         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                       June 20, 2006 Session

                STATE OF TENNESSEE v. MARY ANN McNEILLY

                   Direct Appeal from the Circuit Court for Franklin County
                              No. 16043 J. Curtis Smith, Judge


                   No. M2005-02184-CCA-R3-CD - Filed November 22, 2006



A Franklin County Circuit Court jury convicted the appellant, Mary Ann McNeilly, of driving under
the influence (DUI), a Class A misdemeanor. The trial court sentenced her to eleven months and
twenty-nine days, to be suspended after serving ten days in confinement; imposed a three hundred
fifty dollar fine; ordered that she perform one hundred hours of public service; and suspended her
driver’s license for one year. On appeal, the appellant claims (1) that the trial court should have
suppressed her statement to a police officer; (2) that the trial court improperly allowed the State to
replay a videotape of the appellant’s stop for the jury; (3) that the trial court improperly admitted the
appellant’s blood test results into evidence because the State failed to establish a proper chain of
custody; (4) that the trial court erred by refusing to allow defense witnesses to testify about the
appellant’s character; (5) that the evidence is insufficient to support the conviction; (6) that her
sentence is excessive; and (7) that these cumulative errors denied the appellant her right to a fair trial.
Upon review of the record and the parties’ briefs, we affirm the appellant’s conviction but modify
her sentence to reflect that she is to serve five days in confinement and remand the case for entry of
an amended judgment.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed in Part,
                         Modified in Part, and Case Remanded.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T. WOODALL, J.,
joined. DAVID G. HAYES, J., filed a dissenting opinion.

Norris Arthur Kessler, III, Winchester, Tennessee, for the appellant, Mary Ann McNeilly.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General;
James Michael Taylor, District Attorney General; and Steve Blount, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                              OPINION

                                       I. Factual Background

         Pastor Ernest A. Colvin testified that on May 20, 2004, he was at his Winchester, Tennessee
church, which is “[d]own over the hill” from a nearby Food Lion grocery store. About 9:00 p.m.,
Colvin was in the church parking lot and saw a car trying to drive up the hill behind the Food Lion.
The car would almost make it to the top of the hill and “then it was like it would go out of gear and
back down it would come all the way across both lanes of South Jefferson.” The car tried several
more times to drive up the hill. As Colvin ran toward the car, the car finally crested the hill, turned
right, and hit a pole in the Food Lion parking lot. Colvin stated that he telephoned the police because
the car had been moving back and forth across the street and cars were traveling on the street in both
directions. When the police arrived, Colvin saw that the car’s driver, the appellant, was disoriented,
staggering, and appeared to be under the influence.

         Tracie Limbaugh testified that on the evening of May 20, 2004, she and her boyfriend were
at a video store near the Food Lion. As they were leaving the store, Limbaugh saw a car driving up
the hill. Although it was not raining, the car’s windshield wipers were turned on. Limbaugh and her
boyfriend got into their car quickly and tried to put the car in reverse because the appellant’s car was
traveling “straight at” them. Just as the appellant’s car was about to hit their car, the appellant’s car
turned and hit a pole next to them. The pole broke, and the appellant tried to drive over the broken
pole. Limbaugh’s boyfriend approached the appellant’s car and asked the appellant if she was all
right. The appellant kept trying to drive over the pole, so Limbaugh’s boyfriend reached into the
appellant’s car, put it into park, and turned off the ignition. When the appellant got out of the car,
she “was just a little off balance.” Limbaugh acknowledged that the appellant appeared to be under
the influence of an intoxicant. On cross-examination, Limbaugh testified that she did not see the
appellant’s car hit anyone or damage any other cars.

        Jennifer Geary testified that she was shopping at the Food Lion on May 20. When she came
out of the store, she saw a car crest the top of the hill behind the store. The car hit a pole for
handicap parking spaces, and the driver kept pushing on the gas pedal as if she did not see the
handicap sign. Geary stated that the driver “definitely [was] not . . . in her right mind.” On cross-
examination, Geary testified that the appellant did not injure anyone and that she did not see the
appellant damage any other cars.

        Officer Carrie Morris of the Winchester Police Department testified that on May 20, 2004,
she received a call from dispatch about a possible intoxicated driver driving recklessly in the parking
lot behind the Food Lion. En route to the scene, Officer Morris learned that the car had wrecked.
When she arrived at the store parking lot, Officer Morris turned on her patrol car’s video camera and
spoke with the appellant. The appellant was sitting in the driver’s seat, and the car’s ignition was
turned on. The appellant appeared very disoriented and confused. Officer Morris asked to see the
appellant’s driver’s license, but the appellant did not understand what Officer Morris was asking for
and fumbled through some papers. Officer Morris asked the appellant if she had been drinking, and


                                                  -2-
the appellant said no but that she had taken three tranquilizers “since 2:00.” The appellant finally
gave Officer Morris her driver’s license and got out of the car. The appellant looked as though she
might fall, so Officer Morris raised her arm to prevent the appellant from falling. Officer Morris
stated that she tried to explain field sobriety tests to the appellant but that the appellant did not
appear to understand. The appellant’s speech was very slow, and she kept holding onto her car for
balance. Officer Morris stopped trying to administer field sobriety tests to the appellant because she
believed the appellant might fall down. The State played the videotape from Officer Morris’ patrol
car for the jury.

        Officer Morris testified that she saw a scrape down the side of the appellant’s car and that
the car appeared to have struck something in addition to the pole. The appellant did not try to fight
anyone and never caused any problems. However, the appellant was upset and wanted to know why
the police were there. Officer Morris took the appellant to the Southern Tennessee Medical Center,
and the appellant agreed to take a blood test and signed an implied consent form. Officer Morris
watched Marvin Owensby collect two vials of the appellant’s blood, and Owensby gave the vials to
Officer Morris. Officer Morris wrapped the vials in protective plastic, put them in a box, sealed the
box, and wrote her name across the seal. She also filled out a toxicology request form. Officer
Morris then transported the appellant to jail and returned to the police department. At the
department, she put the sealed box containing the blood vials into an evidence locker and locked the
locker. On cross-examination, Officer Morris testified that when she arrived at the Food Lion, she
pulled in behind the appellant’s car and activated her blue lights. The appellant had two dogs in the
car with her and was concerned about her dogs. Officer Morris did not smell alcohol on the
appellant.

        Officer Don Hall of the Winchester Police Department testified that on May 20, he was on
patrol and received a call about 9:30 p.m. In response to the call, Officer Hall went to the Food Lion
parking lot. He spoke with the appellant, and she appeared to be under the influence of an
intoxicant. Officer Hall did not smell alcohol, but the appellant’s speech was slow.

         Marvin Owensby, a medical lab technician at the Southern Tennessee Medical Center,
testified that according to the form in the appellant’s blood kit, he collected the appellant’s blood on
May 20 and gave the blood vials to Officer Morris. He stated that he did not personally remember
collecting the appellant’s blood.

        Officer Keith Henshaw of the Winchester Police Department testified that in May 2004, he
was the department’s evidence custodian. On June 3, 2004, he delivered the appellant’s blood vials
to the Tennessee Bureau of Investigation (TBI) crime laboratory. The vials did not appear to have
been tampered with. On cross-examination, Officer Henshaw testified that the evidence lockers
were not climate-controlled but that he usually took blood vials out of the evidence lockers and
stored them in a refrigerator until he could take them to the TBI. He said that although that was his
usual practice, he did not remember if he transferred the appellant’s blood from the evidence locker
to the refrigerator.



                                                  -3-
        TBI Special Agent Louis Kuykendall testified that he was a forensic toxicologist in 2004 and
tested the appellant’s blood. He said that although it was preferable for blood samples to be
refrigerated, refrigeration was not required. Agent Kuykendall stated that the appellant’s blood
tested positive for Benzodiazepine-class drugs, and further testing revealed that the appellant’s blood
contained 0.12 milligrams per milliliter of Alprazolam, also known as Xanax. He said that
Alprazolam was more potent than Valium and that a level of 0.12 milligrams per milliliter was
“extremely high” and on the low-end of the lethal-level range. He stated that at that level,
Alprazolam had been known to cause death. On cross-examination, Agent Kuykendall
acknowledged that he is not a pharmacist.

        Dr. Councill Rudolph testified for the appellant that he treated the appellant’s husband for
colon cancer and treated the appellant in June 2003 for breast cancer. While treating the appellant,
Dr. Rudolph prescribed the pain medicines Demerol and Phenergan. In September 2003, Dr.
Rudolph prescribed thirty 0.25 milligram Xanax pills to the appellant, and the appellant filled the
prescription on October 20, 2003. He stated that 0.25 milligrams was the lowest dose that a doctor
could prescribe and that the appellant was supposed to take one pill every eight hours as needed for
anxiety. Although the appellant’s initial prescription allowed no refills, Dr. Rudolph renewed the
appellant’s prescription on December 15, 2003, and authorized six refills. He gave the appellant a
new Xanax prescription in August 2004 and estimated that the appellant had been taking less than
one pill per day. Dr. Rudolph never saw the appellant in an over-medicated state and said that a
level of 0.12 milligrams per milliliter of Alprazolam in the appellant’s blood “doesn’t tell me
anything.” He said that he knew of no study that had analyzed the level of Xanax in the blood and
that he could not say 0.12 milligrams per milliliter was a near-lethal level.

        On cross-examination, Dr. Rudolph testified that he did not see the appellant in May 2004
and acknowledged that he did not know how often his patients took their medication. He also
acknowledged that he had known some patients not to take their medication as he prescribed and that
he was not trained in toxicology. The State replayed the videotape from Officer Morris’ patrol car
for Dr. Rudolph, and he stated that taking Xanax as prescribed should not have caused the appellant
to need to lean against her car in order to stand and should not have prevented her from taking field
sobriety tests. He stated that the appellant’s behavior could indicate that she had taken more than
the prescribed dose of Xanax.

        Ethel Fletcher testified that she had known the appellant for at least fifteen years and that they
were close acquaintances. Fletcher testified that she had never known the appellant to use alcohol
or drive while under the influence and that the appellant would never do anything to jeopardize the
safety of her dogs.

       Belinda Cagle testified that she had known the appellant for about four years and had never
known the appellant to drink alcohol. She also had never known the appellant to over-medicate.
Although the appellant had been charged with DUI and reckless driving, the jury convicted her only
of DUI.



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                                             II. Analysis

                                      A. Appellant’s Statement

       The appellant claims that the trial court should have suppressed her statement to Officer
Morris that she had taken three tranquilizers. She contends that suppression was warranted in this
case because she was in custody and subject to interrogation at the time of the statement but had not
received her Miranda warnings. The State contends that the trial court properly denied the
appellant’s motion to suppress because the record clearly reflects that the appellant did not make the
statement pursuant to a custodial interrogation. We agree with the State.

        At the hearing on the appellant’s motion to suppress, Officer Morris testified that when she
arrived at the Food Lion, the appellant’s Geo Tracker was sideways in the parking lot and had hit a
handicap sign post. Officer Morris approached the vehicle and motioned for the appellant to roll
down her window. The appellant was unable to roll down the window, and Agent Morris opened
the driver’s side door. She stated that the appellant was moving slowly and that she believed the
appellant “was impaired somehow.” She asked for the appellant’s driver’s license, and the appellant
“fumbled around” but finally found it. She asked the appellant if she had consumed any alcohol, and
the appellant said no. She then asked the appellant if she had taken any medication, and the
appellant said she had taken some tranquilizers since 2:00 p.m. Officer Morris asked the appellant
to step out of the car and helped her walk to the back of the vehicle. The appellant could not stand
on her own and placed her hand on the car. Officer Morris tried to explain field sobriety tests to the
appellant and asked the appellant to let go of the car. However, the appellant stumbled, and Officer
Morris told her to lean on the Tracker. Officer Morris then searched the Tracker and asked the
appellant to take a blood test. She stated that sometime during the stop, Officers Don Hall and
Archie Custer arrived.

        On cross-examination, Officer Morris acknowledged that when she arrived at the scene, she
pulled in behind the appellant’s vehicle and that Officer Custer parked his patrol car in front of the
appellant’s vehicle. She stated that although Officer Custer’s patrol car was blocking the appellant’s
Tracker, the appellant would not have been able to move the Tracker forward anyway because of the
broken pole. The State then stipulated that when Officer Morris blocked the appellant’s Tracker and
activated her blue lights, the appellant was not free to leave. Officer Morris testified that the
appellant was still sitting in the car when the appellant told Officer Morris that she had taken the
tranquilizers. Officer Morris stated that she did not arrest the appellant until after the appellant had
gotten out of the Tracker. Upon arresting the appellant, Officer Morris put the appellant into her
patrol car and asked the appellant to sign an implied consent form. Officer Morris read the form to
the appellant, and the appellant signed it. At that point, Officer Morris still had not read Miranda
warnings to the appellant.

        In ruling on the appellant’s motion, the trial court cited State v. Anderson, 937 S.W.2d 851,
855 (Tenn. 1996), in which our supreme court stated that a person’s objective view of whether he
or she is under arrest for Miranda purposes must be assessed by the totality of the circumstances.


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The trial court noted that in the instant case, Officer Morris “made only a brief interrogation” of the
appellant and conducted the questioning in a non-threatening manner. The trial court also noted that
the appellant was not physically restrained when Officer Morris asked if she had taken any
medication and that police cars “were parked generally in front and behind the defendant’s vehicle.”
The trial court concluded that the “totality of the circumstances reveal no reasonable person would
have concluded he or she was deprived of freedom of movement to a degree associated with a formal
arrest” and overruled the appellant’s motion to suppress.

        In reviewing a trial court’s determinations regarding a suppression hearing, “[q]uestions of
credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the
evidence are matters entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d 18,
23 (Tenn. 1996). Thus, “a trial court’s findings of fact in a suppression hearing will be upheld unless
the evidence preponderates otherwise.” Id. Nevertheless, appellate courts will review the trial
court’s application of law to the facts purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn.
2001). Furthermore, the State, as the prevailing party, is “entitled to the strongest legitimate view
of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences
that may be drawn from that evidence.” Odom, 928 S.W.2d at 23. Moreover, we note that “in
evaluating the correctness of a trial court’s ruling on a pretrial motion to suppress, appellate courts
may consider the proof adduced both at the suppression hearing and at trial.” State v. Henning, 975
S.W.2d 290, 299 (Tenn. 1998).

        In Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966), the United States
Supreme Court held that “the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use
of procedural safeguards effective to secure the privilege against self-incrimination.” These
procedural safeguards require that police officers must advise a defendant of his or her right to
remain silent and of his or her right to counsel before they may initiate custodial interrogation. State
v. Sawyer, 156 S.W.3d 531, 533 (Tenn. 2005). “Custodial” means that the subject of questioning
is in “custody or otherwise deprived of his freedom by the authorities in any significant way.” Id.
at 478, 86 S. Ct. at 1630. However, the United States Supreme Court has held that a person detained
temporarily for a traffic stop, even one investigating intoxication, is not “in custody” for the purposes
of Miranda. Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138 (1984); see State v. Roger Odell
Godfrey, No. 03C01-9402-CR-00076, 1995 Tenn. Crim. App. LEXIS 226, at **5-7 (Knoxville, Mar.
20, 1995) (relying on Berkemer and holding that a police officer’s investigating an accident and
asking a defendant whether he had been drinking did not violate Miranda).

        Turning to the instant case, Officer Morris testified that when she arrived at the scene, she
approached the appellant’s vehicle and asked the appellant for her driver’s license. The appellant
fumbled for her license, and Officer Morris asked the appellant if she had been drinking. The
appellant said no, and Officer Morris did not smell alcohol. Officer Morris then asked the appellant
if she had taken any medication, and the appellant stated that she had taken tranquilizers. Officer
Morris asked the appellant to step out of the vehicle and walked the unsteady appellant to the back
of the Tracker. Although Officer Morris wanted to administer field sobriety tests to the appellant,


                                                  -6-
she quickly realized that the appellant could not perform any tests and stopped the tests for the
appellant’s safety. At that point, she arrested the appellant and placed her in the back of the patrol
car. As the appellant correctly argues in her appellate brief, the appellant was seized when Officer
Morris arrived at the scene, activated her blue lights, and blocked the appellant’s car. See State v.
Williams, 185 S.W.3d 311 (Tenn. 2006). However, Officer Morris did not arrest the appellant for
Miranda purposes until after she realized that the appellant could not perform the field sobriety tests.
As in Berkemer, the appellant was not in custody when she made the incriminating statement, and
the trial court properly denied her motion to suppress.

                                       B. Replaying Videotape

        The appellant claims that the trial court erred by allowing the State to replay the videotape
of the stop for the jury during Dr. Rudolph’s cross-examination. She contends that replaying the
video had little or no probative value and that the State replayed the video solely to arouse the jurors’
emotions. The State contends that replaying the video was necessary in order for Dr. Rudolph to
give an opinion as to whether the appellant’s behavior was consistent with the dosage of Alprazolam
he prescribed for her. We agree with the State.

         During Officer Morris’ testimony, the State played the videotape of the appellant’s stop for
the jury. On direct examination, Dr. Rudolph testified that based upon the date of the appellant’s
initial Xanax prescription and the dates the appellant refilled the prescription, he estimated that the
appellant had taken less than one pill per day. On cross-examination, he stated that taking the
medication as prescribed should not have affected the appellant’s ability to drive a car. The State
then asked, “If we show you a video . . . , would that help you in maybe forming an opinion as to
what her condition was that night?” The defense objected, arguing that replaying the video was
inflammatory and was not the subject of the defense’s cross-examination. The State argued that it
should be allowed to show Dr. Rudolph the video and “then I’m going to ask him some questions
about would his prescribed amounts have done this to this lady.” The trial court ruled that the
defense had raised the issue about whether the appellant properly took her medication and overruled
the objection. When cross-examination resumed, the State played and stopped portions of the video,
intermittently asking Dr. Rudolph questions about whether taking the medication as he prescribed
would have caused the appellant to lose her balance, need to lean on her car to stand up, or be unable
to understand the officer’s instructions for the field sobriety tests. The witness stated that taking the
medication as prescribed should not have impaired the appellant. Finally, the State asked Dr.
Rudolph, “[I]f she took three of those pills could she have had all of those difficulties that I’ve
spoken of and what you observe on that television screen?” Dr. Rudolph said, “[S]ure that can also
be the sign of an over dosage of Xanax.”

        The propriety, scope, manner and control of the cross-examination of witnesses rests within
the discretion of the trial court. State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim. App. 1995).
“A witness may be cross-examined on any matter relevant to any issue in the case.” Tenn. R. Evid.
611(b). Relevant evidence is “evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it would


                                                  -7-
be without the evidence.” Tenn. R. Evid. 401. However, even relevant evidence may be excluded
if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Tenn. R. Evid. 403.

        We conclude that the trial court properly held that the State could use the videotape to cross-
examine Dr. Rudolph. Dr. Rudolph stated on direct examination that an Alprazolam level of 0.12
milligrams per milliliter in the blood “doesn’t tell me anything” and that based on his estimation, the
appellant had taken less than one Alprazolam pill per day. In response to this testimony, the State
could play the videotape for the doctor and ask his opinion as to whether over-medicating with
Alprazolam could explain the appellant’s behavior and actions on the night of May 20. Moreover,
we have reviewed the videotape and conclude that it was not unfairly prejudicial or inflammatory.
Thus, the appellant is not entitled to relief.

                                       C. Toxicology Report

        The appellant claims that the trial court erred by allowing the results of her blood test into
evidence because the State failed to establish a proper chain of custody. Specifically, she contends
that the results of the blood test were unreliable because Agent Kuykendall “failed to give personal
knowledge as to the labeling and sealing of the sample, and failed to give personal knowledge or
reliable information [as] to a number of unidentified persons who handled the sample.” The State
contends that the trial court properly held that the evidence was admissible. We agree with the State.

        During Agent Kuykendall’s direct testimony, he stated that he analyzed the appellant’s blood
sample for drugs. The defense objected, claiming that the State had not shown a chain of custody
because the evidence had been delivered by Officer Henshaw to TBI Evidence Technician Felicia
Evans. Therefore, “there’s a link that’s missing here between Officer Henshaw and [Agent
Kuykendall].” Out of the jury’s presence, Agent Kuydendall testified that Evans was an evidence
technician in the TBI’s evidence receiving area. He said that according to TBI standard operating
procedures, once Evans received the appellant’s blood sample from Officer Henshaw, she would
have checked the seals on the evidence and put the evidence into the evidence vault. An evidence
agent from Agent Kuykendall’s unit then would have retrieved the box containing the blood vials
from the vault, checked the seals, assigned the evidence a laboratory number, and given the evidence
to the analyst for testing. He said that if Evans or the evidence agent from his unit had noticed a
problem with the seals, they would have “deal[t] with it right there.” Nothing in Agent Kuykendall’s
notes reflected a problem with the integrity of the blood vials. The trial court overruled the
appellant’s objection, stating that “the process and the integrity of the evidence has been properly
established.”

       This court has previously stated,

                      In order to admit physical evidence the party offering the
               evidence must either introduce a witness who is able to identify the


                                                 -8-
               evidence or must establish an unbroken chain of custody. Whether
               the required chain of custody has been sufficiently established to
               justify the admission of evidence is a matter committed to the sound
               discretion of the trial court, and the court’s determination will not be
               overturned in the absence of a clearly mistaken exercise of that
               discretion. The identity of tangible evidence need not be proven
               beyond all possibility of doubt, and all possibility of tampering need
               not be excluded. The circumstances must establish a reasonable
               assurance of the identity of the evidence.

State v. Holloman, 835 S.W.2d 42, 46 (Tenn. Crim. App. 1992) (citations omitted). “The purpose
of the chain of custody is to ‘demonstrate that there has been no tampering, loss, substitution, or
mistake with respect to the evidence.’” State v. Scott, 33 S.W.3d 746, 760 (Tenn. 2000) (quoting
State v. Braden, 867 S.W.2d 750, 759 (Tenn. Crim. App. 1993)).

         In the instant case, Officer Henshaw testified that he personally delivered the evidence to the
TBI laboratory and that the evidence did not appear to have been tampered with. Agent Kuykendall
testified that according to the appellant’s toxicology report, Agent Evans received the box containing
the blood vials from Officer Henshaw. Agent Kuykendall stated that pursuant to TBI standard
operating procedures, Evans would have checked the seals to make sure they were intact and put the
evidence into an evidence vault. A second agent then would have delivered the blood samples to
the analyst. Agent Kuykendall stated that if either Evans or the agent from his unit had noticed a
problem with the samples, they would have dealt with the problem immediately and that he never
would have received the evidence. Agent Kuykendall testified that when he received the blood vials,
he saw no indication that someone had tampered with them, and the appellant has not alleged that
someone tampered with the evidence. We believe the testimony establishes a chain of custody
sufficient to allow the admission of the blood test results into evidence. The trial court properly
overruled the appellant’s objection.

                                D. Appellant’s Character Witnesses

        Next, the appellant claims that the trial court erred by refusing to allow her to introduce
evidence about her character. Specifically, she contends that the trial court erred by refusing to allow
her to introduce Dr. Rudolph’s notes, which reflected that the appellant used her pain medication
“sparingly,” and improperly instructed the jury to disregard Dr. Rudolph’s testimony regarding the
appellant’s sparing use of the medication. She also contends that the trial court erred by refusing to
allow Ethel Fletcher and Belinda Cagle to testify about the deaths of the appellant’s husband,
brother, and dog within a short period of time. The State contends that the trial court properly held
that the evidence was irrelevant and inadmissible. We agree that the evidence was inadmissible.

        During Dr. Rudolph’s testimony, he stated that he treated the appellant for breast cancer and
prescribed the pain medications Demerol and Phenergan after the appellant had breast cancer surgery
in January 2004. Dr. Rudolph stated that according to his notes, the appellant used the drugs


                                                  -9-
“sparingly,” and the defense asked to introduce the notes into evidence. The State objected, arguing
that the notes were irrelevant to the current case. The defense argued that “I’m trying to show that
she has . . . been prescribed other kinds of pain medication [and] that she has not over medicated
herself and not used them.” That trial court held that the evidence was inadmissible character
evidence and instructed the jury that it should disregard Dr. Rudolph’s testimony about the pain
medication. Later, Ethel Fletcher and Belinda Cagle tried to testify about the appellant’s recent
hardships, including the deaths of her brother, husband, and dog within a short period of time.
However, the State objected, and the trial court ruled that the testimony was irrelevant.

       Tennessee Rule of Evidence 404(a)(1) permits the introduction of “[e]vidence of a pertinent
character trait offered by the accused or by the prosecution to rebut the same.” Such evidence “may
be made by testimony as to reputation or by testimony in the form of an opinion.” Tenn. R. Evid.
405(a). The appellant claims that she was entitled to offer the testimony of the witnesses in order
to show her character. However, none of the witnesses was testifying as to the appellant’s reputation
for good character in the community or their opinion about her character. Therefore, the trial court
properly ruled that the evidence was inadmissible.

                                   E. Sufficiency of the Evidence

        The appellant claims that the evidence is insufficient to support the conviction because Dr.
Rudolph testified that he never saw any indication she was using Alprazolam to over-medicate, that
he calculated she had taken less than one Alprazolam pill per day, and that the level of Alprazolam
in her blood “told him nothing with regard to whether this level was [therapeutic], toxic, or lethal.”
The State contends that the evidence is sufficient. We agree with the State.

         When an appellant challenges the sufficiency of the convicting evidence, the standard for
review by an appellate court is “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R.
App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence and all
reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and the weight and value
to be afforded the evidence, as well as all factual issues raised by the evidence, are resolved by the
trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or
reevaluate the evidence, nor will this court substitute its inferences drawn from the circumstantial
evidence for those inferences drawn by the jury. Id. Because a jury conviction removes the
presumption of innocence with which a defendant is initially cloaked at trial and replaces it on appeal
with one of guilt, a convicted defendant has the burden of demonstrating to this court that the
evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The DUI statute,
Tennessee Code Annotated section 55-10-401(a)(1), prohibits a person, in pertinent part, from
driving or being in physical control of an automobile




                                                 -10-
               on any of the public roads and highways of the state, or on any streets
               or alleys, or while on the premises of any shopping center, trailer park
               or any apartment house complex, or any other premises which is
               generally frequented by the public at large, while . . . [u]nder the
               influence of any intoxicant, marijuana, narcotic drug, or drug
               producing stimulating effects on the central nervous system.

        Officer Morris testified that when she arrived at the scene, she asked the appellant if she had
taken any medication, and the appellant stated that she had taken three tranquilizers since 2:00 p.m.
Several witnesses reported seeing the appellant driving dangerously and stated that the appellant
appeared to be under the influence of an intoxicant when she got out of her vehicle. A blood test
revealed that the appellant had 0.12 micrograms per milliliter of Alprazolam in her blood, and Agent
Kuykendall testified that this was a near-lethal level. The videotape shows the appellant having
difficulty with her balance and resting her hand on the Tracker for balance. Despite Dr. Rudolph’s
testimony, the jury chose to accredit the State’s witnesses, and the evidence is sufficient to support
the conviction for DUI.

                                       F. Excessive Sentence

         The appellant claims that her ten-day sentence in confinement is excessive because the trial
court improperly failed to consider enhancement or mitigating factors and because no enhancement
factors applied in this case. The State contends that the trial court properly sentenced the appellant.
Based upon our de novo review, we conclude that the appellant should serve five days, rather than
ten, in confinement.

        At the appellant’s sentencing hearing, no witnesses testified, but the State admitted the
appellant’s presentence report into evidence. According to the brief report, the then fifty-eight-year-
old appellant was a widow and had no prior criminal history. The defense argued that no
enhancement factors applied. The State requested that the trial court order the appellant to serve
more than the minimum forty-eight hours in confinement because the appellant was “extremely
intoxicated” and argued that “there are no such things as aggravating factors.” The trial court agreed,
stating, “In misdemeanor convictions, yes, we don’t -- we look at all the facts. I recollect the facts
of the case.” The trial court noted that the case involved “some bystanders” and ordered the
appellant to serve ten days in confinement. After the sentence was pronounced, the defense asked
the trial court to explain which enhancement factors warranted increasing the appellant’s
confinement above the forty-eight-hour minimum. The trial court stated as follows:

               There is no -- there is a minimum prescribed by statute. In
               misdemeanor sentencing I’m not required to go into an analysis of
               mitigating or aggravating circumstances. That’s not required in
               misdemeanor sentencing. The facts of the case, but for the things that
               you’d mentioned, her age, the fact that she’s been in no trouble



                                                 -11-
               before, I would [have] given her more time than that, so I’ve
               considered that.

        When an appellant challenges the length, 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 court are correct. Tenn. Code Ann. § 40-35-401(d). Generally, the presumption of
correctness is “conditioned upon the affirmative showing in the record that the trial court considered
the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991). However, the trial court has more flexibility in misdemeanor sentencing than in
felony sentencing. State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999) (citing State v.
Troutman, 979 S.W.2d 271, 273 (Tenn. 1998)). Review of misdemeanor sentencing is de novo with
a presumption of correctness even if the trial court failed to make specific findings on the record,
because the “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.” Troutman, 979 S.W.2d at 274.

       In sentencing the misdemeanor defendant, the trial court shall fix a percentage of the
sentence, not to exceed seventy-five percent, that the defendant must serve in confinement before
being eligible for release into rehabilitative programs. Tenn. Code Ann. § 40-35-302(d). In
determining the percentage of the sentence to be served in confinement, the trial court shall consider
the sentencing principles and enhancement and mitigating factors and “shall not impose such
percentages arbitrarily.” Id.; see also Troutman, 979 S.W.2d at 274. In conducting our review, this
court must consider (1) the evidence, if any, received at trial and at the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and the arguments of counsel relative to the
sentencing alternatives; (4) the nature and characteristics of the offenses; (5) any mitigating or
enhancement factors; (6) any statements made by the appellant on his own behalf; and (7) the
appellant’s potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; see
also Ashby, 823 S.W.2d at 168. The burden is on the appellant to show that the sentence is
improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

        The appellant was convicted of DUI, first offense, a Class A misdemeanor. Tenn. Code Ann.
§ 55-10-403(a)(m). A person convicted of a first offense DUI “shall be confined in the county jail
or workhouse for not less than forty-eight (48) hours nor more than eleven (11) months and
twenty-nine (29) days.” Tenn. Code Ann. § 55-10-403(a)(1) (2004). “[A]ll persons sentenced under
subsection (a) shall, in addition to the service of at least the minimum sentence, be required to serve
the difference between the time actually served and the maximum sentence on probation.” Tenn.
Code Ann. § 55-10-403(c). In effect, the DUI statute mandates a maximum sentence of eleven
months and twenty-nine days, with the only function of the trial court 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).

        The appellant claims that the trial court failed to consider enhancement and mitigating
factors. In Troutman, our supreme court concluded that a trial court “need only consider the


                                                 -12-
principles of sentencing and enhancement and mitigating factors in order to comply with the
legislative mandates of the misdemeanor sentencing statute.” 979 S.W.2d at 274. The trial court
does not have to state findings of fact on the record. Id. In the instant case, the trial court initially
ordered the appellant to serve ten days in confinement, providing no explanation except “I think it
warrants serving 10 days.” Only after the appellant asked for an explanation did the trial court state
that it would have ordered her to serve more than ten days in confinement had it not considered her
age and lack of a prior criminal record, indicating that the trial court did consider enhancement and
mitigating factors. See Tenn. Code Ann. § 40-35-113(13).

         However, in addition to enhancement and mitigating factors, the trial court must consider the
principles of sentencing. The trial court in this case failed to state on the record that it had
considered those principles, and its scant explanation for the appellant’s ten-day sentence does not
reflect that it considered them. In State v. Beck, 950 S.W.2d 44, 47 (Tenn. Crim. App. 1997), a
panel of this court remanded a case for resentencing, in part, because the trial court “failed to
enunciate whether he considered the sentencing principles and all relevant facts and circumstances
as is required.” Because the trial court failed to make a similar enunciation in this case, we believe
our review of the appellant’s sentence should be de novo with no presumption of correctness.

        The dissent notes that Beck preceded Troutman and that Troutman expressly overruled all
cases that are inconsistent with its holding. However, in the our view, Troutman and Beck are not
inconsistent. Troutman provides that a trial court does not have to make findings regarding
misdemeanor sentencing on the record. Beck reiterates that the trial court must nevertheless make
an affirmative showing in the record that it has considered the principles of sentencing and
enhancement and mitigating factors. None of the unpublished cases cited by the dissent specifically
addresses a trial court’s failure to demonstrate that it has considered the principles of sentencing.

        Turning to our de novo review, the appellant contends that no enhancement factors apply in
this case. However, we believe enhancement factor (11), that the appellant “had no hesitation about
committing a crime when the risk to human life was high,” is applicable in light of Tracie
Limbaugh’s testimony that the appellant drove straight toward her and her boyfriend. Tenn. Code
Ann. § 40-35-114(11) (2003); see State v. Philip R. Haven, No. M2001-00332-CCA-R3-CD, 2002
Tenn. Crim. App. LEXIS 588, at *29 (Nashville, July 18, 2002) (stating that enhancement factor (11)
may apply to a DUI sentence when proof exists that other people were in the area or were placed at
risk by the defendant’s conduct). In mitigation, the appellant is entitled to some, albeit slight,
consideration for her lack of a criminal history. Based upon our de novo review, we conclude that
the application of enhancement factor (11) justifies a sentence of five days in confinement.
Therefore, all but five days of the appellant’s sentence should be suspended.

                                        G. Cumulative Errors

        Finally, the appellant claims that the trial court’s cumulative errors warrant the reversal of
her conviction. However, having found that the trial court committed no errors that warrant reversal
of the appellant’s conviction, there is no merit to this claim.


                                                  -13-
                                        III. Conclusion

       Upon review of the record and the parties’ briefs, we affirm the appellant’s conviction for
DUI but conclude that all but five days of her eleven-month and twenty-nine-day sentence should
be suspended. The case is remanded to the trial court for entry of an amended judgment regarding
her time in confinement, but her fine, public service, and driver’s license suspension remain the
same.


                                                     ___________________________________
                                                     NORMA McGEE OGLE, JUDGE




                                              -14-
