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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
Assigned on Briefs October 3, 2000 STATE OF TENNESSEE v. JIMMY EDWIN HARBER, JR.
Direct Appeal from the Circuit Court for Crockett County No. 3141 Mark Agee, Judge

No. W2000-00462-CCA-R3-CD Filed December 27, 2000

While driving under the influence of alcohol, the defendant lost control of his pickup truck and crashed into a road embankment, causing the death of one of his five teenaged passengers. He pled guilty to vehicular homicide by intoxication as to the passenger who died, and to reckless endangerment with a deadly weapon as to all other passengers, agreeing to allow the trial court to set his sentences. Applying enhancement factors (10) and (16), the trial court sentenced the defendant as a Range I, standard offender to ten years for the vehicular homicide conviction, and two years for the reckless endangerment conviction, with the sentences to be served concurrently. The defendant appeals the sentencing, arguing that the trial court erred in its application of enhancement and mitigating factors, and that he should have been granted probation. Based upon our review of the record and of applicable law, we conclude that the enhanced sentences are supported by the record, and that the trial court, therefore, committed no error in its failure to grant probation. Accordingly, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY L. SMITH, JJ., joined. Tom W. Crider, District Public Defender, and Joyce Diane Stoots, Assistant Public Defender, for the appellant, Jimmy Edwin Harber, Jr. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Clayburn L. Peeples, District Attorney General; and Edward L. Hardister, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION The defendant, Jimmy Edwin Harber, Jr., pled guilty to vehicular homicide by intoxication, a Class B felony, and reckless endangerment committed with a deadly weapon, a Class E felony.

Applying enhancement factors (10) and (16), the trial court sentenced him to ten years imprisonment and a fine of $10,000 for the vehicular homicide conviction, and two years for the reckless endangerment conviction. The court ordered that the sentences be served concurrently. The defendant appealed, raising the issue of whether the trial court erred in sentencing him to an enhanced sentence of ten years imprisonment, without probation. After a thorough review of the record and of applicable law, we affirm the judgment of the trial court. FACTS At approximately 9:00 p.m. on December 14, 1998, the nineteen-year-old defendant, driving in Crockett County with five of his teenaged friends, lost control of his pickup truck on a country road and crashed into a road embankment. Sixteen-year-old Sammie Leigh Jones, thrown through the windshield on impact, was pronounced dead at the scene. Earlier in the evening, Jones had sung at a high school musical program in Alamo, Tennessee. The defendant spent that time driving around with twenty-two-year-old William Carl Glidwell and drinking beer. Around 8:30 p.m., after the musical program was over, Jones and four other teenagers met the defendant at the town's court square. The defendant offered the five young people a ride in his new truck. They accepted, apparently unaware that the defendant had been drinking. They were also unaware that Glidwell had recently exited the truck, refusing to ride any further with the intoxicated defendant. Accounts of the incident given by the surviving teenagers to the Tennessee Highway Patrol establish that after the five climbed into his truck, the defendant raced through town and down small country roads at speeds in excess of seventy miles per hour, flying across Highway 412, a major highway, without stopping. According to fifteen-year-old Bonnie Barrett, the defendant laughed when he ran a stop sign, with his headlights turned off, in front of an oncoming car. Barrett said that at times the defendant drove on the left side of the road, that his speed approached eighty miles per hour both in town and in the country, and that Jones, prior to the crash, pleaded with him to "slow down for her." Nineteen-year-old John Eric McGee said that he also asked the defendant, several times, to slow down, but that the defendant paid no heed to his warning that they were going "too fast for little country back roads." Following a curve and a hill on one such small country road, the defendant lost control of his truck, which first went off the road to the right, and then, after the defendant jerked the steering wheel, slid sideways across the roadway and struck an embankment on the left. The force of the impact threw Jones through the windshield, where she landed in the road, with the truck coming to rest on its right side on top of her. The defendant admitted having drunk "two or three beers" before picking up his passengers. Glidwell, however, told Tennessee Highway Patrol officers that the defendant had been drinking a -2-

beer when he picked him up at 6:30 that evening, and that he drank four or five more beers during the time that Glidwell spent with him. At the sentencing hearing, Jones' mother read a letter in which she expressed her anger at the defendant, and her anguish that her daughter's life had been so senselessly cut short. She asked that the court impose the maximum possible sentence on the defendant, to send a message to others that drunk driving would not be tolerated. The defendant expressed remorse at having caused the death of Jones, whom he said had been a very close friend. He acknowledged his arrest, after the wreck, on alcohol and drug charges. He explained the arrest, however, by stating that he had turned to alcohol and marijuana as a means of coping after the wreck, as "the only way [he] knew to take [his] mind off of everything." He stated that he never intended to drink again. The defendant's mother said that, if the trial court sentenced him to alternative sentencing or probation, she would allow the defendant to live at home and would assist him in meeting the terms of his sentence. The defendant's former employer, a farmer for whom the defendant had worked part-time from the age of eleven or twelve, testified that, if released into the community, the defendant would have a job on his farm. The trial court found two enhancement factors under Tennessee Code Annotated Section 4035-114 to be applicable: (10), the defendant had no hesitation about committing a crime when the risk to human life was high; and (16), the crime was committed under circumstances under which the potential for bodily injury to a victim was great. Tenn. Code Ann.

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