### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs J

uly 25, 2001
STATE OF TENNESSEE v. JANICE C AROL BISKNER
Direct Appeal from the Criminal Court for Hamilton County Nos. 227227, 227228, and 228928 Rebecca J. Stern, Judge

No. E2000-01440-CCA-R3-CD November 13, 2001

Defendant

was convicted of driving under the influence (“DUI”) , fourth or subsequent offense, driving while license revoked, and child endan germent. I n this appeal, Def endant challeng

es all convictions on the ground that the trial court’s refusal to bifurcate the trial proceedings violated her right to a fair trial. De

fendant also

argues that recently amended Tennessee Code Annotated section 55-10-403(a)(1) is unconstitutional and that her sentence is excessive. After a review of the record and applicable la

w, we reverse D

efendant’s con

victions and rema

nd this case for a

new trial.
Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt Reversed.

T HOMAS T. W OODALL , J., delivered the opinion of the c

ourt, in which J AMES C URWOOD W ITT , J R ., and R OBERT W. W EDEMEYER , JJ., joined.

Ardena J. Garth, District Public Defender; William Dobson, Assistant Public Defender; and Donna R. Miller, Assistant Public Defender, for the appellant, Janice Carol Biskner.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant At torney General ; William H. Cox, III, Distri ct Attorney Gene

ral; Tom Kimball,

Assistant District Attorney Genera l; and Parke Masterson, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The defendant, Janice Carol Biskner, was convicte d by a Hamilto n County jury

of child endangerment

, Tenn. C ode Ann. § 55-10-4 14(1), a Class A mis demeanor; drivin

g while license revoked, Tenn. Code Ann. § 55-50-504, a Class B misdemeanor; and driving under the influenceof
an intoxicant (“DUI”), fourth or subsequent offense, Tenn. Code Ann. § 55 -10 -40 1, a Cla ss E fel ony. The trial court imposed a sentence of eleven months and twenty-nine days for eac h of Defendant’s two misdemeanor convictions (an improper sentence for the dr iving on a revoke d license
conv iction), a sentence of two years for Defendant’ s felony DUI conviction, and order ed al l sentences to be serve d concurrentl y for an effective sentence of two y ears in the Tennessee Department of Correction.-2-

On appeal, Defend

ant raises the fo

llowing issues: (1) whether the trial court erred by failing to bifurcate Defendant’s trial proceedings, thereby allowing the jury

to hear prejudicial evidence of Defendant’s prior DUI co

nvictions which co

mpromised her rig

ht to a fair trial;

(2) whether the recent amendment

to Tennessee Code Annotate d section 55-10-403(a)(1), regarding penalties for DUI convictions,

violates the prohibitions aga inst ex post factolaws in

our state and fed

eral constitutions ; and (3) whether

the trial court erroneously applied sentencing enhance ment factors in determining Defendant’s sentences.

Based on the recent

decision of this Cour

t in State v. Ronnie Lamar Evans , No E2000-00327- CCA-R9-CD, 2001 WL 501414, H amilto n Coun ty (Tenn. Crim. App., Knoxville, May 11, 2001)
no perm. to app. filed , we reverse Defendant’s conviction for felony DUI and remand

this matter for
a new trial in which guilt or innocence is determined in a proceeding separate from that which requires the ju ry to hear e vidence concer

ning prior DUI

convictions. I

n addition, we rev

erse Defendant’s misdemeanor convictions for the reasons stated herein, and, in the event of further review and/or for guidance on remand, we find that the penalties imposed un der the 199 8 amendment

to Tennessee Code Annotated s ection 55-10-203(a)(1) do not violate an accused’s constitutional rights against ex post factolaws and that certain enhancement factors were

improperly applied to Defendant’s felony DUI se ntence.

FACTUAL BACKGROUND

On July 14, 1998, the East Ridge P olice Depar tment dispatcher alerted the officers in the vicinity of the East Ridge movie theater to be on the lookout for a Jeep with a specific license tag number. Lieutenant Barry Ya tes was the first to spot the Jeep. It was traveling south on McBrien Road and, in Yates’ opinion, the Jeep was being driven “erratically.” Once behind the Jeep, Yates turned on his blue l ights and sire n in an attempt to pull the vehicle over. The driver appeared obl ivious to his presence, h owever, and con

tinued driving do

wn McBrien Road.

When th e Jee p reached Ringgold Road, it turned right and proceeded to Tombras Avenue. Yates was still following the Jeep, with the police

car siren and blu

e lights on. When it s

eemed apparen

t to Yates that th e driver of the Jeep had no intention of stopping, he radioed for assistance. Lieutenant Butch Bryson, another East Ridge police

patrol o fficer, responded. The Jeep was traveling at approximately 20 miles per hour

when Bryson met Yates on Tombras Avenue. Bry son blocked the road in front of the Jeep with his police car, which forced the driver into the parking lot at East Ridge City Hall where it finally came to a stop.

Officer Yates then appro

ached the Jeep. Th

e Defendant wa

s driving, and he

r eight-y ear-old
son was seated on the front seat of the passenger side of the vehicle. Yates noted that Defendant’s speech was slurred and h er clothes were

disarranged.

The boy app

eared frighte

ned and nervous. Yates went to the passenger side of the car. Meanwhile, Officer Bry son approached

the driver’s side and asked Defendant to step out of the vehicle. Bryson tes tified that Defe

ndant moved slowly

and seemedto have trouble getting out. Once out of the vehicle, she was unsteady on her feet and u

nable to stand without assistance. She also had an odor of alcoho l on her person. Based o n their experience, both officers concluded that Defendant was intoxicated.-3-

Yates gave Defendan t’s son a ri de home, pl acing him in the c are of his adult-age brother. Bryson attempted to give Defendant several field sobriety tests, but she was unable to follow Bryson’sinstructions while maintaining an upright position. For safety reasons, Bry son then dispensed with further testing and arrested her for driving under th

e influence of a

lcohol. Arriving at the police department, Defendant voluntarily signed an implied consent form whe rein she agreed to submit to a test to determine the alcohol content in her blood. Using an Intoximeter 3000 “EC/IR” machine, Bryson administered a breath alcohol test, which determined Defendant’s blood alcohol content to be 0.27. A check on the status of Defendant’s driver’s license revealed that she had been driving with a revoked license at the time of this DUI offense.

Prior to her trial , Defendant filed a mot ion in lim ine request ing, inter alia , that the trial court prohibit the State

from referring to Defendant’s prior DUI convic tions during the trial. Defendant argued that, under Tennessee Evidence Rule 403, this evidence should be considered inad missible because the u nfair prejudice outweighed any probative value. I n the alternative, Defendant requested that the trial court bifurcate the trial proceedings to

withhold evidence

of prior DUI

convictions until the jury had made a determination concerning Def endant’s guilt or innocence.

The trial court denied

Defendant’s motion on the ground that proof of prior DUI convictions constituted an element of fe lony DUI . The trial court s

uggested that the proof m igh t be less prejudic i al if the State and Defendant stipulated as to Defendant’s prior DUI convictions, a brief summary of which could be read into evidence at trial. On the condition that she may reserve the issue for appeal, Defendant agreed. T he resulting stipulation read at trial informed the jurors that Defendant

had two previous convictions for driving under the influence of an intoxicant in Hamilton Cou nty; one conviction in East Ridge, Tennessee; and one conviction in Fort Oglethorpe, Georgia. The jury was cautioned that the stipulation should be used only as proof of an ele

ment of the offen

se charged, to wi t: the element requ iring proof that

Defendant had th

ree or more DUI

convictions, whi ch en han ced D efen dan t’s DUI o ffen se f rom a mi sde mea nor to a Cla ss E fel ony.
ANALYSIS
I. Bifurcation of Trial Proceedings

Defendant

contends that the trial c ourt erred by failing to bifurcate Defenda nt’s trial proceedings to withhold evidence of prior DUI convictions until the jury had made a determination
conce r ning Defendant’s g uilt or innocence

for the felony

DUI offense . Defendant arg ues that, be cause bifurcation was necessary to avoid the possibility of pr ejudice and preserve her right t o procedural fairness, this Cour t s hould reverse all convictions and grant her a new trial with bifurcated proceedings.

After a thor ough review of the record, we ag ree and rever

se Defendant’s

convictions.
A. Defendant’s Felony DUI Conviction
In its brief, the State ack nowledges that t he trial court er

red in refusing

to bifurcate Defend an t’s trial for the felony DUI offense . On April 23, 2001, Defendant and the State filed a joint motion to hold this appeal in abeyance pending the decision in Statev. Ronnie Lamar Evans ,-4-

No E2000-00327-CCA-R9-CD, 2001 WL 501414, Hamilton County (Tenn. Crim. App., Knoxville, Ma y 11, 2001 ), no perm. to app. filed , which addressed this precise issue. The motion to stay Defendant’s appeal was granted the same day. On May 11, 2001, this Court decided Evans , which we agree is dispositive of the matter regarding Defendant’s f elony DUI conviction.

In Evans , the defendant

was charged w

ith DUI, four

th offense. Prior

to trial, a dispute arose concerning whether the defendant’s prior DUI convictions were indeed e lem ents of the charged offense that must b

e proven during

trial, or whether this ev

idence was more

appropriately

brought before a jury during

a second “enhan

cement” phase a

fter guilt had be

en determined. T

he state pointed out that there was a need for consistency in the law rega rding this issue because not all courts bifurcated

proceedings of this type. This Court granted the state’s application for an interlocutory appeal which addressed, inter alia , (1) whether prior DUI convictions should be used only to enhance
a sentence and are, therefore, not elements of DUI, fourth offense; and (2) whether a felony DUI trial should be bifurcated into separate phases as required by Tennessee

Code Annotated section 40-35- 2 03(e). As a res ult of the supreme court’s decision in State v. Robinson , 29 S.W.3d 476 (Tenn. 2000 ), the Evans court concluded that a DUI, second or subsequent offense, does not cons titute a new offense but

merely enhances the DUI c onviction and, further, that in situations such as these, the trial court should bifurcate the proceedings to minimize prejudice to the defendant. See Evans , 2001 WL 501414 at *2.

Evans requires a bifur

cated hearing

in order to provide procedural fairness. See Harrison v. State , 394 S.W.2d 713, 717 (Tenn. 1965). We therefore reverse Defendant’s felony DUI conviction and remand thi s matter for a new trial i n which gu ilt o r innocence is determined in a proceeding separate from that which requires the jury to hear evidenc e concerning prior DUI convictions.
B. Defendant’s Misde

meanor Convict

ions Having decided that the proof of prior DUI convictions unfairly compromised Defendant’s right to a fair trial on the felony DUI offense

, it is neither reasonable or logical to conclude that the
sam e e vidence had no ef fect on the jury

’s determination o

f guilt for the mis

demeanor offen

ses. Because the proof of Defendant’s four DUI convictions was not relevant to any issue r egarding whether or not she was guilty of driving with a revoked license and child enda ngerment, it was error to admit evidence regarding these convictions. SeeTenn. R. Evid. 402. The error was not harmless. Therefore, we also reverse the convictions for driving on a revoked licen

se and child

endangerment

, and remand these cases for a new trial. See Tenn. R. App. P. 36(b).
Even though we have revers ed Defendant’s

convictions,

errors noted during our review of the record compel us

to address additio

nal issues con cerning Defendant’s conviction for driving while her license was revoked. Specifically, the indictment was erroneously considered

as charging driving on a revoked lice nse, second offe

nse, a Class A misdemeanor, and the jury instructions regarding this charge were also erroneous.

Because the i ssues concernin

g the errors we

shall discuss were

not raised in the br

iefs o f ei ther party nor included in Defendant’s motion for new trial, we address these issues under th e doctrine of “plain error,” which provides that “[a]n er ror which has affected th e substantial rig

hts-5-

of an accused may

be noticed at a

ny time, e ven though not raised in the motion for a new trial or assigned as error on appe

al, in the discretion of the appellate court where necessary to do substantial justice.” Tenn. R. Crim. Pro. 52(b).

In State v. Adkisson , 899 S.W.2d 626 (Tenn. Crim. App. 1994), this Court developed five factors to consi der when decidin g whether an e

rror constitutes “

plain error”: “

(a) the record

must clearly establish what occurred i

n the trial court; (

b) a clear and u

nequivocal rule

of law must have b een breached; (c) a substantial right of the accused must have been adversely affected; (d) th e accused did not waive the issue for tactical reasons; and (e) consideration of the error is ‘necessary to do substantial justice.’” Id. at 641-42.

This test was formally adopted by our supreme court in State v. Smith , 24 S.W.3d 274 (Tenn. 2000) for use when reviewing a record for plain error. Id. at 282- 283. The presence of all five factors must

be established by

the record before the existence of plain error may be recognized, id. at 283, and the “‘ plain error’ must [have been] of such

a great magn

itude that it

probably changed the outcome of the trial.” Adkisson , 899 S.W.2d at 642. See also Tenn. R. App. P. 13(b) (providing
an appellate court with wide d iscretio n in recognizing issues that have been waived due to a procedural default

or which have not been raised by the parties). For reasons which sha

ll become apparent later in this opinion

, we find that the r

ecord establishe

s the presence o

f the five requis

ite factors enumerated supra

. First , we observe that the indictment includes no allegations that the driving on a revoked license charge was a

second or subsequ

ent offense. Alth

ough the headin

g on th e first page of the indictmentlists this charge as a “Class A Misdemeanor” and “second offense,” the charging

portion of the indictment,

which lists the elements of the offense and informs the defe

ndant of the spec

ific charge against which she must defend, alleges a “Class B” misdemeanor. Specifically , the indictment states

That Janice Carol Biskner heretofore on July 14, 1 99 8, in the County aforesaid, did unlawfully and knowingly drive and operate a motor vehicle upon the public road s, h ighw ays, str eet s or all eys o f sa id C oun ty a nd St ate after the defendant’s operators [sic] license had been revoked as provi ded by law, for a second
or subsequent conviction for driving while intoxicated under Tennes see Code Annotated

55-10-401 , and after the defendant had been notified of such revocation, in violation of

Tennessee Code Annotated 55-50-504, against the peace and dignity of the State. (Emphasis added.) According to the languag e in this indictment,

Defendant may

be convicted only

for driving while license rev oked, first offense, a Class B misdemeanor. In order to convict Defendant for driving while license revoked as a Class A misdemeanor offense, the indict m ent must allege, in a sep arate count, that the current violation was “a second or subsequent” offense. See Tenn. Code Ann. § 40-35-203(e) (1997). Here, no count of the indictment alleged a prior conviction for driving-6-

witha revoked license. Tennessee Code Annotated section 5 5 -50-504(a)(2) specifically provides that

A sec ond or s ubsequent violation of subdivision (a) (1) is a Class A misdemeanor. A pe

rson who drives a m

otor vehicle

on any public

highway o

f this state at a time when the person's privilege to do so is cancelled, suspended or revoked because of

a second or subsequent conviction for vehicular assault under § 39-13-106, ve hicular homicide un der § 39-13-213, or driving while intoxicated under § 55-10-401 shall be punished by confinement for not less than forty-f ive (45) days
nor more than one (1) year, and there may b

e imposed, in additi

on, a fine of not le

ss than three thousand dollars ($3,000).

Tenn. Code Ann. §55-50-504(a)(2) (1998) (e mpha sis added). Subdivi sion (a)(1) is the

statute section defining first offense “driving while license cancelled, suspended, or revok ed,” a Class B misdemeanor, and states, in pertinent part, th at “a person who d

rives a motor vehi

cle on any p

ublic highway of this state at a time when the person’s privilege to do so is cancelled, suspe nded, or revoked commits a Class B misdemeanor.” Tenn. Code Ann. § 55-50-504(a)(1) (1998).

The treatment of this c

ase as a Class A misd

emeanor was app aren tly the result of a misinterpretation of Tennessee Code Annotated section 55-50-504(a)(2) by the trial court, the State, and Defendant. When r

equired to interp

ret a statute on appeal, our rules of statutory construction require this Court to ascertain and give effect to the legislative intent without unduly restricting or expanding the intended scope of a statute. Seals v. State , 23 S.W.3d 272, 276 (Tenn . 2000). We examine the natural and

ordinary meaning of the statutory language within the context of the entire stat ute, without forced or subtle construction that would extend or limit its meaning. State v

. Flemming , 19 S.W.3d 195, 197 (Tenn. 2000). Where an ambiguity exists in the statutory language,
we must look to the entir

e statutory

scheme in seeking to

ascertain the true legislative intent, Owens
v. State , 908 S.W.2d 923, 926 (Tenn. 1995), and avoid a statutory construction which would render portions of

the statute inoperative. State v. Turner , 913 S.W.2d 158, 160 (Tenn. 1995). In addition, criminal statutes are to be strictly construed against the State and in favor of the de fendant. State v. Alford , 970 S.W.2d 944, 947 (T enn. 1998); State v. Bobo , 727 S.W.2d 945, 952 (Tenn. 1987). We find the language in Tennessee Code Annotated section 55-50-504(a)(2) clea rly states tha tto find a defendant guilty of driving while license revoked a s a Class A misdemeano r, th e offense must be a “second or subsequent violation.” The i nd ictment does not allege a second or subsequent

violation. Rat her, it p araphrases the statutory language f rom the second sentence of section (a)(2) above,

which me

rel y provides a minimum punishment of forty-five (45) day s when
a defendant is convicted of the Class A misdemeanor off

ense under cer

tain circumstanc

es, i.e., at a time when the person’s privilege to do so was cancelled, suspended or revoked because of a second or subsequent conviction for one of the offenses specified.

In addition, we find that the trial court erred when it gave the following instructions to the jur y:-7- For you to find t he defendant guilty of driving on revoked, suspended or cancelled license as a Class A misdemeanor, the State must have proven beyond a reasonable doubt the f ollowing: (1) The defe nda nt u nla wfu lly d rov e a ve hic le u pon a pu bli c roa d, h ighw ay, street or alley of this county and state, a nd (2) The defendant di

d so at a time when her license or privilege to do so had been suspen d ed, cancelled, or revoked for a second or subsequent conviction for driving while into

xi c ated and after the defendant had been notified of such revocation, and (3) The defe nda nt d id s o kn owi ngly.

* * * For yo u to find the defendant guilty of driving on revoked, suspended o r cancelled license as a Class B misdemeanor, the State must have pro ven be yond a reasonable doubt the f ollowing: (1) The defe nda nt u nla wfu lly d rov e a ve hic le u pon a pu bli c roa d, h ighw ay, street or alley of this state and county, a nd (2) The defendant did so at a time when her license or privilege to do so had been suspended, cancelled, or revoked, and (3) The defe nda nt d id s o kn owi ngly.

The jury charge given

the jury concerning the

Class A misdemeano

r grade of driv

ing while license revoked is incorrect. It erroneously required the jury to make an unnecessary finding--that the revocation of Defendant’s license was for a second or subsequent con

viction for driving

while intoxicated--with

language sub stantively si milar to the alleg

ations in the in

dictment which, as discussed above, was incorrect, and therefore not a proper jury instruction.
“A charge should be

considered pre

judicially e

rroneous if

it fails to fairly submit the legal issues or if it misleads the jury as to the applicable law.” State v. Vann , 976 S.W.2d 93, 101 (Tenn. 1998 ) (citations omitted). Since the above jury instruction clearly f ailed to do both, we consider the jury charg

e regarding

the offense of dr

iving while licen

se revoked to be p

rejudicially

erroneous.

In sum, we find that introducing proof of Defendant’s prior criminal convictions during her trial caused unfair p

rejudice as to all thr ee charges, and thereby denied De fendant the procedural fairness she is entitled to under the law. Therefore, we reverse Defendant’s convictions and remand these matters for a new

trial with proceedings consistent this opinion. The charge for driving on a
r evokedlicense is, as alle ged in the indictm

ent, a Class B misde

meanor and shall b

e trie d
acco rdi ngly.

II. Violation of Constitutional Prohibitions Against Ex Post Facto Laws

Defendant

also contends that the 1998 amendment to Tennessee Code Annotated section 55- 10-403(a)(1), regarding penalties for DUI convi ction s, violates state and federal constitutional prohibitions against ex post facto la ws in two r espects which involve Defendant’s right to notice.-8-

Even though Defendant’s felony conviction is reversed and remanded, we sha

ll address these issues in the event of further review or for guidance on remand.

Defendant’s first argument relies on a notice she received shortly after she was convicted of DUI in April 1994, which informed her that any subsequent DUI off ense would be punishable by confinement

for not less

than 120 day

s nor more than 11 mo

nths and 29 day

s. See Tenn. Code Ann. § 55-10-403(a)(1) (1993). Confinement for this length of time (less than one year) is consistent with punishment for misdemeanor offenses. Howe

ver, in 1998, prior

to the insta

nt DU I offense, the legislature amended section 55 -10-403(a) (1) to provide, among other things, that a fourth or subsequent

DUI offense shall be

a Class E felony. See Tenn. Code Ann. § 55-10-403(a)(1) (1998) (the amended statute a

lso increases the

period of mandato

ry incarc eration and the f

ine for fourth

and subsequent

offenses). Defe ndant c ontends that the statute, as amended, violates constitutional prohi bitions against ex post facto laws because it rendered the information in her 1994 not ice o f enhancem ent “incorre ct.” Defendant further argues that, even if she had not received the 1994 notification regarding subsequent offenses, the current statute does not ap ply in he r case because, according to the provision, “at least one (1) of the violations of § 55-10-401 must occur on or after July 1, 1998.” Defendant asserts that this language must refer to prior violations, not the triggering off ens e, i n or der t o sa tis fy ex post factorequirements regarding notice. We disagree.

Both the United States Co

nstitution, in Articl

e I, Secti ons 9 and 10 , and the Tennessee Constitution, in Article I, Section 11, contain prohibitions against the passage of ex post facto laws by Congress or the General Assembly. State v. Rogers , 992 S.W.2d 393, 401-402 (Tenn. 1999). An
ex post facto law within the meaning of the federal and state constitutions has been definedas one that

makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. Second, every law that aggravates a crime,
or makes it greater than it was, when committed. Third, every law that changes the punishment, and inflicts a greater pun ishm ent, than the law annexed to the crime, when committed. Fourth, every law that al ters the legal rules of evidence, and receives less, or differen t, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.

Id. (citations omitted) . The United States Supreme Court has s

imilarly hel

d that this prohibitio

n “is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts.” California Dept. of Corrections v. Moral es , 514 U.S. 49 9, 504, 115 S.Ct. 1597, 1601, 131 L.Ed.2d 588 (1995) (citations omitted) (emphasis added). Clearly, the ex post factoclauses in our constitutions forbid enacting laws which alter definitions and/or

elements of crime

s or increase the

ir punishment at a point in time after the offense has been committed.
Regarding De

fendant’s first

argument that th

e amended statute

violates prohibitio

ns against
ex post factolaws because it rendered the information in her 1994 notice “incorrect,” we find that the analysis used by this Court in State v . Jo hnson , 970 S.W .2d 500 (Tenn. Crim . App. 1996) is helpful. In Johnson , the defendant challenged his classificatio

n and sentencing

as a multiple rapist
on the ground that h

is guilty ple

a to a 1988 prior of

fense of rape w

as entered befo

re the “multiple-9-

rapist” statute was enacted. See Tenn. Code Ann. § 39-13-523 (1997). Accordingly, he contended that he was not provided with notice of the possib ility of enhanced sentencing if convicted in the future of the same offense and, therefore, the subsequently enacted

multiple rapist statute operated
ex post factoagainst him by inflicting a gr

eater punishment

than that contempl

a ted when the first offense was committed. Id. at 505. The court in Johnson found, inter alia , that penalty enhancing sta tutes af

fect only th

e sentence for t

he triggering

offense and, thu

s, do not impermissibl

y punish prior acts. Id. (citing Gryger v. Burke , 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948) (“the fact that one of the

convictions that entered into the calculations by which petitioner became
a fourth offender occurred before the Act was passed, [does not ] mak e the Act invalidly retroactive”)). In other word s, because the enhanced punishment in Johnson was for the lates t crime alone, the statute in issue did not operate ex post factoagainst him. See also State v. Williams , 675 S.W.2d 499, 502 (Tenn. Crim. App. 1984) (enhanced punishment laws, e.g., habitual criminal statutes, are not ex post facto laws, nor do they violate an accused’s due process or equal protection rights).

The same reason

ing applies in

the case sub judice . The statute in issu e is clearly

a penalty enhancing statute. As such, it does not affect the punishment for

any offen se prior to its enac

tment, which means that it also f ails to violate cons

titutional prohibitio

ns against ex post factolaws. Defendant’s 1994 notice was accurate when she received it and does not operate to freeze the law regarding the related

offense, in effect, voiding subsequent legislation regarding future crimes. Such a rule is neither reasonable or logical.

Defendant’s contention that the enhancing statute does not apply because her prior DUI convictions all occurred before July 1, 1998 is likewise without merit. This preci se issue was decided in State v. Charles R. F

rancis , No. E2000

-02599-CC

A-R3-CD,

2001 WL 1091169, Morgan County (Tenn. Crim. App., Knoxville, Sept. 19, 2001), when this Court addressed the very narrow and specific issue of whether a fourth offense felony

DUI conviction, pursuant to Tennessee Code Annotated section 55-10-403(a(1), re quired that at least one o f the defendant’ s prior DUI convictions
occur af ter July 1, 1998. After reviewing the amended statute’s language in light of our law s concerning statutory construction, we held that only the fourth or subsequent offense was required to occur on or after July 1, 1998. See id. at *3. Defendant is not entitled to relief on this issue.
III. Sentencing

D efendant

also contends that the trial court erred by apply ing certain enhancement fac tor s when determining Defendant’s sentence and, further, tha t thi s error caused it to impose the maximum sentence which is excessive. Even though we have reversed Defendant’s convictions, we shall address the sentencing issue in the event of furt her review or for g

uidance on rema

nd, if
nece ssa ry. Appellate review of sente

ncing is de novo on the re cord with a presumption that the trial court's determinations are correct. Tenn. Code Ann. §§ 40-35-401(d), 402(d). The burden is on the appealing party to show that the sentencing is improper. Id. § 40-35-401, Sentencing Commission Comments. If

the trial court followed the statutory sentencing procedure, made findings of fact that
are adequately

supported in

the record, and

gave due consideration and proper weight to the factors-10-

and principles relev ant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even if a different result were pre ferred. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Here, the record reflects that the trial court considered the sentencing principles and all relevant evidence, but inappropriately applied enhanceme nt factors to

Defendant’s sentence for felony DUI. There

fore, our revie

w is de novo without a presumpti on of correctne

ss. The trial court imposed sentences of eleven months and twenty-nine days for Defendant’s Class A misdemeanor convictions for child endangerment and driving while license revoked, and
a sentence of two years

for Defendant’s felony DUI conviction. The trial court also denied any form of alternative sentencing an d ordered that all sentences be served concurrently, for an e ffective sentence of two years confinement. In deter mining the length of

Defendant’s se

ntences, the record reveals that the trial court used enhancement factor (1), “[t]he defendant has a previous hi st ory of criminal convictions or criminal behavior in addition to those necessary

to establish the ap

propriate range,” to enhance the sentences for all three convictions; enhancement factor (15), “[t]he defendant abused a position of public or private trust, or use d a special skill in a manner that sign

ificantly facilitatedthe commission or the fulfillment o f the offense,”

to enhance Defendant’s sentences for child endangerment and felony DUI ; and enhancement factors (10) and (16), applicable when “[t]he defendant had no hesitation about committing a crime when the risk to human life was high,” and

“ [t]he crime was committe d under circumsta

nces under which

the potential for b

odily injury

to a victim was great,” respectively, to enhance Defendant’s sentence for felon y DUI. Tenn. Code Ann. § 40-35-114(1), (10), (15), and (16) (1997).
A. Enhancement Factor (1)

Defendant

first argues that enhancement factor (1), requiring the defe ndant have “a previous history of criminal

convictions or criminal behavior in addition to those necessary to establish the app ropriate

range” for the offense, Tenn. Code Ann. § 40-35-114(1), is inapplicable to her fel on y DUI offense. S he conte nds that, because the prior convictions were already used to enha nce the offense from a misdemeanor to a felony classification, using them to also enhance the length of her sentence constitutes “double enhancement,” which is precluded by law

.
It appears that Defendant is confusing the considerations necessary

to determine her sentence range classification with the length of her sentence within the range. Defendant was sentenced as
a Range I standard

offender. A “standard offender” is defined as “a defendant not sentenced as (1) [a] multiple offender

as defined by

§ 40-35-106; (2) [a

] persi stent o ffen der a s de fin ed b y § 40-35-107; (3) [a] career offender as defined by § 40-35-1 08; (4) [a]n especia lly mitigated offender
as defined by § 40-35-109; or (5) [a] repeat violent offender as defined by § 40-35-120.” See Tenn. Code Ann. § 40-35-105 (1997) . Since the requir ements for sente

ncing as a multipl

e, persist ent , career or repeat v

iolent o ffender all involve consideration of only prior felony convictions, it becomes evident that none of Defendant’s prior misdemeanor DUI conv ictio ns were used to establish the “appropriate range” for Defendant’s sentence.
Notwithstanding this fact, an enha ncement factor

may not b

e used t o enhance a sentence within the range if the proof used to establish the factor was used to also prove the offense. State
v. Jones , 883 S.W.2d 597 (Tenn. 1994). Thus, because the proof necessary to convict Defe ndant of-11-

the felony DUI

offense requir

ed the State

to show Defendant’s criminal record contained a minimum of three prior

DUI convictions, these may not be used to enhance Defendant’s sentence. Defendant has four prior convictions, however, and the fourth is the refore applicable to establish the enhancement factor.
B. Enhancement Factor (15)

Defendant

also contends that enhancement factor (1 5), applicable when the defendant abused
a position of public

or private trust, w

as improperly

applied to her sentences for child endangerment and felony DUI

. In gener

al, applicati on of this factor requires a finding, first, that defendant occupied a position of trust, either public or private. See Statev. Kissinger , 922 S.W.2d 482, 488 (Tenn. 1996). The position of parent, step-parent, babysitter, teacher, coac h are examples, see id. , and there is no doubt that Defendant, as the parent, is properly placed into this category . Whether
or not a position of trust exists also turns upon the nature of the relationship, namely, whether the offender occupied a position that promoted confidence, reliability, or faith. If the evidence suppor

ts that finding, then the

court must determi

ne whether the po

sition occupied wa

s also abuse

d by the commission of the offense. Id.
With regard to

the sentence for

child endangerment, we find that Defendant, as the child’s mother, occupied a position of trust which she abused when she drove her vehic

le in an extremely intoxicated state with her child in the car. We have little doubt that the child would not have been riding in the Jeep with Defendant and, consequently, would not have been endangered but for the fact that she was his mother. Consideration of this factor might only be prohibited if the proof used to establish the abus

e of trust also proved an element of the offense of child endangerment. The offense of misdemeanor

child endanger

ment is committed by a person who violates Tennessee Code Annotated § 55-10-401 (“Driving under the influence of an i nto xic ant ”) wh ile acco mpa nie d by a child under thirteen years of age. See Tenn. Code Ann. § 55-10-414(1) (1998). Since i t is no t necessary to prove that Defendant

abused her position as the child’s mother to establish the offense, factor (15) may be considered in determining the sentence for child endangerment in Defendant’s
case. See State v. Troutman , 979 S.W.2d 271, 274 (Tenn. 1998) (co ntrary to f elony sentencing determinations which require the court to place on record what enhancement or mitigating factors it found, the misdemean or sentenci ng statute r equires a tr ial judge to merely consider enhancement and mitigating factors).

Defendant

contends that

enhancement factor (15) is inapplicable to her sentence for felony DUI because her abuse of a position of trust was also t he basis fo r her conviction o f child endangerment

. We agree that thi s factor does not apply to her sentence for felony DUI, but for
reasons other than that given by Defendant. Enh ancement factor (15) is g enerally a pplied in circumstances where the defendant used his or her position of t rust to facilitate the commission of the offense

. See State v. Franklin , 919 S.W.2d 362, 366 (Tenn. Crim. App. 1995); State v. Harris , 866 S.W.2d 583, 588 (Tenn. Crim. App. 1992). Nothing in the record suppor ts this find ing. Consequently, factor (15) does not apply to De fendant’s sentence for the felony DUI conviction.
C. Enhancement Factors (10) and (16)-12-

Fin all y, Defendant argues that the trial court erred when it used enhancement factors (10) and (16) to enhance her sentence for felony DUI . Enhancement factor (10) is applicable when the proof shows that the defenda

nt exhibited no hesita

tion about committing

a crime when the

risk to human life was high, and fa

ctor (16) is applic

able when the pote

ntial for bodily

injury to a vi

ctim was great. Spe cif ica lly, Defendant contends that these factors cannot be applied beca use (1) t he criminal conduct necessary to prove them

also proved her conviction for child endangerment, (2) the court may only consider harm

to the vict im when determining whether these factors apply, and (3) enhancement

factors (10) and (16) may not be applied together. For the reasons following, we find that f actor s (10) and (1 6) wer e inap propr iatel y appli ed to e nhanc e her s enten ce for felon y DUI.

It might seem appro

priate to apply

factor (10) to De

fendant’s sente

nce for felony

DUI. It is well-settled that enhancement factor (10) may be applied in situations where the de fendant’s conduct created a high risk to

a person or persons other than the victim , even when an essential element of the offense requir

es proof of a risk

of death or serio

us bodily injur

y, if the proof use

d to establish factor (10) can be separated from those facts necessary to prove the offense. See State v. Bingham , 910 S.W.2d 448, 452 (Tenn . Crim. App. 1995); State v. Ruane , 912 S.W.2d 766, 784 (Tenn. Crim. App. 1995); State v. Johnson , 909 S.W.2d 461, 464 n. 1 (Tenn. Crim. App. 1995); cf. State v. Butler , 900 S.W.2d 305, 314 (Tenn. Crim. App. 1994) (holding that factor (10) should not be applied unless persons oth er t han the vic tim are a t ri sk) . Cl earl y, proof which would estab

lish factor (10) w

ould notbe necessary

to also prove the of

fense. Defenda

nt’s conduct cre

ated a substantia

l risk to the life of any persons that might be in the path of her Jeep, as well as that of her son, the passenger. Nevertheless,

factor (10) may not be applied to Defendant’s felony DUI sentenc e for the following
reasons. First, we note that factor (10) is ina pplicable predicated on the risk to Defendant’s son because this was the precise ground for her separate conviction of child enda ngerment. See, e.g. Statev. James Edwin Harber , No. W2000-00462-CCA-R3-CD, 2000 WL 1876601 at **4, Crockett County (Tenn. Cr

im. App., Jackson, Dec. 27, 2000) no perm. to app. filed (where defendant was separately convicted of reckless endangerment based on the risk of harm to the passeng ers i n the vehicle with him at the time of

his accident, fa

ctor (10) could

not be applied to enhance his sentence for vehicul ar homicide); State v. R icky Williams , No. E1999-00344-CCA-R3-CD, 2000 WL 772748
a t*3, Cocke County (Tenn. Crim. App., Knoxville, June 15, 2000) no perm. to app . file d (application of factor (10), based on risk to children in house, was inappropriately applied to reckle

ss homicide conviction where defendant received separate reckless endangerment conviction for risk caused to children).
Application of factor (10) b ased on a risk

Defendant cre

ated to persons oth

er than her child is also precluded in this case. Granted, the use of factor (10) in DUI a n d similar cases has been upheld on numerous occasions by this Court where the defen dant’s danger ous use of a vehic

le created a dan ger t o ot her m oto ris ts o n th e sam e roa dwa y. See Bingham , 910 S.W.2d at 453 (factor (10) applicable to sentence for vehicular homicide where defendant crossed four lanes of traffic on
a major highway

); State v. Williamson , 919 S.W.2d 69, 83 (Tenn. Crim. App. 1995) (factor (10) was appropriate where defendant drove her car while intoxicated on La bor Day when a higher number of peopl e use the road); Harber , 2000 WL 1876601 at **4 (factor (10) applicable to sentence for vehicular homicide where defendant ran a stop sign with the vehi

cle’s lights

off and headed into the-13-

path of an oncoming c

ar); Statev. Mark

Summers , No. 03C01-9606-CR-00235, 1997 WL 785677, Hamilton County (Tenn. Crim. App., Knoxville, Dec. 4, 1997) perm. to app. denied (Tenn. 1998) (where appellant

drove while intoxicated, crossing into onc oming traffic a

nd traveling at a

high rate of speed, he presented a considerable danger which warrante d application of fact or ( 10)); State v. Jerry Douglas Frank

lin , No. 01C01-9510-CR-0034 8, 1997 W L 83772, Davidson County (Tenn. Crim. App., Nashville, Feb. 28, 1997) perm. to app. denied (Tenn. 1997) (factor

(10) a pplicable where defendant drove twenty miles over the speed limit on rural two-lane road and poten tial for crossing center line placed other drivers at great risk). We have also recognized that “some activities by their very nature cause high risk to human life,” and spe cif ically iden

tified “driving

on a busy street under the influenceof an intoxicant” as a prime example. State v. Jones , 883 S.W.2d 597, 603 (Tenn. Crim. App. 1994). However, factor (10) cannot be applied based on a high risk t o life of per sons other than the vic tim(s) absent some proof that the danger existed. See Bingham , 91 0 S.W.2d at 453 (although the defendant wa

s driving ver y early in the morning, fa ctor (10) was applicable

wher e the record establis hed that she enco

untered at least

two other automobil

es); cf. State v. John D. Neblett , No. 01C01-9805-CC-00231, 1999 WL 743633 (Tenn. Crim. App., Nashville, Sept. 24, 1999) perm. to app. denied (Tenn. 2000) (tr

ial court errone

ously applied factor (10) where incident giving rise to aggravated vehicular homicide c o nviction took place at intersection of a s tat e hi ghwa y, but the record was silent as to whe

ther other motoris

ts were actually present); State v. David T. Jones , No. 01C01-9710-CC-00445, 1998 WL 917810, Hickman County (Tenn. Crim. App., Nashville, Dec. 21, 1998) no perm. to app. filed (factor (10) erroneously applied because the record did not establish that other persons were actually threatene d by the defendant’s conduct). Facts relevan

t to sentencing mu

st be established by a preponderance of the evidence–me re conjecture will not suffice. See State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000). Because the record as it presently exists in the case sub judice does not contain any proof that other persons or motorists were either in the vicinity or placed at risk by Defendant’s conduct, factor (10) was inapplicable

to her felony

DUI sentenc

e. We may not a

ssume that risk existe

d in the absence of any facts in the record.

At one time, factor (16) was also considered applicable, even when risk of bodily injury was
an element of th

e o ffense, under circumstances where the defendant’s conduct crea ted a risk of bodily injury to persons other than the named victim of that

particular offense. See State v. Sims , 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). This holding was subsequently called into doubt by
our decision in State v. Charles Justin Osborne , No. 01C01-9806-CC-00246, 1999 WL 298220 at *3 (Tenn. Crim. App., Nashville, M ay 12, 1999) , which found that Sims had been implicitly rejected by State v. Bingham , 910 S.W.2d 448 (Tenn. Crim. App. 1 995) (“ Bingham . . . distinguishes between enhancement factors (10) and (16) in that factor (10) may be supported by risk to persons other than a victim of the convicted offense while factor (16) may not”). This issue does not require
us to re solve the inconsist ent application of

factor (16) with

in this Court. Facto

r (16) is no t applicable

to Defendant’s sentence for felon y DUI because she was separately convicted for the danger to her child, and the record contains no proof of any other victims.

In conclusion, our review reveals that enhancement factors (10), (15), and (16), were applied in error to Defen

dant’s felony

DUI sentenc

e, which leaves f

actor (1) as the

sole factor prop

erly applicable to enhance Defendant’s felony conviction base d upon the facts in this record.-14-

As a final matter, we observe that the judgment forms pertaining to Defendant’s convictions for DUI and driving while license revoked reflected the proper statute section numbers but faile

d to indicate whether the conv

ictions were a fe

lony or misde

meanor and what c

la ss of of

fense the Defendant

was convicted of. Whenever a judgment is filed, it should reflect whether the conviction is for a felony or a misdemeanor, as well as the appropriate “ class” of the offense.

CONCLUSION

For the foregoing reasons, we reverse Defendant’s convictions and remand these matters for
a new trial. We hold that when a defenda nt is charged with driving under the influence of an intoxicant (“DUI”), fourth or subsequent offense, Tenn. Code Ann. § 55-10-401, a Cl ass E fel ony, guilt or innocence must be

determined in a pr

oceeding sepa

rate from that wh

ich requires the

jury to hear evidence concerning prior DUI convictions, and we find that it was a

lso reversible

error to allow proof of Defendant’s prior DUI convictions during her trial on the char ges of child endangerment and driving on a revoked license. We also hold that penalties imposed under the 1998 amendment to Tennessee Code Annotated section 55-10-203(a)(1) do n ot violate an accused’s constitutional rights against ex post facto laws. Finally , upon remand, the

charge of dri

ving on a revoke

d license shall be treated as a Class B misdemeanor.

____________________________________ THOMAS T. WOODALL, JUDGE