IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

December 18, 2012 Session

STATE OF TENNESSEE v. SUE ANN CHRISTOPHER 

Appeal from the Criminal Court for Hancock County

No. 11-CR-3153 John F. Dugger, Jr., Judge

No. E2012-01090-CCA-R3-CD - Filed March 14, 2013

The Defendant, Sue Ann Christopher, was convicted by a Hancock County Criminal Court

jury of first offense driving under the influence (DUI), a Class A misdemeanor, DUI

accompanied by a child under the age of eighteen, a Class A misdemeanor, unlawful

possession of prescription drugs, a Class C misdemeanor, and violating the implied consent

law. See T.C.A. §§ 55-10-401, 53-10-105, 55-10-406(3) (2012). The trial court merged the

DUI conviction with the DUI accompanied by a child under the age of eighteen conviction.

The court sentenced the Defendant as a Range I, standard offender to concurrent terms of

eleven months and twenty-nine days, with 120 days to be served in confinement for the DUI

conviction and thirty days’ confinement for the drug-related conviction. On appeal, the

Defendant contends that her sentence for the DUI accompanied by a child conviction is

excessive. We affirm the judgments of the trial court.

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

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which JAMESCURWOOD WITT,

JR., and D. KELLY THOMAS, JR., JJ., joined.

Greg W. Eichelman, District Public Defender; DeAnna M. Snyder (at trial), Assistant Public

Defender; and Douglas T. Jenkins (at the motion for new trial and on appeal), Rogersville,

Tennessee, for the appellant, Sue Ann Christopher.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; C.

Berkeley Bell, Jr., District Attorney General; and Connie Trobaugh, Assistant District

Attorney General, for the appellee, State of Tennessee.
OPINION

This case relates to the Defendant’s driving under the influence when four minor

children were passengers in her car. At the trial, Hancock County Sheriff’s Deputy Rocky

White testified that on March 2, 2011, he observed the Defendant’s yellow Camaro driving

erratically, that the car crossed the center line, and that both driver’s side tires crossed the

center line completely and entered the oncoming lane of traffic. He said the car moved back

into the proper lane but crossed the white fog line on the right side of the roadway. He said

he followed the car for one-quarter of a mile and initiated a traffic stop.

Deputy White testified that when he approached the Defendant’s car, he saw four

young children in the backseat who were not wearing seatbelts. He said he smelled a strong

odor of alcohol coming from the Defendant’s breath. He asked the Defendant to perform the

one-leg stand test, the nine-step walk and turn test, the finger to nose test, and the finger

count test. He said that during the one-leg stand test, the Defendant lowered her foot to the

ground to balance herself and raised her arms to the side to prevent her swaying. He said that

the Defendant took four- to six-inch steps without touching heel to toe and used her arms for

balance during the nine-step walk and turn test. He said the Defendant swayed back and

forth and from side to side during the finger to nose test and touched her upper lip rather than

her nose. He said that the Defendant could not count backwards from four during the finger

count test. He said that he arrested the Defendant for DUI and that the Defendant had four

white tablets in her front pants pocket, which the parties stipulated were not a controlled

substance. He said the Defendant did not present a prescription bottle or any evidence of

having a prescription for the tablets. He said he read the implied consent law to the

Defendant, who refused to provide her blood for analysis. He said that the Defendant

attempted but could not blow into the breathalyzer tube and that the Defendant claimed she

was suffering from pneumonia.

On cross-examination, Deputy Wright testified that the Defendant left her lane of

travel multiple times in a very short period of time. He said that he had seen the Defendant

before the day of her arrest, that he was not “acquainted with her,” and that he knew who the

Defendant was. He said the Defendant pulled off the roadway in a reasonable amount of

time. He said that before he administered the field sobriety tests, the Defendant told him she

had a “shaking disorder” but that he did not see any shaking before she began the tests. He

did not recall the Defendant’s stating she had healed bone fractures in her legs that prevented

her from performing the tests.

Deputy Wright testified that he requested the Defendant to submit to a blood test when

they arrived at the county jail and denied that he requested her to submit to a test while en

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route to the jail. He denied the Defendant consented to a blood test. He denied deputies

competed to have the highest DUI arrest rates.

Tennessee Highway Patrol Trooper Josh Mabe testified that he assisted Deputy

Wright during the Defendant’s traffic stop. He said he saw the Defendant was “unsteady on

her feet” and had slurred speech. He said the Defendant’s movements were “sluggish.” He

denied being involved in the field sobriety tests or in arresting the Defendant. Although he

did not recall the children’s ages, he said they were small children. He said the oldest child

probably attended elementary school. He said he stood beside the car because the children

were moving around inside the car and attempting to climb out. He said he attempted to keep

the children calm.

On cross-examination, Trooper Mabe testified that he met the Defendant before the

night of her arrest, that he had seen her shake, and that although she had medical conditions,

she acted differently during the traffic stop. He said the Defendant’s speech was “more

pronounced” and slurred and her movements sluggish.

Doug Wright testified for the defense that the Defendant was a friend, that the

Defendant came to his house around 2:30 or 3:00 p.m. before her arrest, and that she left

around 6:00 p.m. He denied the Defendant drank beer while at his home and said she did

not act intoxicated. He said that the Defendant took his children to church and that had the

Defendant been drinking, he would not have allowed the Defendant to drive them. He said

that his children were four, five, seven, and eight years old and that Trooper Mabe called him

to pick up his children at the scene. He said he picked up his children and went home

without talking to the Defendant.

On cross-examination, Mr. Wright testified that he knew the Defendant was taking

prescription medications. He said he thought the medications were related to her heart

condition. He said the Defendant took his children to church around 6:45 p.m. He said his

wife could not drive his children because she had been drinking beer throughout the day.

Stacy Wright testified that the Defendant stopped by her home around 3:00 p.m.

before the Defendant’s arrest. She said that the Defendant took her children to church

around 7:00 p.m. and that they went to pick up her children around 8:00. She said she and

the Defendant mostly talked during their visit because the Defendant had been hospitalized

recently and was not permitted visitors. She said she had not seen the Defendant in four

months. Ms. Wright admitted drinking beer during their visit but denied being intoxicated.

Ms. Wright testified that the Defendant was not drinking the night of her arrest and

that the Defendant did not appear to be under the influence of anything. She said her

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husband left home around 5:30 or 6:00 p.m. to ride his motorcycle. She said that she and the

Defendant took her children to church just before 7:00 p.m., returned to her home for awhile,

and picked up the children around 8:00. She denied that the Defendant swerved while

driving and said that they thought the officer stopped the Defendant because her son

unbuckled his seatbelt. She said that when she realized she and the Defendant were being

arrested, she requested Trooper Mabe call her husband to pick up her children.

On cross-examination, Ms. Wright testified that the Defendant was hospitalized in

October, that the Defendant was arrested in March, and that she did not know the Defendant

was taking prescription drugs. She said the children attended “children’s church” without

adults on Wednesday nights. She said the children were not in car seats that night but were

wearing seatbelts. She agreed her license was suspended at the time and said the officer

asked her if she could drive the car home before he learned of her driving record.

The Defendant testified that hours before her arrest, she was visiting Ms. Wright, that

she took Ms. Wright’s children to church around 7:00 p.m., that she returned to Ms. Wright’s

home, and that she and Ms. Wright picked up the children at 8:00. She said she was stopped

by the police after they picked up the children. She denied weaving or driving erratically.

She said that after Deputy White stopped her car, he asked if she knew why he stopped her.

She thought the Deputy stopped her car because one of the children got out of his seat. She

said that when she gave the Deputy her driver’s license, he asked if she had been drinking.

She said she told Deputy White that she probably drank one-half of a beer around 2:00 or

2:30 that afternoon. She said that Deputy White asked if she knew the time and that she told

him it was about 8:30 p.m. She said that she got out of her car and that Deputy White asked

again how much she drank that day. She said that she gave the same response and that the

Deputy called her a liar.

The Defendant testified that she told Deputy White that she would attempt to perform

the sobriety tests, that she was disabled, and that she lowered her foot before counting to

thirty during the one-leg stand test. She said that she broke her leg previously and that it was

“crooked.” She said she had pins and plates in her right foot and a shaking disorder. She

said that she was diagnosed with the shaking disorder when she was eighteen years old and

that her condition worsened under stress. She said Deputy White did not demonstrate how

to perform the field sobriety tests.

The Defendant testified that after she performed the field sobriety tests, Deputy White

asked if she had anything in her pockets and that she gave him her house keys and four

Neurontin pills. She said that she agreed to a blood test and a breathalyzer test after she was

placed inside the police cruiser. She said that he continued asking her to submit to a blood

test, that she became irritated, and that she told him she would not submit to the test the fifth

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time he asked. She said she took the breathalyzer test at the police station twice because she

had difficulty blowing into the tube. She said she refused to take the breathalyzer a third

time. She said she was released from the hospital in November after several weeks of

treatment. She said she was on life support after her lung collapsed and was not permitted

to drive until March.

The Defendant testified that she was prescribed Neurontin and Xanax, that Deputy

White asked her if she had taken any medication, that she told him she had taken two Xanax,

and that she had been taking Xanax since she was eighteen years old. She said Xanax did

not affect her. She said she took the second Xanax around noon that day.

On cross-examination, the Defendant testified thatshe was still having problems with

her lungs at the time of the traffic stop, that she blew into the breathalyzer tube like Deputy

White told her, and that she refused to submit to a blood test. She denied telling Deputy

White that she had a beer with dinner after driving Ms. Wright’s children to church at 6:00

p.m. She said she was currently taking blood pressure medication, folic acid, cholesterol

medication, Neurontin, Xanax, and potassium. She said she had a prescription at the time

of the accident for the Neurotin pills found in her pocket, but she agreed she had not

provided it to Deputy White or the prosecutor. She denied taking Oxycodone at the time of

the traffic stop.

Deputy White was recalled as a rebuttal witness and testified that he showed the

Defendant how to perform the field sobriety tests. He denied asking the Defendant if she

knew why he stopped her car.

At the sentencing hearing, the Defendant testified that she was prescribed several

medications, including blood pressure medication, cholesterol medication, folic acid,

stomach medication, and anxiety medication for a nerve disorder. The court received as an

exhibit a letter from the Defendant’s treating physician since 2008 showing that the

Defendant was diagnosed with Generalized Anxiety Disorder and prescribed one milligram

tablets of Xanax as needed for anxiety. The Defendant stated that she had glaucoma, that she

had lung and heart conditions, and that her doctor wanted to perform surgery for her heart

condition.

Although a presentence report was prepared and the trial court relied upon it when

making its findings with regard to mitigating and enhancement factors, the report is not

included in the appellate record. According to the trial court, the report showed that on

August 24, 1994, the Defendant was convicted of battery upon a police officer in Sanford,

Florida. The Defendant was convicted of domestic violence, and at some point, a probation

violation warrant was issued, but the outcome was unknown. The Defendant was previously

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convicted of “several” public intoxication offenses, and the court found that the Defendant

had a problem with alcohol. The court said the report showed that the Defendant had a

pending DUI case in Claiborne County at the time the instant offense occurred and that the

Defendant was on bond for that offense.

The trial court found that the Defendant’s poor health was a mitigating factor. See

T.C.A. § 40-35-113(13) (2010). Although the court recognized the Defendant’s poor health,

it found that the Defendant’s conduct could have killed the four children in her car had there

been an accident.

The trial court found thatstatutory enhancement factors (1), (8), and (10) applied. See

T.C.A. § 40-35-114 (2010). The court found that factor (1) applied because the Defendant

had a history of criminal convictions and criminal behavior based on the presentence report.

See id. § 40-35-114(1) (“The defendant has a previous history of criminal convictions or

criminal behavior, in addition to those necessary to establish the appropriate range.”). The

court found that enhancement factor (8) applied because the Defendant was on bond for DUI

in Claiborne County at the time the instant offenses were committed. See id. § 40-35-114(8)

(“The defendant, before trial or sentencing, failed to comply with the conditions of a sentence

involving release into the community.”). The court found that enhancement factor (10)

applied to all DUI offenses. See id. § 40-35-114(10) (“The defendant had no hesitation about

committing a crime when the risk to human life was high.”). The court stated that the

children’s being present in the Defendant’s car was not the basis for finding that factor (10)

applied because it was an element of the DUI accompanied by a child conviction. The court

found, though, that the risk to human life was high with regard to other drivers on the

roadway.

The trial court found that confinement was necessary to avoid depreciating the

seriousness of the offense and to deter others from driving under the influence of drugs or

alcohol. The court found that there was a lack of potential rehabilitation based on the

numerous alcohol offenses dating to 1989.

The trial court sentenced the Defendant to eleven months and twenty-nine days, all

suspended except for 120 days. Although the court stated that it was “doing that because

there were four kids involved,” it also said that the Defendant was required to serve at least

thirty days because a child was involved and that its ordering 120 days’ confinement was not

based solely on the children’s presence. The court said it ordered 120 days because the

Defendant was on bond in another county at the time of the offense, had a history of public

intoxication, and four children were involved. The court noted that had the Defendant been

involved in an accident, four children would have been killed. With regard to the unlawful

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possession of legend drugs, the trial court sentenced the Defendant to thirty days’

confinement to be served concurrently with the 120 days. This appeal followed.

As a preliminary matter, the State contends the appeal should be dismissed because

the Defendant failed to file a timely notice of appeal and waiver is not in the interest of

justice. The State also notes that the Defendant failed to file a timely motion for a new trial.

The Defendant conceded at oral argument that the notice of appeal was untimely, and

appellate counsel stated that he did not represent the Defendant at the time the motion for a

new trial was filed and that he was unaware of an untimely motion for a new trial.

The record shows that the judgments were entered on August 19, 2011, after the

sentencing hearing. Trial counsel filed her motion for a new trial on September 23, 2011.

After the motion for a new trial was filed but before the hearing, appellate counsel began his

representation. Appellate counsel represented the Defendant at the hearing on the motion for

a new trial, which was denied on February 2, 2012. Appellate counsel filed the notice of

appeal on March 1, 2012, which he conceded was untimely.

A motion for a new trial must be filed within thirty days of the date sentencing is

imposed. Tenn. R. Crim. P. 32(b). The time requirement is “mandatory and jurisdictional,”

and neither the trial court nor the State is permitted to waive it. State v. Martin, 940 S.W.2d

567, 569 (Tenn. Crim. App. 1997); State v. Givhan, 616 S.W.2d 612, 613 (Tenn. Crim. App.

1980) (internal quotations and citations omitted); see Tenn. R. Crim. P. 45(b). Likewise,

“this court does not have the authority to waive the untimely filing of a motion for new trial.”

State v. Patterson, 966 S.W.2d 435, 440 (Tenn. Crim. App. 1997) (citing T.R.A.P. 4(a)). As

a result, “[a] motion for new trial which is not timely filed is a nullity.” State v. Dodson, 780

S.W.2d 778, 780 (Tenn. Crim. App. 1989).

The judgments were entered on August 19, 2011, the day of sentencing, and the

Defendant’s motion for a new trial was filed on September 23, 2011. The motion was

untimely, and the Defendant has waived the right to appeal any issues in the motion for a new

trial, except for sufficiency of the evidence and sentencing. See Patterson, 966 S.W.2d at 44.

The Defendant only contends that her sentence for the DUI accompanied by a minor child

conviction is excessive.

Tennessee Rule of Appellate Produced 4(a) states,

In an appeal as of right to the . . . Court of Criminal Appeals, the notice of

appeal required by Rule 3 shall be filed with and received by the clerk of the

trial court within 30 days after the date of entry of the judgment appealed from;

however, in all criminal cases the “notice of appeal” document is not

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jurisdictional and the filing of such document may be waived in the interest of

justice.

Although the Defendant conceded at oral argument that the notice of appeal was untimely,

we will consider the sentencing issue in the interests of justice.

The Defendant contends that her sentence for the DUI accompanied by a child is

excessive and argues that the trial court’s sentencing her to 120 days’ confinement was the

equivalent to four consecutive thirty-day sentences because four children were involved in

the offense. The State responds that the trial court properly sentenced the Defendant. We

agree with the State.

When imposing a misdemeanor sentence, the trial court is not required to conduct a

sentencing hearing, but it must afford the parties a reasonable opportunity to address the

length and manner of service of the sentence. T.C.A. § 40-35-302(a) (2010) (amended

2011). We note that the law provides no presumptive minimum for misdemeanorsentencing.

State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). In misdemeanor sentencing,

the trial court is not required to place specific findings on the record. State v. Troutman, 979

S.W.2d 271, 274 (Tenn. 1998). However, the trial court must consider the purposes and

principles of the Criminal Sentencing Reform Act of 1989. T.C.A. § 40-35-302(d); see

Troutman, 979 S.W.2d at 274 (“[W]hile the better practice is to make findings on the record

when fixing a percentage of a defendant’s sentence to be served in incarceration, a trial court

need only consider the principles of sentencing and enhancement and mitigating factors in

order to comply with the legislative mandates of the misdemeanor sentencing statute.”).

Tennessee Code Annotated section 40-35-401(d) (2010) states that appellate review

of sentencing is de novo on the record with a presumption that the trial court’s determinations

are correct. Our Tennessee Supreme Court recently interpreted the statute to mean in the

context of felony sentencing that length of sentence “within the appropriate statutory range

[is] to be reviewed under an abuse of discretion standard with a ‘presumption of

reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). More recently, our

supreme court has applied the abuse of discretion standard with a presumption of

reasonableness to “questions related to probation or any other alternative sentences.” State

v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012). This approach is consistent with the statute,

which provides that all sentencing questions under Code section 40-35-401(a) are subject to

the same standard for review. Although our supreme court has not addressed whether the

abuse of discretion standard with a presumption of correctness applies to misdemeanor

sentencing, the court has previously cited Code section 40-35-401(d) regarding the standard

of review of misdemeanor sentencing. See State v. Cooper, 336 S.W.3d 522, 525 n.4 (Tenn.

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2011). As a result, we conclude that the abuse of discretion standard with a presumption of

reasonableness now applies to misdemeanor sentencing.

As the Sentencing Commission Comments to section 40-35-401(d) note, the burden

is on the appealing party to show that the sentence is improper. When determining if

confinement is appropriate, a trial court should consider if:

(A) Confinement is necessary to protectsociety by restraining a defendant who

has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the

offense or confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently

been applied unsuccessfully to the defendant[.]

T.C.A. § 40-35-103(1) (2010).

A defendant convicted of first offense DUI is required to serve at least forty-eight

hours in confinement. T.C.A. § 55-10-403(s)(1) (2012). The mandatory minimum sentence,

though, is thirty days’ confinement if the Defendant was found guilty of first offense DUI

and found to have been accompanied by a child under the age of eighteen. Id. § 55-10-

403(a)(1)(B)(i).

The record reflects that the trial court considered the purposes and principles of the

Criminal Sentencing Reform Act of 1989 in determining the Defendant’s sentence. The

court enhanced the Defendant’s sentence from the thirty-day mandatory sentence to 120 days

because of the Defendant’s previous criminal convictionsin the presentence report, her being

on bond for another DUI offense at the time of the instant offense, and her committing the

offense when the risk to human life was high. We note that the court’s finding that the risk

to human life was high was not predicated on the minor children’s presence in the

Defendant’s car. Rather, the court found that the risk was created to other drivers on the

roadway. We note, too, that although the pending DUI offense in Claiborne County occurred

in 2005, the case was not resolved and the Defendant still on bond.

We agree with the trial court’s finding that confinement was necessary to avoid

depreciating the seriousness of the offense and to deter others from driving under the

influence. The Defendant’slack of rehabilitation isshown by the alcohol-related convictions

and arrests dating to 1989, a fact the Defendant does not dispute. The court stated that the

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120 days was based on the Defendant’s being on bond in Claiborne County at the time of the

offense, her history of public intoxication, and the presence of four children in the

Defendant’s car. The court did not require the Defendant to serve eleven months and twentynine days because of her health-related conditions. The court stated that had the Defendant

been healthy, it would have ordered her to serve the full sentence in confinement.

We conclude that the trial court did not abuse its discretion by ordering the Defendant

to serve 120 days’ confinement. The Defendant was on bond at the time the offenses were

committed and had previous convictions for alcohol-related offenses and assaulting a police

officer. There is no evidence in the record suggesting the court ordered 120 days’

confinement solely because there were four children present in the Defendant’s car. The

court, rather, sentenced the Defendant based on her previous criminal history, her disregard

for the safety of other drivers, and her being on bond at the time of the offense. The

Defendant is not entitled to relief.

In consideration of the foregoing and the record as a whole, the judgments of the trial

court are affirmed.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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