# FILED

October 23, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE FEBRUARY 1998 SESSION

STATE OF TENNESSEE, ) No. 01C01-9703-CC-00088 ) Appellee ) ) MARION COU NTY V. ) ) HON. JAMES C. SMITH, MITCHELL LEIDERMAN, ) JUDGE ) Appellant. ) (DUI) ) )
For the Appellant: For the Appellee: Philip A. Condra John Knox Walkup District Public Defender Attorney General and Repor ter 204 Bets y Pack Drive Jasper, TN 37347 Karen M. Ya cuzzo Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493
James Michael Taylor District Attorney General Steven H. Strain Assistant District A

ttorney P.O. Box 130 Jasper, TN 37347

OPINION FILED: ___________________

AFFIRMED AS MODIFIED

William M. Barker, Specia l Judge1 Appellant was also convi cted of vi olati ng the li ght law, i.e. drivi ng with only one headli ght, but he does n ot challeng e that con viction on a ppeal. See Tenn. Code A nn. §55-9-402 (1993). 2 OPINION
The appellant, Mitchell Leider man, appeals as of right his c onviction in the Marion County Circ

uit Court of driving

under the influence, second offense. 1 Appellant was sentenced to eleven months, twenty-nine day s and ordered to serve 75 d ays with the remainder to be served on probation. He was fined $600 and th e trial court granted his request for w ork release. On appeal, he contests the sufficiency of the evidence, the trial court’s admission of a hearsay statement as an excited utterance, and the propriety of his sentenc e. After revie wing the recor

d, we affirm the appella nt’s co nvicti on, but m odify the sentence imposed. Deputy Tim Prince with the Marion County Sher iff’s Department was on routi ne patrol the night of July 4, 1995. Around midnight, he noti ced a truck driving on Highway 41 that had only one headlamp. As he drew closer, he noticed the vehicle was slightly in the opposing lane of traffic. H e began following the v ehicle and observed it cross the center line two more times. Prince decided to perform a traff ic stop. As he approached the vehicle, he noticed the odor of alcohol about appellant’s person and observed a youn g female with long dark hair in the passenger’s seat. Prince asked appellant to st ep out of the car and informed him he w ould need to perform field sobriety tests . When Prince asked if he had been drinking, appellant replied affirmatively. Prince demonstrated both the one l eg stand and the heel to toe test and asked appellant if he could perform those. Appellant could only count to one while standing on one foot, despite the fact that Princ e allowed him more than one oppor tunity to perform that test. For the heel to toe test, appellant was unable to hit heel to toe and2 The jury ori ginally imposed a fi ne of $1,500, the maximum for a first time offender. Tenn. Code Ann. §5 5-10-40 3(a)(1) (S upp. 199 5). How ever, the c lassification of the DU I offense was su bmitted to the tri al court f

or determination. Upon determini ng that appel lant was a second time offender, t he trial court im posed the m inimum fine for that v iolation. Id. 3 was unable to stay on th e line. Prince concluded that appellant was impaired and placed him under arrest. Appel lant refused to take a breath alco hol test. Appellant’s proof at trial w as provided by testi mony from his son Brian Leiderman. Young Leiderman tes tified that appellant played g uitar and sang in a band, and on the night of the incident , the band played at Aetna Mountai n Bar and Grill from 9:00 p.m. until 1:00 a.m. Brian stated that he was with his father the entire night and he never observ ed his father drink any al coholic beverage. In addition, he stated that the band has a rule pr ohibiting members from drinki ng alcohol when they are playing. After hearing the proof, the jur y convicted appellant of driving under the influence. The court later deter mined that it was appellant ’s second offense. It sentenced appellant to eleven months, twenty-nine day s and ordered him to serve 75 days of the sentence with the remainder to be served on supervised probation. The court fined appellant $6002 and granted his request for work release. Appellant first challenges the sufficiency of the convic ting evidence. He ur

ges us to reverse the conviction because Deputy Prince did not follow standardized field sobriety tests and becaus e he did not testify to any of the “myriad tell-tale signs of intoxication.” We decline to do so. Appellant’s arguments are nothing more than an attack on the credibility ofDeputy Prince’s testimony and the weight accorded it by the jury. Appellant’s crossexamination of Prince was effective in revealing

weaknesses in his tes timony about which he now complains . The jury was pres ented with testimony that Prince used field sobriety tests that may not be considered standard because they are “easier” than those used by the Tennessee Highway Patrol. Moreover, the jury heard Prince’s description of appellant’s demeanor and appearance and was awa re that he did not4

specify that appellant had sl urred speech, bloodshot eyes , or the like. Questions concerning the credibil ity of the witnesses, the weight and value to be given to the evidence, as well as

factual issues raised by the evidence are resolv ed by the trier of fact, not this Court. State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978). The jury’s verdict obviously

accredited Deputy Pri nce’s testimony and we will not disturb that finding on appeal. According the State the strongest legitimate view of the evidence, as we are required to do on appeal, the proof established that Deputy Prince observed appellant’s vehicle cr

oss the center line of the roadw ay three times. Upon stoppi ng his vehicle, Prince noticed a smell of alcoholic be verage about appellant’s person. Appellant was unable to per form either of two field sobriet y tests administered by Prince, after repeated attempts and d espite Prince’s efforts to acc ommodate for appellant’s claimed back and l eg disability. When asked about dri nking, appellant admitted that he had. From those facts,we believe a ratio nal trier of fact was justified in finding that appellant w as driving on a publi c roadway whil e under the influence of an intoxicant. See Tenn. Code Ann. §55-10-401 (1993); Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (19 79). Next, appellant argues

that the trial court err

ed in admitting a hearsay statement by a passenger i n appellant’s car as an ex ited utterance. He alleg es that the statement was not made as the r esult of a startling or s

tressful event. Appellant further contends that the statement w as ambiguous and misleading. Deputy Prince testified that there was a young female passenger in appellant’s vehicle when the traffic stop was performed. He state d that after appellant failed the field sobriety tests, he placed appellant in the patrol car and returned to appellant’s vehicle. Approximate ly seven to eight minutes had passed. Prince tes tified that the young passenger w

as upset and crying. In an effort to calm her, he began speak ing to her. Prince testified that the passenger said appellant “should not be driving.”3 Second time DUI offenders a re eli gible f or work release.Tenn. Code Ann. §41-2-1 28(c) (Supp. 1995). T hat statute , howeve r, requires that trial courts follow a sp ecific proc edure. Id. We note that the trial court in appellant’s case substant ially complied with these requi rements, but fai led to i nsure that an investi gative r

eport was completed pr ior to or dering work rel ease. We encourage trial courts to f

ollow the stri ct requir

ements of the stat ute. 5 Hearsay statements are generally not admissible, unless relevant and subject to some exception which provides an indicia of r eliability. See Tenn. R. Evid. 802. One such exception admits s tatements that are excited utt erances. Tenn. R. Evid. 803(2). An excited utter ance is a statement relating to a startling event

or condition made while the declarant w as under the stress of exci tement caused by the event or condition. Id. It is generally thought that the stressful condi tion precludes the opportunity for fabrication, thus ensuring the reliab ility of the statement. State v. Smith , 857 S.W.2d 1, 9 (Ten n. 1993). The trial court found that the declarant was still under the stress of seeing appel lant arrested and placed in a patrol car when the statement was made. We agree. The passenger was appellant’s ex-wife’s daug hter, whom he had been caring for that night. While her age does not appear in the record, appellant’s son described her as “a little kid.” According to Deputy Prince, she referred to appellant as “daddy.” In light of her apparent y outhful age, we believe witnessing someone she r egarded as a father figure being arres ted and placed in a police car was a startling ev

ent for the declarant. Moreover, the record reflects that she w as still under the stres

s and excitement of the event w hen she made the statement. Smith , 857 S.W.2d at 9. The trial court did not abuse i ts discretion in admitti ng the statement. Appellant’s only challenge to his sentence is the length of time that he m ust serve in confinement. Initially, the trial court sentenced appellant to serve 60 days in confinement before being eligible for probatio n. At appellant’s request, the trial court granted him the opportunity for work release, but increased the length of his confinement to 75 days. 3 Appellant argues that increasing the days in c onfinement has a “chilling effect” on o ffenders and discourages them from seeki ng work release.6 Although sentencing for DU I offenses requires mandatory minimum periods of confinement, it remains that misdemea nor offenders must be sentenced in accordance with the pri nciples, purposes, and goal s of the Sentencing Act. Tenn. Code Ann. §40-35-302(b) (Supp. 1995); State v. Palmer , 902 S.W.2d 391, 393-94 (Tenn. 1995). The Sentencing Act sets forth an e xclusive list of enhancement factors which may be consider ed in setting the length of a sentence above the minimum penalty. See Tenn. Code Ann. §40-35-114 (Supp. 1995) ; State v. Dykes , 803 S.W.2d 250, 258-59 (Tenn. Crim. App. 1990) . Whether a portion of the sentence will be served on work rel ease is not one of the statutoril y enumerated enhancement factors. See Tenn. Code Ann. §40-35-114 (Supp. 1995)

. The trial court failed to note any statutory sentencing consideration as a reason for increasing the confinement per iod from 60 days to 75 days. As a result, the trial court erred in increasing appellant’s time in confinement based only upon his request for work release. See also State v. Robert Kuykendall , No. 03C01-9310-CR-00377 (Tenn. Crim. App. at Knoxville, February 23, 1995) (holding that trial court improperly considered that defendant could reduc e his sentence by “w

ork credits”), perm. app. denied (Tenn. 1995). We reduce appellant’s sentence to confinement for 60 days, the length originally ordered by the trial court. The judgment of the trial court is affirmed in all other respects.

_______________________________ William M. Barker, Specia l Judge

CONCUR:

____________________________ Gary R. Wad e, Presiding Judge

____________________________ Curwood Wi tt, Judge