State v. Richard A. Green

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED

JUNE SESSION, 1999 August 9, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

STATE OF TENNESSEE, )

) No. 03C01-9812-CC-00422

Appellee )

) JEFFERSON COUNTY

vs. )

) Hon. Ben W. Hooper, II, Judge

RICHARD A. GREEN, )

) (Vehicular Homicide)

Appellant )

For the Appellant: For the Appellee:

Lu Ann Ballew Paul G. Summers

Asst. Public Defender Attorney General and Reporter

P. O. Box 416

Dandridge, TN 37725 Marvin S. Blair, Jr.

Assistant Attorney General

Criminal Justice Division

Edward C. Miller 425 Fifth Avenue North

Public Defender 2d Floor, Cordell Hull Building

Nashville, TN 37243-0493

Alfred C. Schmutzer, Jr.

District Attorney General

James L. Gass

Asst. District Attorney General

Sevier County Courthouse

Sevierville, TN 37862

OPINION FILED:

AFFIRMED

David G. Hayes

Judge

OPINION

The appellant, Richard A. Green, was convicted by a jury of vehicular

homicide by intoxication, a class B felony. Following a sentencing hearing, the

Jefferson County Criminal Court imposed a ten year sentence of confinement. The

appellant appeals both the judgment of conviction and resulting sentence entered by

the trial court. In doing so, he challenges:

I. The admission into evidence of the results of blood alcohol tests

performed by both the Tennessee Bureau of Investigation and

Jefferson Memorial Hospital;

II. The expert testimony of Dr. John Zirkle regarding the combined

effects of alcohol and drugs on an individual’s ability to operate a

motor vehicle;

III. The testimony relating to the presence of alcoholic beverage

containers found in the appellant’s vehicle;

IV. The imposition of a ten year sentence as being excessive; and

V. The trial court’s denial of a suspended sentence.

After review of the record and the applicable law, we find no error of law

requiring reversal of the judgment or modification of the sentence. The judgment of

the trial court is affirmed.

Background

The proof introduced at trial, taken in the light most favorable to the State,

reveals the following. On June 26, 1997, Richard Seymour picked up his wife,

Margaret, from her place of employment at approximately 4:00 p.m. The couple

drove to Wendy’s in Jefferson City where they ate dinner. They then completed

some grocery shopping at the nearby W al-Mart. The couple then began their drive

home on Highway 25/70. Upon approaching Kerr’s Market, they noticed a vehicle

coming towards them on the wrong side of the road. Margaret Seymour exclaimed,

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“he’s going to hit us.” Richard Seymour stopped their Pontiac sedan in time to

watch the approaching red Volvo “travel all the way across to the edge of the road.”

Richard Seymour thought that “[the appellant] was going into the cow pasture.”

However, the red Volvo veered back across to his side of the road. Mr. Seymour

“took his foot off the brake and started his vehicle toward a big strip out on the edge

of his side of the road.” The Volvo again veered back across the road. Mr.

Seymour stopped again. The Volvo “went back across” and collided with the

passenger side of the Seymours’ vehicle.

At approximately 6:30 p.m., members of the Tennessee Highway Patrol were

dispatched to the scene of the crime. Troopers Bud Potts and Lloyd Smith

discovered two vehicles at the scene, a cream color Pontiac sedan and a 1978 red

Volvo. Trooper Smith approached the driver of the red Volvo, later identified as the

appellant. Smith observed that the appellant “appeared to be very intoxicated. He

was using a lot of profanity and not cooperating with the ambulance personnel at all.

I attempted to question him . . . and he more or less. . . told me to go to hell.”

Trooper Smith added that the appellant “had a very strong odor of alcohol.” Upon

searching the appellant’s vehicle, Trooper Smith discovered two empty beer bottles,

“one of them had a little cup holder thing on it they put them in to keep them cool.”

A more thorough search was completed after the vehicle was towed from the scene.

Trooper Smith later found “a total of twelve bottles, part of them empty and part of

them full” and a “pack of rolling papers # 1.5.”

The appellant, Richard Seymour, and Margaret Seymour were transported by

ambulance to Jefferson Memorial Hospital. Margaret Seymour, the forty-five year

old passenger of the Pontiac, was dead on arrival at the hospital. Efforts to revive

her were futile.

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Later on that evening, Trooper David Brown questioned the appellant at the

Jefferson Memorial Hospital. Trooper Brown testified that the appellant “was very

argumentative, very combative. You could tell by the odor that he had been

drinking.” “His speech was slurred, [he was] talking fast, [and he was] using very

racy language.” The appellant told Trooper Brown:

. . .I just came back down the road and that God damned yellow

station wagon was over on the other side of the road, man. I said,

“God damn, they’re going to hit me head on.” And I cut over, man, to

try to miss them, man, and they freaked out and cut back over anyway

and it caught them in the side, man, and the next thing I knowed [sic] I

was f- - - ing flipping.

During this interview, the appellant admitted that he had consumed approximately

three beers prior to the collision. At some point during the appellant’s stay at the

hospital, officers discovered what was later determined to be 4.4 grams of marijuana

concealed in the appellant’s pants.

A blood sample was taken from the appellant at 8:12 p.m. This sample was

subsequently sent to the Tennessee Bureau of Investigation where a blood alcohol

analysis on the sample was conducted. The results of this test revealed that, at the

time the sample was drawn, the appellant had a blood alcohol content of .13

mg/decaliter. The analysis by the TBI also revealed the presence of Valium in the

appellant’s system.

Hospital personnel subsequently drew another sample of the appellant’s

blood at 8:20 p.m. for diagnostic and treatment purposes. The tests on this sample

revealed a blood alcohol content of .152 mg/decaliter. A urine test completed by the

hospital additionally tested positive for benzodiazeprine (Valium) and for

canabonoid, which is a metabolite of marijuana. At trial, Dr. John Zirkle, a physician

at Jefferson Memorial Hospital, was called as an expert to testify as to the combined

effects that alcohol and drugs would have upon an individual’s ability to operate a

motor vehicle. Dr. Zirkle did not treat the appellant at the hospital. He testified that

a blood alcohol level of .152 is well above the standard considered to be intoxicated.

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At this level, Dr. Zirkle opined that the appellant’s “judgment and coordination would

be impaired severely.”

Trooper Roger Christian, an accident reconstructionist, provided additional

testimony. Based upon the positions of the two vehicles after impact and certain

marks, including tire marks, vehicle marks and gouges on the road surface, Trooper

Christian determined that:

[T]he Volvo was heading . . . in the direction of Knoxville, while the

Pontiac was heading back to Newport/Dandridge. The Volvo, some

263 feet prior to striking the Pontiac, has traveled off onto the shoulder

of the road.

...

It would have been on the shoulder of the road that the Pontiac was

traveling. In other words, the Volvo had crossed over - - crossed the

Pontiac’s lane of travel, and had traveled off onto the shoulder

approximately 263 feet before reaching the Pontiac, and it traveled

down the shoulder of the roadway. In other words, it was completely

on the other side of the highway.

...

. . .[T]he Volvo had come down on the wrong side, on the shoulder,

was aggressively trying to return back into the road, and had struck the

Pontiac on the Pontiac’s passenger side.

...

[In the present case, the left front brake did not have an impact on the

accident. Indeed, [w]hen he applied his brakes he should have went

over in the right hand side instead of going to the left.

The appellant’s acquaintance, Larry Stinnett, related the appellant’s activities

prior to the collision. Stinnett testified that, at sometime after 4:00 p.m., he and the

appellant traveled to Andy’s Market where they shot a game of pool and each drank

two beers. They then drove to Newman Hollow Road where they met three

unidentified men and smoked one marijuana cigarette. They went back to Andy’s

Market, the appellant “did donuts” in the parking lot, and then he drove to Green Hill

Road. The appellant dropped Stinnett off at his sister’s house near Kerr’s Market

on Highway 25/70. Stinnett testified that he saw the appellant with Valium tablets

and that he saw the appellant drink a total of three beers.

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The appellant testified that he had obtained the 1978 Volvo two days prior to

the offense. At that time, he learned that the front left brake had been disconnected

and the brake line plugged. He had attempted to have this condition corrected on

the day of the offense; however, Bill Banks, the mechanic he visited, did not have

the proper parts. The appellant admitted that he had drank three beers prior to the

collision. He denied taking Valium prior to the collision although he did admit that he

had “eaten ten Valium, two days before.”

Based on this evidence, the jury found the appellant guilty of vehicular

homicide.

I. Admissibility of Blood Alcohol Tests

The appellant first complains that the admission into evidence of the results

of the blood alcohol tests completed by the Tennessee Bureau of Investigation and

Jefferson Memorial Hospital was error. He contends that, because both blood

samples were drawn nearly two hours after the collision, the results of the blood

tests “are not relevant to the issue of whether or not he was ‘driving under the

influence.’”

Relevant evidence is any evidence “having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” See Tenn. R.

Evid. 401. In the present case, the appellant was charged with vehicular homicide

as the proximate result of the driver’s intoxication. See Tenn. Code Ann. § 39-13-

213(a)(2) (1997). Thus, evidence relating to the appellant’s level of intoxication at

the time of the offense is relevant in establishing an element of the offense. Indeed,

the appellant’s intoxication was the only disputed issue at trial.

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Blood tests are routinely used to determine whether a person was intoxicated

at a certain time. See NEIL P. COHEN , TENNESSEE LAW OF EVIDENCE § 401.25

(1995). Such tests are admissible provided that the sample was taken by a properly

trained person and went through a proper chain of custody between the time the

blood was drawn and the time it was analyzed. See generally Tenn. Code Ann. §§

55-10-401 to -412 (1997); NEIL P. COHEN , TENNESSEE LAW OF EVIDENCE § 401.25.

See also State v. Ben Jordan, No. 01C01-9311-CC-00419 (Tenn. Crim. App. at

Nashville, Jun. 13, 1995), perm. to appeal denied, concurring in results only, (Tenn.

Feb. 5, 1996). There is no dispute that the procedural prerequisites to admitting the

laboratory test results were satisfied in the instant case.

Again, the collision resulting in the death of Margaret Seymour occurred at

approximately 6:30 p.m. The blood sample drawn by the State was taken at 8:12

p.m. while the sample drawn by the hospital was taken at 8:20 p.m. No expert

testimony was presented at trial to establish what the test results would have been

at the time of the collision by means of extrapolation. As recognized by this court in

State v. McKinney, “it would be virtually impossible for a sample of blood to be

drawn until some time after the accident occurs.” See State v. McKinney, 605

S.W.2d 842, 846 (Tenn. Crim. App. 1980). Accordingly, the jury can infer

intoxication at the time of the offense from the results of a test of a blood sample

taken later. See State v. Joe Larry Fuqua, No. 01C01-9312-CC-00431 (Tenn.

Crim. App. at Nashville, Aug. 25, 1994), perm. to appeal denied, (Tenn. Nov. 7,

1994). Where there exists other evidence from which to infer the driver’s

intoxication, there is no need for expert witnesses to extrapolate the test results to

the time of the driving. Id. In the present case, several law enforcement officers

testified regarding the appellant’s demeanor at the time of the offense, specifically,

observing the appellant’s belligerent behavior, excessive cursing, slurred speech

and odor of alcohol. Additionally, Larry Stinnett testified that the appellant drank

three beers and smoked part of a marijuana cigarette prior to the collision.

7

Accordingly, we reject the appellant’s contention that a blood alcohol level of .13 is

so close to the statutory presumption of .10 that expert testimony is required to

establish the appellant’s blood alcohol at the time of the collision. We conclude that

the results of the blood alcohol tests were relevant to the appellant’s state of

intoxication. The interval between the time of the offense and the times at which the

blood samples were drawn are pertinent to the weight of the evidence, not to its

admissibility. See State v. Ben Jordan, No. 01C01-9311-CC-00419 (citing State v.

Ford, 721 S.W.2d 828, 830 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.

1986); McKinney, 605 S.W.2d at 846 (parenthetical omitted)). This issue is without

merit.

II. Testimony of Dr. Zirkle

In a related issue, the appellant contends that the trial court erred by

permitting Dr. John Zirkle to testify regarding the combined effects drugs and alcohol

would have on a person’s ability to operate a motor vehicle. Specifically, the

appellant bases his argument on the grounds that

Dr. Zirkle did not treat the appellant after the accident, nor did Dr.

Zirkle obtain appellant’s drug and urine samples, nor did he analyze

appellant’s samples for their alcohol and drug content. In short, Dr.

Zirkle had no personal knowledge of appellant’s statements for

treatment, observations by hospital personnel, nor of the lab tests

contained within the hospital records.

Accordingly, the appellant argues that Dr. Zirkle’s testimony violates his

constitutional right of confrontation.

Before calling Dr. John Zirkle to testify, the State offered into evidence,

pursuant to Tenn. Code Ann. § 68-11-401 et seq. (1996) (Hospital Records as

Evidence), the medical records of the appellant, Margaret Seymour, and Richard

Seymour maintained by Jefferson Memorial Hospital relative to each patient's

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respective treatment following the June 26th offense. The trial court admitted the

records after determining that the State had complied with the requirements of

Tenn. Code Ann. § 68-11-401 et seq. These statutes permit hearsay evidence,

deny a party the right to cross-examine or otherwise refute the contents of the

medical record, and allow opinion evidence of experts without showing their

qualification to testify as an expert. See Sanders v. Nationwide Ins. Co., No.

02S01-9409-CV-00067 (Tenn. at Jackson, Jan. 22, 1996). The principal purpose of

Tenn. Code Ann. § 68-11-401 et seq. is to provide a procedure for a hospital, where

it has no interest in the case, to respond to a subpoena duces tecum for hospital

records by filing copies of the records authenticated by affidavit instead of by

sending a witness to the hearing with the originals. The copy of the record shall be

admissible in evidence to the same extent as though the original thereof were

offered and the custodian had been present and testified to the matters stated in the

affidavit. Tenn. Code Ann. § 68-11-406(a). The statutory requirements were

satisfied; thus, procedurally, the records were admissible into evidence.

Nonetheless, although authentication may, by statute, be satisfied by an affidavit by

the custodian, the medical records are still subject to constitutional challenge. See

State v. Woody Hutchinson, C.C.A. No. 887 (Tenn. Crim. App. at Knoxville, Jul. 19,

1990).

In the instant case, the appellant, relying upon State v. Henderson, 554

S.W.2d 117, 120 (Tenn. 1977), contends that, by not having the person(s) who

conducted the examination and who completed the laboratory tests available to

testify, the introduction of these medical records into evidence violated his

constitutional right to confrontation. In Henderson, our supreme court held that out-

of-court statements must meet certain criteria in order to satisfy the Confrontation

Clause of both the Sixth Amendment of the United States Constitution and Article I,

Section 9 of the Tennessee Constitution. See State v. Armes, 607 S.W.2d 234,

236 (Tenn. 1980); Henderson, 554 S.W.2d 117 (Tenn. 1977). Specifically, the court

9

recognized that valid claims of an unconstitutional abridgement of the right to

confront witnesses arise when:

(1) the hearsay evidence is crucial to proving the State’s case, i.e., the

evidence is offered to prove an essential element of the crime or it

connects the defendant directly to the commission of the crime;

(2) there is no proof that the witness is unavailable, i.e., the State must

make a good faith effort to secure the presence of the person whose

statement is to be offered against the defendant; and

(3) the hearsay evidence is lacking its own indicia of reliability.

Henderson, 554 S.W.2d at 120. See also Armes, 607 S.W.2d at 237; State v.

Oody, 823 S.W.2d 554 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1991);

State v. Carpenter, 773 S.W.2d 1 (Tenn. Crim. App. 1989); State v. Arnold, 719

S.W.2d 543 (Tenn. Crim. App. 1986). Cf. Stewart v. Cowan, 528 F.2d 79 (6th Cir.

1976).

Notwithstanding the constraints imposed by the Henderson tripartite test, our

supreme court has also recognized that “firmly rooted exceptions to the hearsay

rule do not violate the Confrontation Clause.” See State v. Causby, 706 S.W.2d

628, 631 (Tenn. 1986); see also State v. Darrell R. Kennedy, No. 02C01-9708-CR-

00318 (Tenn. Crim. App. at Jackson, Feb. 17, 1999), perm. to appeal denied,

(Tenn. Jul. 19, 1999); State v. Harvey Phillips Hester, No. 03C01-9704-CR-00144

(Tenn. Crim. App. at Knoxville, June 4, 1998) (citing State v. Alley, No. 02C01-9405-

CC-00100 (Tenn. Crim. App., at Jackson, June 18, 1997), perm. to appeal denied,

(Tenn. Mar. 2, 1998); State v. Lillard, No. 01C01-9602-CC-00051 (Tenn. Crim. App.

at Nashville, Feb. 12, 1997)). The rationale for this principle is based upon the

premise that some forms of admissible hearsay rest upon such solid foundations

that admission of virtually any evidence within them comports with the right of

confrontation. See Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2537, 2539 (1980);

Causby, 706 S.W.2d at 631 (Tennessee Supreme Court holds that former testimony

hearsay exception is such firmly established rule and so inherently reliable that any

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such evidence necessarily comports with the right of confrontation.). 1 Indeed,

statements admitted under a firmly rooted hearsay exception are so inherently

trustworthy that adversarial testing would add little to their reliability. See State v.

Darrell R. Kennedy, No. 02C01-9708-CR-00318.

Business records are admissible as an exception to the rule against the

introduction of hearsay evidence. See Tenn. R. Evid. 803(6). The courts of this

state, our sister states, and many federal courts have held that the “business

records” exception to the rule against hearsay is firmly established. State v. Darrell

R. Kennedy, No. 02C01-9708-CR-00318 at n.8; State v. Harvey Phillip Hester, No.

03C01-9704-CR-00144. See, e.g., United States v. Ismoila, 100 F.3d 380, 392 (5th

Cir. 1996), cert. denied, -- U.S. --, 117 S.Ct. 1712 (1997); Minner v. Kerby, 30 F.3d

1311 (9th Cir. 1994)(introduction of chemist’s notes through supervisor not violative

of Confrontation Clause); United States v. Norton, 867 F.2d 1354, 1363 (11th Cir.

1989); United States v. Baker, 855 F.2d 1353,1360 (8th Cir. 1988)(business records

exception, is firmly rooted hearsay exception to prevent violation of Confrontation

Clause); Reardon v. Manson, 806 F.2d 39 (2d Cir. 1986), cert. denied, 481 U.S.

1020, 107 S.Ct. 1903 (1987)(chemist report introduced through testimony of

supervisor properly admitted sufficient indicia of reliability); People v. Vega, 639

N.Y.S.2d 511, 513-514 (A.D. 3 Dept. 1996) (introduction of technician’s notes under

business records exception rendered technician’s testimony unnecessary where

supervisor actually analyzed the samples); State v. Fontenette, No. 59014 (Ohio

App. Sept. 19, 1991) (testimony by laboratory supervisor regarding DNA profile

properly admitted under business records exception did not violate Confrontation

Clause).

1

In Causby, 706 S.W.2d at 631, the Tennessee Supreme Court held that the third prong

of the Henderson-Armes requirem ent for co mplying w ith the con frontation c lause, i.e., that the

evidence not be crucial or devastating, is not required in the case of well established hearsay

excep tion such as form er testim ony. Id. at 631, note 1 (citing Mancusi v. Stubbs, 408 U.S. 204,

92 S.Ct. 2308 (1972) and Ohio v. R oberts , 448 U.S. at 56, 100 S.Ct. at 2531).

11

A business record may be introduced by the custodian of those records or

any other qualified witness. See State v. Baker, 842 S.W.2d 261, 264

(Tenn.Crim.App.1992). The custodian of the record to be introduced must be able

to testify as to the identity of the record, the mode of preparation, and whether the

record was made in the regular course of business at or near the time of the

recorded event. Id. In the present case, the State failed to call the records

custodian to testify as to the authenticity of the records; rather, the State relied on

an affidavit completed by the custodian. See Tenn. Code Ann. § 68-11-406(a).

During the course of the trial, defense counsel stated:

I will not object, based on that affidavit, to the authenticity of the

records, but as far as these records being entered as exhibits without

hospital personnel such as a nurse who saw my client, or the person

who drew the blood, of the lab technician -- you know, I’ve got to object

to that because based on those grounds it would be hearsay.

We are unable to discern from this objection whether the appellant intended to

concede or challenge the State’s authentication of the medical records.

Notwithstanding, we conclude that an affidavit of the records custodian, rather than

his or her personal appearance in court, is insufficient authentication for purposes of

satisfying the reliable hearsay exception to the Henderson requirements. See

Douglas M. Varner v. Hon. W.L. Brown, No. 03A01-9405-CV-00171 (Tenn. App. at

Knoxville, Nov. 30, 1994).

Thus, we return to the tripartite test announced in Henderson. In this regard,

we find the evidence not violative of the appellant’s right to confrontation. First, the

evidence challenged is merely cumulative to evidence introduced by other witnesses

of the State. Again, numerous officers testified as to the appellant’s physical

condition at the time of the collision. Additionally, the tests performed by the

Tennessee Bureau of Investigation confirmed that the appellant had a blood alcohol

content of .13, tested positive for Valium, and that the substance found on the

appellant’s person was marijuana. Next, the United States Supreme Court has held

12

that a demonstration of availability (part 2 of the Henderson test) is not always

required. Ohio v. Roberts, 448 U.S. at 65, n. 7, 100 S.Ct. at 2538 n. 7; Sherman v.

Scott, 62 F.3d 136, 140 (5th Cir. 1995). Indeed, in White v. Illinois, 502 U.S. 346,

354, 112 S.Ct. 736, 741 (1992), the Court held that Ohio v. Roberts stands for the

proposition that unavailability analysis is a necessary part of the Confrontation

Clause inquiry only when the challenged out-of-court statements were made in the

course of a prior judicial proceeding. Accordingly, we need not address the

availability requirement. And, finally, because the records are regularly maintained

reports of the hospital with respect to its care and treatment of patients and because

they were not prepared for the purpose of this litigation, the records evidence their

own indicia of reliability. Accordingly, the evidence of the medical records do not

violate the appellant’s confrontation rights and were properly admitted.

We additionally find that introduction of Dr. Zirkle’s testimony was proper.

During pre-trial motions, the State asserted that Dr. Zirkle would testify as to the

effect the combination of alcohol, Valium, and marijuana would have on a person’s

ability to drive a motor vehicle. Tenn. R. Evid. 702 provides:

If scientific, technical, or other specialized knowledge will substantially

assist the trier of fact to understand the evidence or to determine a fact

in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an opinion

or otherwise.

Rule 703, Tenn. R. Evid., contemplates three possible sources from which an expert

may base his/her opinion: (1) information actually perceived by the expert; (2)

information made known to the expert by others; and (3) information reasonably

relied upon by experts in the particular field.2 See Tenn. R. Evid. 703; see also

NEIL P. COHEN , ET . AL., TENNESSEE LAW OF EVIDENCE §§ 703.2, 703.3, 703.4 (3d ed.

1995). Clearly, Dr. Zirkle, even though he was not the appellant’s attending

2

Altho ugh we ha ve de term ined t hat th e m edic al rep orts a re co nstitu tiona lly adm issib le

under an exception to the hearsay rule, Rule 703 does not prevent an expert from relying upon

inadmissible hearsay in formulating an opinion, if the type of hearsay is one that would be

reason ably relied upo n by expe rts in that situa tion. See N EIL P. C OHEN ET AL ., T ENNESSEE L A W O F

E V I D E N C E § 703.4.

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physician, was able to formulate an opinion as to the appellant’s level of impairment

based on the medical records prepared contemporaneously to the appellant’s

treatment at Jefferson Memorial Hospital. Again, the records were prepared in order

to aid the treating physician in his treatment and diagnosis of the appellant; ergo,

the records are presumed reliable and trustworthy. Moreover, since the doctor was

available for cross-examination by the defense and he was thoroughly questioned,

the appellant’s right to confrontation was not infringed. This issue is without merit.

III. Evidence of Alcoholic Beverage Containers

The appellant next argues that evidence of alcoholic beverage containers

found within his vehicle was unreliable as well as irrelevant and should not have

been admitted into evidence. Specifically, he contends that the evidence was

unreliable in that the tow-in report completed at the accident site indicated that only

one empty beer bottle was found. At trial, Trooper Smith testified that he found two

empty beer bottles in the front seat of the car and twelve other beer bottles, both

empty and full, in the back seat and trunk of the vehicle. Trooper Smith explained

that the items on the tow-in report are not required by the Highway Patrol and are

discretonary on the part of the attending officer. Moreover, at the time the tow-in

report was completed, Trooper Smith had not searched the back seat or the trunk of

the car because of the vehicle’s position at the crime scene. The appellant

contends that this discrepancy in addition to the State’s failure to show that the

appellant had consumed alcohol from any of these specific containers at any time

prior to the offense was more prejudicial than probative and should have been

excluded.

Initially, we note that the State maintains that, because defense counsel

failed to make a contemporaneous objection to the testimony at trial, the issue has

14

been waived. We cannot agree. The appellant objected to the admission of the

beer bottles in a pretrial motion to suppress. The issue is properly preserved for

appeal.

Again, evidence is deemed relevant if it has any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence. Tenn. R. Evid. 401.

Even though relevant, evidence may be excluded if its “probative value is

substantially outweighed by the danger of unfair prejudice. . . .” Tenn. R. Evid. 403.

The issue before the jury was the appellant’s state of impairment at the time

of the collision which was dependant upon the quantity of alcohol consumed. The

presence of the beer bottles which were accessible to the appellant, i.e., those in

the front seat, was relevant in establishing an inference of the appellant’s

consumption of alcohol at the time of the collision. However, we conclude that

evidence and testimony relating to the presence of the twelve alcoholic beverage

containers not readily accessible to him, i.e., those found in the back seat and trunk

compartment of the vehicle, cannot be used to create an inference of consumption

at or near the time of the offense, and are, thus, more prejudicial than probative.

Notwithstanding the court’s error in admitting this evidence, any such error is

harmless, especially in consideration of the appellant’s admission that he had

consumed alcohol prior to the offense and the other overwhelming proof relative to

his intoxication presented at trial. See Tenn. R. Crim. P. 52(a).

IV. Sentencing

In his final issue, the appellant challenges the trial court’s imposition of a

sentence of ten years in the Department of Correction. Without any specific error

15

being assigned, the appellant, in a generalized statement, contends that he is

entitled to an eight year sentence, and, after credit for time served, the remainder of

his sentence should be suspended, or, in the alternative, he should be granted work

release. In support of this argument, he asserts that he is employable as a roofer

and that he is responsible for the support of his two children.

When the length, range, or manner of service of sentence is challenged on

appeal, this court conducts a de novo review conditioned upon the presumption that

the determination made by the trial court is correct. Tenn. Code Ann. § 40-35-

401(d)(1997). This presumption only applies, however, if the record demonstrates

that the trial court properly considered relevant sentencing principles. State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In the case before us, the trial court

considered relevant sentencing principles; thus, the presumption applies. Moreover,

this court may only modify sentence if the sentence is excessive or the manner of

service is inappropriate. State v. Russell, 773 S.W.2d 913, 915 (Tenn. 1989). On

appeal, the appellant bears the burden of showing that the sentence imposed was

improper. Sentencing Commission Comments, Tenn. Code Ann. § 40-35-401(d).

The proof at the sentencing hearing revealed that the twenty-eight year old

appellant is the non-custodial father of two minor children. The appellant refused to

acknowledge that the collision was the result of his intoxication. He admits to

smoking a “half nickel” of marijuana and drinking a twelve pack of beer a day. The

appellant’s work status with his most recent employer was not verified. Moreover,

his previous employer indicated that “the [appellant] had worked very little for him.

He stated that [the appellant] may work for a few hours and then he would not see

him again for six months.” Additionally, the appellant has a criminal history

consisting of at least twenty-two separate violations of the law including, among

others: two felony convictions for theft, three convictions for driving under the

influence, two convictions for reckless driving, two convictions for possession of a

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controlled substance, two convictions for driving on a suspended license, four

convictions involving public intoxication, three convictions for reckless

endangerment, and one conviction for assault. The record also indicates that the

appellant had previously had a suspended sentence revoked and that, while in jail

on the present charges, the appellant was arrested for simple possession of

marijuana and drug paraphernalia while incarcerated in a penal facility.

In determining the appropriate sentence for the appellant’s conviction of

vehicular homicide, the trial court applied one enhancement factor, i.e., that the

appellant has a history of criminal behavior, but concluded that no mitigating factors

were applicable.3 See Tenn. Code Ann. § 40-35-114(1) (1997). The appellant’s

only challenge to the length of the sentence imposed by the trial court is that he

should have received a sentence of eight years rather than a ten year sentence.

When there are enhancement factors and no mitigating factors, the trial court

may set the sentence above the minimum within the applicable sentencing range,

but still within the range. Tenn Code Ann. § 40-35-210(d)(1997). The appellant was

convicted as a range I offender of a class B felony. Thus, the sentence range for

the appellant’s conviction is eight to twelve years. See Tenn. Code Ann. § 40-35-

112(a)(2) (1997). The court imposed a sentence of ten years. We find the length of

this sentence justified and clearly not excessive under the guidelines of the 1989

Sentencing Act.

Additionally, the trial court denied any form of alternative sentence including

probation. As the court imposed a sentence of ten years, which we have found to

be justified, the appellant is not eligible for a sentence involving probation. Tenn.

Code Ann. § 40-35-303(a) (1997). Moreover, we conclude that a sentence of

confinement is necessary to protect society by restraining a defendant who has a

3

The appellant does not challenge the trial court’s refusal to apply any mitigating factors.

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long history of criminal conduct and because measures less restrictive than

confinement have frequently or recently been applied unsuccessfully to the

appellant. See Tenn. Code Ann. §40-35-103(1)(A), -103(1)(C) (1997). This

contention is without merit.

VI. Conclusion

After a review of the record, we find no error requiring reversal. The

judgments of conviction and sentences entered by the trial court are affirmed.

____________________________________

DAVID G. HAYES, Judge

CONCUR:

(See separate concurring opinion)

JOHN H. PEAY, Judge

_______________________________________

JOHN EVERETT W ILLIAMS, Judge

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