         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               Assigned on Briefs July 25, 2001

             STATE OF TENNESSEE v. JANICE CAROL BISKNER

                 Direct Appeal from the Criminal Court for Hamilton County
                 Nos. 227227, 227228, and 228928   Rebecca J. Stern, Judge



                                  No. E2000-01440-CCA-R3-CD
                                       November 13, 2001

Defendant was convicted of driving under the influence (“DUI”), fourth or subsequent offense,
driving while license revoked, and child endangerment. In this appeal, Defendant challenges all
convictions on the ground that the trial court’s refusal to bifurcate the trial proceedings violated her
right to a fair trial. Defendant also argues that recently amended Tennessee Code Annotated section
55-10-403(a)(1) is unconstitutional and that her sentence is excessive. After a review of the record
and applicable law, we reverse Defendant’s convictions and remand this case for a new trial.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed.

THOMAS T. WOODALL , J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.,
and ROBERT W. WEDEMEYER , JJ., joined.

Ardena J. Garth, District Public Defender; William Dobson, Assistant Public Defender; and Donna
R. Miller, Assistant Public Defender, for the appellant, Janice Carol Biskner.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
William H. Cox, III, District Attorney General; Tom Kimball, Assistant District Attorney General;
and Parke Masterson, Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        The defendant, Janice Carol Biskner, was convicted by a Hamilton County jury of child
endangerment, Tenn. Code Ann. § 55-10-414(1), a Class A misdemeanor; driving while license
revoked, Tenn. Code Ann. § 55-50-504, a Class B misdemeanor; and driving under the influence of
an intoxicant (“DUI”), fourth or subsequent offense, Tenn. Code Ann. § 55-10-401, a Class E felony.
The trial court imposed a sentence of eleven months and twenty-nine days for each of Defendant’s
two misdemeanor convictions (an improper sentence for the driving on a revoked license
conviction), a sentence of two years for Defendant’s felony DUI conviction, and ordered all
sentences to be served concurrently for an effective sentence of two years in the Tennessee
Department of Correction.
        On appeal, Defendant raises the following issues: (1) whether the trial court erred by failing
to bifurcate Defendant’s trial proceedings, thereby allowing the jury to hear prejudicial evidence of
Defendant’s prior DUI convictions which compromised her right to a fair trial; (2) whether the recent
amendment to Tennessee Code Annotated section 55-10-403(a)(1), regarding penalties for DUI
convictions, violates the prohibitions against ex post facto laws in our state and federal constitutions;
and (3) whether the trial court erroneously applied sentencing enhancement factors in determining
Defendant’s sentences.

        Based on the recent decision of this Court in State v. Ronnie Lamar Evans, No E2000-00327-
CCA-R9-CD, 2001 WL 501414, Hamilton County (Tenn. Crim. App., Knoxville, May 11, 2001)
no perm. to app. filed, we reverse Defendant’s conviction for felony DUI and remand this matter for
a new trial in which guilt or innocence is determined in a proceeding separate from that which
requires the jury to hear evidence concerning prior DUI convictions. In addition, we reverse
Defendant’s misdemeanor convictions for the reasons stated herein, and, in the event of further
review and/or for guidance on remand, we find that the penalties imposed under the 1998
amendment to Tennessee Code Annotated section 55-10-203(a)(1) do not violate an accused’s
constitutional rights against ex post facto laws and that certain enhancement factors were improperly
applied to Defendant’s felony DUI sentence.

                                   FACTUAL BACKGROUND

         On July 14, 1998, the East Ridge Police Department dispatcher alerted the officers in the
vicinity of the East Ridge movie theater to be on the lookout for a Jeep with a specific license tag
number. Lieutenant Barry Yates was the first to spot the Jeep. It was traveling south on McBrien
Road and, in Yates’ opinion, the Jeep was being driven “erratically.” Once behind the Jeep, Yates
turned on his blue lights and siren in an attempt to pull the vehicle over. The driver appeared
oblivious to his presence, however, and continued driving down McBrien Road. When the Jeep
reached Ringgold Road, it turned right and proceeded to Tombras Avenue. Yates was still following
the Jeep, with the police car siren and blue lights on. When it seemed apparent to Yates that the
driver of the Jeep had no intention of stopping, he radioed for assistance. Lieutenant Butch Bryson,
another East Ridge police patrol officer, responded. The Jeep was traveling at approximately 20
miles per hour when Bryson met Yates on Tombras Avenue. Bryson blocked the road in front of the
Jeep with his police car, which forced the driver into the parking lot at East Ridge City Hall where
it finally came to a stop.

       Officer Yates then approached the Jeep. The Defendant was driving, and her eight-year-old
son was seated on the front seat of the passenger side of the vehicle. Yates noted that Defendant’s
speech was slurred and her clothes were disarranged. The boy appeared frightened and nervous.
Yates went to the passenger side of the car. Meanwhile, Officer Bryson approached the driver’s side
and asked Defendant to step out of the vehicle. Bryson testified that Defendant moved slowly and
seemed to have trouble getting out. Once out of the vehicle, she was unsteady on her feet and unable
to stand without assistance. She also had an odor of alcohol on her person. Based on their
experience, both officers concluded that Defendant was intoxicated.


                                                  -2-
        Yates gave Defendant’s son a ride home, placing him in the care of his adult-age brother.
Bryson attempted to give Defendant several field sobriety tests, but she was unable to follow
Bryson’s instructions while maintaining an upright position. For safety reasons, Bryson then
dispensed with further testing and arrested her for driving under the influence of alcohol. Arriving
at the police department, Defendant voluntarily signed an implied consent form wherein she agreed
to submit to a test to determine the alcohol content in her blood. Using an Intoximeter 3000 “EC/IR”
machine, Bryson administered a breath alcohol test, which determined Defendant’s blood alcohol
content to be 0.27. A check on the status of Defendant’s driver’s license revealed that she had been
driving with a revoked license at the time of this DUI offense.

         Prior to her trial, Defendant filed a motion in limine requesting, inter alia, that the trial court
prohibit the State from referring to Defendant’s prior DUI convictions during the trial. Defendant
argued that, under Tennessee Evidence Rule 403, this evidence should be considered inadmissible
because the unfair prejudice outweighed any probative value. In the alternative, Defendant requested
that the trial court bifurcate the trial proceedings to withhold evidence of prior DUI convictions until
the jury had made a determination concerning Defendant’s guilt or innocence.

        The trial court denied Defendant’s motion on the ground that proof of prior DUI convictions
constituted an element of felony DUI. The trial court suggested that the proof might be less
prejudicial if the State and Defendant stipulated as to Defendant’s prior DUI convictions, a brief
summary of which could be read into evidence at trial. On the condition that she may reserve the
issue for appeal, Defendant agreed. The resulting stipulation read at trial informed the jurors that
Defendant had two previous convictions for driving under the influence of an intoxicant in Hamilton
County; one conviction in East Ridge, Tennessee; and one conviction in Fort Oglethorpe, Georgia.
The jury was cautioned that the stipulation should be used only as proof of an element of the offense
charged, to wit: the element requiring proof that Defendant had three or more DUI convictions,
which enhanced Defendant’s DUI offense from a misdemeanor to a Class E felony.

                                              ANALYSIS

                                 I. Bifurcation of Trial Proceedings

       Defendant contends that the trial court erred by failing to bifurcate Defendant’s trial
proceedings to withhold evidence of prior DUI convictions until the jury had made a determination
concerning Defendant’s guilt or innocence for the felony DUI offense. Defendant argues that,
because bifurcation was necessary to avoid the possibility of prejudice and preserve her right to
procedural fairness, this Court should reverse all convictions and grant her a new trial with bifurcated
proceedings. After a thorough review of the record, we agree and reverse Defendant’s convictions.

        A. Defendant’s Felony DUI Conviction
       In its brief, the State acknowledges that the trial court erred in refusing to bifurcate
Defendant’s trial for the felony DUI offense. On April 23, 2001, Defendant and the State filed a
joint motion to hold this appeal in abeyance pending the decision in State v. Ronnie Lamar Evans,

                                                    -3-
No E2000-00327-CCA-R9-CD, 2001 WL 501414, Hamilton County (Tenn. Crim. App., Knoxville,
May 11, 2001), no perm. to app. filed, which addressed this precise issue. The motion to stay
Defendant’s appeal was granted the same day. On May 11, 2001, this Court decided Evans, which
we agree is dispositive of the matter regarding Defendant’s felony DUI conviction.

          In Evans, the defendant was charged with DUI, fourth offense. Prior to trial, a dispute arose
concerning whether the defendant’s prior DUI convictions were indeed elements of the charged
offense that must be proven during trial, or whether this evidence was more appropriately brought
before a jury during a second “enhancement” phase after guilt had been determined. The state
pointed out that there was a need for consistency in the law regarding this issue because not all courts
bifurcated proceedings of this type. This Court granted the state’s application for an interlocutory
appeal which addressed, inter alia, (1) whether prior DUI convictions should be used only to enhance
a sentence and are, therefore, not elements of DUI, fourth offense; and (2) whether a felony DUI trial
should be bifurcated into separate phases as required by Tennessee Code Annotated section 40-35-
203(e). As a result of the supreme court’s decision in State v. Robinson, 29 S.W.3d 476 (Tenn.
2000), the Evans court concluded that a DUI, second or subsequent offense, does not constitute a
new offense but merely enhances the DUI conviction and, further, that in situations such as these,
the trial court should bifurcate the proceedings to minimize prejudice to the defendant. See Evans,
2001 WL 501414 at *2.

        Evans requires a bifurcated hearing in order to provide procedural fairness. See Harrison v.
State, 394 S.W.2d 713, 717 (Tenn. 1965). We therefore reverse Defendant’s felony DUI conviction
and remand this matter for a new trial in which guilt or innocence is determined in a proceeding
separate from that which requires the jury to hear evidence concerning prior DUI convictions.

        B. Defendant’s Misdemeanor Convictions
        Having decided that the proof of prior DUI convictions unfairly compromised Defendant’s
right to a fair trial on the felony DUI offense, it is neither reasonable or logical to conclude that the
same evidence had no effect on the jury’s determination of guilt for the misdemeanor offenses.
Because the proof of Defendant’s four DUI convictions was not relevant to any issue regarding
whether or not she was guilty of driving with a revoked license and child endangerment, it was error
to admit evidence regarding these convictions. See Tenn. R. Evid. 402. The error was not harmless.
Therefore, we also reverse the convictions for driving on a revoked license and child endangerment,
and remand these cases for a new trial. See Tenn. R. App. P. 36(b).

         Even though we have reversed Defendant’s convictions, errors noted during our review of
the record compel us to address additional issues concerning Defendant’s conviction for driving
while her license was revoked. Specifically, the indictment was erroneously considered as charging
driving on a revoked license, second offense, a Class A misdemeanor, and the jury instructions
regarding this charge were also erroneous.

        Because the issues concerning the errors we shall discuss were not raised in the briefs of
either party nor included in Defendant’s motion for new trial, we address these issues under the
doctrine of “plain error,” which provides that “[a]n error which has affected the substantial rights

                                                  -4-
of an accused may be noticed at any time, even though not raised in the motion for a new trial or
assigned as error on appeal, in the discretion of the appellate court where necessary to do substantial
justice.” Tenn. R. Crim. Pro. 52(b).

        In State v. Adkisson, 899 S.W.2d 626 (Tenn. Crim. App. 1994), this Court developed five
factors to consider when deciding whether an error constitutes “plain error”: “(a) the record must
clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have
been breached; (c) a substantial right of the accused must have been adversely affected; (d) the
accused did not waive the issue for tactical reasons; and (e) consideration of the error is ‘necessary
to do substantial justice.’” Id. at 641-42.

        This test was formally adopted by our supreme court in State v. Smith, 24 S.W.3d 274 (Tenn.
2000) for use when reviewing a record for plain error. Id. at 282-283. The presence of all five
factors must be established by the record before the existence of plain error may be recognized, id.
at 283, and the “‘plain error’ must [have been] of such a great magnitude that it probably changed
the outcome of the trial.” Adkisson, 899 S.W.2d at 642. See also Tenn. R. App. P. 13(b) (providing
an appellate court with wide discretion in recognizing issues that have been waived due to a
procedural default or which have not been raised by the parties). For reasons which shall become
apparent later in this opinion, we find that the record establishes the presence of the five requisite
factors enumerated supra.

        First, we observe that the indictment includes no allegations that the driving on a revoked
license charge was a second or subsequent offense. Although the heading on the first page of the
indictment lists this charge as a “Class A Misdemeanor” and “second offense,” the charging portion
of the indictment, which lists the elements of the offense and informs the defendant of the specific
charge against which she must defend, alleges a “Class B” misdemeanor. Specifically, the
indictment states

               That Janice Carol Biskner heretofore on July 14, 1998, in the County
       aforesaid, did unlawfully and knowingly drive and operate a motor vehicle upon the
       public roads, highways, streets or alleys of said County and State after the
       defendant’s operators [sic] license had been revoked as provided by law, for a second
       or subsequent conviction for driving while intoxicated under Tennessee Code
       Annotated 55-10-401, and after the defendant had been notified of such revocation,
       in violation of Tennessee Code Annotated 55-50-504, against the peace and dignity
       of the State.

(Emphasis added.)
        According to the language in this indictment, Defendant may be convicted only for driving
while license revoked, first offense, a Class B misdemeanor. In order to convict Defendant for
driving while license revoked as a Class A misdemeanor offense, the indictment must allege, in a
separate count, that the current violation was “a second or subsequent” offense. See Tenn. Code
Ann. § 40-35-203(e) (1997). Here, no count of the indictment alleged a prior conviction for driving



                                                 -5-
with a revoked license. Tennessee Code Annotated section 55-50-504(a)(2) specifically provides
that

                 A second or subsequent violation of subdivision (a)(1) is a Class A
        misdemeanor. A person who drives a motor vehicle on any public highway of this
        state at a time when the person's privilege to do so is cancelled, suspended or revoked
        because of a second or subsequent conviction for vehicular assault under §
        39-13-106, vehicular homicide under § 39-13-213, or driving while intoxicated under
        § 55-10-401 shall be punished by confinement for not less than forty-five (45) days
        nor more than one (1) year, and there may be imposed, in addition, a fine of not less
        than three thousand dollars ($3,000).

Tenn. Code Ann. §55-50-504(a)(2) (1998) (emphasis added). Subdivision (a)(1) is the statute
section defining first offense “driving while license cancelled, suspended, or revoked,” a Class B
misdemeanor, and states, in pertinent part, that “a person who drives a motor vehicle on any public
highway of this state at a time when the person’s privilege to do so is cancelled, suspended, or
revoked commits a Class B misdemeanor.” Tenn. Code Ann. § 55-50-504(a)(1) (1998).

        The treatment of this case as a Class A misdemeanor was apparently the result of a
misinterpretation of Tennessee Code Annotated section 55-50-504(a)(2) by the trial court, the State,
and Defendant. When required to interpret a statute on appeal, our rules of statutory construction
require this Court to ascertain and give effect to the legislative intent without unduly restricting or
expanding the intended scope of a statute. Seals v. State, 23 S.W.3d 272, 276 (Tenn. 2000). We
examine the natural and ordinary meaning of the statutory language within the context of the entire
statute, without forced or subtle construction that would extend or limit its meaning. State v.
Flemming, 19 S.W.3d 195, 197 (Tenn. 2000). Where an ambiguity exists in the statutory language,
we must look to the entire statutory scheme in seeking to ascertain the true legislative intent, Owens
v. State, 908 S.W.2d 923, 926 (Tenn. 1995), and avoid a statutory construction which would render
portions of the statute inoperative. State v. Turner, 913 S.W.2d 158, 160 (Tenn. 1995). In addition,
criminal statutes are to be strictly construed against the State and in favor of the defendant. State v.
Alford, 970 S.W.2d 944, 947 (Tenn. 1998); State v. Bobo, 727 S.W.2d 945, 952 (Tenn. 1987).
        We find the language in Tennessee Code Annotated section 55-50-504(a)(2) clearly states
that to find a defendant guilty of driving while license revoked as a Class A misdemeanor, the
offense must be a “second or subsequent violation.” The indictment does not allege a second or
subsequent violation. Rather, it paraphrases the statutory language from the second sentence of
section (a)(2) above, which merely provides a minimum punishment of forty-five (45) days when
a defendant is convicted of the Class A misdemeanor offense under certain circumstances, i.e., at a
time when the person’s privilege to do so was cancelled, suspended or revoked because of a second
or subsequent conviction for one of the offenses specified.

        In addition, we find that the trial court erred when it gave the following instructions to the
jury:




                                                  -6-
               For you to find the defendant guilty of driving on revoked, suspended or
       cancelled license as a Class A misdemeanor, the State must have proven beyond a
       reasonable doubt the following:
               (1) The defendant unlawfully drove a vehicle upon a public road, highway,
       street or alley of this county and state, and
               (2) The defendant did so at a time when her license or privilege to do so had
       been suspended, cancelled, or revoked for a second or subsequent conviction for
       driving while intoxicated and after the defendant had been notified of such
       revocation, and
               (3) The defendant did so knowingly.
                                               *     *       *
               For you to find the defendant guilty of driving on revoked, suspended or
       cancelled license as a Class B misdemeanor, the State must have proven beyond a
       reasonable doubt the following:
               (1) The defendant unlawfully drove a vehicle upon a public road, highway,
       street or alley of this state and county, and
               (2) The defendant did so at a time when her license or privilege to do so had
       been suspended, cancelled, or revoked, and
               (3) The defendant did so knowingly.

        The jury charge given the jury concerning the Class A misdemeanor grade of driving while
license revoked is incorrect. It erroneously required the jury to make an unnecessary finding--that
the revocation of Defendant’s license was for a second or subsequent conviction for driving while
intoxicated--with language substantively similar to the allegations in the indictment which, as
discussed above, was incorrect, and therefore not a proper jury instruction.

         “A charge should be considered prejudicially erroneous if it fails to fairly submit the legal
issues or if it misleads the jury as to the applicable law.” State v. Vann, 976 S.W.2d 93, 101 (Tenn.
1998 ) (citations omitted). Since the above jury instruction clearly failed to do both, we consider the
jury charge regarding the offense of driving while license revoked to be prejudicially erroneous.

        In sum, we find that introducing proof of Defendant’s prior criminal convictions during her
trial caused unfair prejudice as to all three charges, and thereby denied Defendant the procedural
fairness she is entitled to under the law. Therefore, we reverse Defendant’s convictions and remand
these matters for a new trial with proceedings consistent this opinion. The charge for driving on a
revoked license is, as alleged in the indictment, a Class B misdemeanor and shall be tried
accordingly.

           II. Violation of Constitutional Prohibitions Against Ex Post Facto Laws

       Defendant also contends that the 1998 amendment to Tennessee Code Annotated section 55-
10-403(a)(1), regarding penalties for DUI convictions, violates state and federal constitutional
prohibitions against ex post facto laws in two respects which involve Defendant’s right to notice.



                                                 -7-
Even though Defendant’s felony conviction is reversed and remanded, we shall address these issues
in the event of further review or for guidance on remand.

        Defendant’s first argument relies on a notice she received shortly after she was convicted of
DUI in April 1994, which informed her that any subsequent DUI offense would be punishable by
confinement for not less than 120 days nor more than 11 months and 29 days. See Tenn. Code Ann.
§ 55-10-403(a)(1) (1993). Confinement for this length of time (less than one year) is consistent with
punishment for misdemeanor offenses. However, in 1998, prior to the instant DUI offense, the
legislature amended section 55-10-403(a)(1) to provide, among other things, that a fourth or
subsequent DUI offense shall be a Class E felony. See Tenn. Code Ann. § 55-10-403(a)(1) (1998)
(the amended statute also increases the period of mandatory incarceration and the fine for fourth and
subsequent offenses). Defendant contends that the statute, as amended, violates constitutional
prohibitions against ex post facto laws because it rendered the information in her 1994 notice of
enhancement “incorrect.” Defendant further argues that, even if she had not received the 1994
notification regarding subsequent offenses, the current statute does not apply in her case because,
according to the provision, “at least one (1) of the violations of § 55-10-401 must occur on or after
July 1, 1998.” Defendant asserts that this language must refer to prior violations, not the triggering
offense, in order to satisfy ex post facto requirements regarding notice. We disagree.

        Both the United States Constitution, in Article I, Sections 9 and 10, and the Tennessee
Constitution, in Article I, Section 11, contain prohibitions against the passage of ex post facto laws
by Congress or the General Assembly. State v. Rogers, 992 S.W.2d 393, 401-402 (Tenn. 1999). An
ex post facto law within the meaning of the federal and state constitutions has been defined as one
that

       makes an action done before the passing of the law, and which was innocent when
       done, criminal; and punishes such action. Second, every law that aggravates a crime,
       or makes it greater than it was, when committed. Third, every law that changes the
       punishment, and inflicts a greater punishment, than the law annexed to the crime,
       when committed. Fourth, every law that alters the legal rules of evidence, and
       receives less, or different, testimony, than the law required at the time of the
       commission of the offense, in order to convict the offender.

Id. (citations omitted). The United States Supreme Court has similarly held that this prohibition “is
aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal
acts.” California Dept. of Corrections v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 1601, 131
L.Ed.2d 588 (1995) (citations omitted) (emphasis added). Clearly, the ex post facto clauses in our
constitutions forbid enacting laws which alter definitions and/or elements of crimes or increase their
punishment at a point in time after the offense has been committed.

        Regarding Defendant’s first argument that the amended statute violates prohibitions against
ex post facto laws because it rendered the information in her 1994 notice “incorrect,” we find that
the analysis used by this Court in State v. Johnson, 970 S.W.2d 500 (Tenn. Crim. App. 1996) is
helpful. In Johnson, the defendant challenged his classification and sentencing as a multiple rapist
on the ground that his guilty plea to a 1988 prior offense of rape was entered before the “multiple

                                                 -8-
rapist” statute was enacted. See Tenn. Code Ann. § 39-13-523 (1997). Accordingly, he contended
that he was not provided with notice of the possibility of enhanced sentencing if convicted in the
future of the same offense and, therefore, the subsequently enacted multiple rapist statute operated
ex post facto against him by inflicting a greater punishment than that contemplated when the first
offense was committed. Id. at 505. The court in Johnson found, inter alia, that penalty enhancing
statutes affect only the sentence for the triggering offense and, thus, do not impermissibly punish
prior acts. Id. (citing Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948)
(“the fact that one of the convictions that entered into the calculations by which petitioner became
a fourth offender occurred before the Act was passed, [does not] make the Act invalidly
retroactive”)). In other words, because the enhanced punishment in Johnson was for the latest crime
alone, the statute in issue did not operate ex post facto against him. See also State v. Williams, 675
S.W.2d 499, 502 (Tenn. Crim. App. 1984) (enhanced punishment laws, e.g., habitual criminal
statutes, are not ex post facto laws, nor do they violate an accused’s due process or equal protection
rights).

         The same reasoning applies in the case sub judice. The statute in issue is clearly a penalty
enhancing statute. As such, it does not affect the punishment for any offense prior to its enactment,
which means that it also fails to violate constitutional prohibitions against ex post facto laws.
Defendant’s 1994 notice was accurate when she received it and does not operate to freeze the law
regarding the related offense, in effect, voiding subsequent legislation regarding future crimes. Such
a rule is neither reasonable or logical.

       Defendant’s contention that the enhancing statute does not apply because her prior DUI
convictions all occurred before July 1, 1998 is likewise without merit. This precise issue was
decided in State v. Charles R. Francis, No. E2000-02599-CCA-R3-CD, 2001 WL 1091169, Morgan
County (Tenn. Crim. App., Knoxville, Sept. 19, 2001), when this Court addressed the very narrow
and specific issue of whether a fourth offense felony DUI conviction, pursuant to Tennessee Code
Annotated section 55-10-403(a(1), required that at least one of the defendant’s prior DUI convictions
occur after July 1, 1998. After reviewing the amended statute’s language in light of our laws
concerning statutory construction, we held that only the fourth or subsequent offense was required
to occur on or after July 1, 1998. See id. at *3. Defendant is not entitled to relief on this issue.

                                          III. Sentencing

        Defendant also contends that the trial court erred by applying certain enhancement factors
when determining Defendant’s sentence and, further, that this error caused it to impose the
maximum sentence which is excessive. Even though we have reversed Defendant’s convictions, we
shall address the sentencing issue in the event of further review or for guidance on remand, if
necessary.

        Appellate review of sentencing is de novo on the record with a presumption that the trial
court's determinations are correct. Tenn. Code Ann. §§ 40-35-401(d), 402(d). The burden is on the
appealing party to show that the sentencing is improper. Id. § 40-35-401, Sentencing Commission
Comments. If the trial court followed the statutory sentencing procedure, made findings of fact that
are adequately supported in the record, and gave due consideration and proper weight to the factors

                                                 -9-
and principles relevant to sentencing under the 1989 Sentencing Act, we may not disturb the
sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.
Crim. App. 1991). Here, the record reflects that the trial court considered the sentencing principles
and all relevant evidence, but inappropriately applied enhancement factors to Defendant’s sentence
for felony DUI. Therefore, our review is de novo without a presumption of correctness.

         The trial court imposed sentences of eleven months and twenty-nine days for Defendant’s
Class A misdemeanor convictions for child endangerment and driving while license revoked, and
a sentence of two years for Defendant’s felony DUI conviction. The trial court also denied any form
of alternative sentencing and ordered that all sentences be served concurrently, for an effective
sentence of two years confinement. In determining the length of Defendant’s sentences, the record
reveals that the trial court used enhancement factor (1), “[t]he defendant has a previous history of
criminal convictions or criminal behavior in addition to those necessary to establish the appropriate
range,” to enhance the sentences for all three convictions; enhancement factor (15), “[t]he defendant
abused a position of public or private trust, or used a special skill in a manner that significantly
facilitated the commission or the fulfillment of the offense,” to enhance Defendant’s sentences for
child endangerment and felony DUI; and enhancement factors (10) and (16), applicable when “[t]he
defendant had no hesitation about committing a crime when the risk to human life was high,” and
“[t]he crime was committed under circumstances under which the potential for bodily injury to a
victim was great,” respectively, to enhance Defendant’s sentence for felony DUI. Tenn. Code Ann.
§ 40-35-114(1), (10), (15), and (16) (1997).

       A. Enhancement Factor (1)

        Defendant first argues that enhancement factor (1), requiring the defendant have “a previous
history of criminal convictions or criminal behavior in addition to those necessary to establish the
appropriate range” for the offense, Tenn. Code Ann. § 40-35-114(1), is inapplicable to her felony
DUI offense. She contends that, because the prior convictions were already used to enhance the
offense from a misdemeanor to a felony classification, using them to also enhance the length of her
sentence constitutes “double enhancement,” which is precluded by law.

        It appears that Defendant is confusing the considerations necessary to determine her sentence
range classification with the length of her sentence within the range. Defendant was sentenced as
a Range I standard offender. A “standard offender” is defined as “a defendant not sentenced as (1)
[a] multiple offender as defined by § 40-35-106; (2) [a] persistent offender as defined by §
40-35-107; (3) [a] career offender as defined by § 40-35-108; (4) [a]n especially mitigated offender
as defined by § 40-35-109; or (5) [a] repeat violent offender as defined by § 40-35-120.” See Tenn.
Code Ann. § 40-35-105 (1997). Since the requirements for sentencing as a multiple, persistent,
career or repeat violent offender all involve consideration of only prior felony convictions, it
becomes evident that none of Defendant’s prior misdemeanor DUI convictions were used to
establish the “appropriate range” for Defendant’s sentence.

        Notwithstanding this fact, an enhancement factor may not be used to enhance a sentence
within the range if the proof used to establish the factor was used to also prove the offense. State
v. Jones, 883 S.W.2d 597 (Tenn. 1994). Thus, because the proof necessary to convict Defendant of

                                                -10-
the felony DUI offense required the State to show Defendant’s criminal record contained a minimum
of three prior DUI convictions, these may not be used to enhance Defendant’s sentence. Defendant
has four prior convictions, however, and the fourth is therefore applicable to establish the
enhancement factor.

       B. Enhancement Factor (15)

        Defendant also contends that enhancement factor (15), applicable when the defendant abused
a position of public or private trust, was improperly applied to her sentences for child endangerment
and felony DUI. In general, application of this factor requires a finding, first, that defendant
occupied a position of trust, either public or private. See State v. Kissinger, 922 S.W.2d 482, 488
(Tenn. 1996). The position of parent, step-parent, babysitter, teacher, coach are examples, see id.,
and there is no doubt that Defendant, as the parent, is properly placed into this category. Whether
or not a position of trust exists also turns upon the nature of the relationship, namely, whether the
offender occupied a position that promoted confidence, reliability, or faith. If the evidence supports
that finding, then the court must determine whether the position occupied was also abused by the
commission of the offense. Id.

        With regard to the sentence for child endangerment, we find that Defendant, as the child’s
mother, occupied a position of trust which she abused when she drove her vehicle in an extremely
intoxicated state with her child in the car. We have little doubt that the child would not have been
riding in the Jeep with Defendant and, consequently, would not have been endangered but for the
fact that she was his mother. Consideration of this factor might only be prohibited if the proof used
to establish the abuse of trust also proved an element of the offense of child endangerment. The
offense of misdemeanor child endangerment is committed by a person who violates Tennessee Code
Annotated § 55-10-401 (“Driving under the influence of an intoxicant”) while accompanied by a
child under thirteen years of age. See Tenn. Code Ann. § 55-10-414(1) (1998). Since it is not
necessary to prove that Defendant abused her position as the child’s mother to establish the offense,
factor (15) may be considered in determining the sentence for child endangerment in Defendant’s
case. See State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998) (contrary to felony sentencing
determinations which require the court to place on record what enhancement or mitigating factors
it found, the misdemeanor sentencing statute requires a trial judge to merely consider enhancement
and mitigating factors).

        Defendant contends that enhancement factor (15) is inapplicable to her sentence for felony
DUI because her abuse of a position of trust was also the basis for her conviction of child
endangerment. We agree that this factor does not apply to her sentence for felony DUI, but for
reasons other than that given by Defendant. Enhancement factor (15) is generally applied in
circumstances where the defendant used his or her position of trust to facilitate the commission of
the offense. See State v. Franklin, 919 S.W.2d 362, 366 (Tenn. Crim. App. 1995); State v. Harris,
866 S.W.2d 583, 588 (Tenn. Crim. App. 1992). Nothing in the record supports this finding.
Consequently, factor (15) does not apply to Defendant’s sentence for the felony DUI conviction.

       C. Enhancement Factors (10) and (16)


                                                -11-
        Finally, Defendant argues that the trial court erred when it used enhancement factors (10) and
(16) to enhance her sentence for felony DUI. Enhancement factor (10) is applicable when the proof
shows that the defendant exhibited no hesitation about committing a crime when the risk to human
life was high, and factor (16) is applicable when the potential for bodily injury to a victim was great.
Specifically, Defendant contends that these factors cannot be applied because (1) the criminal
conduct necessary to prove them also proved her conviction for child endangerment, (2) the court
may only consider harm to the victim when determining whether these factors apply, and (3)
enhancement factors (10) and (16) may not be applied together. For the reasons following, we find
that factors (10) and (16) were inappropriately applied to enhance her sentence for felony DUI.

        It might seem appropriate to apply factor (10) to Defendant’s sentence for felony DUI. It is
well-settled that enhancement factor (10) may be applied in situations where the defendant’s conduct
created a high risk to a person or persons other than the victim, even when an essential element of
the offense requires proof of a risk of death or serious bodily injury, if the proof used to establish
factor (10) can be separated from those facts necessary to prove the offense. See State v. Bingham,
910 S.W.2d 448, 452 (Tenn. Crim. App. 1995); State v. Ruane, 912 S.W.2d 766, 784 (Tenn. Crim.
App. 1995); State v. Johnson, 909 S.W.2d 461, 464 n.1 (Tenn. Crim. App. 1995); cf. State v. Butler,
900 S.W.2d 305, 314 (Tenn. Crim. App. 1994) (holding that factor (10) should not be applied unless
persons other than the victim are at risk). Clearly, proof which would establish factor (10) would
not be necessary to also prove the offense. Defendant’s conduct created a substantial risk to the life
of any persons that might be in the path of her Jeep, as well as that of her son, the passenger.
Nevertheless, factor (10) may not be applied to Defendant’s felony DUI sentence for the following
reasons.

        First, we note that factor (10) is inapplicable predicated on the risk to Defendant’s son
because this was the precise ground for her separate conviction of child endangerment. See, e.g.
State v. James Edwin Harber, No. W2000-00462-CCA-R3-CD, 2000 WL 1876601 at **4, Crockett
County (Tenn. Crim. App., Jackson, Dec. 27, 2000) no perm. to app. filed (where defendant was
separately convicted of reckless endangerment based on the risk of harm to the passengers in the
vehicle with him at the time of his accident, factor (10) could not be applied to enhance his sentence
for vehicular homicide); State v. Ricky Williams, No. E1999-00344-CCA-R3-CD, 2000 WL 772748
at *3, Cocke County (Tenn. Crim. App., Knoxville, June 15, 2000) no perm. to app. filed
(application of factor (10), based on risk to children in house, was inappropriately applied to reckless
homicide conviction where defendant received separate reckless endangerment conviction for risk
caused to children).

        Application of factor (10) based on a risk Defendant created to persons other than her child
is also precluded in this case. Granted, the use of factor (10) in DUI and similar cases has been
upheld on numerous occasions by this Court where the defendant’s dangerous use of a vehicle
created a danger to other motorists on the same roadway. See Bingham, 910 S.W.2d at 453 (factor
(10) applicable to sentence for vehicular homicide where defendant crossed four lanes of traffic on
a major highway); State v. Williamson, 919 S.W.2d 69, 83 (Tenn. Crim. App. 1995) (factor (10) was
appropriate where defendant drove her car while intoxicated on Labor Day when a higher number
of people use the road); Harber, 2000 WL 1876601 at **4 (factor (10) applicable to sentence for
vehicular homicide where defendant ran a stop sign with the vehicle’s lights off and headed into the

                                                 -12-
path of an oncoming car); State v. Mark Summers, No. 03C01-9606-CR-00235, 1997 WL 785677,
Hamilton County (Tenn. Crim. App., Knoxville, Dec. 4, 1997) perm. to app. denied (Tenn. 1998)
(where appellant drove while intoxicated, crossing into oncoming traffic and traveling at a high rate
of speed, he presented a considerable danger which warranted application of factor (10)); State v.
Jerry Douglas Franklin, No. 01C01-9510-CR-00348, 1997 WL 83772, Davidson County (Tenn.
Crim. App., Nashville, Feb. 28, 1997) perm. to app. denied (Tenn. 1997) (factor (10) applicable
where defendant drove twenty miles over the speed limit on rural two-lane road and potential for
crossing center line placed other drivers at great risk). We have also recognized that “some activities
by their very nature cause high risk to human life,” and specifically identified “driving on a busy
street under the influence of an intoxicant” as a prime example. State v. Jones, 883 S.W.2d 597, 603
(Tenn. Crim. App. 1994). However, factor (10) cannot be applied based on a high risk to life of
persons other than the victim(s) absent some proof that the danger existed. See Bingham, 910
S.W.2d at 453 (although the defendant was driving very early in the morning, factor (10) was
applicable where the record established that she encountered at least two other automobiles); cf.
State v. John D. Neblett, No. 01C01-9805-CC-00231, 1999 WL 743633 (Tenn. Crim. App.,
Nashville, Sept. 24, 1999) perm. to app. denied (Tenn. 2000) (trial court erroneously applied factor
(10) where incident giving rise to aggravated vehicular homicide conviction took place at
intersection of a state highway, but the record was silent as to whether other motorists were actually
present); State v. David T. Jones, No. 01C01-9710-CC-00445, 1998 WL 917810, Hickman County
(Tenn. Crim. App., Nashville, Dec. 21, 1998) no perm. to app. filed (factor (10) erroneously applied
because the record did not establish that other persons were actually threatened by the defendant’s
conduct). Facts relevant to sentencing must be established by a preponderance of the evidence–mere
conjecture will not suffice. See State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000). Because the
record as it presently exists in the case sub judice does not contain any proof that other persons or
motorists were either in the vicinity or placed at risk by Defendant’s conduct, factor (10) was
inapplicable to her felony DUI sentence. We may not assume that risk existed in the absence of any
facts in the record.

        At one time, factor (16) was also considered applicable, even when risk of bodily injury was
an element of the offense, under circumstances where the defendant’s conduct created a risk of
bodily injury to persons other than the named victim of that particular offense. See State v. Sims,
909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). This holding was subsequently called into doubt by
our decision in State v. Charles Justin Osborne, No. 01C01-9806-CC-00246, 1999 WL 298220 at
*3 (Tenn. Crim. App., Nashville, May 12, 1999), which found that Sims had been implicitly rejected
by State v. Bingham, 910 S.W.2d 448 (Tenn. Crim. App. 1995) (“Bingham . . . distinguishes
between enhancement factors (10) and (16) in that factor (10) may be supported by risk to persons
other than a victim of the convicted offense while factor (16) may not”). This issue does not require
us to resolve the inconsistent application of factor (16) within this Court. Factor (16) is not
applicable to Defendant’s sentence for felony DUI because she was separately convicted for the
danger to her child, and the record contains no proof of any other victims.

        In conclusion, our review reveals that enhancement factors (10), (15), and (16), were applied
in error to Defendant’s felony DUI sentence, which leaves factor (1) as the sole factor properly
applicable to enhance Defendant’s felony conviction based upon the facts in this record.


                                                 -13-
         As a final matter, we observe that the judgment forms pertaining to Defendant’s convictions
for DUI and driving while license revoked reflected the proper statute section numbers but failed to
indicate whether the convictions were a felony or misdemeanor and what class of offense the
Defendant was convicted of. Whenever a judgment is filed, it should reflect whether the conviction
is for a felony or a misdemeanor, as well as the appropriate “class” of the offense.

                                          CONCLUSION

         For the foregoing reasons, we reverse Defendant’s convictions and remand these matters for
a new trial. We hold that when a defendant is charged with driving under the influence of an
intoxicant (“DUI”), fourth or subsequent offense, Tenn. Code Ann. § 55-10-401, a Class E felony,
guilt or innocence must be determined in a proceeding separate from that which requires the jury to
hear evidence concerning prior DUI convictions, and we find that it was also reversible error to allow
proof of Defendant’s prior DUI convictions during her trial on the charges of child endangerment
and driving on a revoked license. We also hold that penalties imposed under the 1998 amendment
to Tennessee Code Annotated section 55-10-203(a)(1) do not violate an accused’s constitutional
rights against ex post facto laws. Finally, upon remand, the charge of driving on a revoked license
shall be treated as a Class B misdemeanor.


                                                       ____________________________________
                                                       THOMAS T. WOODALL, JUDGE




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