### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE April 22, 2003 Session

STATE OF TENN ESSEE v. MELISSA A . MELLINGER

Direct Appeal from the Criminal Court for Wilson County Nos. 00-1385, 00-1386 John D. Wootten, Jr., Judge

No. M2002-01029-CCA-R3-CD - F iled December 10, 2003

The ap pe ll an t, Me li ss a A . M el li ng er , w as co nv ic te d b y a jury in the Wilson

County Criminal Court of two count s of first

offense driving under the influence (DUI) , Class A misdemeanors. The trial court merged the convictions, imposed a three hundred f ifty dollar ($350) fine , and sentenced th e appellant to el ev en mo nt hs an d t we nt y-n in e d ays to be su sp en de d u po n s er vi ng tw o h un dr ed se ve nt ythree (273) da

ys in the coun

ty ja il. The tr ial cour t also suspendedthe appellant’s driver’s license for

one year. O n appeal, the appellant argues that the sentence imposed by the trial court wa s excessive. Upon review of the

record and the pa

rties’ br iefs, we affirm t he judg ment of the

trial cou rt.
Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cr

iminal Court is Affirm

ed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in whi ch J OE G. R ILEY and J AMES C URWOOD W ITT , J R ., JJ., joined.

Lance B. Maye s and M. Don Himmelberg, Nashville, Tenn essee, for the appellant, Melissa A. Mellinger.

Paul G. Summers, Attorney Gene ral and Reporter; Kim R. Helper, Assistant Attorney Gene ral ; Howard Lee Chambers, District Attorney Gen eral Pro Tem; and Jerry D. Hunt, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.
OPINION

I. Fact ual Backgro

und

On June 13, 2000, the Wilson County Grand Jury r eturned an indictmen t ch arging the appellant with two counts of vehicular assault. At trial, Chisa Tipton, who was sixtee

n at the tim

e of the offense, testified

that on February

28, 2000, the nineteen-y ear-old appellant asked her if she would li ke to ac co mp an y he r t o a pa rt y i n Le banon, Te nnessee . Tipton re sponded th at she would like to go to the party and the g irls left around 6:00 p.m. that evening. On the way to the pa

rty, the appellant stopped at a liquor store in Nashville and paid a man twenty dollars to buy her a bottle of-2-

gin. After the man purchased the bottle of gi n, th e a pp el la nt an d T ip to n p ro ce ed ed to th e p ar ty. When they arr

ived at the party, the

appellant took the bottle of gin and went into a room with one of her friends. Tipton testified that when the appellant entered the room, the bottle of gin was full, butwhen the

appella nt exited the

room thirt

y min utes late r, the bot tle was no

longer full. Shor

tly th er ea ft er , t he ap pe ll an t a nd Ti pt on le ft th e p ar ty.
Tipton testifie d that on the way ho me from the party , the appellant stopped at a Kry stal’s Restaurant

and purchased a large sof t drink to which she added gin. Thereafter, the appe llant became lost and decided to stop andask for directions. After stopping at a gas station, the appe llant pulled onto Highway

70. At trial, Tipton related that there was “a lot of traffic onthe road.” Tipton testified that she was also concerned because the appellant was acting“a little bit drunk” and driving at speeds of ninety to one hundred miles per hour.
Tipton testified that while driving on Highway 70, the appellant pulled into the “oncoming traffic lane.” Tipton stated that she saw “cars . . . coming right towards us and I blacke d out.” When she regained cons ciousnes s, Tipton g ot out of the appell a nt’s veh icle, not realizing she had been injured. Tipton observed that the front sections of the appellant’s vehicle and another vehicle were “s ma shed” and the appellant and the other driver were trapped inside their vehicles. Thereafter
, “rescue” arrived and

transpor ted Tipton

to the hosp ital. Tipto n sustained lacer ations to b oth legs
, which lac eration s requir

ed stitche s.
Margaret Partee was the driver of the veh icle struck by

the appe llant’s ve hicle. At trial, Partee testified that her onl y r ecollec tio n of the collision was that at approximately 7:00 p.m. on February 28, 2000, she was driving on Highway 70 when she saw “two headlights coming at [her] in [her] lane of traffic.” As a result of her collision w ith the appellant’s vehicle, Partee suffered

numerous injuries. Both of her legs were plac ed in casts up to her knees, she suffere d lacerations

across both knees which required stitches, her lef

t heel ha d to be com

pletely reconstructed, and she hadto have a long rod plac ed in her right th igh. As a result of these inju

ries, Par tee was t emporar ily disabled. Following a five week stay in the hospital, Part ee had to live with her daughter for two months, after which she was able to return to her own home. However, because Partee wa s confined to a wheelchair, a f

riend ha d to move in

to her home for several months to care for he r. Moreover, because Partee was unable to return to work for a long period of time, the law firm

she worked for

was forced to hire someone else. Although the firm of fered her a “secon d ary job,” Par tee retired shortly after r eturning to work. Partee testified at trial, “I ’m not 100% normal yet and possibly never will be.”

At trial, Lebanon Police

Offi cer Michael Wentzell testified that on February 28, 2000, he respon dedto a call regarding a two car collision on Highway 70. Upon arrival, Officer Wentzel l observed the two vehi cles, both of which had s ustained s ubstanti al damage. Bo th P artee and the appellant were trapped in the driver’s seat of the ir vehicle. According to Officer W entzell, the appellant was “sc reaming and yelling”and appe ared to b e in a gr eat dea l of pain. Office

r Wentzell related that he smelled alcohol on her breath. Officer Wentzell testified that when he wasclearing1 W e note that t he requirement that t

he appellant serve two hu ndre d sev enty-three (27 3) d ays in the c ounty ja il does not ba r the ap pellan t from e arning goo d co nduc t cred its to wards the ja il time. State v. Clark , 67 S. W.3d 73, 78 (Tenn. Crim. App. 200 1).

-3- the scene, he discovered a bottle of Seagram’s g in between the console and the driver’s seat of the appellant’s vehicle.
Tim Crabtree, an emergency medical technician, responded to the collision and treated the appellant at th e scene. He tes tified at trial that the appellant had “a fruity odor about her breath.” Crabtree related that a fruity odor of the breath indicated the presence of alcohol. Crabtree further stated that the appellant’s speech was slurred and she was combative.

At trial, Nouri Raaip our, a me dical te chnici an in the l aborato ry at Vande

rbilt Hosp ital, testified that on February 28, 2000, he received a specimen of blood with the appellant’s name on it. Raaipour testified that he analyzed the blood in accordance with hospital procedu

re. On crossexamination, Raaipour acknowledged that he h ad not seen the blood d rawn fr om the app ellant. Moreover, nei the r the police nor the Tennessee Bure au of Investiga tions had requested that he preserve the sample of blood.

Dr. Steven White treated the appellant upon her arrival at Vande rbilt Un iv ersity Medical Center. Dr. W h ite testified that the appellant “was brought in by helicopter. . . . And she was combative and profane. And she appe ared to b e intoxicat ed.” Although Dr . White could not rec all who took the a

ppellant ’s blood or

how the bl ood was dr

awn, he t estified that he di d, infact, “ord

er[]

a blood sample to be analyzed for alcohol co ntent.” Dr. White r elated th at pursua

nt to proto col,

numeroustests were co nduct ed on t he app ellan t’s bl ood, i nclud ing to xico logy screen s and test s to determine blood alcoh ol content. Dr. White testified that the results returned from the laboratory established that the a

ppellant had a bloo d alcohol

content o f “295 mill

igramsper deci liter.” Regarding the extent of the appellant’s intoxication, Dr. White explained,

I would not [a

llow a pat ient] to leave an emergency roomwith .295. If they were

driving they

would be rest rained and ke pt fro m leav ing. I would immediately

report it to the police.

At the conclusion of the proof, a jury convictedthe appellantof two counts of the lesserincludedoffense

of dri ving under the influence, first offense . The trial court subsequently held a sentencing hearing. At the conclusion of the sent enci ng hearing, the trial court mer ged the convicti ons, imposed a three hundred fifty dollar ($350) fine, and sentenced the appellant to ele ven months and twenty-nine da ys to be suspended

up on se rv in g t wo hu nd re d s ev en ty- th re e ( 27 3) da ys in the count

y ja il. 1 The trial court also suspended the appellant’s driver’s license f or one yea

r. The appellant timely appea

led.2 In th e inst ant cas e, th e percent age of s ervice i s seven ty-fiv e percent (75%), which coinci des wit h the two hund red se venty-thre e (27 3) d ays of co nfinem ent ord ered by the trial c ourt.

-4- II. Analysis
On appeal, the appellant arguesthat the sentence imposed by the trial court was excessive. Sp ec if ic al ly, the appellant contends that “the nature of [her] conduct did not warrant the severity of the punishment.” The appellant further cont ends that the trial court misapplied the enhancement factor s used to increase

the perc entage

of her se ntence t o be serv ed in conf

inement.

When an appellant challenges the leng th, range, or

manner of service of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial cou

rt are c orrect

. Te nn . C od e A nn . § 40 -3 5- 40 1( d) (1 99 7) . G en er al ly, the presumption of

correctness is “conditioned upon the affirmative showingin the record that the trial court considered the sentencing principles and all relevant fa cts and circumstances.” State v. Ashby
, 823 S.W.2d 166, 169 (Tenn. 1 991). How ever, th e trial c ourt has m

ore flexibility

in misdemeanor

sentenc ing than

in felony sentencing. State v. Johnson , 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999) (citi ng State v. Troutman
, 979 S.W.2d 271, 273 (Tenn. 1998)). In misdemeanor sentencing , the “trial court need only consider the principles of sentencing and e nhancement and mitigat

ing factors in ord

er to com ply withthe legislative mandates of the misdemeanor sentenc ing statute.” Troutman
, 979 S.W .2d at 274. The burden of

showing that a sentence was improper is on the appellant. Tenn. Code Ann. § 40-35-40 1, Sentencing Com mission Comme

nts.

Misdemeanor

sentencing is controlled by Tennessee Code Annotated section 40-35-302(b) (Supp. 2002), which provides in pertinent part that the trial court shall impose a specific sentence consistent with the purposes and principles of the 1989 Criminal Sentencing Reform Act. See also Statev. Palmer , 9 02 S.W.2d 391, 3 92 (Tenn. 1995). Unlike a defendant convicted of a felony, a defendant convicted of a

misdemeanor is not entitled to a presumptive minimum sentence. Johnson
, 15 S. W.3d at 518 (citi ng State v. Baker , 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997)). Rather, in sentencing the misdemeanor defenda nt, the trial court shall fix a percentage of the sentence that the defenda

nt mu st serve in confinement before being eligible for release into rehabilitative progra ms. 2 Tenn. Code Ann. § 40-35-302(d) . The trial court shall consider the sentencing principles andenhancement and mitigating factors in determining the percentage to be served and

“shall not impose such percen

tages a rbitrar ily. ” Tenn. Co de Ann. § 4 0-35-302 (d); see also Troutman , 9 7 9 S.W.2d at 274.

In the instant case, the appellant was convicted of DUI , first of

fense, a Class A misdemeanor. Tenn. Code Ann. § 55-10-403(a)(1) (2000). A per son convicted of a first offense DUI “shall be confinedin the count

y ja il or workhouse for not less than forty -eight (48) hours nor more than eleven (11) months and twenty-nine (29) days.” Id. However, if theoffender’s blood alcohol content was greater than .20 percent, the minimum period of incarc eration

increa ses to sev en day s. Id. ; see also Statev. Helen Dixon Devers , No. M1999-00427-CCA-R3-CD, 2000 Tenn Crim. App. LEXI S 501, at *10 (N ashville, June 23, 200 0). I n effect, the DUI statute mandates a ma ximum sentenc e, with-5-

the only function of the trial cour t being to determine what period above the minimum period of confinement is to be suspended. State v. Combs , 945 S.W.2d 770, 774 (Tenn. Crim. App. 1996). Moreover, unlike general misdemeanor sentencing in which a trial court is not permitted to require confinem ent

in excess of seventy-f

ive percent (75%), a trial court is authorized to require a DU I offender to serve one h undred percent (100%) of her se ntence in confinement. State v. Allen Prentice Bl ye , No. E2 00 1-01375-CCA-R3-CD, 2002 Tenn. Crim. App. LEXI S 961, at *28 (Knox vill e, Nov . 1, 20 02) (ci ting State v. Palmer , 902 S.W.2d 391, 393-94 (Tenn. 1995)).

In sentencing the appellant, t he tri al court considered the evidence pre sented at trial, the presentence report, the testimony of the witnesses at the sentencing hearing , and the arguments of counsel. At the sent encing hearing, B etsy Jakalski, the probation officer who prepared the appellant’s presentence report, testified that the app ellant ha d no prior convictions, but had previous ly

been g rante d pretrial diversion in Davidson County on charg es of vandalism, resisting stop an d f

ri sk , p os se ss io n o f a lc oh ol by a n i nd iv id ua l u nd er tw en ty- on e y ears of age, public intoxication, and disorderly c onduct. Jakalski testified that the appellant informed her that she had consumed alcohol on few occasions and had bee n drunk only “a couple of times.” Jakalski stated that since the present

ence int erview, the appe

llant had moved to Ro

bertson Co

unty to live with

her father. Jakalski further testified that the appellant had worked at the Old Country Buffet for four years, but ha

d abandoned the job a week prior to the presente nce interview.

Margaret Partee also testified at the sentencing hearing, reading he

r victim impact statement into the rec ord. P artee’ s test imon y regarding t he injuries sustained as a result of the collision mirroredher testimony

at trial, but in gr

eater d etail. She related that it took the rescue team two hours “to cut

me out of my car .” Partee further testified that before the accident she had visited

her eighty -seven- ye ar-old

mother once a week, but after the ac cident she saw her mother on ly a few times before her death in December 2000. Partee explained that as a result of the collision, she had suffered a great deal of pain, had been unable to participate in many special events, i ncl uding vacatio ns, and had missed a significant amount of

work prio

r to retirement. Moreover, she related that her “brand new 2000car, that [she]’d hadfor barely a month was demolished.” Partee further testified that the appellant had not apologized or expressed any remorse for her

actions. Partee urged the trial court to impose “the maximum confinement time.”

The appellant testified on her own b ehalf a t the sente

ncing hearing , stating

that at the

time of the accident she was nineteen years old a

nd did not have “a lot of experience with alcohol.” She related that h er crimi nal history consisted of one speeding ticket and the aforementioned pretria l diversion

. The appe ll ant testified that she was “sorry for what happened” and that she had not consumedalcohol since the accident. The appellant explained that at the time of the accident she

was attendin g Volunt

eer Stat e Community

College , but she w as forc ed to drop out as a result of her injuries. According to the appellant, she abandoned her job at the Old Country Buffet because she

no longer owned a v ehicle. The appe ll a nt testified that if the trial court did not sentence her to a period of co nfinement, she would return to work full-time and pursue her “ma rketing degree” a t Volunteer State Community College.3 We note t hat, begi nni ng Jul y 4, 2002, “ the 2002 amendmen t [to Tenness ee Code Annot ated section 40- 35-

114] added pre sent

[enh ancemen t f

actor ] (1) and re desi gnat ed for mer (1 ) through (22) as present (2) t hrough (23),
respe ctively.” Tenn. Code Ann. § 40-35- 114, Amendme nts (Supp. 2002). Ho wever, for the purposes of t his opinion, we will us e the former designati ons applicable at the time of the appellant’ s sentencing.

-6- Thereafter, the trial court questioned the appe llant regardingthe David son County charges for which she receiv ed pretr ial diver sion. The

appella nt conce ded that s he consu med beer while a minor, thus leading to the underlying public intoxication charge giving rise to pretrial diversion. The trial court noted that the appellant was placed on pretrial diver sion in Augus tof 1999. The trial court then noted that the appellant was indicted in the instant case in June2000, less than a yea r after being placed on pretr ial div ersion. The appellant explained that her pretrial diversion was not revoked because the probation officer monitoring her diversion was not advised that she had been charg ed for the instant offenses. However, the appellant acknowledged that the probation off icer had advised her that while on pretrial diversion shewas not to violate the law. The appellant also conceded that she knew she

was viola

ting the law when , on the nig

ht of the in stant off

ense , she asked ano ther person to buy her a

bottle of gin and drank the gin despite being underage.

The trial court correctly

noted that, bec ause

the appellant’s blood alcohol content was grea ter than .20 percent, the mandatory minimum period of confinement was seven day s. See Tenn. Code Ann. 55-10-403(a)(1). The trial court then consider ed the enhance ment and mitigating factors to determine the portio n of the se ntence t he appellant should serve

in confinement before

being e ligible for rele ase on pr

obation. T

he trial c ourt appl

ied the f ollowing enhanc ement fa

ctors: (1) The appellant

has a previous history of cr iminal convictions or criminal behavior; (3) The o ffense

involved m

ore than one victim; (6) The personalinju ries i nflic ted up on or t he amo unt o f damage to propert y su stained b y the victim w as partic ularly great ; (10) The appellant 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 potentia l for bodi ly in

jury to a victim

was gr eat. Tenn. Code Ann. § 40-35-114 (1997). 3 Regar ding mitig ating f

actors, the trial

court t ook into consideration the appellant’s youth a nd the fact that the appe llant m ade “som e effor t . . . to compensate the victim.” See Tenn. Code Ann. § 40-35-113(5), (6) (1997).

On appeal, the appella

nt first asserts that the trial court erred in apply ing enhancement factor (1), i.e., the appellant has a previous history of c riminal con victions or criminal behavior. Tenn. Code Ann. § 40-35-114(1) (1997). The app ellan t cont ends t hat “t he St ate on ly had a cha rge in which the [appellant] . . . was granted pretrial diversio n. There

were no other ch argeson the [app ellant’s ] record.” However, we note that this court has previously concluded

that the criminal acts for which

a defendant receives diversion can be considered as prior criminal behavior under enhancement fa ctor (1). State v. Kelley , 34 S.W.3d 471, 481 (Tenn. Crim. App. 2000). Here, the appel lan t conceded that she consu

med beer while a m in or , w hi ch le d t o t he pr et ri al di ve rs io n. Ac co rd in gl y,-7-

the trial court was allowed to consider the charge for whic h the appellant received pretrial diversion when det ermining the amoun

t of the a ppellant ’s sente

nce to be served in confine

ment.

Next, the appe

llant con tends tha t the tria l court e rred in applying enhancement factor (3), i.e., the offense involved more than one victim. Tenn. Cod

e Ann. § 40 -35-114( 3) (1997) . On appe al, the appellant correctly

asserts that enhancement factor (3) ma y not be applied to enhance a

sentence where a defendant is separate ly convicted of the

offenses committed against each victim. State v. Williamson
, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995 ) . In th e instant case, the appellant was charged in atwo count indictment with the vehicular assault of Margare t Partee and Chisa Tipton. However, the appe

llant wasconvic ted of the lesser-included offense of DUI . Nevertheless, the jury ’s acquittal of vehicular ass ault does not preclude the trial court from applying this enha

ncement factor andconcluding that the DUI offense ledto injuries. See State v. Win field , 23 S.W.3d 279, 284 (Tenn. 2000). This court has previously c oncluded that DUI is a crime la cking a name d

victim. Statev. Brenda F. Jones
, No. W2002-00751-CCA-R3-CD, 2003 Tenn. Crim. App. LEXI S 660, at *1 4 (Jack son, July 29, 2003). Therefore, w e conclude that the trial court correctly applied enhancement

factor (3). As we have noted, both Partee an d T ipton were injured as a result of the appellant’s driving under the influence, and Par tee’s vehicle sustained excessive damage.

The appellant also challenges the trial court’s application of enhancement factor (6), i.e., the personal injuries inflicted upon or the amount of damage to property sustained b y th e victim

was particularly

great. T enn. C ode An n. § 40 -35-1 14(6) (1997 ). Ci ting State v. Williamson , 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995), the appella nt contends that, “because the personal injuries suffered by the victim[s] were an element of the offense of vehicular a ssault, . . . enhancement fa ctor [( 6)]

can not be app lied.” Ho wever, as previ ously noted, in the instant case the appellant was convicted of DUI, not vehicular

as sa ul t. “P er so na l i nj ur y” is not an element of DUI. See Tenn. Code Ann. § 55-10-401 (2000). Based upon the testimony at trial and at sentencing rega rding the destruction

to Margaret Partee’s new vehicle and the extensive injuries sustained by Partee a

nd Chisa Tipton, we conclude that the trial court appropriately applied enhancement factor (6).
Next, the appellant contends that the trial court erred in apply ing enhancement factor (10), i.e., the appellant had no hesitation about committing

a crime w

hen the r isk to human life was high. Tenn. Code Ann. § 40-35-114(10) (1997). Enhancement factor (10) may be applied where the appellant creates a h igh risk to the life of a person other than the victim. State v. Bingham , 910 S.W.2d 448, 452 (Tenn. Crim. App. 1995). However, proof m ust exi st “that other persons or motorists were either

in the vicinity or

placed at risk by

[the appellant’s] conduct.” State v. Janice Carol Biskner , No. E2000-01440-CCA-R3-CD, 2001 Tenn. Crim. App LEXIS 887, at **39-40 (Knoxville, Nov. 13, 2001) . The appellant asserts that “[t]here was no testimony at trial which stated t hat the [appellant] endangered any other person on the roadway .” We disagree. At trial, C his a Tipton testified that she became concerned whe n the appellant pulled onto Highway 70 because t

her e
was “a lot of traffic on the road.” Tipton further related that the appellant subsequently drove he

r vehicle into o ncoming

traffic . Based

upon these

facts, w e conclu de that the trial c ourt prop erly applied enhancement factor (10).4 This court has previous ly r ejected “ the proposi tion t hat dri ving un der the inf luen ce .

. . do[es ] not

caus e or threaten seri ous bodily injur y.” Virginia Ailene Gann , 1998 Tenn. Crim. App. LEXIS 581, at * 22.

-8- Fi na ll y, the appellant contends that the trial court

erred in apply

ing enhancement factor (16)
, i.e., the crime

was committed under circumstances under which the potential for bodily injury to a victim was great. Tenn. C ode Ann. § 40-35-114(16) (1997). The appellant arg ues that “[s]ince serious bodily injury

is an essential element of vehicular assault, enhance ment factor (16) may not be applied. ” Howev er, as pr eviously noted, the

appella nt was co nvicted o f DUI , not vehic ula r assault. SeeTenn. Cod

e Ann. § 55 -10-401. This cour t has previously

observed that, if supported by the facts and circumstances of the case, enhancement factor ( 16) may be a pplied to enhance a DUI sentence. 4 See State v. Terry L . Bying ton , No. 03 C01-9 711-CC-00488, 1998 Tenn. Crim. App. LEXIS 1162, at * *9-10 (K noxvil le, No v. 12, 1998 ); State v. Virginia Ailene Gann , No. 01C01-9704- CC-00164, 1998 Tenn. Crim. App. LEXI S 581, at *21 (Nashville, May 27, 1998) . Clearly, under the circumstances in the instan t case, the potential for bodily injury was g

reat. The appellant’s conduct resulted in a head-on collision in which both the driver of the other vehicle and the passenger in the appellant’s vehicle were seriously injured. Ac co rd in gl y, we conclude that there was no error in the trial court’s application of enhance ment factor (16).

III. Conclusion
Based upon the foregoing , we affirm the judgment of the trial court

___________________________________ NORMA McGEE OGLE, JUDGE