# FILED
March 7, 2000 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 2000 SESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. E1999-00551-CCA-R3-CD

) ) Hawkins County v. ) ) Honorable James E. Beckner, J udge ) BRIAN R. WATERS, ) (Driving under the influence of an intoxicant, ) third offense) ) Appellant. )
For the Appellant : For the Appellee : Greg W. Eichelman Paul G. Summers District Public Defender Attorney General of Tennessee 1609 Coll ege Park Dr ive and Box 11 Clinton J. Morgan Dandridge, TN 37725-0416 Counsel for the State and 425 Fifth Avenue North R. Russell Mattocks Nashville, TN 37243 Assistant Public Defender 203 Washington Street, Suite H C. Berkeley Bell, J r. Rogersville, TN 37

857 District Attorney General

109 South Main Street, Suite 501 Greeneville, TN 37743 and John Douglas Godbee Assistant District A

ttorney General 100 East Main Street, Suite 201 Rogersville, TN 37

857

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge
O P I N I O N

The defendant, Brian R. Waters, appeals as of right from his conviction following a jury trial in the Hawkins County Criminal Court for driving under the influence1 The defendant was also convicted of drivi ng on a revoked li cense, second offense, but he does not c hallen ge th is con viction on ap pea l. 2 of an intoxicant (DUI), third offense, a Class A misdemeano r. 1 The defendant was sentenced to eleven months, tw enty-nine days of confinement i n the county jail, to be served at seventy-

five percent. He was fined two thousand nine hundred ten dollars. The defendant contends that (1) the evidence is insufficient to support his convictions, and (2) the trial court erred by sentencing hi m to more than the statutory mi nimum amount of confinement. We affirm the judgment of conviction.

Travis Chappell, a patr olman with the Church Hi ll Police Department, testified that on February 10, 1999, he was using hi s radar to check for speeding on North Cen tral Avenu e. He said his radar d etected the def endant d riving at fo rty-five miles per hour in a thirty-mile-per-hour zone. He said he pulled behind the defenda nt’s car and noticed that the car w as weaving, movi ng from one side of the shoulder to across the middle lines thr ee or four times. He said he ac tivated his blue lig hts and stopped the defendant.

Officer Chappell testified that tw o other men were in the car with the defendant. He said he noticed an odor of alcohol when the defendant rolled down his window. Officer Chappel l said he asked the defendant for his l icense, but the defendant said he did not have it. He said that the defendant’s ey es were bloodshot and glassy and that the defendant was slow to respond to his questions. He s tated that he asked the defendant to step outside the car and that the defendant was unst eady and had to lean on the car to stand. He said that when he asked the defendant if he had been drinking, the defendant replied that he had consumed six or seven beers.

Officer Chappell testified that he as ked the defendant to perform a variety of field sobriety tests. H e said he asked the defendant to touch hi s finger to his nose, but he missed and touched his li ps. He said he asked the defendant to raise one foot off the ground, but he could not do it and fell into the car. He sai d that although the defendant had previously denied having any medical problems, the def endant then said that medical problems prev ented him from performing the balanci ng test. Officer Chappell said the defendant could not count to four on his fingers and c ould not follow3

his instructions to rec

ite the alphabet beginning with “D” and ending with “N.” Officer Chappell said he determined that the defendant was under the influence and arrested him. He said that at the jai l, the defendant refused to consent to a br eathalyzer or blood alcohol test.

Reggie Evan s testif ied that at the tim e of the offens e, he was a r eserve officer with the Church Hi ll Police Department. He testified that he was ri ding with Officer Chappell when he stopped the defendant. He said the defendant stagg ered, smelled of alcohol, slurred his speech and had red eyes.

Geraldine Snow, the defendant’s mother, testified that the defendant w as with her until 7:00 p.m. o n the day of the incident. She s aid that although the defendant did not consume alcohol in her presence, she did not know what he did after he left.

Ben Lovin, a friend of the defendant, testi fied that he and the defendant drank two to three beers at his house on the night of the i ncident. He said they w ent to Tina Cole’s house around 7:00 p.m. and drank an other beer. He testified that his chest began hu rting and that he to ok a nitro glycerin pi ll. He expla ined tha t he has co ngestive heart failure, kidney pro blems and hepatitis, requi ring him to take nitrog lycerin and demerol. He testified that his chest continued to hurt and that he decided to go home. He said that he was driving, and the defendant and another frien d, James Webb, were passengers. He said he dr ove about one-half mile but w as too sick to continue dri ving. He said the defendant put him in the pas senger’s seat and began to drive. He said the defendant was driving to the defendant’s mother’s house when he was stopped. Mr. Lovin said the defendant consumed a few beers but was not intox icated. He admitted that his memory was poor because he had been in a coma for ten day s between the incident and the trial.

Tina Cole, the defendant’s cousin, testif ied that when the defendant, Mr. Lovin, and Mr. Webb came to her hou se, Mr. Lovin was very sick. She said that Mr. Lovin took some pills and that the men left after thirty or forty-five minute s. She said the defendant was not drunk.4 The defendant testified that he had the flu for a few days before the offense and that he had taken Nyquil earlier that day. He said his stepf ather drove him to Mr. Lovin’s house where he drank two beers. He said that they went to Ms. Cole’s house and that he drank one-half of a b eer. He said Mr. Lovin began to have chest pains and took nitroglycerin pills. He said Mr. Lovin then stated that he needed to go home to get his oxyg en. He said that when they left, Mr. Lovin was

driving but that he was in poor condition. He said that Mr. Lovi n had to stop the car and that he had t o drive. The defendant said that he w as driving to his mother’s house in order for her to take Mr. Lovin to the hos pital and that he was stopped by the police three hundred feet from the house.

The defendant testified that he told Officer Chappell that he could not stand on one foot or walk a str aight line because he had w orn leg braces. He sai d he performed well on the field sobr iety tests. He said h e told Officer Chappell that he had consumed two and one-half beers, not seven. He said he refused to take the breathalyzer test bec

ause he had been taking topical medication for his teeth and had taken Nyquil earli er that day. He said he ag reed to take a blood alcohol tes t but was told that a blood test was not an option. He agreed that he had signed a health sheet at the jail in which he a

greed that he was not tak ing any medication. He testified that he believed “medication” meant heart or blood pressure medi cation. Upon the foregoing evidence, the jury c

onvicted the defendant of DUI.

I. SUFFICIENCY OF THE EVIDENCE The defendant contends that the evidence is insufficient to support his conviction for DUI. H e acknowledges that he w as driving after consu ming alcohol on the night of the offense but argues that th e state did not prove beyond a reasonable doubt that he was intoxi cated. The state contends that the ev idence is sufficient.

Our standard of review when the sufficiency of the ev idence is questioned on appeal is “whether, after viewing the ev

idence in the light most fav orable to the prosecution, any

rational trier of fact could have found the essential elements o f the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that w e do not reweigh the ev idence but presume that5

the jury has resolv

ed all conflicts in the testimony and drawn all r easonable inferences from the evidence in favor of the s tate. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

Tennessee’s DUI statute provides, in pertinent part, as follows: It is unlawful for any person to driv e or to be in physical contr

ol of any automobile or other motor driven v ehicle on any of the public roads an d highw ays of the state, or on any streets or alleys . . . whil e: (1) Under the influence of any intox icant, marijuan a, na rcotic drug, or drug producing stimula ting effects on the central nervous system[.] The defendant concedes that he was dri ving. In the light most favorable to the state, the evidence shows that the defendant drank six or seven beers, smelled of alcohol, had difficulty walking and keeping balance, had bloodshot and glassy eyes, and could not successfully complete the field sobriety tests. The state proved beyond a reasonable doubt that the defendant was intoxicated.

II. SENTENCING The defendant contends that the trial cour t erred by sentencing him to confinement above the statutory minimum of one hundred twenty day s, arguing that the trial cou rt erred by a pplying two e nhancem ent fact ors and by f ailing to c onsider t wo mitigating factors. The state contends that the record supp orts the trial court’s determination that the defendant should s erve seventy-fiv

e percent of his eleven month, twenty-nine-day sentence in confinement.

Appellate review of misdemeanor sentencing is de novo on the record with a presumption that the trial court’s determinations are correct. Tenn. Cod e Ann. §§ 40-35-401(d), -402(d). A s the Sentencing Commission Comments to Tenn. Code Ann. § 40-35-401(d) note, the burden i s now on the appealing par ty to show that the sentence is improper. In mis demeanor sentencing, the court must consider the purposes and principles of the C riminal Sentencing Reform Ac t of 1989. Tenn. Code Ann. § 40-35-302(d); see State v. Troutman , 979 S.W.2d 271, 274 (Tenn. 1998). In DUI cases, Tenn. Code Ann. § 55- 10-403(c) essentially mandates a maximum sentence for DUI, “with the only function of the trial court being to determine w hat6

period above the minimum period of incarceration establishe d by statute, if any, is

to be suspended.” State v. Combs , 945 S.W.2d 770, 774 (Tenn. Crim. App. 1996).

In sentencing the defendant to serv e seventy-five perc

ent of an eleven month, twenty-nine-day sentence, the trial court considered the defendant’s prev ious history of criminal con

victions or behavi or. Tenn. Code Ann. § 40-35-114(1) . The defendant contends that the trial cour t erroneously consider

ed charges listed in the presentence report that did not result in convicti ons. However, the defendant concedes that aside from his DUI conv ictions, the presentence rep ort reflects convicti ons for driving on an expi red license and reckless driving in 1989, domestic violence in 1990, assault and destroying city property in 1991, and public intoxication and disorderly conduct in 1993. Although the de fendant argues that these convi ctions are for minor misdemeanor offenses, the application of thi s factor is not limited to pr evious felony convictions. See State v. Millbrooks , 819 S.W.2d 441, 446-47 (Tenn. Crim. App. 1991). The trial court properly considered this enhancement facto r.

The trial court also consi dered the defendant’s “previous unwillingness to comply with the conditions of a sentence involv ing release in the community.” Tenn. Code Ann. § 40-35-114(8). The defendant a rgues that because the recor d is “sparse” in this regard, the tr

ial court erroneously

considered factor (8). The r ecord reflects that the defendant was on probation for a 1990 domestic violence conv iction when he was charged with and conv icted of assault and drivi ng under the influence in 1991. I t further reflect s that he was on prob ation fo r 1991 con victions f or destro ying city pro perty, disorderly conduct and r esisting arrest, w

hen he was charged with and convicted of DUI, second offense, in 1992. In addition, the defendant was on probation for the 1992 DUI conviction w

hen he was charged with and convicted of public intoxication and disorderly conduct. F inally, while on probation for those charges, the defendant was charged with and conv icted of driving on a r

evoked license and vi olation of the registration law

in 1993. Although the defendant cla ims that this court cannot r ely upon the accuracy of the presentenc e report because it contains other errors, he makes no showing that the dispos ition dates listed for the foregoing convictions ar e inaccurate. The record supports the trial court’s application of facto r (8).7 The defendant contends that the trial cour t erred by failing to apply the following mitigati ng factors, as listed in Tenn. Code Ann. § 40-35-113:

(3) Substantial grounds ex ist tending to ex

cu se or justify the defendant’s criminal cond uct, t hough failing to establis h a defense; [and] (12) The defendant acted u nder duress or under the domination of another person, even though the duress or the dom ination of another person is not sufficient t o constitute a defense to the crime[.] The defendant argues that these factors app ly because of the circumstanc es under which the offense was committed,i.e., Mr. Lovin becomi ng too ill to driv e, requiring the defendant to drive. We be lieve that the trial court properly declined to apply these mitigating factors. The defendant’ s circumstances were of his own making in that h e chose to accompa ny his two fri ends wh o had been drinki ng and chose to d rink hi mself, knowing that someone w ould have to drive home. Our review of the rec ord further shows that the trial court properly considered the sentencing principles provided in Tenn. Code Ann. § 40-35-103. See Troutman , 879 S.W.2d at 272 (“Society demands protection from those who habitually drink and driv e in complete disregard for the welfare of others and for the laws of this state.”).

In consideration of the foregoing and the record as a whole , we affirm the judgment of conviction.

________________________________ Joseph M. Tipto n, Judge

CONCUR:

__________________________ James Curwood W itt, Jr., Judge

__________________________ Norma McGee Ogle, Judg e