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State v. Ward

Court of Criminal Appeals of Tennessee, Knoxville

July 19, 2019

STATE OF TENNESSEE
v.
JOSHUA MICHAEL WARD

          Assigned on Briefs May 30, 2019

          Appeal from the Criminal Court for Scott County No. 11370 E. Shayne Sexton, Judge

         The Defendant, Joshua Michael Ward, entered a guilty plea to reckless homicide, a Class D felony, after the all-terrain vehicle ("ATV") he was driving ran down an embankment, killing his passenger. The trial court denied the Defendant judicial diversion and sentenced him to three years, with ninety days to be served in confinement and the remainder on unsupervised probation. The Defendant appeals the denial of judicial diversion and the denial of full probation. We conclude that the trial court did not abuse its discretion in sentencing, and we affirm the judgment.

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

          James A.H. Bell, Jacob Feuer, and Chelsea Harris, Knoxville, Tennessee, for the Appellant, Joshua Michael Ward.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant Attorney General; Jared R. Effler, District Attorney General; and David Pollard, Assistant District Attorney General, for the Appellee, State of Tennessee.

          John Everett Williams, P.J., delivered the opinion of the court, in which Robert W. Wedemeyer and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, PRESIDING JUDGE

         FACTUAL AND PROCEDURAL HISTORY

         The Defendant's ATV ran over the side of a road and tumbled down a steep embankment, and the victim, Ms. Danielle Stahley, was killed when her seat was ejected from the vehicle. The Defendant entered a guilty plea to reckless homicide. The parties did not have an agreement as to the sentence that would be imposed, but they entered into a stipulation regarding the factual basis for the plea.[1]

         According to the stipulation, the accident occurred at 7:35 p.m. on May 27, 2016, as the Defendant was driving the ATV with the victim in the passenger's seat. The victim's father was following in a separate vehicle. At the time of the accident, the Defendant was negotiating a left curve and "moving over [to] the right passing other vehicles." The Defendant was attempting to avoid a collision with an oncoming vehicle when the ATV's passenger's side tires went over the edge of the road. The ATV rolled over multiple times as it tumbled down the cliff and eventually came to rest upside down in a river. Both occupants were wearing helmets, but the helmets were not properly fastened. The victim's seat was ejected from the vehicle as it fell down the embankment.

         In an interview with law enforcement, the Defendant acknowledged that he had purchased two twelve-packs of beer, which were in the ATV, and that he had consumed five to six beers that day. He stated that he was avoiding oncoming traffic and had seen "everybody else get real close to the side of the dirt road." He was able to unlatch his seatbelt and escape after the vehicle came to a rest under water, and he reentered the vehicle in an effort to assist the victim. After he discovered that the entire passenger's seat had ejected from the ATV, the Defendant found the victim with her father on the embankment, "her face … lodged between … a log and the bank." The Defendant stated that the victim had been driving the ATV during the bulk of the day and that he had begun driving approximately twenty minutes prior to the accident. The victim suffered multiple injuries, and she died from a laceration of the heart and hemorrhage while being transported from the scene.

         At the sentencing hearing, the State noted that the Defendant initially was indicted for vehicular homicide by intoxication. The State explained that due to the termination of the trooper involved in the investigation, the issues raised in a motion to suppress which was never litigated, and the trial court's refusal to continue the case for settlement, the indictment was dismissed; and the Defendant pled guilty by criminal information to reckless homicide based on the stipulated facts. The State attempted to introduce a toxicology report, but the Defendant objected that it was outside the stipulated facts, and the State withdrew its motion to introduce the report.

         The presentence report reflected that the Defendant was a high school graduate who had an unblemished work history and who owned a successful trucking company. He had no history of drug use or alcohol abuse, had a supportive family, and had no prior criminal record. He spent approximately three hundred days of the year driving a truck for his company but had no prior traffic violations. The risk-needs assessment concluded he was at low risk of reoffending.

         The presentence report included statements from the police report, which reflected that the Defendant had told law enforcement at the scene that "he needed to hurt because of what he had done to cause [the victim] to get hurt during the crash." The trooper who responded to the accident indicated in his report that the Defendant showed signs of intoxication, including a strong odor of alcohol, slurred speech, an acknowledgement that he had consumed alcohol in the three hours prior to the accident, difficulty standing, and poor performance on a field sobriety test.

         In a written statement for the presentence report, the Defendant summarized the offense as "an accident that involved an ATV that I was driving. While doing so [the victim] was thrown from the passenger seat of my ATV and was struck by the roll cage as we rolled down a cliff approximately 150 feet down into a river. [The victim] did not survive." Asked about sentencing, the Defendant stated, "I feel like this has been a very long process and I am ready to move forward in a way that allows me to continue working and running my trucking company. I love what I do for a living and feel privileged to be able to say that."

         The victim's mother and sister submitted victim impact statements asking the court to order incarceration for the Defendant. They emphasized that the accident was the result of driving while intoxicated, and they observed that the victim's death had created a breach in the family because the victim's father and brother viewed the death as an accident rather than a criminal offense. The victim's father submitted a statement asserting that he had retained continuous custody of the victim after his divorce and that the victim's mother had not supported the victim emotionally or financially. He believed the victim's death was a tragic accident caused by a faulty seat in the ATV, and he maintained contact with the Defendant after the victim's death. The victim's brother likewise stated that her death was an accident and that the Defendant did not deserve punishment.

         Mr. Shane Cooper, a staff investigator for defense counsel, was the sole witness at the hearing. Mr. Cooper introduced photographs of the accident site taken immediately after the accident, showing no barrier between the road and embankment and a drop of approximately one hundred feet over the side of the ridge. Mr. Cooper also showed more recent photographs which depicted that a guardrail had been installed at the site. The photographs also depicted a cross which the Defendant had placed at the scene of the accident in memory of the victim.

         Mr. Cooper testified about a telephone interview that he conducted with the victim's father after the victim's death. During the interview, the victim's father had confirmed that the Defendant was not driving erratically or recklessly at the time of the accident. The victim's father had stated that his own ATV suffered a broken front brake line and that he was accordingly going slowly but still keeping up with the vehicle driven by the Defendant. Mr. Cooper acknowledged that when he asked the victim's father if alcohol had played a role in the incident, the victim's father responded that the Defendant was a conscientious driver but did not directly answer the question. Mr. Cooper also acknowledged that a report noted that the victim's father had himself been consuming alcohol.

         The Defendant gave an allocution in which he expressed sympathy for the victim's family and stated, "[N]ot a day goes by that I do not wake up with the weight of [the victim's] death on me." The Defendant also introduced a letter from Mr. James Garland, who wrote that the Defendant had single-handedly created his business transporting rare cars and that he exemplified professionalism and excellence in his work.

         The State argued that the Defendant did not comprehend the gravity of the situation and that he should be sentenced to periodic confinement scheduled around his work obligations. The Defendant argued that he should receive judicial diversion and presented several mitigating factors. He noted that the prosecution had introduced no proof on the issue of deterrence, and he referred the court to a filing of statistics from the Tennessee Department of Safety and Homeland Security ("DOS") which he contended indicated that statewide ATV accidents were declining. The DOS report established that there were 19 fatalities involving ATVs in 2014, 6 fatalities in 2015, 15 fatalities in 2016, the year that the accident involving the Defendant occurred, and 8 fatalities in 2017. The report showed 116 ATV crashes in 2013; 124 in 2014; 132 in 2015; 124 in 2016; and 116 in 2017. The State then introduced two newspaper articles for the purpose of demonstrating publicity related to the event. The trial court noted that the press was not present during the sentencing hearing.

         In determining whether to grant judicial diversion, the trial court examined the Defendant's amenability to correction primarily in light of the written statement in the presentence report. The trial court noted that the statement about moving forward indicated "that he does not understand the criminality, not just the seriousness but the criminality[, ] of the behavior." The court stated, "I don't think that he sees this as a crime against another, and that's troubling." The court also observed, "I'm familiar with this culture and, you know, I - not that that has a whole lot to do with this case other than there is a recklessness in the manner in which many of these - these wrecks occur, and the defendant has pled guilty to reckless homicide." The trial court acknowledged that the Defendant had also stated that he thought frequently about the victim's death, but concluded "waking up and thinking about this - the circumstances of what happened, that's something of a tender notion; however, it's clear from this [presentence report] the defendant just wants to put this inconvenient truth behind him."

         The trial court noted that the Defendant appeared to think the death was an accident rather than the result of recklessness. In examining the circumstances, the court observed that "it was a terrible homicide, but that's not the basis for the denial." The trial court found that the Defendant's complete lack of criminal history, his positive social history of employment, and his lack of physical and mental obstacles weighed in favor of judicial diversion. The trial court noted that judicial diversion would almost always be in the best interest of the accused.

         On the issue of deterrence as it related to judicial diversion, the trial court found that "the media accounts may or may not suggest any sort of deterrence" but found that they did indicate ...


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