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State v. Keathly5/21/2003
twithstanding, in State v. Rhodes, 917 S.W.2d 708, 714 (Tenn. Crim. App. 1995), this court held that enhancement factor (10) does not apply to vehicular assault where the record does not indicate that any other person was actually threatened by the Appellant's driving because "vehicular assault [unquestionably] reflects the legislature's appreciation of the substantial risk of and actual degree of harm that results from DUI caused injury." Id.
While the trial court's rationale does not indicate that any other person was actually threatened by the Appellant's driving, we find that the record sufficiently corroborates the application of enhancement factor (10). When the Appellant collided with the victim's vehicle, the victim's vehicle "clipped" the trailer in front of him. The trailer was attached to Michael Cantrell's truck. Clearly, Cantrell was in danger due to the Appellant's driving. This factor was properly applied. Upon remand, the trial court shall determine the appropriate weight to be given this factor.
Upon de novo review, the State asserts that application of Tennessee Code Annotated Section 40-35-114(6), the personal injuries inflicted upon or the amount of damage to property sustained by or taken from the victim was particularly great, is appropriate, "not based on the injuries suffered by the defendant, but based upon the damage to the victim's truck." In State v. John D. Neblett, No. 01C01-9805-CC-00231 (Tenn. Crim. App. at Nashville, Sept. 24, 1999), perm. to appeal denied, (Tenn. 2001), this court upheld the trial court's application of enhancement factor (6) where a vehicular assault victim's car was totaled during the wreck. There is no proof in the record concerning the amount of the victim's property loss resulting from the collision, i.e., the condition or worth of the victim's 1990 black Ford pickup. The State, upon remand, must provide proof of "particularly great" property loss to support application of this factor.
B. Probation
Next, the Appellant argues that the trial court erroneously denied full probation. Because the Appellant was convicted of a class D felony, he is entitled to the presumption that he is a favorable candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6) (1997). With certain statutory exceptions, probation must be automatically considered by the trial court if the sentence imposed is eight years or less. Tenn. Code Ann. § 40-35-303(b). However, a defendant has the burden of establishing his suitability for full probation, even if the defendant is entitled to the statutory presumption of alternative sentencing. State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995), overruled on other grounds, State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000); see also Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1996).
To meet the burden of establishing suitability for total probation, an appellant must demonstrate that probation will "subserve the ends of justice and the best interest of both the public and the defendant." Bingham, 910 S.W.2d at 456. When deciding suitability for probation, although not controlling, the sentencing court should use the following criteria: (1) the nature and circumstances of the criminal conduct involved, Tennessee Code Annotated § 40-35-210(b)(4); (2) the defendant's potential or lack of potential for rehabilitation, including the risk that during the period of probation the defendant will commit another crime, Tennessee Code Annotated § 40-35-103(5) (1997); (3) whether a sentence of full probation would unduly depreciate the seriousness of the offense, Tennessee Code Annotated § 40-35-103(1)(B); and (4) whether
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