State of Tennessee v. Danny Lee Ross, Jr.

• Court: Court of Criminal Appeals of Tennessee
• Decided: March 25, 2008
• Docket: 01C01-94l0-PB-00365
• Status: Published

Opinion

FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

March 25, 2008 AT NASHVILLE

Cecil Crowson, Jr. MARCH SESSION, l995 Appellate Court Clerk

STATE OF TENNESSEE ) ) APPELLEE ) NO. 0lC0l-94l0-PB-00365 ) ) DAVIDSON COUNTY V. ) ) HON. JAMES R. EVERETT, JR. ) JUDGE DANNY LEE ROSS, JR. ) ) (Vehicular Homicide - 3 counts) APPELLANT )

FOR THE APPELLANT: FOR THE APPELLEE:

Edward T. Kindall Charles W. Burson Attorney at Law Attorney General 227 2nd Ave., North, 2nd Floor Nashville, TN 3720l William David Bridgers Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

Victor S. Johnson, III District Attorney General

Bernard F. McEvoy Asst. Dist. Attorney General Suite 500, Washington Square Bldg. 222 Second Avenue, South Nashville, TN 3720l

AFFIRMED

OPINION FILED:______________________

JERRY SCOTT, PRESIDING JUDGE OPINION

On February 10, 1994, the appellant was convicted by a jury of his peers

of three counts of vehicular homicide by intoxication.1 Following a sentencing

hearing, the appellant was sentenced to six years incarceration for each count

with each sentence to be served consecutively. Much aggrieved by his

convictions and resultant sentences, the appellant appeals from the judgment of

the trial court pursuant to Rule 3, Tenn. R. App. P.

On appeal, the appellant does not contest his convictions, but instead

challenges the appropriateness of the sentences imposed. He presents two

distinct issues for review by this Court: (a) whether the trial court erred in

enhancing the appellant's sentence to the maximum sentence within the

statutory range and (b) whether the trial court erred in ordering the sentences of

the appellant to be served consecutively. As to both issues, we find no error.

At approximately 8:40 p.m. on February 11, 1993, the appellant

proceeded through a red light at the intersection of Donelson Pike and Lakeland

Drive in Nashville, resulting in a fatal collision. Eyewitnesses testified that the

appellant, travelling in excess of the speed limit, failed to stop for the red light

and continued into the intersection without decelerating. The appellant's vehicle

struck the side of a vehicle driven by Pamela Tidwell and also occupied by her

seventeen year-old son, Blake Tidwell, and his fifteen year-old girlfriend, Keri

Scheib. The Tidwell vehicle was struck with sufficient momentum to propel it

into a third vehicle before coming to rest against a telephone pole. As a result of

the crash, Ms. Tidwell, her son, and his girlfriend sustained fatal injuries. After

striking the Tidwell vehicle, the appellant's vehicle spun into two additional

vehicles before coming to a rest. The appellant received only minor injuries as a

result of the collision.

1 The offense of vehicular homicide by intoxication is codified at Tenn. Code Ann. §39-13-213(a)(2).

2 DISCUSSION

In examining the propriety of a sentence rendered against a criminal

defendant, this court must conduct a de novo review based on the record. Tenn.

Code Ann. § 40-35-401(d). However, this court must presume that the

determinations made by the trial court are correct. Id. Therefore, if our review

reveals that the trial court imposed a lawful sentence pursuant to the Tennessee

Criminal Sentencing Reform Act of 1989 after having given proper consideration

and weight to the relevant sentencing factors under the Act and the sentence is

based on findings of fact which are adequately supported by the record, then we

may not disturb the sentence imposed by the trial court. State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991). Furthermore, the appellant has the

burden of establishing that the sentence rendered by the trial court was

erroneous. Sentencing Commission Comments to Tenn. Code Ann. § 40-35-

401(d); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); State v. Anderson,

880 S.W.2d 720, 727 (Tenn. Crim. App. 1994).

Concerning what constitutes an appropriate punishment, the Sentencing

Reform Act provides that the sentence imposed shall be one that is "justly

deserved in relation to the seriousness of the offense." Tenn. Code Ann. § 40-

35-102(2). The Act also mandates that the sentence be the least severe

measure necessary to achieve the purposes of the Act and that inequalities

should be avoided. Tenn. Code Ann. § 40-35-103(3),(4); see Ashby, 823 S.W.2d

at 168.

The portion of the Sentencing Reform Act of 1989 codified at Tenn. Code

Ann. § 40-35-210 established several specific procedures to be followed in the

sentencing process. This section mandates the trial court's consideration of the

following: (1) The evidence, if any, received at the trial and the sentencing

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

3 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 enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6)

any statement the defendant wishes to make in his own behalf about

sentencing. See Manning v. State, 883 S.W.2d 635, 638 (Tenn. Crim. App.

1994).

Establishing an appropriate sentence is a two-step process. Initially, the

trial court must determine the appropriate range of punishment for the offense.

Then the court must fix a particular sentence within the appropriate range. The

presumptive sentence shall be the minimum sentence in the range if no

enhancement or mitigating factors exist. Tenn. Code Ann. § 40-35-210(c). If

enhancement factors exist but there are no mitigating factors, which is the

situation in the present case, then the trial court may set the sentence above the

minimum in that range but still within the range. Tenn. Code Ann. § 40-35-

210(d).

Vehicular homicide by intoxication is a Class C felony, punishable by a

sentence "not less than three (3) nor more than six (6) years." Tenn. Code Ann.

§§ 39-l3-2l3(b), 40-35-112(a)(3). In setting the appellant's sentence at the

maximum sentence, the trial court found three enhancement factors were

applicable: (a) the appellant has a previous history of criminal behavior in

addition to those necessary to establish the appropriate range, Tenn. Code Ann.

§ 40-35-ll4(l); (b) the offense involved more than one victim, Tenn. Code Ann. §

40-35-ll4(3); and (c) the appellant had no hesitation about committing a crime

when the risk to human life was high. Tenn. Code Ann. § 40-35-114 (10). The

appellant challenges the trial court's findings concerning each of those factors.

The first enhancement factor applied by the trial court was that the

appellant "has a previous history of criminal convictions or criminal behavior in

4 addition to those necessary to establish the appropriate range." Tenn. Code

Ann. § 40-35-114(1). The record reveals that the appellant began drinking when

he was approximately fourteen years old. By age sixteen, he was getting drunk

three to four times per week. From the time of his mother's death until the night

of the offense, the appellant abused alcohol almost every night. The appellant

himself testified that he had operated a motor vehicle while intoxicated on

several occasions prior to the date of the fatal collision, and that he was arrested

for such an offense eight days prior to the collision. He further admitted that he

had experimented with marijuana, cocaine, and LSD beginning at the age of

fifteen. The appellant also stated that he knew that such conduct was illegal at

the time each offense transpired.

In his brief, the appellant states that the trial court's finding of this factor

based on his history of alcohol and drug abuse was "far fetched." We cannot

agree. Instead, we believe that if anything is far fetched, it is for one to argue,

after even a cursory review of the law of this State and the record in this case,

that the appellant's conduct did not constitute criminal behavior. In State v.

Massey, 757 S.W.2d 350, 352 (Tenn. Crim. App. 1988), this Court made it clear

that a trial court, in applying this enhancement factor, may consider not only prior

convictions, but also all prior criminal behavior, regardless of whether it resulted

in legal entanglements. See State v. Little, 854 S.W.2d 643, 652 (Tenn. Crim.

App. 1992)(trial court properly applied the enhancement factor where the record

contained evidence that the defendant had been involved in a number of prior

drug transactions). Moreover, it is of no consequence that the appellant was a

minor during the majority of his prior criminal behavior. See State v. Adams, 864

S.W.2d 31, 34 (Tenn. 1993)(where our Supreme Court noted that a previous

history of criminal conduct by a defendant while still a juvenile "may be

5 taken into account in fashioning a proper sentence."). The record is replete with

evidence justifying application of this factor.

Another enhancement factor applied by the trial court is that the offense

involved more than one victim. Tenn. Code Ann. § 40-35-114(3). Relying on

State v. Lambert, 741 S.W.2d 127, 134 (Tenn. Crim. App. 1987), the appellant

contends that this factor may not be used because he was convicted on a

separate count for each victim. Although we acknowledge the validity of

Lambert, it is distinguishable from the present case and, thus, not controlling.

In the recent case of State v. Raines, 882 S.W.2d 376, 384

(Tenn.Crim.App. l994), this Court defined "the word 'victim,' as used in Tenn.

Code Ann. § 40-35-114(3), [as] a person or entity that is injured, killed, had

property stolen, or had property destroyed by the perpetrator of the crime."

(footnote omitted). Several additional cases, although not specifically

delineating a definition of a victim, are relevant to a resolution of this issue. E.g.,

State v. Norris, 874 S.W.2d 590, 601 (Tenn. Crim. App. 1993)(factor applied

where defendant was convicted on separate counts of aggravated assault

concerning injuries inflicted upon passengers in the front seat of a vehicle, but

two passengers in the rear seat of the vehicle were also injured); State v.

Williamson, No. 03C01-9210-CR-00371, 1993 WL 335433, at *1 (Tenn. Crim.

App. Sept. 1, 1993)(factor applied in robbery conviction where, in the process of

stealing a purse, the defendant knocked the elderly lady carrying the purse into a

lady walking with her); Register v. State, No. 01C01-9210-CC-00329, 1993 WL

311529, at *4 (Tenn. Crim. App. Aug. 12, 1993)(factor applied to an aggravated

burglary conviction where the defendant forced a woman to surrender her

money and remove her panties while in the presence of her two-year-old son).

6 The record reflects that the appellant's running of the red light resulted in

a five car accident.2 One of the motorists involved in the accident testified at the

sentencing hearing concerning the nature and extent of the damage to her

automobile, as well as to an injury to her knee. Clearly, under Raines, the

owners of the three other vehicles, as well as the driver whose knee was injured,

could properly be considered victims.

The third enhancement factor employed by the trial court was that the

defendant had no hesitation about committing a crime when the risk to human

life was high. Tenn. Code Ann. § 40-35-114(10). Prior to the Sentencing Reform

Act of 1989, this Court found that the factor was properly applied in sentencing a

defendant who recklessly drove through streets crowded with motorists and

pedestrians prior to killing the particular victims for whose death he was charged.

State v. Lambert, 741 S.W.2d at 134. Recently, our Supreme Court, in

discussing the applicability of Tenn. Code Ann. § 40-35-114(10), cited

Lambert with approval. State v. Jones, 883 S.W.2d 597, 603 (Tenn. 1994).

In Jones, our Supreme Court, in discussing the proper usage of the

enhancement factor, explained: "as a practical matter, hesitation or lack of

hesitation does not submit readily to proof because of its subjective nature. The

more logical interpretation of this enhancement factor places the emphasis on

'risk to human life was high.'" 883 S.W.2d at 602. In an unpublished opinion,

State v. Bingham, No. 03C01-9404-CR-00127, 1995 WL 60003, at *2 (Tenn.

Crim. App. Feb. 14, 1995), this Court relied on Jones in finding:

Little, if any, emphasis is to be placed on whether the defendant "hesitated" before committing the crime. [Jones, 883 S.W.2d at 602.] . . . [W]here a high risk to human life is established with facts separate from those necessary to establish an element of the offense, the enhancement factor is not an essential element of the offense and may be applied if supported by the facts. In a vehicular homicide by recklessness case, if the proof that establishes a "high risk to human life" can be separated from the proof necessary to establish that the defendant's conduct "created

2 According to an investigating officer, excluding the vehicles of the appellant and Ms. Tidwell, three other vehicles were damaged in the crash.

7 a substantial risk of death or serious bodily injury to a person," then enhancement factor (10) is not an essential element of the offense. Therefore, enhancement factor (10) may be applied where the defendant creates a high risk to the life of a person other than the [deceased] victim, because the facts establishing the enhancement factor would be separate from the facts necessary to establish a high risk of death to a person.

Id. (citations omitted)(emphasis in original).

Turning to the facts of this case, which are quite similar to the facts in

Lambert, the trial court found that the proof adduced at trial was more than

ample to justify application of enhancement factor (10). We agree. The record

supports the finding that the appellant consumed alcohol intermittently

throughout most of the day on the date of the offense. Less than an hour before

the fatal collision, the appellant, while leaving a bowling alley where he was

involved in an altercation, stated, "I'm loaded and I ain't through yet." He then

proceeded to drive his vehicle out of the parking lot of the bowling alley at a

dangerously high rate of speed which was estimated to be forty miles per hour

by one witness. About ten minutes later and approximately seven miles from the

bowling alley, the fatal accident occurred when the appellant ran a red light and

began a chain of collisions. Witnesses testified that the appellant was travelling

far in excess of the speed limit and did not brake or otherwise appear to

decelerate as he entered the intersection. Moreover, the appellant admitted that

he was intoxicated that evening. The severity of the risk to human life posed by

the appellant's conduct is demonstrated by the fact that the lives of three people

were extinguished3 and another person was injured; the widespread nature of

the risk is demonstrated by the fact that five automobiles, including the

appellant's, sustained damage.

3 We do not utilize the fact that three deaths occurred as any sort of justification for applying enhancement factor (10), but instead reference the deaths to illustrate the extreme force with which the appellant's car entered the intersection, as well as the resultant dangers for all motorists who happened to be in and around the intersection.

8 In short, the appellant drove his vehicle through a red light into a crowded

intersection at an excessive rate of speed. The risks inherent in such conduct

were compounded by his diminished driving capacity due to his intoxication.

Clearly, the appellant's conduct posed a grave risk to the lives of all of the

motorists who were involved in the crash, as well as others who were in the

vicinity. Although the consequences which befell Ms. Tidwell, her son, and his

girlfriend cannot be properly employed to support application of the

enhancement factor, the extreme risks to the lives of the other motorists are

sufficient to justify the trial court's finding.

We find no error in the trial court's application of the three enhancement

factors or in the sentences imposed. The issue is without merit.

In his second issue on appeal, the appellant contends that the trial court

erred by finding that he is a "dangerous offender" and thus imposing consecutive

sentencing. Our review of the record indicates that the ruling of the trial court

was proper.

Subsection (a) of Tenn. Code Ann. § 40-35-115 provides that "[i]f a

defendant is convicted of more than one (1) criminal offense, the court shall

order sentences to run consecutively or concurrently as provided by the criteria

in this section." Subsection (b) delineates seven categories of multiple offenders

who can be ordered to serve consecutive sentences, one of which is the

"dangerous offender." Tenn. Code Ann. § 40-35-115(b)(4). In State v. Woods,

8l4 S.W.2d 378, 380 (Tenn.Crim.App. l99l), this Court explained the standard for

imposing consecutive sentencing on grounds that a defendant is a dangerous

offender, holding that the record must establish:

(a) the defendant's behavior indicates "little or no regard for human life," and he did not hesitate "about committing a crime in which the risk to human life is high," Tenn. Code Ann. §40-35-115(b)(4) . . .;

(b) the circumstances surrounding the commission of the offense are aggravated, Gray v. State, 538 S.W.2d at 393;

9 (c) confinement for an extended period of time is necessary to protect society from the defendant's unwillingness to "lead a productive life and [his] resort to criminal activity in furtherance of [his] anti-societal lifestyle," Gray v. State, 538 S.W.2d at 393; and

(d) the aggregate length of the sentences, if consecutive sentencing is ordered, reasonably relates to the offenses of which the defendant stands convicted. State v. Taylor, 739 S.W.2d [227, 230 (Tenn. 1987)].

see also State v. Norris, 874 S.W.2d 590, 601 (Tenn. Crim. App. 1993).

Concerning the first Woods factor, the trial court found that shortly before

the fatal collision, the appellant, referring to his alcohol consumption, made a

statement to the effect that "he was loaded and was not through yet." The trial

court found that the appellant was driving his vehicle at a very high speed, as

evidenced by the widespread damage to the automobiles in this case. The court

also relied on the fact that the appellant had been arrested for driving while

intoxicated the week prior to this offense, and was out on bond for that arrest

when this crime was committed. Moreover, we believe that the appellant's

admission that he was intoxicated that evening, his failing to stop for a red light,

and the number of individuals involved in and endangered by the crash, are

relevant.

The court found that the circumstances surrounding the offense were

aggravated in that the appellant was out on bond for a driving while intoxicated

arrest. The judge determined that at the time of the offense the appellant's state

of intoxication was advanced. Finally, the court emphasized that the conduct of

the appellant resulted in the termination of three innocent lives. The court

concluded by stating that it could hardly imagine circumstances which would be

more aggravating than those of this case.

With regard to the third Woods' factor, the trial court found that the

appellant has shown no remorse concerning his conduct or the deaths of three

innocent people. After the accident, the appellant denied being involved in the

10 collision, and later cursed the deceased victims. The court further determined

that the appellant has shown no potential for rehabilitation, specifically noting

that the appellant had not availed himself of the extensive alcohol-abuse

treatment program in the Metro jail.4

The final criterion or factor, that the aggregate length of the sentences

reasonably relate to the offenses of the appellant, was not specifically addressed

by the trial court in the record. Under certain circumstances, such as where the

evidence suggests some doubt as to what the outcome of the ruling would be or

where this omission was but one of a larger body of errors, justice would dictate

a remand to the trial court for further findings. Here, however, it is manifest to

this Court that the aggregate length of the sentences, eighteen years,5 is

reasonably related to the appellant's egregious conduct which resulted in the

senseless slaying of three people, including two teenagers.

In the recent case of State v. Timothy Michael Wilkerson, No. 02S01-

9406-CC-00033 (Tenn., Jackson, Aug. 21, 1995) (for publication), our Supreme

4 Our review of the record reveals that a Department of Correction employee testified at the sentencing hearing to the effect that the appellant failed to complete an alcohol treatment program that he was ordered to complete as a condition of his release on bond concerning his D.U.I. arrest which occurred eight days prior to the offenses involved sub judice. The employee stated that the director of the program requested the appellant to leave the program because the appellant was not sincerely interested in being rehabilitated or dealing with his alcohol problem. However, the appellant testified at the sentencing hearing that he was enrolled in a drug and alcohol treatment program at the prison.

In addition to the grounds stated by the trial court, careful review of the record discloses that the appellant has a history of displaying an unproductive and anti- societal lifestyle. The appellant testified that he began drinking alcohol at age fourteen or fifteen, and that by age fifteen he began experimenting with marijuana, cocaine, and LSD. According to his testimony, by age sixteen he was getting drunk three to four times per week. At the time of the offense, the appellant was drinking heavily almost every day. He testified that since age sixteen, he had driven on numerous occasions while under the influence of alcohol. Moreover, prior to the offense, the appellant dropped out of high school and moved in with a dancer who financially supported him. 5 As a Range I, Standard Offender, the appellant will be eligible for parole in approximately five and one-half years.

11 Court approved this Court's Woods opinion "only to the extent it applied the

principles set forth in (the Wilkerson) opinion." Slip Opinion at 12. Although our

examination of Wilkerson and Woods reveals nothing of significance in Woods

that actually conflicts with Wilkerson, we recognize that Wilkerson provides the

standards for Tennessee courts to follow in assessing the need for consecutive

sentencing.

In Wilkerson, our Supreme Court set forth two specific findings which the

court must make in imposing consecutive sentences, in addition to the general

principles of sentencing. The court must find that (l) "an extended sentence is

necessary to protect the public against further criminal conduct by the

defendant," and (2) that "the consecutive sentences must reasonably relate to

the severity of the offenses committed." Slip Opinion at l4.

Both of these criteria are met in this case. It is manifest that an extended

period of incarceration is necessary to protect the public from this drunken killer

and the consecutive sentences which aggregate eighteen years as a Range I

standard offender reasonably relate to the severity of the offenses - the

senseless killing of three innocent victims.

After a thorough review of the trial court's findings, as well as our

independent examination of the record, we cannot say the appellant has met his

burden of showing that the trial court erred in ordering his sentences to be

served consecutively.

12 Accordingly, we affirm.

___________________________________ JERRY SCOTT, PRESIDING JUDGE

CONCUR:

______________________________ JOSEPH M. TIPTON, JUDGE

______________________________ DAVID G. HAYES, JUDGE