State v. Charles Justin Osborne

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
FEBRUARY 1999 SESSION
May 12, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 01C01-9806-CC-00246
Appellee, )
) Perry County
V. )
) Honorable Cornelia A. Clark, Judge
)
CHARLES JUSTIN OSBORNE, ) (Criminally Negligent Homicide,
) Reckless Endangerment)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
JERRY C. COLLEY JOHN KNOX WALKUP
P.O. Box 1476 Attorney General & Reporter
Columbia, TN 38402-1476
ELIZABETH B. MARNEY
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
RONALD L. DAVIS
District Attorney General
DONALD W. SCHWENDIMANN
Assistant District Attorney General
P.O. Box 937
Franklin, TN 37065-0937
OPINION FILED: ___________________
AFFIRMED IN PART, REVERSED IN PART, MODIFIED
JOHN EVERETT WILLIAMS,
Judge
OPINION
The defendant, Charles Justin Osborne, was convicted of two counts of
criminally negligent homicide and one count of reckless endangerment. The trial
court sentenced him to two years on each count of criminally negligent homicide
and to eleven months, twenty-nine days on the reckless endangerment, with all
sentences to run consecutively. Of these sentences, the trial court ordered the
defendant to serve one year’s confinement, day-for-day, on count one and
suspended the remaining balance of all sentences with supervised probation.
The defendant argues (1) that these sentences are excessive; (2) that the trial
court erred in ordering consecutive service; and (3) that the trial court erred in
denying an alternative sentence, specifically full probation. Upon review, we
REVERSE the imposition of consecutive sentencing and MODIFY the
defendant’s sentence to reduce his day-for-day confinement from one year to
two hundred and nineteen days. In all other respects, we AFFIRM the judgment
of the trail court.
BACKGROUND
While driving at grossly excessive speed though Linden, Tennessee, the
defendant ran a red light and swerved to avoid a vehicle entering the
intersection. When he swerved, the defendant lost control of his vehicle and
collided head-on with an automobile driven by Charles Carroll. Mr. Carroll’s two
passengers, Eleanor and Alice Carroll, were killed, and Mr. Carroll was injured.
Witnesses estimated that the defendant was driving as fast as ninety miles-per-
hour immediately before the collision, and the defendant himself estimated that
he was going sixty to sixty-five. The posted speed limit was thirty miles-per-hour.
The defendant was indicted on two counts of vehicular homicide and one
count of felony reckless endangerment. A jury found the defendant guilty of
criminally negligent homicide on counts one and two and guilty of misdemeanor
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reckless endangerment on count three. The defendant does not contest these
convictions; he appeals his sentences only.
STANDARD OF REVIEW
Appellate review of a challenge to the length or manner of service of a
sentence is de novo on the record, “with a presumption that the determinations
made by the court from which the appeal is taken are correct.” Tenn. Code Ann.
§ 40-35-401(d). This presumption “is conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all
relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). If our review reflects that the trial court properly considered all relevant
factors and its findings of fact are adequately supported in the record, then this
Court may not disturb the sentence even if we would have preferred a different
result. See State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
The appellant carries the burden of showing that his sentence is improper. See
Tenn. Code Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan,
929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).
In conducting our review, this Court we must consider (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) any statutory
mitigating or enhancement factors; (6) any statement made by the accused in his
own behalf; and (7) the potential or lack or potential for rehabilitation or
treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith, 735
S.W.2d 859, 863 (Tenn. Crim. App. 1987).
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SENTENCING FACTORS
The defendant first asserts that the trial court misapplied, or erroneously
failed to apply, certain enhancement and mitigating factors and that his
sentences are, therefore, excessive. The trial court found the defendant to be a
range I offender. Criminally negligent homicide is a Class E felony, carrying a
range I sentence of one to two years. See Tenn. Code Ann. §§ 39-13-212; 40-
35-112(a)(5). Reckless endangerment committed without a deadly weapon is
Class A misdemeanor, see Tenn. Code Ann. § 39-13-103(b), and is punishable
by up to eleven months, twenty-nine days. The presumptive sentence for a
Class E felony is the minimum sentence in the range, absent enhancement or
mitigating factors. See Tenn. Code Ann. § 40-35-210(c). Misdemeanor
sentences do not command a presumptive minimum.
The trial court recognized no mitigating factors but did find two
enhancement factors applicable to each of the defendant’s convictions: “The
defendant had no hesitation about committing a crime when the risk to human
life was high” and “[t]he crime was committed under circumstances under which
the potential for bodily injury to a victim was great.” Tenn. Code Ann. § 40-35-
114(10), (16). In accordance with these findings, the trial court sentenced the
defendant to the range I maximum of two years on each felony conviction and to
eleven months, twenty-nine days on the misdemeanor.
Citing State v. Bingham, 910 S.W.2d 448 (Tenn. Crim. App. 1995), the
defendant first argues that enhancement factor (16) is inapplicable to a
conviction for criminally negligent homicide as a matter of law because the
potential for bodily injury is an essential element of that offense. In Bingham, a
panel of this Court held that potential bodily injury is inherent in the offense of
vehicular homicide and is therefore inapplicable to enhance a conviction for that
offense. See id. at 452. In the present case, the trial court expressly noted the
Bingham opinion and correctly concluded that, as with vehicular homicide, the
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proof necessary to establish the defendant’s offenses would comprise proof of
potential bodily injury to any of the Carrolls. Nevertheless, the trial court found
factor (16) applicable based on the potential for bodily injury to persons other
that than the Carrolls, including, specifically, a passenger of the defendant.
A panel of this Court specifically approved such an application in State v.
Sims, 909 S.W.2d 46 (Tenn. Crim. App. 1995), stating “[factor (16)] may be
applied in situations where individuals other than the victim are in the area and
are subject to injury.” Id. at 50. Nevertheless, the subsequent opinion in
Bingham appears to conflict with this holding.
While Bingham does not expressly reject Sims, a careful reading allows
no other conclusion. In Bingham, the defendant appealed application of both
enhancement factors (10) and (16). Although the panel found that both factors
are inherent in the offense of vehicular homicide when considering only the
homicide victim, the panel noted that persons other than the victim were present
and subject to risk. Based on this risk, the Bingham panel found factor (10)
applicable. Importantly, however, the panel did not similarly apply factor (16).
Thus, Bingham implicitly, but inescapably, distinguishes between enhancement
factors (10) and (16) in that factor (10) may be supported by risk to persons other
than a victim of the convicted offense while factor (16) may not.
In contrast, the Sims opinion holds, “Both factors [(10) and (16)] may be
applied in situations where individuals other than the victim are in the area and
are subject to injury.” Sims, 909 S.W.2d at 50 (citing State v. Makoka, 885
S.W.2d 366, 373 (Tenn. Crim. App. 1994)). Thus, it appears that these
authorities cannot be satisfactorily reconciled as to whether factor (16) may be
applied on the basis of potential injury to persons other than the victim of the
convicted offense. In resolving this conflict, we first note that the authority cited
by Sims supports only application of factor (10) on the basis of risk to others.
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See Makoka, 885 S.W.2d at 373. More importantly, we find the language of the
statute instructive.
Unlike enhancement factor (10), factor (16) specifically requires that the
risk or potential injury be “to a victim.” Tenn. Code Ann. § 40-35-114(16)
(emphasis added). We read “victim” here to mean a victim of the charged
offense, not a “potential victim,”1 a victim of some collateral injury, or a victim of
some uncharged offense.2 This reading of the statute directly refutes the Sims
holding that factor (16) is applicable when persons “other than the victim” are
subject to injury. Sims, 909 S.W.2d at 50 (emphasis added). Thus, we conclude
that the enhancement statute does not contemplate application of factor (16)
based on risk to others. For these reasons, we hold that the trial court erred in
applying enhancement factor (16) in the present case. Although the defendant
does not challenge application of factor (10), we affirm its applicability.
The defendant next argues that the trial court erred in rejecting mitigating
factor (6), regarding his alleged lack of substantial judgment due to youth. See
Tenn. Code Ann. § 40-35-113(6). In considering whether a defendant lacked
substantial judgment because of his youth, chronological age is not
determinative. See State v. Antonio D. Mason, No. 01C01-9607-CC-00315
(Tenn. Crim. App. filed Oct. 24, 1997, at Nashville). Rather, we are directed to
“consider the concept of youth in context, i.e., the defendant’s age, education,
maturity, experience, mental capacity or development, and any other pertinent
circumstance tending to demonstrate the defendant’s ability or inability to
appreciate the nature of his conduct.” State v. Adams, 864 S.W.2d 31, 33
(Tenn. 1993).
1
The Sim s opinion, for example, speaks of “other potential victims.”
Sim s, 909 S.W.2d at 50.
2
In the pres ent c ase , for e xam ple, th e evid enc e sug ges ts tha t mu ltiple
additional c ounts o f reckles s enda ngerm ent m ight have b een ch arged re lating to
the defendant’s passenger and other drivers who were in the immediate area and
subjec t to imm inent dan ger.
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The defendant was eighteen years of age at the time of his offenses, and
he relies entirely on this chronological age to support applicability of this factor.
He offers absolutely no other evidence or argument, and we find nothing in the
record from which we might infer a lack of substantial judgment. To the contrary,
in the only evidence on point, the defendant expressly disavowed any lack of
judgment due to his youth:
STATE: You know that we’re obligated to drive the
posted speed limits?
DEFENDANT: Yes, sir.
STATE: Do you think that because you were
eighteen at the time this happened that you didn’t realize
that you weren’t supposed to speed?
DEFENDANT: I knew you was not supposed to
speed.
....
STATE: You knew that speeding can result in fatal
injuries, for example?
DEFENDANT: Yes, sir.
....
STATE: So your youth does not explain your
disregard for the law?
DEFENDANT: No, sir.
Although this testimony is not determinative, it does tend “to demonstrate
the defendant’s ability or inability to appreciate the nature of his conduct.” Id.
Moreover, the activity of driving is so common to everyday life, and the dangers
inherent in abusing that activity are so evident and so often observable, that,
absent some specific evidence, we will not simply presume that an eighteen-
year-old lacked “substantial judgment.” The record indicates that the trial court
carefully considered this proposed mitigating factor and concluded, “[the
defendant] has convinced me that it is not a question of youth here.” The
evidence does not preponderate against the trial court’s decision. The
defendant has failed to carry his burden of showing that the decision of the trial
court is improper.
Next, the defendant asserts that the trial court erred in rejecting mitigating
factor (11)–that the defendant “committed the offense[s] under such unusual
circumstances that it is unlikely that a sustained intent to violate the law
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motivated the criminal conduct.” Tenn. Code Ann. § 40-35-113(11). The
defendant argues that because one cannot “intend” to commit criminally
negligent homicide, he could not have had a sustained intent to violate the law.
This argument is not well taken. It ignores the defendant’s sustained intent to
violate traffic laws, which is overwhelmingly supported by the evidence. This
issue is without merit.
In summary, we have concluded that the trial court’s application of
enhancement factor (16) cannot be sustained and that factor (10) properly
applies. We do not disturb the trial court’s finding that no mitigating factors
apply. Despite the trial court’s misapplication of factor (16), we do not hesitate to
find the sentences below appropriate. The trial court found applicable
enhancement factors (10) and (16), but did not indicate the weight it accorded
each. If both factors were applicable, we would accord great weight to either on
the facts of this case. However, because the factors are similar and were based
on the same facts, we would accord the other only slight additional weight.
Thus, our elimination of factor (16) does not significantly lessen the overall
weight of warranted sentence enhancement. Factor (10) alone sufficiently
justifies the defendant’s sentences. The sentences imposed below are
appropriate.
CONSECUTIVE SERVICE
The defendant next challenges the trial court’s imposition of consecutive
sentencing. The trial court ordered consecutive sentencing based on its finding
that “[t]he defendant is a dangerous offender whose behavior indicated 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). W hile this
finding, if supported by the evidence, satisfies the statutory criteria for
consecutive sentencing, the Tennessee Supreme Court has held that when
consecutive sentencing is predicated on a finding that the defendant is a
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dangerous offender, “[t]he proof must also establish that the terms imposed are
reasonably related to the severity of the offenses committed and are necessary
in order to protect the public from further criminal acts by the offender.” State v.
Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).
The trial court made no findings relative to these latter two criteria, and we
are unable to conclude that both apply. We would find that consecutive
sentencing resulting in less than a five-year effective sentence is reasonably
related to the severity of the defendant’s offenses. Two persons were
needlessly killed and others injured by the defendant’s actions. Nevertheless,
the record contains insufficient evidence to warrant a finding that consecutive
service is necessary to protect the public from further criminal acts. The
defendant’s lack of remorse and apathetic, even despiteful, attitude toward his
victims might indicate a lesser amiability to rehabilitation and, thus, some degree
of danger to society. However, the defendant’s complete lack of prior criminal
history tends to supports the opposite inference. Thus, although the evidence
supports the trial court’s finding that the defendant is a dangerous offender
whose behavior indicated little or no regard for human life, we are constrained to
conclude that the trial court erred in imposing consecutive sentencing.
ALTERNATIVE SENTENCING
The defendant next asserts that the trial court erred in “failing to order a
fair alternative sentence and failing to grant probation.” As the trial court
recognized, the defendant is presumed to be a favorable candidate for
alternative sentencing, absence evidence to the contrary. See Tenn. Code Ann.
§ 40-35-102(6). Finding this presumption partially, but not fully, rebutted, the trial
court granted supervised probation after one year’s confinement on count one
and granted full probation on counts two and three. The defendant complains
that “[t]his is not alternative sentencing as envisioned by the legislature.” We
disagree. This complaint is without merit.
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Nevertheless, we examine the trial court’s imposition of a period of
confinement. The trial court justified confinement as “necessary to avoid
depreciating the seriousness of the offense.” Tenn. Code Ann. § 40-35-
103(1)(B). To warrant confinement on this basis, “‘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
that confinement.” State v. Bingham, 910 S.W.2d at 454 (quoting State v.
Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)). That deaths
occurred is not itself sufficient to warrant such a finding. However, the evidence
showed that the defendant’s speed was grossly excessive in a usually congested
area, that he did not even attempt to brake, and that he cursed the surviving
victim at the accident scene and continued to demonstrate indifference, if not
detest, for the victims and their families throughout. The trial court duly noted
the defendant’s youth; lack of criminal record; and current, though unstable,
employment status but found that the circumstance of the defendant’s offenses
outweighed these considerations. The evidence does not preponderate against
the trial court’s finding.
As to the denial of full probation, these same considerations apply. In
addition, a defendant’s lack of truthfulness or candor reflects negatively on the
defendant’s potential for rehabilitation and is thus, an appropriate consideration.
State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994). The trial court
found that the defendant demonstrated lack of candor in that he often
conveniently forgot or contradicted himself when testifying to matters that might
be negative to him. We find that the evidence supports the trial court's findings.
This issue is without merit.
Finally, although we affirm the trial court’s imposition of a period of
confinement, we observe that the imposed one-year term would exceed the term
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that the defendant would serve prior to release eligibility on a full-confinement
two-year sentence. As this Court recently explained in State v. John W. Hill, No.
01C01-9802-CC-00072 (Tenn. Crim. App. filed Feb. 25, 1999, at Nashville), a
felony offender who is sentenced to one or more nonconsecutive terms of two
years or less may not be sentenced to a period of confinement in excess of the
release eligibility on a sentence of full confinement. Id. (citing Tenn. Code Ann.
§§ 40-35-501(a)(3); -306(a); -102(5)-(6)). Therefore, we modify the defendant’s
sentence to reduce his period of confinement to two hundred and nineteen days,
day-for-day, and to begin supervised probation at the expiration of that time.
CONCLUSION
The sentence below is modified to reduce the defendant’s period of
confinement to two hundred and nineteen days, day-for-day. We further order
that all sentences shall run concurrently. The judgment of the trial court is in all
other respects affirmed.
_____________________________
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
_____________________________
DAVID G. HAYES, Judge
_____________________________
JAMES CURWOOD WITT, JR., Judge
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