State v. Christopher Gibbs ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBER, 1997 SESSION
February 20, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, ) No. 01C01-9611-CC-00464
)
Appellee, )
) Cheatham County
vs. )
) Honorable Robert E. Burch, Judge
CHRISTOPHER DALE GIBBS, )
)
) (Vehicular Homicide, Leaving the Scene)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
LIONEL BARRETT JOHN KNOX WALKUP
222 Second Ave. N. Attorney General & Reporter
Nashville, TN 37201
LISA A. NAYLOR
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
DAN MITCHUM ALSOBROOKS
District Attorney General
Court Square, P.O. Box 580
Charlotte, TN 37036-0580
JAMES W. KIRBY
Assistant District Attorney General
105 Sycamore St.
Ashland City, TN 37015-1806
OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT
JUDGE
OPINION
The defendant, Christopher Dale Gibbs, was convicted in a jury trial
in the Cheatham County Circuit Court of vehicular homicide by reckless driving, a
Class C felony. The defendant pleaded guilty to leaving the scene of an accident,
a Class E felony. As a Range I, standard offender, he received a six-year sentence
for vehicular homicide and a consecutive two-year sentence for leaving the scene.
In this direct appeal, the defendant challenges the sufficiency of the evidence and
contends that his sentences are excessive and that the trial judge erred in imposing
consecutive sentences.
We affirm the judgment of the trial court.
On July 5, 1995 at approximately 7:25 p.m., the defendant was driving
in his 1970 red Dodge Power Wagon along the River Road near Ashland City. As
he crested a hill, eyewitnesses saw the truck swerve onto the gravel shoulder and
sideswipe a road sign. The truck then veered farther off the road into the yard of
the eighty-seven year old victim, Frank Patterson Tant. Tant was pulling weeds
about six feet off the roadway when the truck struck him. The truck then bounced
over a culvert and eventually regained the road approximately sixty-five feet from
the sign. Two other motorists watched as the truck picked up speed. The
witnesses stopped about fifty yards below the accident and ran back to where the
victim’s body was lying in his daughter’s yard some twenty-three feet from the point
of impact.1 Finding no signs of life, they covered the body with a pink towel. When
the defendant attempted to turn off the River Road onto a side road about 3/4 mile
from the scene of the accident, he drove into a tree and then hit a fence post. At
that point, the defendant fled on foot. Two days later the defendant turned himself
in to the Cheatham County Sheriff’s Office.
1
Both witnesses testified that they thought someone had been thrown out
of the truck.
2
Sgt. Robert Brown, an accident reconstructionist, found pieces of
shattered glass, fragments of red paint, and pieces of red plastic at the scene. The
defendant’s red truck had a damaged headlight and a broken plastic bug deflector.
The truck’s undercarriage was damaged. Inside the truck were a Budweiser carton,
some cassette tapes, and radio speakers. Sgt. Brown was unable to estimate the
speed at which the truck was moving because it traveled over three different
surfaces -- pavement, gravel, and grass. However, eyewitnesses estimated that his
speed was between 50 and 55 miles per hour. The posted speed limit along that
stretch of road is 50 miles per hour. An FBI laboratory report indicated that the
paint fragments found at the scene were consistent with the paint on the
defendant’s truck.
Dr. Charles Harlan, who performed the autopsy, testified that the
victim died from multiple injuries including fractured ribs, multiple punctures to the
lungs, and fractured and dislocated vertebrae. The victim’s liver was torn into
several pieces and his aorta was severed. The doctor opined that the victim would
have died within one or two minutes of the impact.
Other state witnesses testified that the defendant had spent the day
boating and swimming. According to their testimony, the defendant drank only part
of one beer during the afternoon. At about four o’clock, the defendant and three
friends ate dinner. At that time, the defendant ordered two margaritas; however, he
did not finish the second drink. After leaving the restaurant alone, the defendant
stopped briefly at the home of Kenneth Woods. Woods testified that when he noted
that the defendant’s eyes were red and that the defendant appeared tired, he invited
him to stay and eat something, but the defendant declined the invitation.2
2
The state impeached Woods’s testimony with a video tape of an interview
Woods gave to a television news reporter. In the interview, Woods expressed
the opinion that the defendant had been under the influence of some intoxicant.
Woods made a similar statement to Sgt. Brown and to the grand jury. At trial,
however, he insisted that the defendant did not appear drunk other than his red
eyes. The record indicates that Woods was later indicted for perjury.
3
According to Renee Batey, who saw the defendant several hours after
the accident, the defendant told her that he was looking down to adjust a radio
sitting on the console beside him when he veered off the road. She said that the
truck was old and that she knew that the steering had a lot of slack in it. Although
the defendant did not testify at trial, he gave a brief statement to the sheriff. In his
statement, he admitted that he drove the truck that struck the victim. He said that
his head was hurting, and that his steering had some slack in it. He hit the victim
who “just popped up in front of him.” He did not mention the radio.3 The defense
rested without putting on any proof.
The trial court instructed the jury on vehicular homicide while driving
under the influence, a class B felony, and vehicular homicide by reckless operation
of a vehicle, a class C felony. After deliberating for several hours, the jury found the
defendant guilty of vehicular homicide by reckless operation of a vehicle.
The defendant now contends that the state has failed to prove the
element of recklessness beyond a reasonable doubt. He argues that the evidence
proves nothing more than momentary negligence because, according to the eye
witnesses, he was not speeding far in excess of the posted speed limit or driving
erratically prior to the accident. We disagree.
Since a jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, a convicted
defendant has the burden of demonstrating on appeal that the evidence is
insufficient. State v, Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In determining
that sufficiency, this court does not reweigh or reevaluate the evidence. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is entitled to
the strongest legitimate view of the evidence and all reasonable or legitimate
3
The written statement was not admitted into evidence at trial. The chief
deputy read it aloud for the jury.
4
inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75
(Tenn. 1992). It is the appellate court’s duty to affirm the conviction if the evidence,
viewed under these standards, was sufficient for any rational trier of fact to have
found the essential elements of the offenses beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes, 875
S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e).
A criminal offense may be established exclusively by circumstantial
evidence. Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); State v. Jones, 901
S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire, 634 S.W.2d 608 (Tenn.
Crim. App. 1987). However, before an accused may be convicted of a criminal
offense based upon circumstantial evidence alone, the facts and circumstances
"must be so strong and cogent as to exclude every other reasonable hypothesis
save the guilt of the defendant." State v. Crawford, 225 Tenn. 478, 470 S.W.2d 610(1971); State v. Jones, 901 S.W.2d at 396. Inferences to be drawn from
circumstantial evidence are within the province of the trier of fact. This court may
not substitute its inferences for those drawn by the jury from the evidence. Liakas
v. State, 199 Tenn. 298, 286 S.W.2d 856, 859 (1956), cert. denied 325 U.S. 845,
77 S.Ct. 39 (1956); Farmer v. State, 574 S.W. 2d 49, 51 (Tenn. Crim. App. 1978).
To convict an accused of vehicular homicide due to recklessness, the
state must prove beyond a reasonable doubt that (a) the accused killed the victim
while operating a motor vehicle, (b) the killing was done recklessly, and (c) the killing
was “the proximate result of conduct creating a substantial risk of death or serious
bodily injury. Tenn. Code Ann. § 39-13-213(1)(a)(1997). A person acts recklessly
when he is “aware of but consciously disregards a substantial and unjustifiable risk
that the circumstances exist or the result will occur.” Tenn. Code Ann. § 39-11-
302(c)(1997). The risk must be such “that its disregard constitutes a gross deviation
from the standard of care that an ordinary person would exercise under all the
circumstances as viewed from the accused person’s viewpoint.” Id.While the case presented is a close case, a rational juror could
5
conclude beyond a reasonable doubt that the defendant was driving recklessly
when he struck Mr. Tant. We agree with the defendant that exceeding the speed
limit by five miles per hour does not, by itself, constitute a gross deviation from the
standard care that an ordinary person would exercise. See State v. Timothy Gose,
No. 03C01-9406-CR-00244, slip op. at 3 (Tenn. Crim. App., Knoxville, Jan. 29,
1996). In Gose, the defendant was driving roughly ten miles above the speed limit
when he glanced down at the floorboard because he thought his passenger had
dropped a cigarette. Slip op. at 1-2. The vehicle went off the roadway and struck
a mailbox. Id. at 2. The driver over-corrected, the brakes locked, the vehicle
crossed the center line and struck a dump truck. Id. This court affirmed a trial
court’s judgment of acquittal finding that the evidence was legally insufficient to
prove that the defendant acted recklessly. Id. at 3.
However, unlike Gose, other facts prove that this defendant’s conduct
was reckless. When the defendant arrived at Woods’s residence just a few
moments before the accident, Mr. Woods realized that something was wrong with
the defendant and urged him to stay. The defendant was also aware of a problem
because he spoke of the headache which had plagued him all afternoon. He
admitted that his truck’s steering was faulty. He knew that he had consumed some
alcoholic beverages which might affect his reaction time and his judgment. The
record indicates he chose to exceed the speed limit by a small margin. He lost
control of his truck as he rounded a curve at the crest of a hill. The truck hit a road
sign and then veered off at least six feet into Mr. Tant’s yard where it struck and
killed Mr. Tant. The truck traveled another 30 or 40 feet before it returned to the
roadway.
Also, under Tennessee law, the defendant’s flight from the scene
reflects culpability. Our courts view an attempt to avoid apprehension or
prosecution as relevant because it tends to “show guilt, consciousness of guilt, or
knowledge,” Buckingham v. State, 540 S.W.2d 660, 665 (Tenn. Crim. App. 1976);
6
Mitchell v. State, 3 Tenn. Crim. App. 153, 161, 458 S.W.2d 630, 633 (1970). Such
evidence may be considered by the trier of fact “as one of a series of circumstances
from which guilt may be inferred.” State v. Braggs, 604 S.W.2d 883, 886 (Tenn.
Crim. App. 1980); see State v. Harris, 839 S.W.2d 54, 74 (Tenn. 1992); State v.
Zagorski, 701 S.W.2d 808, 813 (Tenn. 1985); Hill v. State, 3 Tenn. Crim. App. 331,
332, 461 S.W.2d 50, 52 (1970); Rogers v. State, 2 Tenn. Crim. App. 491, 501, 455
S.W.2d 182, 186 (1970). When the state presents sufficient evidence to establish
flight, the state is entitled to have an instruction included in the charge setting forth
the law of flight. See State v. Howell, 868 S.W.2d 238, 254-55 (Tenn. 1993). The
jury received such an instruction in this case.
From the evidence presented at trial, a rational juror could reasonably
conclude that the defendant fled to avoid arrest for his criminal actions. See State
v. Braggs, 604 S.W.2d 883, 886 (Tenn. Crim. App. 1980), and Rogers v. State, 2
Tenn. Crim. App. 491, 501, 455 S.W.2d 182, 186 (1970). Instead of stopping, the
defendant increased his speed and drove off knowing that he had struck and
seriously injured someone. Then, after colliding with a tree and a fence post, he
abandoned his vehicle and stayed hidden for two days before presenting himself
to the authorities. During this time any evidence of his physical condition at the time
of the accident would have dissipated. From these actions, the jury could have
concluded that the defendant was well aware that the victim’s fatal injuries were not
the result of mere accident but were caused by the defendant’s criminal
recklessness.
Although we find this to be a close case, we find that the evidence in
the present case is legally sufficient for a rational juror to conclude that this
defendant consciously disregarded a substantial and unjustifiable risk and that this
disregard constituted a gross deviation from the standard of care that an ordinary
person would exercise under these circumstances. The evidence in the record is
sufficient to find that the defendant was guilty of vehicular homicide by reckless
7
driving beyond a reasonable doubt.
Next the defendant contends that his aggregate sentence of eight
years is excessive. Vehicular homicide by reckless driving is a class C felony, and
as a Range I offender the defendant was potentially subject to a sentence of not
less than three nor more than six years incarceration. Tenn. Code Ann. § 40-35-
112(a)(3)(1997). For leaving the scene of an accident, a class E felony, the trial
court could have sentenced the defendant to not less than one but not more than
two years. Tenn. Code Ann. § 40-35-112)(a)(5) (1997). In this case, the trial court
determined that the maximum sentence was appropriate for both convictions.
When an accused challenges the length, range, or manner of service
of a sentence, it is the duty of this court to conduct a de novo review with a
presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 40-35-401(d) (1990). This presumption is "conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and
all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). The defendant has the burden of demonstrating that the sentence is
improper. Id. In the event the record fails to demonstrate the appropriate
consideration by the trial court, appellate review of the sentence is purely de novo.
Id. If our review reflects that the trial court properly considered all relevant factors
and the record adequately supports its findings of fact, this court must affirm the
sentence even if we would have preferred a different result. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).
In this instance, we find that the trial court considered the sentencing
principles and all relevant facts and circumstances. Thus, we review the trial court’s
determinations de novo with a presumption of correctness to ascertain whether the
trial court erred in ordering the defendant to serve the maximum number of years
in both convictions.
8
The trial court found that the defendant has a long history of criminal
conduct and that he had previously demonstrated unwillingness to comply with
conditions of a sentence involving release into the community. See Tenn. Code
Ann. § 40-35-114(1) and (8)(1997). The trial judge attached great weight to these
two factors. Both are supported by the record, and we agree that both are highly
significant. The defendant’s record contains eighteen misdemeanor offenses,
mostly for driving related offenses including two previous convictions for DUI. Two
convictions were for drug-related crimes. The sheer number of offenses for a man
of twenty-six years indicates that, even though he had no prior felony convictions,
this defendant has little respect for the law or for the safety of others. The pre-
sentence report shows that the defendant had been placed on probation several
times in the past and had committed other offenses while he was on probation. The
trial court found no mitigating factors, and our review of the record has disclosed
none. In this instance, the trial court properly considered all relevant factors and
the record adequately supports its findings of fact. Therefore, this court must affirm
the sentences imposed by the trial court.
Finally, the defendant contends that the trial court should not have
ordered the consecutive service of his sentences. Consecutive sentencing may be
imposed in the discretion of the trial court upon a determination that one or more of
the criteria listed in Tennessee Code Annotated section 40-35-115(b) exist. The
trial court found that the defendant is a dangerous offender whose behavior
indicates little or no regard for human life, that he had no hesitation about
committing a crime in which the risk to human life is high, Tenn. Code Ann. § 40-35-
115(b)(4), and that the offense was committed while the defendant was on
probation. Tenn. Code Ann. § 40-35-115(b)(6). The trial court properly found that
extended sentences are necessary in this case to protect the public. As the trial
judge noted, although this defendant is not a “John Dillinger,” he is a danger to the
community when he gets behind the wheel. The defendant’s reckless driving cut
short the life an elderly man who was doing nothing more offensive than pulling
9
weeds in his yard.
We find, as did the trial court, that (1) an extended sentence in this
case is necessary to protect the public against further criminal conduct by the
defendant, and (2) that the length of the aggregate sentences reasonably relates
to the seriousness of the offense. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn.
1995). The defendant has not met his burden of showing that the trial court erred
in ordering his sentences to be served consecutively.
Therefore, we affirm the defendant’s conviction for vehicular homicide
by reckless driving and the sentences imposed by the trial court.
__________________________
CURWOOD W ITT, Judge
CONCUR:
______________________________
GARY R. WADE, Judge
______________________________
THOMAS T. W OODALL, Judge
10