State of Tennessee v. Tharcisse John Nkurunziza

04/30/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

December 16, 2020 Session

STATE OF TENNESSEE v. THARCISSE JOHN NKURUNZIZA

Appeal from the Criminal Court for Knox County

No. 114309 Kyle A. Hixson, Judge

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No. E2020-00326-CCA-R3-CD

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The Appellant, Tharcisse John Nkurunziza, pled guilty in the Knox County Criminal Court

to vehicular assault, a Class D felony, with the trial court to determine the length and

manner of service of the sentence. After a sentencing hearing, the trial court sentenced him

as a Range I, standard offender to four years to be served as ten months in jail followed by

supervised probation. On appeal, the Appellant claims that his sentence is excessive

because the trial court misapplied enhancement factors and that the trial court erred by

denying his request for full probation. The State acknowledges that the trial court

misapplied two of the three enhancement factors but contends that the record justifies the

sentence. Based upon the oral arguments, the record, and the parties’ briefs, we agree with

the State and affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY THOMAS,

JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Jonathan P. Harwell (on appeal) and Carter Pack (at guilty plea and sentencing hearings),

Knoxville, Tennessee, for the appellant, Tharcisse John Nkurunziza.

Herbert H. Slatery III, Attorney General and Reporter; Cody N. Brandon, Assistant

Attorney General; Charme P. Allen, District Attorney General; and Gregory Eshbaugh,

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

OPINION

I. Factual Background

In November 2018, the Knox County Grand Jury indicted the Appellant for

vehicular assault, reckless endangerment, driving under the influence (DUI) per se, DUI,

and failing to provide proof of financial responsibility. In October 2019, he pled guilty to

vehicular assault, and the State dismissed the remaining charges. Pursuant to the plea

agreement, the trial court was to determine the length and manner of service of the

sentence.

At the Appellant’s guilty plea hearing, the State gave the following factual account

of the crime:

Your Honor, had this case gone to trial, the State would expect to show

through the testimony of the witnesses listed in the indictment that on the 5th

day of April 2017, officers received reports at approximately 11:37 in the

evening, reports of a gray Chevrolet Impala driving the wrong direction on

I-40 eastbound near Asheville Highway. At 11:40 p.m., officers received a

second call of a head-on collision at I-40 eastbound near I-640.

Upon arrival, officers found the defendant behind the wheel of a gray

Chevrolet Malibu bearing tag V5604D. They found that that had struck a

Ford SUV head-on. That Ford was driven by Mr. Tedder. Officers observed

the defendant had a strong odor of an alcoholic beverage about his person,

was disoriented. He was asked about a blood draw, Your Honor. Did refuse

to provide a blood draw at that time. Officer Dorwart was able to obtain a

search warrant for Mr. Nkurunziza’s blood. That was executed

approximately three hours after the crash, sent to the TBI where it was tested.

It came back as a .207.

Mr. Tedder was transported to the University of Tennessee Medical

Center for his injuries, which did include an open displaced calcinosis

fracture of his right calcinosis as well as a distal femoral parasitic fracture,

again, on the right leg, which required extensive treatment and recovery,

Your Honor. It also involved debridement of the tissue as well as the bone

on parts of Mr. Tedder’s right leg.

Furthermore, Mr. Nkurunziza’s medical records revealed that there

was a blood alcohol test performed by the hospital approximately two hours

after the crash, so an hour before the TBI draw was accomplished, which

showed that his BAC at that time was .237. That was the serum so it would

be a little higher. Mr. Nkurunziza also made a statement to medical

personnel, as reflected in the medical records, that said, “I drink for a living.”

All of these events did occur in Knox County, Tennessee.

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After the State completed its recitation of the facts, the trial court asked defense counsel if

there were any “[a]dditions or corrections,” and defense counsel said no.

The trial court held a sentencing hearing on January 30, 2020. At the outset of the

hearing, the State introduced the Appellant’s presentence report into evidence. According

to the report, the then twenty-five-year-old Appellant was single but had a girlfriend with

whom he had two young daughters. The report stated that the Appellant was born in

Burundi, Africa; was one of eight children; and was raised in refugee camps until he came

to Tennessee in 2015. The Appellant stated in the report that he currently lived with his

parents and younger siblings but that he saw his children regularly and paid $530 per month

in child support. The Appellant stated in the report that he attended high school in Tanzania

but that he dropped out in the ninth grade. He described his mental and physical health as

“good,” stated that he last consumed alcohol in 2019, and denied the use of illegal or

nonprescribed drugs. The report showed that the Appellant worked as a sales associate for

Leisure Pools and Spas from January 2017 to December 2019 and that he began working

as a laborer for Express Personnel in January 2020. A risk assessment was included in the

presentence report. The assessment showed the Appellant to be high risk in the areas of

residential and education needs and to be low risk for friends, attitudes and behaviors,

aggression, mental health, alcohol and drug use, family, and employment.

Roney Tedder gave an oral victim impact statement. Mr. Tedder said that the crash

broke his femur bone, that he had metal in his leg, and that he was “stopped all the time”

when passing through metal detectors. After the crash, Mr. Tedder had to keep his foot

elevated for seven months, lost his job as a commission sales representative because he

could not meet with his customers or obtain new customers, and lost over one million

dollars in sales. At the time of the sentencing hearing, Mr. Tedder still could not “function

in [his] job duties” because the crash damaged his lymph system, causing his foot to swell.

Mr. Tedder’s daughter, who was a student at the University of Tennessee at Chattanooga

in April 2017, also was impacted and left school while studying for exams to be with him

in the hospital. Mr. Tedder’s brother gave up three weeks of vacation time to stay with

him and help him at home. At the time of the crash, Mr. Tedder had a new girlfriend. After

the crash, though, he was unable to “go out” or take her to dinner, so the crash “cost [him]

a relationship.” He said that he had to take Advil every morning “just to help me get

started” and that he no longer could go on hikes or play sports. He stated that his mobility

was permanently affected, that he had difficulty going up and down stairs, and that the

nerves in his foot were damaged. Mr. Tedder stated that he had undergone three surgeries

at UT Medical Center and four surgeries at Vanderbilt and that additional surgeries may

be required due to “a multitude of injuries” and complications. Mr. Tedder requested that

the trial court sentence the Appellant to “the maximum of whatever penalty he can get.”

The Appellant made a brief allocution in which he stated,

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From the bottom of my heart, I want to apologize to that guy from the bottom

of my heart. I’m so sorry. And that I’m really sorry for the State. I just have

to say sorry. I never -- my wish is tell our kids like how I tell other people -

- that’s where I live -- drink and driver is danger. It can lose somebody’s life

and it can lose your life too and your future. I would never drink and drive

in my life again. And I apologize. I’m so sorry to him. That’s all I can say.

The State argued that three enhancement factors were applicable to the Appellant’s

sentence. First, the State contended that enhancement factor (1) regarding the Appellant’s

prior criminal history was applicable because the Appellant “had several run-ins with law

enforcement in Knox County” after he committed the offense in this case. Specifically,

the Appellant was charged with domestic assault and patronizing prostitution. The State

claimed that although both of the charges were dismissed, enhancement factor (1) was

applicable because the Appellant “certainly [had] some criminal history.”

Next, the State argued that enhancement factor (6) regarding the victim’s injuries

being particularly great was applicable. The State noted that serious bodily injury was an

element of vehicular homicide but claimed that the factor still applied because “there are

degrees of serious bodily injury, and the State would submit that this was a relatively

aggravated case as far as that’s concerned.” Finally, the State argued that enhancement

factor (10) regarding the defendant’s having no hesitation about committing a crime when

the risk to human life was high was applicable because the Appellant was driving the wrong

way on Interstate 640, which was “obviously extraordinarily dangerous,” while having a

blood alcohol content of “two and a half times over the .08.” The State requested that the

trial court give “some weight” to enhancement factors (1) and (6) but give “great weight”

to enhancement factor (10) and sentence the Appellant to four years.

Regarding the manner of service of the sentence, the State described the victim’s

injuries as “horrific” and asserted that this case easily could have ended up being a

vehicular homicide case. The State again contended that driving the wrong way on the

interstate was “extraordinarily dangerous” and stated that the Appellant “placed Lord only

knows how many people in danger of being hit and injured.” The State argued that the

facts of the case were “particularly egregious” and, therefore, that some confinement was

necessary to avoid depreciating the seriousness of the offense. The State requested that the

Appellant serve one year in confinement with the remainder to be served on probation.

Defense counsel responded that enhancement factor (1) was inapplicable because

the Appellant did not have a criminal history and that enhancement factors (6) and (10)

were inapplicable because they were inherent in the offense of vehicular assault. Defense

counsel contended that the trial court should mitigate the Appellant’s sentence because he

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lacked a criminal history, was only twenty-two years old at the time of the crime,

voluntarily completed DUI school, voluntarily submitted to an alcohol and drug

assessment, and accepted responsibility for the crime “by pleading guilty blind.” Defense

counsel requested that the trial court sentence the Appellant to two or three years and that

he serve the entire sentence on probation.

The trial court noted that the range of punishment for a Range I, standard offender

convicted of a Class D felony was two to four years. See Tenn. Code Ann. § 40-35-

112(a)(4). The trial court found that enhancement factor (1), that “[t]he defendant has a

previous history of criminal convictions or criminal behavior, in addition to those necessary

to establish the appropriate range,” was applicable to the Appellant’s sentence. Tenn. Code

Ann. § 40-35-114(1). The trial court noted that while the Appellant’s criminal history was

“not as extensive as what we are used to seeing,” the Appellant “doesn’t come before the

court with entirely clean hands, particularly with picking up another charge while this case

was pending.” The trial court found that enhancement factor (6), that “[t]he personal

injuries inflicted upon . . . the victim was particularly great,” also was applicable. Tenn.

Code Ann. § 40-35-114(6). The trial court found, though, that the court was “limited in

the amount of weight” it could place on enhancement factor (6) because serious bodily

injury was an element of the offense. Finally, the trial court found that enhancement factor

(10), that “[t]he defendant had no hesitation about committing a crime when the risk to

human life was high,” was applicable, stating,

I don’t think the defendant intentionally got on the interstate going the wrong

way, but he did intentionally ingest alcohol that night and he ingested more

than two drinks to get to a .207. That is a high level of intoxication, and to

get behind the wheel of a car in that shape and in that condition was certainly

a decision that he made that had very, very, very dire consequences for an

innocent citizen, and the defendant now is facing the consequences that he

has incurred by that decision.

Tenn. Code Ann. § 40-35-114(10). The trial court found that no mitigating factors were

applicable and imposed a four-year sentence.

As to the manner of service of the sentence, the trial court noted that the Appellant

“seem[ed] to have a lot of things going for him personally in terms of his family,” was

employed and trying to contribute to society, and was trying to build a life in this country.

However, the trial court found that confinement was necessary to avoid depreciating the

seriousness of the offense and that confinement was particularly suited to provide an

effective deterrence to others likely to commit similar offenses. See Tenn. Code Ann. §

40-35-103(1). Accordingly, the trial court ordered that the Appellant serve ten months of

his four-year sentence in jail followed by supervised probation.

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II. Analysis

The Appellant contends that his four-year sentence is excessive because the trial

court misapplied all three enhancement factors and that the trial court erred by denying his

request for full probation except for the statutory minimum jail sentence. The State

acknowledges that the trial court misapplied enhancement factors (1) and (6) but argues

that the trial court properly applied enhancement factor (10), which justified the

Appellant’s four-year sentence. The State also argues that the record supports the trial

court’s denial of full probation. We agree with the State.

This court reviews the length, range, and manner of service of a sentence imposed

by the trial court under an abuse of discretion standard with a presumption of

reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); State v. Caudle, 388

S.W.3d 273, 79 (Tenn. 2012) (applying the standard to alternative sentencing). In

determining a defendant’s sentence, the trial court considers the following factors: (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) evidence and information offered

by the parties on enhancement and mitigating factors; (6) any statistical information

provided by the administrative office of the courts as to sentencing practices for similar

offenses in Tennessee; (7) any statement by the defendant in his own behalf; and (8) the

potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210;

see also Bise, 380 S.W.3d at 697-98. The burden is on the Appellant to demonstrate the

impropriety of his sentence. See Tenn. Code Ann. § 40-35-401, Sent’g Comm’n Cmts.

In determining a specific sentence within a range of punishment, the trial court

should consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of punishment is the

sentence that should be imposed, because the general assembly set the

minimum length of sentence for each felony class to reflect the relative

seriousness of each criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as

appropriate, by the presence or absence of mitigating and enhancement

factors set out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c).

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Although the trial court should consider enhancement and mitigating factors, the

statutory factors are advisory only. See Tenn. Code Ann. § 40-35-114; see also Bise, 380

S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our supreme court has

stated that “a trial court’s weighing of various mitigating and enhancement factors [is] left

to the trial court’s sound discretion.” Carter, 254 S.W.3d at 345. In other words, “the trial

court is free to select any sentence within the applicable range so long as the length of the

sentence is ‘consistent with the purposes and principles of [the Sentencing Act].’” Id. at

343 (quoting Tenn. Code Ann. § 40-35-210(d)). Appellate courts are “bound by a trial

court’s decision as to the length of the sentence imposed so long as it is imposed in a

manner consistent with the purposes and principles set out in sections -102 and -103 of the

Sentencing Act.” Id. at 346.

Regarding alternative sentencing, a defendant is eligible for alternative sentencing

if the sentence actually imposed is ten years or less. See Tenn. Code Ann. § 40-35-303(a).

The Appellant’s sentence meets this requirement. Moreover, a defendant who is an

especially mitigated or standard offender convicted of a Class C, D, or E felony should be

considered a favorable candidate for alternative sentencing absent evidence to the contrary.

See Tenn. Code Ann. § 40-35-102(6). In the instant case, the Appellant is considered to

be a favorable candidate for alternative sentencing because he is a standard offender.

The following sentencing considerations, set forth in Tennessee Code Annotated

section 40-35-103(1), may constitute “evidence to the contrary”:

(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.

State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, a court

should consider a defendant’s potential or lack of potential for rehabilitation when

determining if an alternative sentence would be appropriate. See Tenn. Code Ann. § 40-

35-103(5). A defendant with a long history of criminal conduct and “evincing failure of

past efforts at rehabilitation” is presumed unsuitable for alternative sentencing. Tenn. Code

Ann. § 40-35-102(5).

During the sentencing hearing, the trial court stated as follows:

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Of course, this Court was not present for the plea hearing, and therefore, did

not hear the stipulation of facts in this case. So the Court at this point is

relying upon the official version that’s set forth in the PSI, but the Court will

note that does not contain any information concerning the results of the blood

draw.

At that point, the State read the recitation of facts from the guilty plea hearing transcript to

the trial court. Thereafter, the trial court asked defense counsel, “Does that fairly state the

stipulated facts that were set forth in the original plea hearing? Defense counsel responded

that he did not recall stipulating to the results of the hospital blood draw, which found that

the Appellant’s blood alcohol content was .23, or to the Appellant’s stating to hospital

personnel, “I drink for a living.” The State agreed to “waive consideration of the hospital

blood” but stated that the Appellant’s comment to hospital personnel was “definitely”

included in the recitation of facts at the guilty plea hearing. The trial court ruled that it

would not consider “the .23 level in the blood serum.” We note, however, that the State’s

recitation of facts at the guilty plea hearing included that the Appellant’s serum blood

alcohol content was .23 two hours after the crash. After the State’s recitation, the trial court

asked defense counsel if there were any corrections, and defense counsel said no.

Therefore, the Appellant’s having a blood alcohol content of .23 was properly before the

trial court at sentencing.

Turning to the Appellant’s claim that his sentence is excessive, the Appellant’s

presentence report does not reflect any criminal history that would justify applying

enhancement factor (1) to his sentence. Although the presentence report shows that the

Appellant was charged with committing two traffic offenses on April 21, 2018, and

patronizing prostitution on July 21, 2017, the report also shows that the charges were

dismissed. A trial court should not use evidence showing mere arrests, without more, to

enhance a sentence. State v. Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993)

(citing State v. Newsome, 798 S.W.2d 542, 543 (Tenn. Crim. App. 1990)). A trial court

may consider past criminal behavior which was the basis of an arrest if it is established by

a preponderance of the evidence. State v. Carico, 968 S.W.2d 280, 287 (Tenn. 1998).

Here, the charges against the Appellant were dismissed, and as the trial court noted, the

State did not present any evidence to establish the criminal behavior by a preponderance

of the evidence. Moreover, enhancement factor (6) cannot be used to enhance a sentence

for vehicular assault because “particularly great” injury is inherent in the offense, which

requires that the victim suffer serious bodily injury.1 State v. William Jeffery Sweet, No.

1

Tennessee Code Annotated section 39-13-106(a) provides, “A person commits vehicular assault

who, as the proximate result of the person’s intoxication as set forth in § 55-10-401, recklessly causes

serious bodily injury to another person by the operation of a motor vehicle.”

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E2008-00100-CCA-R3-CD, 2009 WL 2167785, at *15 (Tenn. Crim. App. at Knoxville,

July 21, 2009) (relying on State v. Jones, 883 S.W.2d 597,602 (Tenn. 1994)). Thus, the

trial court erred by applying enhancement factors (1) and (6).

The Appellant contends that the trial court also misapplied enhancement factor (10)

because the record fails to show that a person other than the victim was put at risk. We

disagree. As noted by the Appellant, this court held in State v. Rhodes, 917 S.W.2d 708,

714 (Tenn. Crim. App. 1995), that enhancement factor (10) does not apply to vehicular

assault where the record does not indicate that any other person was actually threatened by

defendant’s driving because “vehicular assault [unquestionably] reflects the legislature’s

appreciation of the substantial risk of and actual degree of harm that results from [the]

caused injury.” However, this court has held that a trial court did not err by applying

enhancement factor (10) to a sentence for vehicular assault when the record showed that

the defendant, who had a blood alcohol content of .281, crossed into the opposite lanes on

an interstate that was within the city limits of an urban area and struck the victim’s vehicle

head-on. State v. Davis Oliver Brown, No. 03C01-9608-CR-00313, 1997 WL 785671, at

*3 (Tenn. Crim. App. at Knoxville, Dec. 16, 1997).

Similarly, the Appellant, who had a serum blood alcohol content of .23 two hours

after the crash, traveled westbound in the eastbound lanes of Interstate 40 near Asheville

Highway and struck Mr. Tedder’s vehicle head-on near Interstate 640. The proof presented

at the guilty plea hearing was that the police received reports, in the plural, of the

Appellant’s driving the wrong way on the interstate before he collided with Mr. Tedder.

Therefore, the record sufficiently corroborates the trial court’s application of enhancement

factor (10).

Although the trial court misapplied enhancement factors (1) and (6), the trial court

gave the factors slight weight. Additionally, our supreme court has explained that a trial

court's “misapplication of an enhancement or mitigating factor does not invalidate the

sentence imposed. . . . So long as there are other reasons consistent with the purposes and

principles of sentencing, as provided by statute, a sentence imposed by the trial court within

the appropriate range should be upheld.” Bise, 380 S.W.3d at 706. In this case,

enhancement factor (10) was applicable to the Appellant’s sentence, and the trial court

gave it greater weight than enhancement factors (1) and (6). Thus, we conclude that the

trial court did not abuse its discretion by imposing a four-year sentence.

As to the manner of service of the Appellant’s sentence, the Appellant claims that

the trial court “did not point to anything in the offense committed here that established it

was a particularly egregious vehicular assault under the Trent standard” and that the trial

court’s finding of the need for deterrence “was unsupported by anything in the record.”

The trial court stated that this was “a very difficult case” but found that some period of

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confinement was necessary in order to avoid depreciating the seriousness of the offense

and to deter the Appellant and others. Generally, when denying alternative sentencing

based on the seriousness of the offense alone, “‘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 than confinement.” State v. Trotter, 201

S.W.3d 651, 654 (Tenn. 2006) (quoting State v. Grissom, 956 S.W.2d 514, 520 (Tenn.

Crim. App. 1997)). In order for a a trial court to deny probation solely on the basis of the

offense itself, “the circumstances of the offense as particularly committed in the case under

consideration must demonstrate that the defendant committed the offense in some manner

more egregious than is contemplated simply by the elements of the offense. State v. Trent,

533 S.W.3d 282, 292-93 (Tenn. 2017) (emphasis in the original).

Likewise, in State v. Hooper, 29 S.W.3d 1, 10-12 (Tenn. 2000), our supreme court

specifically noted the following non-exclusive factors for consideration when denying

probation solely upon the basis of deterrence:

(1) Whether other incidents of the charged offense are increasingly

present in the community, jurisdiction, or in the state as a whole;

(2) Whether the defendant’s crime was the result of intentional,

knowing, or reckless conduct or was otherwise motivated by a desire to profit

or gain from the criminal behavior;

(3) Whether the defendant’s crime and conviction have received

substantial publicity beyond that normally expected in the typical case;

(4) Whether the defendant was a member of a criminal enterprise, or

substantially encouraged or assisted others in achieving the criminal

objective; and

(5) Whether the defendant has previously engaged in criminal conduct

of the same type as the offense in question, irrespective of whether such

conduct resulted in previous arrests or convictions.

Our supreme court noted in State v. Sihapanya, 516 S.W.3d 473, 476 (Tenn. 2014),

that “the heightened standard of review [from Hooper and Trotter] that applies to cases in

which the trial court denies probation based on only one of these factors is inapplicable”

when the trial court “combined the need to avoid depreciating the seriousness of the offense

with the need for deterrence and the nature and circumstances of the offense.” This court

has explained that according to Sihapanya,

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[I]f only one factor found in Tennessee Code Annotated section 40-35-

103(1) is utilized by the trial court, the trial court must make additional

findings. If, however, the trial court bases the denial of alternative sentencing

on more than one factor, we review the denial to determine if the trial court

abused its discretion.

State v. Robert Allen Lester, Jr., No. M2014-00225-CCA-R3-CD, 2014 WL 5501236, at

*5 (Tenn. Crim. App. at Nashville, Oct. 31, 2014).

In the instant case, the trial court found that alternative sentencing should be denied

because of the seriousness of the offense and also because of the need for deterrence.

Therefore, based upon Sihapanya, the trial court was not required to make further specific

findings. See State v. Joseph D. Sexton, No. M2017-00735-CCA-R3-CD, 2018 WL

300532, at *4 (Tenn. Crim. App. at Nashville, Jan. 5, 2018). Nevertheless, the Appellant

is correct in that the State did not present any proof at the suppression hearing to support

the need for deterrence. See State v. Ashby, 823 S.W.2d 166, 170 (Tenn. 1991) (stating

that the finding of deterrence must be supported by proof); State v. Demoss, No. M2019-

01583-CCA-R3-CD, 2020 WL 4199987, at *9 (Tenn. Crim. App. at Nashville, July 22,

2020) (relying on Ashby, 823 S.W.2d at 170), perm. app. denied, (Tenn. Nov. 12, 2020).

Therefore, the trial court erred by denying the Appellant’s request for full probation based

on the need for deterrence.

In any event, the trial court found that the victim suffered “grave” injuries, that the

Appellant had “an extremely high level of intoxication,” and that it would be inappropriate

to allow the Appellant to “walk out on paper.” This court has held that in vehicular assault

cases involving intoxicated drivers where the victim suffers severe injuries, some

confinement may be warranted in order to avoid depreciating the seriousness of the offense.

State v. Kyte, 874 S.W.2d 631, 633 (Tenn. Crim. App. 1993). Furthermore, this case

involved more than an intoxicated motorist causing serious bodily injury to another

motorist. It involved the Appellant, with a blood alcohol content almost three times the

legal limit, driving in the wrong lanes of an interstate late at night, crashing head-on into

the victim’s vehicle, and causing injuries so serious that the victim underwent seven

surgeries and had his mobility permanently affected. As the trial court noted, “[I]t is an

absolute miracle in this case that we have two human beings that survived this crash.”

Thus, we conclude that the trial court did not err by concluding that some confinement was

necessary to avoid depreciating the seriousness of the offense and by ordering that the

Appellant serve ten months in confinement.

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III. Conclusion

Based upon the oral arguments, the record, and the parties’ briefs, we conclude that

the trial court misapplied two enhancement factors but that the record justifies the

Appellant’s four-year sentence and his ten months in confinement. Therefore, we affirm

the judgment of the trial court.

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NORMA MCGEE OGLE, JUDGE

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