State v. Benjamin Snyder ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
APRIL 1998 SESSION
FILED
July 2, 1998
Cecil W. Crowson
§ Appellate Court Clerk
STATE OF TENNESSEE ,
APPELLEE
§
VS. C.C.A. No. 01C01-9705-CR-00176
§ DAVIDSON COUNTY
HONORABLE FRANK G. CLEMENT, JR.
BENJAMIN SNYDER, §
APPELLANT (SENTENCING)
FOR THE APPELLANT FOR THE APPELLEE
C. Edward Fowlkes John Knox Walkup
172 Second Avenue N., Suite 214 Attorney General and Reporter
Nashville, TN 37201-1908 425 Fifth A venue, N orth
Nashville, TN 37243
Karen M. Yacuzzo
Assistant Attorney General
425 Fifth A venue, N orth
Nashville, TN 378243
Bernard McEvoy
Assistant District Attorney General
Washington Square, Suite. 500
Second Avenue N.
Nashville, TN 37201-1649
OPINION FILED: _______________________
AFFIRMED
L. T. LAFFERTY, SPECIAL JUDGE
OPINION
The defendant, Benjamin S. Snyder, appeals as a matter of right the sentence
imposed by the Davidson County Probate Court. In counts one and two, the
defendant was charged with the offense of vehicular homicide involving the death of
Gregory Flair. In counts three and four, the defendant was charged with the offense
of reckless endangerment involving two passengers in the operation of a motor
vehicle. The defendant entered a plea of guilty to the offense of vehicular homicide
due to reckless conduct as charged in count two of the indictment. Counts one, three
and four were dismissed. After a sentencing hearing, the trial court sentenced the
defendant to five years in the Corrections Corporation of America Facility. The
defendant was ordered to serve six months and then be placed on probation for four
years, six months. There were other conditions imposed on the defendant during the
period of probation. In his ap peal, the defendant raises two issues; (1) the trial court
erred as a matter of fact and law in applying enhancement factor #3 “the offense
involved more than one victim,” and (2) the trial court erred in sentencing the
defendant to five years instead of the presumptive minimum of three years. Upon a
close review of the record, briefs of the parties, and the applicable law, we affirm the
trial court’s judg ment.
The evidence in this record establishes that the defendant and his two friends,
passengers in the car, John Clark and Brent Batson, on the night of March 16, 1996,
went to a bonfire party for a celebration of a potential wedding. The deceased arrived
with another companion. All four chipped in to buy beer for the event. The deceased
and his comp anion w ent to a c onven ience sto re whe re they b ought t wo ca ses of b eer.
The defendant consumed approximately five or six beers during this evening, keeping
his portion o f the beer (a six -pack) in the trunk of his c ar. The de fendant an d his
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companions, at about 10:00 p.m. decided to “cruise 2nd Ave.” The defendant drove
his car. Brent Batson occupied the right front passenger seat. Behind Batson was
John C lark (righ t passen ger rear ) and th e dece ased w as seate d behin d the de fendan t.
While inbound on Lebanon Road, in Davidson County, the defendant swerved, lost
control of h is car causing extensive d amage , killing the dec eased and injuring his
other two passengers. The Nashville Police Traffic Investigator described that the
physical evidence established the defendant lost control of his car on the shoulder of
the road and attempted to correct the path of the car. The defendant left the road
again resultin g in an im pact with a concrete w all and the ca r then bega n sliding on its
side. The vehicle traveled sideways striking and severing a fire hydrant, then began
to roll over and struck a pole. A photograph was introduced showing cans of beer
hanging from the trunk of the car. Friends of all four persons were following the
defendant and before the police arrived, they removed beer from the car, hiding the
same in som e bush es.
SENTENCING HEARING
In his request for alternative sentencing, the defendant presented co-
employees, a mother of one of the passengers, his father, step-mother and mother. At
the time of th e sentencin g, the defen dant was a 20-year- old high sc hool grad uate
employed at Opryland. The defendant began his drinking when he was about 18
years old and developed an addiction to marijuana. Due to the accident, the defendant
could not recall the details, but returned to the accident scene. The defendant believes
he looked down while going around a curve, just going too fast, sliding in the gravel
and appa rently losing c ontrol of his c ar. The de fendant ad mits that alco hol and his
speed o f 55 to 6 0, in a 45 mile sp eed zo ne, we re contr ibuting factors to the acc ident.
Also, the defendant admits he felt a slight buzz at the time leaving the party although
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he contends he was not drunk. Between March, 1996, the accident event, and
November 20, 1996, the defendant continued to use marijuana every other month on
weekends, the last usage four months before the sentencing hearing. The defendant
admitted to the probation officer he drank beer on weekends, but at the time of the
interview he had quit drinking. Also, the defendant had driven his car while drinking
and admitted on one occasion being impaired. The defendant expressed remorse at
the dea th of his f riend, th e dece ased.
The defendant’s mother, father, stepmother and co-employees confirmed the
defendant was very remorseful over the death of his friend. Also, his parents had
couns eled him on the a buse o f alcoho l and m arijuana .
The State, in support of its reque st for enhanceme nt of the defendant’s
sentence, offered the testimony of a probation officer, an accident investigator, the
two passengers and the deceased’s mother. The two passengers, boyhood friends of
the defendant, testified about the evening’s events. Both passengers did not believe
the defendant was under the influence of alcohol or speeding at the time of the
accident. However, both admitted each had been drinking, each was well under the
influence of alcohol and injured in the accident. The deceased’s mother, in a prepared
statemen t, explained th e family’s d evastation a t the death o f their child an d its effect;
and she has serious doubts concerning the defendant’s remorse over this death.
Accord ing to the ac cident repo rts, the deceas ed was e jected from the vehicle
and pronounced dead at Vanderbilt Medical Center. The cause of death was blunt
force injuries, fractures of the skull, both femurs and multiple left ribs, with internal
injuries to the spleen, liver, lung and aorta. The defendant’s BAC was 0.14% one
hour af ter the ac cident.
1. Principles of Sentencing Review
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When there is a c hallenge to the length, range, or m anner of service of a
sentence, it is the duty of this Court to conduct a de novo review o f the record w ith
presumption that the determinations made by the trial court are correct. Tenn., Code
Ann. § 40-35-401(d). This presumption is conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all relevant
facts an d circum stances . State v. Ashby 823 S.W.2d 166, 169 (Tenn. 1991). “The
burden of showing that the sentence is improper is upon the appellant.” Id.In the event the record fails to demonstrate the required consideration by the
trial court, review of the sentence is purely de nov o. Id. If appellate rev iew reflects
that trial court properly considered all relevan t factors and its findings of fact are
adequately supported by the record this Court must affirm the sentence, “even if we
would have preferred a different result.” State v. F letcher, 805 S.W.2d 785, 789
(Tenn . Crim . App. 1 991).
In making its sentencing determination, the trial court, at the “conclusion of the
sentencing hearing,” determines the range of the sentence and then determines the
specific sentence and the propriety of sentencing alternatives by considering; (1) the
evidence, if any, received at trial and the sentencing hearing; (2) the pre-sentence
report; (3) the p rinciples of se ntencing a nd argum ents as to sen tencing altern atives;
(4) the nature and characteristics of the criminal conduct involved; (5) evidence and
information offered by the parties on the enhancement and mitigating factors; (6) any
statements the defendant wishes to make in the defendant’s behalf about sentencing;
and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-
210(a)(b); T enn. Cod e Ann. § 40-35-10 3(5) (1990 ); State v. Holland, 860 S.W.2d 53,
60 (Te nn. Crim . App. 1 993).
A defendant who,
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“is an especially mitigated or standard offender convicted of a Class C,
D, or E felony is presumed to be a favorable candidate for alternative
sentencing options in the absence of evidence to the contrary.” Tenn.
Code Ann. § 40-35 -102(6 ) (1997 ).
Our sente ncing law provides th at
“convicted felons committing the most severe offenses, possessing
criminal histories evincing a clear disregard for the laws and morals of
society, and evincing failure of past efforts at rehabilitation, shall be
given first priority regarding sentences involving incarceration.” Tenn.
Code An n. 40-35- 102 (5) (19 97).
Thus, a defendant who meets the above criteria is presumed eligible for alternative
sentencing unless sufficient evidence rebuts the presumption. However, the act does
not provid e that all offend ers who m eet the criteria are entitled to suc h relief; rather it
requires that sentencing issues be determined by the facts and circumstances
presen ted in ea ch case . State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App,
1987). The defendant was convicted of vehicular homicide, a Class C felony, and
thus is considered a favorable candidate for alternative sentencing, including
probat ion.
The trial court, in determining the appropriate sentence, referred to the
guidelines as required by the Tennessee Sentencing Act. The trial court found one
enhancement factor applicable, to wit: the offense involved more then one victim,
and three mitigating factors, to w it: the defendant’s youth, lack of crim inal history
and w as rem orseful, i n determ ining th e defen dant sh ould re ceive a five yea r senten ce.
Split confinement was applicable in the form of six months followed by a probation
period of four years, six months. The defendant complains the trial court was in error
in finding applicable the factor “the offense involved more than one victim.” Thus
the defendant was entitled to a three year sentence, with 30 days in confinement
followed by three years probation. The State complains the trial court was in error for
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failing to find two additional enhancement factors--the defendant had a history of
criminal behavior and the defendant had no hesitation about committing an offense
when the risk to huma n life w as high .
The defendant would argue that the trial court was incorrect in assessing the
factor “ the offe nse inv olved m ore than one vic tim” T enn. C ode A nn. § 40 -35-11 4(3).
For authority, the defendant relies on State v. R aines, 882 S.W.2d 376 (Tenn. Crim.
App. 1994). The defendant contends that the trial court cannot consider the
passengers who sustained injuries as “victims.” In Raines, supra, the late Judge Joe
Jones, Presiding Judge of this Court, defined the word “victim” as used in Tenn. Code
Ann. § 40-35-114(3) is limited in scope to a person or entity that is injured, killed, had
property stolen, or had prop erty destroyed by the p erpetrator of the crime. Ho wever,
in Raines, supra, the trial court found factor (3) applied to the fam ily members o f a
person killed in a murder. The term, “victim” does not include a person who has lost
a loved one or means of support because the perpetrator of the crime killed a loved
one.
Also, the defendant argues that the two passengers cannot be considered
“victims” since they both were willing passengers and testified the defendant was not
under the in fluence an d engage d in no act w hich cause d the collision . The evide nce is
to the contrary. The defendant was driving under the influence of alcohol, a BAC
reading of 0.14%; operating his vehicle at a high speed of 55-60 mph, losing control
of his vehicle and causing a very heavy impact. Both passengers were injured and
received medical treatment. The trial court properly applied this enhancement factor
in determ ining an approp riate sen tence.
The State, in it’s request for enhancement of the defendant’s sentence, urged
the trial court to apply factor (10), Tenn. Code Ann. § 40-35-114, “the defendant had
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no hesitation about committing a crime when the risk to human life was high.” The
trial court declined to apply this factor, stating it “was very close.” We believe that
this facto r was a pprop riate in th e particu lar facts o f this cas e. The d escriptio n, supra,conce rning th e even ts leadin g to this a cciden t suppo rt this fact or. State v. Lambert
741 S.W .2d 127 (T enn. Crim . App. 198 7); State v Jones, 883 S.W.2d 597 (Tenn.
1994); State v. M akoka , 885 S.W.2d 366, 373 (Tenn. Crim. App. 1994). (This factor
applied in vehicular hom icide where accuse d placed third party at risk.) State v.
Dock ery, 917 S.W .2d 258 (T enn. Crim . App. 199 5) (This ap plied in DU I case due to
passen ger in ca r).
Also, the State urged the trial court to apply factor (1), Tenn. Code Ann. § 40-
35-114, “the defendant has a history of criminal behavior.” The trial court rejected
this factor believing the State had failed to file notice of this enhancement factor. The
State believe s that the defe ndant’s ad mitted con tinuous use of alcohol a nd driving his
vehicle, to the point of being under the influence, establishes a pattern of “criminal
behavior.” (There seems to be some indication in the pre-sentence report the
defend ant con tinued to use alco hol, to-w it: beer, af ter the ar rest on th ese cha rges).
Also, coupled with the frequent use of marijuana after this accident, the defendant
continu es to ind ulge in c rimina l activity.
In State v. W illiam Je ffery Ca rico, S.W.2d (Tenn., 1998), filed at
Knoxville Ap ril 27, 1998, the Suprem e Court, for the first time, addressed the term
“criminal behavior” applicable in a sentencing hearing. The Court of Criminal
Appeals had previously held that merely being arrested or charged with a crime is not
“crimi nal beh avior” w ithin the mean ing of th e statute . State v. B uckm eir, 902 S.W.2d
418 (Ten n. Crim. A pp 1995 ); State v. M arshal l, 870 S.W.2d 532 (Tenn. Crim. App.
1993). The Supreme Court stated:
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The phra se “crimin al behavio r” has not b een define d by this
Court for purposes of the enhancement factor, but, whatever the precise
definition m ay be, sexu al acts with a ten year old child clearly
constitutes criminal behavior. The evidence of the appellant’s prior
sexual acts was properly considered by the trial court as criminal
behavior. That evidence supports the finding that enhancement factor
(1) wa s establis hed in th is case.
Since the trial c ourt did no t specifically find this factor (1) ap plicable, this
Court h as jurisd iction to so find. State v. P earson , 858 S.W.2d 879, 884-5 (Tenn.
1993). We believe that the defendant’s conscious decision to continue to drive and
drink, even to the point of under the influence of alcohol, coupled with the frequent
use of m arijuana co nstitutes crim inal behav ior. This facto r is applicable to the facts
of this pa rticular c ase.
In conclusion, we find the evidence in this record fully supports the trial
court’s decision. The judgment of the trial court is affirmed.
___________________________
L. T. Lafferty, Special Judge
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CONCUR:
_________________________
Gary R. Wade, Judge
_________________________
Thomas T. Woodall, Judge
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