             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE             FILED
                            FEBRUARY 1998 SESSION
                                                             October 23, 1998

                                                           Cecil W. Crowson
                                                          Appellate Court Clerk
STATE OF TENNESSEE,                    )    No. 01C01-9703-CC-00088
                                       )
      Appellee                         )
                                       )    MARION COUNTY
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 Reporter
204 Betsy Pack Drive
Jasper, TN 37347                            Karen M. Yacuzzo
                                            Assistant Attorney General
                                            425 Fifth Avenue North
                                            Nashville, TN 37243-0493


                                            James Michael Taylor
                                            District Attorney General

                                            Steven H. Strain
                                            Assistant District Attorney
                                            P.O. Box 130
                                            Jasper, TN 37347




OPINION FILED: ___________________


AFFIRMED AS MODIFIED


William M. Barker, Special Judge
                                                 OPINION


        The appellant, Mitchell Leiderman, appeals as of right his conviction in the

Marion County Circuit Court of driving under the influence, second offense.1 Appellant

was sentenced to eleven months, twenty-nine days and ordered to serve 75 days with

the remainder to be served on probation. He was fined $600 and the trial court

granted his request for work 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

sentence. After reviewing the record, we affirm the appellant’s conviction, but modify

the sentence imposed.

        Deputy Tim Prince with the Marion County Sheriff’s Department was on routine

patrol the night of July 4, 1995. Around midnight, he noticed 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. He began following the vehicle and

observed it cross the center line two more times. Prince decided to perform a traffic

stop. As he approached the vehicle, he noticed the odor of alcohol about appellant’s

person and observed a young female with long dark hair in the passenger’s seat.

Prince asked appellant to step out of the car and informed him he would need to

perform field sobriety tests. When Prince asked if he had been drinking, appellant

replied affirmatively.

        Prince demonstrated both the one leg 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 Prince allowed him more than one opportunity to

perform that test. For the heel to toe test, appellant was unable to hit heel to toe and




        1
          Appellant was also convicted of violating the light law, i.e. driving with only one headlight, but he
does n ot challeng e that con viction on a ppeal. See Tenn. Code A nn. §55-9-402 (1993).

                                                      2
was unable to stay on the line. Prince concluded that appellant was impaired and

placed him under arrest. Appellant refused to take a breath alcohol test.

        Appellant’s proof at trial was provided by testimony from his son Brian

Leiderman. Young Leiderman testified that appellant played guitar and sang in a

band, and on the night of the incident, the band played at Aetna Mountain 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 observed his father drink any alcoholic beverage. In addition, he

stated that the band has a rule prohibiting members from drinking alcohol when they

are playing.

        After hearing the proof, the jury convicted appellant of driving under the

influence. The court later determined that it was appellant’s second offense. It

sentenced appellant to eleven months, twenty-nine days 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 convicting evidence. He urges

us to reverse the conviction because Deputy Prince did not follow standardized field

sobriety tests and because 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 of

Deputy Prince’s testimony and the weight accorded it by the jury. Appellant’s cross-

examination of Prince was effective in revealing weaknesses in his testimony about

which he now complains. The jury was presented 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 aware that he did not


        2
           The jury originally imposed a fine 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 trial court for determination. Upon determining that appellant was a second time offender, the trial
court im posed the m inimum fine for that v iolation. Id.

                                                     3
specify that appellant had slurred speech, bloodshot eyes, or the like. Questions

concerning the credibility of the witnesses, the weight and value to be given to the

evidence, as well as factual issues raised by the evidence are resolved by the trier of

fact, not this Court. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The jury’s

verdict obviously accredited Deputy Prince’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 cross the center line of the roadway three times. Upon stopping

his vehicle, Prince noticed a smell of alcoholic beverage about appellant’s person.

Appellant was unable to perform either of two field sobriety tests administered by

Prince, after repeated attempts and despite Prince’s efforts to accommodate for

appellant’s claimed back and leg disability. When asked about drinking, appellant

admitted that he had. From those facts, we believe a rational trier of fact was justified

in finding that appellant was driving on a public roadway while 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 (1979).

       Next, appellant argues that the trial court erred in admitting a hearsay

statement by a passenger in appellant’s car as an exited utterance. He alleges that

the statement was not made as the result of a startling or stressful event. Appellant

further contends that the statement was ambiguous and misleading.

       Deputy Prince testified that there was a young female passenger in appellant’s

vehicle when the traffic stop was performed. He stated that after appellant failed the

field sobriety tests, he placed appellant in the patrol car and returned to appellant’s

vehicle. Approximately seven to eight minutes had passed. Prince testified that the

young passenger was upset and crying. In an effort to calm her, he began speaking

to her. Prince testified that the passenger said appellant “should not be driving.”



                                            4
        Hearsay statements are generally not admissible, unless relevant and subject

to some exception which provides an indicia of reliability. See Tenn. R. Evid. 802.

One such exception admits statements that are excited utterances. Tenn. R. Evid.

803(2). An excited utterance is a statement relating to a startling event or condition

made while the declarant was under the stress of excitement caused by the event or

condition. Id. It is generally thought that the stressful condition precludes the

opportunity for fabrication, thus ensuring the reliability of the statement. State v.

Smith, 857 S.W.2d 1, 9 (Tenn. 1993). The trial court found that the declarant was still

under the stress of seeing appellant arrested and placed in a patrol car when the

statement was made. We agree.

        The passenger was appellant’s ex-wife’s daughter, 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 youthful age, we believe witnessing someone she regarded as

a father figure being arrested and placed in a police car was a startling event for the

declarant. Moreover, the record reflects that she was still under the stress and

excitement of the event when she made the statement. Smith, 857 S.W.2d at 9. The

trial court did not abuse its discretion in admitting the statement.

        Appellant’s only challenge to his sentence is the length of time that he must

serve in confinement. Initially, the trial court sentenced appellant to serve 60 days in

confinement before being eligible for probation. 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 confinement

has a “chilling effect” on offenders and discourages them from seeking work release.




        3
           Second time DUI offenders are eligible for work release. Tenn. Code Ann. §41-2-128(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 substantially complied with these requirements, but failed to insure that an
investigative report was completed prior to ordering work release. We encourage trial courts to follow
the strict requirements of the statute.

                                                      5
       Although sentencing for DUI offenses requires mandatory minimum periods of

confinement, it remains that misdemeanor offenders must be sentenced in

accordance with the principles, purposes, and goals 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 exclusive list of enhancement factors

which may be considered 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 release is not one of the statutorily 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 period 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 reduce his sentence by “work 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, Special Judge


CONCUR:


____________________________
Gary R. Wade, Presiding Judge


____________________________
Curwood Witt, Judge



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