
hospital and, as such, was the “record keeper.” She further testified the records were prepared in the
regular practice of the hospital. Defendant’s objection was simply to the lack of a “proper
foundation,” and there was no specific argument that the records were not made at or near the time
of the incident, nor whether there was a business duty to make the records. Furthermore, Wanda
Epps testified that she was hospitalized and that all she remembered about the wreck was a “big
explosion” as she began her turn. She further testified she was hospitalized either thirteen or fifteen
days and had surgery during her hospitalization. As to the vehicular homicide, the death of the
victim was clearly established by the testimony of other witnesses without reference to the
questioned death certificate. Furthermore, the testimony concerning the facts and circumstances of
the accident clearly allowed the jury to conclude that the accident and death were the proximate
result of the defendant’s intoxication. Defendant is not entitled to relief on this issue.
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B. Evidence of Intoxication
Defendant contends his blood test result was improperly admitted. We conclude otherwise
later in this opinion. Accordingly, we find this issue to be without merit.
C. Evading Arrest
Defendant contends Officer Thompson had no legal basis to effectuate the stop of his vehicle,
thereby nullifying his conviction for evading his arrest. Ordinarily, an attack based upon lack of
probable cause to stop an automobile must be by motion to suppress all evidence resulting from the
stop. Tenn. R. Crim. P. 12(b)(3). We assume, however, that defendant relies upon Tenn. Code Ann.
§ 39-16-603(b)(2), which provides that it is a defense to evading arrest where the “attempted arrest
was unlawful.”
Defendant was convicted of felony evading arrest as defined in Tenn. Code Ann. § 39-16-
603(b)(1), which provides as follows:
It is unlawful for any person, while operating a motor vehicle on any
street, road, alley or highway in this state, to intentionally flee or
attempt to elude any law enforcement officer, after having received
any signal from such officer to bring the vehicle to a stop.
It is a defense to prosecution that the attempted arrest was unlawful. Tenn. Code Ann. 39-16-
603(b)(2).
Defendant’s own testimony reveals that when an officer in Tipton County utilized his blue
lights in an attempt to stop the defendant, the defendant intentionally fled. This action was a
violation of Tenn. Code Ann. § 39-16-603(b)(1) and is a felony. See Tenn. Code Ann. § 39-16-
603(b)(3). Officer Thompson testified that he received a dispatch indicating a vehicle with
Tennessee tag DU 421 had evaded Tipton County authorities. The fact that the officer may or may
not have thought that he had probable cause to make the stop is irrelevant. See State v. Vineyard,
958 S.W.2d 730, 736 (Tenn. 1997). Concluding Officer Thompson had probable cause to stop the
defendant, the evidence is clearly sufficient to sustain the conviction.
ITEMS IN DEFENDANT’S VEHICLE
Defendant contends that the search and seizure of evidence from defendant’s vehicle at the
accident scene and the next day were in violation of the federal and state constitutions. Specifically,
defendant contends he was not under arrest at the scene or the next day; therefore, any search would
not be incident to an arrest. We conclude the search was proper under the plain view doctrine and
the inventory exception to the search warrant requirement.
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We first note the defendant did not file a pretrial motion to suppress this evidence as required
by Tenn. R. Crim. P. 12(b)(3). State v. Aucoin, 756 S.W.2d 705, 709 (Tenn. Crim. App. 1988); see
also State v. Cook, 9 S.W.3d 98, 101 (Tenn. 1999). The trial court was not required to consider the
motion but did so. We also elect to address this issue.
The items were not seized as incident to defendant’s arrest. The items subject to the motion
were beer bottles and other items clearly observable from the outside of defendant’s vehicle. Thus,
the objects were in plain view; the officer had a right to be at the defendant’s vehicle at the scene;
the items were discovered inadvertently; and their incriminating nature was immediately apparent.
The requirements of the plain view doctrine were met. See State v. Hawkins, 969 S.W.2d 936, 938
(Tenn. Crim. App. 1997).
Furthermore, the defendant’s vehicle was towed, lawfully impounded, and inventoried
pursuant to policy. Accordingly, all items were admissible under the inventory exception to the
search warrant requirement. State v. Watkins, 827 S.W.2d 293, 295 (Tenn. 1992).
BLOOD ALCOHOL TEST RESULT
Defendant contends his blood alcohol test result should not have been admitted into evidence
since (1) he did not consent to the test; (2) there was no probable cause to draw blood; (3) the chain
of custody was not established; and (4) the expert testimony was untrustworthy. We are unable to
agree with these contentions.
A. Consent
A person who is unconscious or otherwise incapable of refusal of the blood alcohol test shall
be subjected to the test; however, the results are inadmissible absent consent. Tenn. Code Ann. §
55-10-406(b). Testimony at the suppression hearing indicated that Lieutenant Smith of the
Tennessee Highway Patrol observed the defendant on a spinal board at the scene of the accident.
Lieutenant Smith detected a strong odor of alcohol. Subsequently, Lieutenant Smith briefed THP
Investigator Phillips about the accident. Investigator Phillips then went to the hospital and asked the
nurse to draw blood from the defendant. Defendant’s testimony at the suppression hearing indicated
that he did not refuse the withdrawal of blood, but was never asked. At trial during the cross-
examination of Investigator Phillips, defense counsel produced a consent form signed by the
defendant indicating the defendant’s consent to draw blood. Also, at defendant’s sentencing hearing,
defendant contended his cooperation with authorities in allowing the withdrawal of blood should be
considered as a mitigating factor. In determining rulings on pretrial motions to suppress, this court
may consider not only the testimony introduced at the suppression hearing, but also the testimony
introduced at trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). Viewing the record in its
entirety, we conclude that the defendant consented to the withdrawal of blood.
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We also note that even if the defendant did not consent, the blood test results would still be
admissible. Vehicular homicide and vehicular assault cases are exempted from the inadmissibility
provision of the failure to obtain consent. Tenn. Code Ann. § 55-10-406(e).
B. Probable Cause
Defendant contends Investigator Phillips did not have probable cause to request the
withdrawal of blood. Lieutenant Smith smelled alcohol on the defendant at the scene and observed
numerous beer bottles in defendant’s vehicle. He briefed Investigator Phillips prior to Phillips’
request at the hospital for the withdrawal of blood.
Probable cause existed for the withdrawal of blood. Investigator Phillips had probable cause
to believe that the defendant committed criminal offenses, and that the blood test would reveal the
presence of intoxicants. Furthermore, exigent circumstances existed to immediately secure the blood
sample; the blood test was a reasonable and competent test for measuring alcohol content; and the
test was performed in a reasonable manner. Thus, the proper criteria were met. See State v. Jordan,
7 S.W.3d 92, 99 (Tenn. Crim. App. 1999) (citations omitted). This issue lacks merit.
C. Chain of Custody
Defendant contends the state did not establish the proper chain of custody. Our examination
of the testimony reveals otherwise.
Investigator Phillips obtained the blood sample from the nurse who withdrew the blood from
the defendant. The investigator placed the tubes of blood into a kit, and it was sealed. Investigator
Phillips took the sample to the TBI Crime Laboratory in Jackson. TBI Agent Bryan Eaton at the
Jackson Crime Laboratory received the blood alcohol kit, broke the seal on the kit to assign a lab
number and exhibit number, and resealed the kit. However, the tubes of blood themselves were
never opened. The kit with its contents was then delivered to the TBI Crime Laboratory in Nashville
for analysis. Evidence technician Laura Cole in the Nashville Crime Laboratory delivered the
sample to TBI Agent Terri Foxx, who analyzed the sample and testified to the results.
“As a condition precedent to the introduction of tangible evidence, a witness must be able
to identify the evidence or establish an unbroken chain of custody.” State v. Baldwin, 867 S.W.2d
358, 361 (Tenn. Crim. App. 1993)(citation omitted). While the state is not required to establish facts
which exclude every possibility of tampering, the circumstances established must reasonably assure
the identity of the evidence and its integrity. Id. This issue addresses itself to the sound discretion
of the trial court, and the court’s determination will not be disturbed in the absence of a clearly
mistaken exercise of such discretion. Id.
The trial court concluded the state had properly established the chain of custody. We agree.
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D. Expert Testimony
Defendant contends the testimony of TBI Agent Foxx and Dr. David Stafford was
untrustworthy and would not substantially assist the jury. See Tenn. R. Evidence 702, 703. The
essence of Agent Foxx’s testimony was that the blood alcohol test revealed 0.18 gram percent ethyl
alcohol. Dr. Stafford’s trial testimony centered around the effects of alcohol upon the human body.
Tenn. R. Evid. 702 provides that expert testimony is admissible if it will “substantially assist
the trier of fact.” The evidence must be relevant to a factual issue, and the expert must be qualified
by specialized knowledge, skill, experience, training or education in the field of expertise. State v.
Coley, ___ S.W.3d ___, ___ (Tenn. 2000). The testimony of Dr. Stafford was based upon the
analysis done by Agent Foxx; therefore, these underlying facts and data must indicate
“trustworthiness.” Tenn. R. Evid. 703. Determinations of the admissibility of expert testimony will
not be reversed absent an abuse of discretion. State v. Shirley, 6 S.W.3d 243,247 (Tenn. 1999).
The blood alcohol test was clearly relevant to the vehicular homicide and vehicular assaults,
both of which require intoxication as an element of the offense. Agent Foxx was a trained
toxicologist competent to analyze the blood sample. Furthermore, Agent Foxx’s testimony
substantially assisted the jury in understanding the evidence. Her testimony was properly admitted.
Dr. Stafford was a professor of pathology and director of the toxicology laboratory at the
University of Tennessee in Memphis. He had an extensive background concerning the effects of
alcohol upon the human body. The evidence was relevant as the state had the burden of establishing
intoxication as the proximate cause of the accident and injuries suffered by the victims. See Tenn.
Code Ann. § 39-13-213(a)(2), -106(a). Dr. Stafford was qualified to testify, and his testimony
substantially assisted the jury. He was properly allowed to testify as an expert witness.
Defendant attacks the reliability of the testimony of these two witnesses, pointing out certain
inconsistencies and the alleged failure to properly preserve the blood sample. However, these
matters go to the weight to be given their testimony, rather than its admissibility. The trial court
properly determined the testimony was sufficiently trustworthy.
MOTION TO SEVER
Defendant contends the trial court erred in refusing to sever the vehicular homicide count
from the DUI per se count. Specifically, he contends the blood alcohol test result would not have
been admissible in his DUI per se prosecution if that count had been severed. However, we have
previously concluded that the evidence reveals that the defendant consented to the withdrawal of
blood; therefore, Tenn. Code Ann. § 55-10-406 would not bar the introduction of the blood test
result even if the DUI were tried separately. This issue is without merit.
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DENIAL OF ACCESS TO OFFICER’S PERSONNEL FILE
Defendant contends the trial court erred in denying him access to Officer Thompson’s
personnel file, which defendant believes would demonstrate that his actions on the night of the
accident were inappropriate under department policy. Specifically, he contends this would
demonstrate that his and the other officers’ conduct was a contributing factor to the accident.
Generally, defendants may not have access to police personnel records except upon a strong
showing that they will reveal material information. State v. Butts, 640 S.W.2d 37, 39 (Tenn. Crim.
App. 1982). In this event, the trial court should conduct an in camera inspection of the records and
release only material items. Id.
We find no evidence that defendant requested an in camera inspection by the trial court.
Furthermore, we are unable to evaluate the personnel file to ascertain whether it contained relevant
information. Nor can we find any request by defendant that the file be placed under seal and
preserved for appellate review. This issue is waived.
JURY INSTRUCTION ON “COMMON SENSE”
Defendant contends the trial court erred in instructing the jury that they were to use their
“common sense” in deciding the case. However, the jury charge is not in the record before this
court.1 It is the duty of the accused to prepare a fair, accurate and complete account of what
transpired with respect to the issues. Tenn. R. App. P. 24(b); State v. Taylor, 992 S.W.2d 941, 944
(Tenn. 1999). Furthermore, defendant cites no authority in support of his argument. See Tenn. Ct.
Crim. App. Rule 10(b). This issue is waived.
SENTENCING
The trial court sentenced the defendant to eight years and six months for the Class B felony
of vehicular homicide by intoxication, two years for each of the Class D felony vehicular assaults,
and two years for the Class D felony of evading arrest creating a risk of death or injury to innocent
bystanders or other third parties. The trial court ran the first two sentences concurrently and the third
and fourth sentences concurrently with each other but consecutively with the prior two sentences,
for an effective sentence of ten years and six months. The defendant contends the trial court erred
in failing to properly apply mitigating factors, in ordering consecutive sentences, and in denying
alternative sentencing. We see no reason to disturb the sentences set by the trial court.
A. Standard of Review
1
W e do note that one of our pattern jury charges provides that a juror may “rely on your own common sense”
in determining credibility of the witnesses. T.P.I.–CRIM 42 .04(a) (5 th ed. 200 0).
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This Court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial
court fails to comply with the statutory directives, there is no presumption of correctness and our
review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
If no mitigating or enhancement factors for sentencing are present, Tenn. Code Ann. § 40-35-
210(c) provides that the presumptive sentence shall be the minimum sentence within the applicable
range. State v. Lavender, 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 788
(Tenn. Crim. App. 1991). However, if such factors do exist, a trial court should start at the minimum
sentence, enhance the minimum sentence within the range for enhancement factors and then reduce
the sentence within the range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No
particular weight for each factor is prescribed by the statute, as the weight given to each factor is left
to the discretion of the trial court as long as the trial court complies with the purposes and principles
of the sentencing act and its findings are supported by the record. State v. Moss, 727 S.W.2d 229,
238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); see Tenn. Code
Ann. § 40-35-210, Sentencing Commission Comments.
B. Mitigating Factors
Defendant contends the trial court erred in failing to consider numerous mitigating factors
in setting his vehicular homicide sentence six months above the minimum. See Tenn. Code Ann.
§ 40-35-113. He alleges the trial court should have considered that he acted under strong
provocation and upon substantial grounds tending to justify his conduct. See Tenn. Code Ann. § 40-
35-113(2), (3). In support of his argument, he states that he fled from authorities because he feared
he would lose custody of his daughter. Furthermore, defendant contends he has shown remorse,
made a good faith attempt to make restitution, has a social history indicative of strong moral
character, cooperated with the authorities and has refrained from consuming alcohol since the
incident.
The trial court found that the defendant had a prior criminal history consisting of a 1998
conviction for reckless driving, which resulted from a reduction from the original charge of driving
under the influence. See Tenn. Code Ann. § 30-35-114(1). The trial court further indicated that it
considered in mitigation the defendant’s favorable employment record, his good character in the past,
his church membership, and his Eagle Scout certification. The trial court specifically rejected the
other requested mitigating factors. The trial court, therefore, slightly enhanced the sentence six
months beyond the minimum sentence of eight years. We find no error in these determinations by
the trial court.
C. Consecutive Sentencing
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Defendant contends the trial court erroneously ran some of the sentences consecutively.
Again, we disagree.
Consecutive sentencing may be ordered if the trial court finds by a preponderance of the
evidence 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 is high.”
Tenn. Code Ann. § 40-35-115(b)(4). In the order overruling the motion for new trial, the trial court
specifically found that the defendant was a dangerous offender. The trial court further found that the
length of the sentences, effectively ten years and six months, was reasonably related to the severity
of the offenses and served to protect the public from further criminal conduct by the defendant. See
State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). The evidence supports these findings; thus,
consecutive sentencing was proper.
D. Alternative Sentencing
Finally, defendant contends the trial court erred in failing to place the defendant on probation
or community corrections. We again find no error.
We first note that defendant’s sentence for vehicular homicide exceeds eight years; therefore,
defendant is ineligible for probation for this offense. See Tenn. Code Ann. § 40-35-303(a).
It further appears defendant is ineligible for community corrections for these offenses. There
are two primary avenues of eligibility for community corrections. Offenses not involving a crime
against the person and non-violent crimes are eligible under the general criteria. See Tenn. Code
Ann. § 40-36-106(a)(2),(3). However, vehicular homicide and vehicular assault are violent offenses
to the person; therefore, they are ineligible for community corrections consideration under the
general criteria. See Tenn. Code Ann. § 40-36-102(12). Furthermore, defendant is ineligible for
community corrections for vehicular homicide under the “special needs” provision for community
corrections. See Tenn. Code Ann. § 40-36-106(c). In order to qualify under the special needs
provision, the defendant must be statutorily eligible for probation. State v. Grigsby, 957 S.W.2d 541,
546 (Tenn. Crim. App. 1997). Therefore, the eight year and six month sentence for vehicular
homicide is ineligible for community corrections consideration.
In summary, we are unable to conclude the trial court improperly sentenced defendant to
confinement in the Department of Correction.
CONCLUSION
Based upon our consideration of the entire record, the briefs of the parties, and the applicable
law, we affirm the judgment of the trial court in all respects.
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___________________________________
JOE G. RILEY, JUDGE
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