State of Tennessee v. James R. Bristow

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 16, 2014

STATE OF TENNESSEE v. JAMES R. BRISTOW

Appeal from the Circuit Court for Clay County

No. 12CR82 David A. Patterson, Judge

No. M2014-00595-CCA-R3-CD - Filed March 17, 2015

Defendant, James Bristow, was charged by indictment with vehicular homicide by

intoxication, vehicular homicide by recklessness, driving under the influence of an intoxicant

(DUI), and DUI per se. Defendant pleaded guilty to vehicular homicide by intoxication with

an agreed nine-year sentence, and the manner of service to be determined by the trial court.

The remaining counts were dismissed in accordance with the agreement. After a sentencing

hearing, the trial court ordered Defendant to serve his nine-year sentence in confinement.

On appeal, Defendant argues that he should have received an alternative sentence. After a

thorough review of the record and the parties’ briefs, we affirm the judgment of the trial

court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

T HOMAS T. W OODALL, P.J., delivered the opinion of the Court, in which J OHN E VERETT

W ILLIAMS and R OBERT W. W EDEMEYER, JJ., joined.

David Brady, District Public Defender; and Allison Rasbury West, Assistant Public

Defender, Cookeville, Tennessee, for the appellant, James R. Bristow.

Herbert H. Slatery, III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;

Randall A. York, District Attorney General; and Mark Edward Gore, Assistant District

Attorney General, for the appellee, the State of Tennessee.

OPINION

Background

Guilty Plea Submission Hearing

The State presented the following testimony as the factual basis for the trial court’s

acceptance of the guilty pleas. Sergeant Ashley Mercer of the Tennessee Highway Patrol

(THP) testified that on March 2, 2012, at approximately 1:10 p.m., he responded to a two-

vehicle traffic accident on Drag Strip Road in Clay County. When he arrived on the scene,

Sergeant Mercer observed a black truck “on it’s top in the center of the road and a light

colored passenger car off the, [sic] which would have been called the southbound.” The

truck had been traveling northbound. Sergeant Mercer testified that Defendant was the driver

of the truck, and Defendant was still located inside the vehicle when Sergeant Mercer

arrived. At that time, an attempt was being made to extradite Defendant from the vehicle.

Terry Dyer and Lance Groomes were also passengers in the truck with Defendant.

Sergeant Mercer testified that the car had been driven by the victim, ninety-one-year-

old Earl Wilkerson. Through his investigation, Sergeant Mercer learned that the victim had

been to a nursing home to visit with his wife and daughter before the accident. Sergeant

Mercer testified that Trooper Johnny Farley of the THP Critical Incidence Response Team

was also on the scene and determined that Defendant’s truck was traveling northbound,

“crossed into [the] southbound lane, striking the [victim’s] Ford Taurus head on.” Sergeant

Mercer testified that Trooper Danny Fisher collected a blood sample from Defendant.

Sergeant Mercer noticed “beer cans, beer caps and stuff in the truck and around the truck.”

Defendant’s blood sample was later sent to the Tennessee Bureau of Investigation (TBI)

crime lab for analysis. It was determined that Defendant’s blood alcohol content (BAC) was

.10.

Sergeant Mercer testified that the victim also had to be extracted from his Ford

Taurus, and he was transported to Vanderbilt Medical Center where he later died from

injuries that he sustained from the crash. Sergeant Mercer was aware that the victim “had

injuries to his left leg; his right ankle; broken, broken [sic] bones; a crushed femur;

compressed vertebrae[] in his back; abdomen, injuries to his abdomen area.” The cause of

the victim’s death was determined to be multiple blunt force injuries. Sergeant Mercer

testified that Trooper Farley’s investigation indicated that Defendant’s truck was traveling

eighty-four miles per hour at the time of the crash. The posted speed limit on Drag Strip

Road was forty-five miles per hour.

-2-

Sergeant Mercer testified that Defendant was interviewed by THP investigator Larry

Pollard sometime after the accident. Defendant admitted to having “a couple of sips of

Jagermeister,” and he admitted to driving the truck at the time of the crash. Lance Groomes

was also interviewed by law enforcement. He gave a statement indicating that Defendant had

consumed alcohol and was driving the truck at the time of the accident. Mr. Groomes stated

that they had drank three or four beers each. Terry Dyer was also interviewed and said that

he, Mr. Groomes, and Defendant purchased Jagermeister on the day of the crash, and they

mixed it with a Monster energy drink. Sergeant Mercer testified that a search warrant was

obtained to conduct a forensic examination of Mr. Dyer’s cell phone. There were text

messages on the phone about drinking and a picture of a Jagermeister bottle. One of the text

messages contained the following: “[A]in’t nothing better than being drunk with your boys

on Friday, hell, it gonna be a good night[.]” The test message had been sent to one of

Defendant’s friends or relatives. Another text message read, “just now leaving Celina, that

forty dollar bottle already gone[.]”

Sentencing Hearing

Tiffany Lawson, Defendant’s probation officer, testified that she prepared a

presentence report in Defendant’s case. Defendant chose not to make any statement

regarding the case as Ms. Lawson was completing the report. Ms. Lawson testified that

Defendant had two prior convictions in Macon County for “dogs running at large,” and

“underage consumption” of alcohol. For the dogs running at large conviction, Defendant

received six months “good behavior probation,” and he was ordered to pay restitution. For

the underage consumption of alcohol conviction Defendant received a sentence of eleven

months, twenty-nine days to be served on probation. The general sessions court also ordered

the loss of Defendant’s license for one year, and he was ordered to complete an alcohol and

drug education class. Ms. Lawson was not aware if Defendant completed the class. She

testified that Defendant also had a pending charge for theft of property “one thousand to two

thousand dollars and a count of felony vandalism.”

Ms. Lawson testified that Defendant had dropped out of high school in the tenth

grade, and he had not obtained his GED. Defendant had worked at ABC Technologies prior

to the accident, and Ms. Lawson determined that he last worked a full time job in July of

2010. At the time of the sentencing hearing, Defendant was working “part time odds and

ends with his father-in-law.”

Detective Donnie Crawford of the Macon County Sheriff’s Department testified that

he investigated the theft of a “thirty-foot cattle trailer” reported missing by Ryan Gregory.

According to Detective Crawford the report of the stolen trailer was taken on July 20, 2012.

Detective Crawford received information about the trailer and subsequently met with Sheriff

-3-

Brandon Boone of Clay County. He and Sheriff Boone drove out to a cabin on North Folk

Road in Clay County and found the missing trailer. While they were at the cabin, Defendant

arrived in a Ford Explorer. Macon County Sheriff Mark Gammons was also there when

Defendant arrived. Defendant indicated that he heard the officers were in the area looking

for the trailer, and Defendant wanted to “make things right” by talking to them. Defendant

told the officers that he and “Mr. Evans” had stolen the trailer, and they intended to sell it for

“scrap.” Detective Crawford testified that the trailer was unusable when they found it

because the walls had been cut by a cutting torch, and the wheels had been removed. The

damaged trailer was then returned to Mr. Gregory. Detective Crawford said that the case was

still pending in the Macon County Criminal Court.

THP Trooper Johnny Farley testified that he was assigned to the Critical Incident

Response Team, and he conducted the crash reconstruction in Defendant’s case. He

estimated that Defendant was driving eighty-four miles per hour at the time of the accident,

and the posted speed limit on Drag Strip Road was forty-five miles per hour. Trooper Farley

testified that Mr. Grooms and Mr. Dyer, who were passengers in Defendant’s vehicle, had

to be air-lifted from the scene for medical treatment, and he thought that one of the men was

substantially more injured than the other. Through interviews with Mr. Grooms and Mr.

Dyer later conducted by Trooper Larry Pollard, it was determined that Defendant and the two

men had consumed a bottle of Jagermeister before the crash.

David Earl Wilkerson, the victim’s son, testified concerning the extensive injuries that

he observed to his father after the crash. Mr. Wilkerson testified that prior to the accident,

the victim had been to the nursing home. He said, “It was [the victim’s] custom every day

of his life, the last nine years of his life, to go over and take food that he had prepared for my

mother and my other sister. My mother wasn’t able to feed herself, so he helped her.” Mr.

Wilkerson testified that although the victim was ninety-one years old, he still led a very

active life.

Kelly Carr, the victim’s granddaughter, testified that the victim was a World War II

veteran who had received a Silver Star, seven Bronze Stars, a Purple Heart, a Victory Medal,

a European/African Middle Eastern Theater Ribbon, a Good Conduct Medal, and an

American Campaign Medal. Ms. Carr noted that she did her senior project in high school

on the victim concerning his war experiences. Ms. Carr testified that the victim’s wife, her

grandmother, passed away in August of 2012, after the victim’s death in March. Ms. Carr

noted that her grandmother, who had Alzeheimer’s disease, would not eat for anyone but the

victim, and Ms. Carr felt that she “pretty much starved.”

Kathleen Browning, the victim’s daughter, pointed out that at the time of the crash

Defendant was not only intoxicated but his driver’s license was expired, he was not wearing

-4-

a seatbelt, and he had no insurance. She also noted that the victim’s medical bill from

Vanderbilt for four hours was over seventy thousand dollars which the victim’s insurance had

to pay. Ms. Browning also noted that before the wreck, the victim had prepared meals for

his wife of sixty-two years, and his disabled daughter. She pointed out that the victim’s wife,

Ms. Browning’s mother, lived only one-hundred and fifteen days after the victim’s death.

Ms. Browning testified: “She wouldn’t eat, at first we could get her to drink a little, but that

didn’t last long. She spoke very few words, except to call out [the victim’s] name.” Ms.

Browning testified that her special needs sister continuously asks for the victim.

Todd Browning, the victim’s grandson, testified that he was devastated by the victim’s

death. He described the victim as selfless and a man with a high standard of integrity and

moral character. Mr. Browning felt that his grandmother grieved and starved herself to death

after the victim passed away.

During his allocution, Defendant made the following statement:

I’m sorry. I never meant for that to happen. I know I can’t change it, but if I

could, I would. I’m sorry. I have a sixteen month old, an almost six year old.

I work every day and I really don’t want to go to jail. I want to be with my

kids and my fiancé. That’s all I have to say.

Analysis

Defendant contends that the trial court erred in sentencing him. More specifically, he

states that the trial court erred in ordering him to serve his nine-year sentence in confinement

rather than granting him probation or split confinement. We disagree.

In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law

and the impact on appellate review of sentencing decisions. The Tennessee Supreme Court

announced that “sentences imposed by the trial court within the appropriate statutory range

are to be reviewed under an abuse of discretion standard with a ‘presumption of

reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This standard of review

extends to alternative sentences as well. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn.

2012)(“[T]he abuse of discretion standard, accompanied by a presumption of reasonableness,

applies to within-range sentences that reflect a decision based upon the purposes and

principles of sentencing, including the questions related to probation or any other alternative

sentence.”). A finding of abuse of discretion “‘reflects that the trial court’s logic and

reasoning was improper when viewed in light of the factual circumstances and relevant legal

principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001)

(quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of discretion,

-5-

the record must be void of any substantial evidence that would support the trial court’s

decision. Id. at 554-55; State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614

S.W.2d 395, 398 (Tenn. Crim. App. 1980). The reviewing court should uphold the sentence

“so long as it is within the appropriate range and the record demonstrates that the sentence

is otherwise in compliance with the purposes and principles listed by statute.” Bise, 380

S.W.3d at 709-10. So long as the trial court imposes a sentence within the appropriate range

and properly applies the purposes and principles of the Sentencing Act, its decision will be

granted a presumption of reasonableness. Id. at 707.

In considering Defendant’s sentence, the trial court considered the record, the purpose

and principles of sentencing, and all of the relevant factors and made the following extensive

findings:

In considering the defendant’s social history, mental health and other things,

the defendant’s attorney has shown that on other occasions the defendant has

successfully completed probation. He’s negative on a drug screen. He has a

certain support system, which includes not only a, what the defendant says to

be a six year old son and then a minor, a very [sic], a baby. Some indication

that he is working part time for his fiance’s father, I believe is what’s been

shown to the court.

* * *

The court looks closely at the circumstances of this offense for one thing, to

determine how the sentence should be served. The court has been in a position

as a prosecutor and as a sentencing court in the past to have very different

circumstances in vehicular homicide cases. There are times when there are

two friends that are in the vehicle, they decided one of them will drive, one of

them [is] drunk. The car goes off the side of the road, one of them is killed,

the driver is still alive, not even hurt. The family of the victim of that offense

is aware that the victim of the crime is one that would be amenable to the

defendant having probation and possibly a deferred sentence of some sort. It’s

very different than this situation.

The court doesn’t sentence because of what a victim’s family wants

necessarily. It listens to that, but the court looks at the circumstances of the

offense. And the circumstance of this offense is very different than what it

could be. Eighty[-]four miles an hour, the head-on wreck to another car. Two

other people in your car, one who is being life-flighted out, according to

certain testimony that we’ve taken today. Very different than what we’re

-6-

speaking of how it could be, how this offense could take place and what the

court would possibly be looking at which would be appropriate to alternative

sentencing. It’s different.

This case, the circumstances of this case are different. And the result of this

then can be different.

The defendant’s prior offenses are not as concerning to the court because

they’re misdemeanors. But what is of concern to the court is that the affidavit

of complaint in the one case says on 11/22/08, the defendant was stopped in

a Honda Accord for muffler violation. The defendant was driving and found

to have been consuming intoxicating beverages. He was transported to the

Macon County Jail, he would up pleading guilty to possession of alcohol or

consumption of alcohol. We are in a car, drinking alcohol. It wasn’t a DUI.

But it’s time when someone should be alerted to the fact that that’s not a good

idea. And that is of particular importance to this court as it makes its ruling as

to how this sentence is to be served.

There are two prior misdemeanors and that’s important to the court. But the

nature of the one is what’s more important to the court, how it is that that

offense came and what it was that you were put on probation for. I’m talking

to the defendant now, what is it that you were put on probation for.

The next thing that’s of importance to the court is if I’m not wrong, this

offense occurs on the 2nd of March of 2012, the one that we’re here today for.

If it’s true, in the record today, that you have admitted to committing a D

felony three months later. That shows the court that your amenability to

correction, I mean someone is dead in this situation. There is a man that has

died. There are two people that have been injured. You were, too. But

instead of some change of lifestyle, you’re admitting to have taken a trailer and

torn it apart so that it can be sold for scrap. That’s a particular concern to the

court, because the court finds that you’re not likely to be corrected through

probation. It’s simple. Commit this in March, [July] steal a trailer, tear it

apart.

The court accepted the offer of proof. What was most telling is not that it is

based upon hearsay, it’s based upon what you said, you did it, you’re looking

to make it right now. That reason that you’re looking to make it right is

because they found it.

-7-

In considering whether or not probation will serve the ends of justice, the court

finds that it won’t. This offense with a nine[-]year sentence is particularized

by what we’re talking about today or what the court has already said. But also

this is not a sentence that, this is not a situation where we can say to this

community that you can do these things that you did, that you can have these

circumstances and then be probated. That’s not something that anyone

expected as they came in this courtroom today. And it is not of deterrent value

to this community and it’s not to the defendant, who has been on probation and

after being charges has admitted to committing a D felony.

The court does then look to what the state has asked and what the court must

look to, which is 40-35-103. It says that sentences which involve confinement

should be based upon the following considerations and there’s several that the

court should look at. One of them is Sub. 1, Sub. A. The state has argued that

and the court does not find that to be appropriate. But the court does find that

Sub. B is and it says confinement is necessary to avoid depreciating the

seriousness of this offense and the court finds that confinement is particularly

suited to provide an effective deterrence to others in this community who

would be likely to go out and do the same thing. Likely to commit similar

offenses.

This same statute has a part to it, which is part 5, and part 5 says the potential

or lack of potential for rehabilitation or treatment of the defendant should be

considered in determining the sentence alternative, that is whether it’s

appropriate for probation or the length and the term to be imposed. We

already know the length and the term to be imposed. But we should look to

see whether the potential for rehabilitation is something that gives this court

the understanding that probation is appropriate and the court finds that it’s not.

Because of the priors and because of what happened since this even. And so

part 5 is considered by the court, that’s 40-35-103, as it sentences the

defendant today to a sentence to serve in the Department of Correction until

they determine he is to be released.

In determining “the specific sentence and the appropriate combination of sentencing

alternatives,” the trial court must consider: (1) the evidence at the trial and the sentencing

hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to

sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved;

(5) evidence and information offered by the parties on the applicable mitigating and

enhancement factors; (6) any statistical information provided by the administrative office of

the courts as to sentencing practices for similar offenses in Tennessee; and (7) any statement

-8-

the defendant wishes to make in the defendant’s own behalf about sentencing. Tenn. Code.

Ann. § 40-35-210(b).

Our sentencing law provides that a defendant who does not possess a criminal history

showing a clear disregard for society’s laws and morals, who has not failed past rehabilitation

efforts, and who is an especially mitigated or standard offender convicted of a Class C, D,

or E felony, should be considered as a favorable candidate for alternative sentencing options

in the absence of evidence to the contrary. T.C.A. § 40-35-102(5), (6). Additionally, a trial

court is “not bound” by the advisory sentencing guidelines; rather, it “shall consider” them.

Id. § 40-35-102(6)(D). We note that “the determination of whether the [defendant] is entitled

to an alternative sentence and whether the [defendant] is entitled to full probation are

different inquiries.” State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). The

defendant has the burden of establishing his or her suitability for full probation, even if the

defendant should be considered a favorable candidate for alternative sentencing. T.C.A. §

40-35-303(b); Boggs, 932 S.W.2d at 477. In determining whether to grant probation, the

court must consider the nature and circumstances of the offense; the defendant’s criminal

record; his or her background and social history; his or her present condition, both physical

and mental; the deterrent effect on the defendant; and the defendant’s potential for

rehabilitation or treatment. State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002).

In determining whether incarceration is appropriate, the trial court must consider if:

(A) Confinement is necessary to protect society by restraining a defendant who

has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the

offense or confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently

been applied unsuccessfully to the defendant....

T.C.A. § 40-35-103(1); see also State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008).

Defendant was an eligible candidate for probation. See T.C.A. § 40-35-102(6)(A).

However, Defendant was convicted of a Class B felony therefore, he is not considered a

favorable candidate for alternative sentencing options. Tenn. Code Ann. §§ 39-14-105(5);

40-35-102(6)(A).

-9-

Here, the trial court did not abuse its discretion in denying probation or split

confinement. The trial court, as recited above, denied probation essentially based on

Defendant’s lack of potential for rehabilitation and the nature and circumstances of the

offenses. The trial court found confinement to be necessary to avoid depreciating the

seriousness of the offenses. Although Defendant’s criminal record only consists of two

misdemeanor offenses, one of those offense involved underage possession and consumption

of alcohol while defendant was driving. Defendant received probation for each of his

convictions which he successfully completed yet he continued to commit crimes. The trial

court properly pointed out that Defendant committed the present offense on March 2, 2012,

and in July of 2012, Defendant and another individual stole a cattle trailer and dismantled it

to sell for scrap metal. Defendant did not decide to talk to the officers and “make things

right” until he learned that they had located the damaged and dismantled trailer.

In this case Defendant and his two passengers consumed a of bottle of Jagermeister,

and one of the passengers told police that it was mixed with a Monster energy drink.

Defendant’s blood alcohol content was determined to be .10. Defendant was traveling

eighty-four miles per hour in a forty-five mile per hour zone when his truck struck the elderly

victim’s car head on killing him. Sergeant Mercer testified that the victim “had injuries to

his left leg; his right ankle; broken, broken bones; a crushed femur; compressed vertebrae[]

in his back; abdomen, injuries to his abdomen area.” The cause of the victim’s death was

determined to be multiple blunt force injuries. The victim was a highly decorated World War

II veteran who had just left the nursing home where he had taken meals that he had prepared

to his wife and special needs daughter. The victim’s family members testified that the

victim’s wife, who had Alzheimer’s disease, lived only one-hundred and fifteen days after

the victim’s death. She refused to eat after the victim’s death, and she “spoke very few

words, except to call out [the victim’s] name.” The victim’s special needs daughter

continuously asks for the victim.

For the foregoing reasons, the trial court properly ordered Defendant to serve his nine-

year sentence in confinement. The Defendant is not entitled to relief on this issue.

The judgment of the trial court is affirmed.

_______________________________________

THOMAS T. WOODALL, PRESIDING JUDGE

-10-